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14 September 2016

Environmental clearance - Requirement of public consultation, mandatory

An appeal was brought before the Supreme Court challenging the order passed by the High Court which had set aside the environmental clearance granted to the appellant in the year 2010 (“EC”) for expansion of its steel plant on the ground that the said EC was granted relying on the public consultation carried out earlier in the year 2007; and that no fresh public consultation had been done for the latest expansion of the steel plant of the appellant.
By way of background, the environmental impact assessment notification of 2006, issued by the Ministry of Environment and Forests mandates an environmental clearance for carrying out any sort of modernization and expansion of an existing plant. Typically, an environmental clearance process comprises of the following stages: (1) screening, (2) scoping, (3) public consultation and (4) appraisal.

In the present case of Electrotherm (India) Ltd. v. Patel Vipulkumar Ramjibhai., environmental clearance was granted to the appellant without complying with the mandatory requirement of conducting a public consultation. The High Court of Gujarat, on a special civil application, filed in public interest, held that the environmental clearance was invalid since the obligatory requirement of conducting a public hearing/ consultation before granting the EC was not met. It further directed that all operations of the steel plant shall be closed down till fresh environmental clearance has been accorded.
 
The Supreme Court, however, in an appeal against the High Court Order, after receiving the report of the Central Pollution Control Board (“CPCB”), observed that an exemption from conducting public consultation could not be permitted for any applicant since the purpose of public consultation was to serve as a forum for the general public to seek redressal of his/ her grievances with regard to the said expansion. It was held that public consultation/ public hearing is one of the important stages while considering the matter for grant of an environmental clearance.
 
However, in view of the fact that the CPCB’s recommendations were complied with by the appellant, before undertaking expansion, the Supreme Court held that the interest of justice would be subserved if that part of the decision exempting public consultation/ public hearing is set aside and the matter is relegated back to the concerned authorities to effectuate public consultation/public hearing. The Supreme Court on 2-8-2016 had further held that closure of the steel plant till fresh environmental clearance is granted would not be a viable practicable solution in light of the fact that the industry had started functioning and operations were in full swing. In the peculiar facts of the case and in order to meet ends of justice, Court found it appropriate to change the nature of requirement of public consultation/public hearing from pre-decisional to post-decisional and held that if the public consultation/public hearing results in a negative mandate against the expansion of the project, the authorities would do well to direct and ensure scaling down of the activities to the level that was permitted by environmental clearance granted earlier.