The Central government recently petitioned the Supreme Court to set aside an order of the Bombay high court granting a stay on permitting any post facto clearances to large projects in Coastal Regulation Zone (CRZ) areas that lack the mandatory prior green nod. The HC order that the Centre seeks to challenge was passed on May 7, 2021.
The Centre filed its special leave petition (SLP) over 400 days later, said a non-governmental organisation (NGO) Vanashakti on whose public interest litigation (PIL) the HC had passed the stay order.
The PIL had challenged a February 19, 2021 office memorandum or “OM” issued by the ministry of environment, forest and climate change, Government of India, setting out a process to grant post facto (after the project has come up) CRZ clearance. The PIL said such post facto nod would undermine the law of needing prior CRZ clearances and will regularise such illegal constructions.
The Centre, represented by Solicitor General of India Tushar Mehta, sought urgent listing of the petition before the apex court on Friday, citing “the national importance of the matter.”
The Centre said there is grave urgency in the matter as “almost 500 projects of national importance have been unduly affected because of the stay.” It also said the ministry’s “OM neither seeks to nor dilutes the requirement of ‘prior approval.'”
The SC is expected to hear the matter on Monday, tagged with a similar matter filed by GAIL (India) against an order of the National Green Tribunal (NGT).
There is a common question of law, the Centre said, citing precedents that call on courts to be “extremely reluctant to pass adverse interim orders” or stay even delegated legislation or rules.
The SLP said there had not been any subsequent hearings before the HC for almost a year and the stay order was passed without even hearing its stand.
The object of the OM is to “regulate and grant ex-post facto CRZ clearance” to projects which had commenced without obtaining prior CRZ clearance, to bring under compliance in an expedient manner parties who were flouting the law. The OM’s aim is to protect and improve the quality of coastal environment and “abating coastal environmental pollution,” the Centre said.
The MoEFCC said it received several requests from coastal state governments to consider CRZ clearances for “permissible activities” that commenced sans prior nod due to “inadequate knowledge of regulatory regime and other factors.” To bring such projects under compliance with environmental laws at the earliest is essential, rather than leaving them unregulated and unchecked, it said.
In 2022, the SC upheld the principle of ex post facto environmental clearance, said the Centre’s SLP citing D Swamy vs Karnataka State Pollution Control Board order.