The Supreme Court on Wednesday reserved judgment in the plea filed by Vanashakti challenging the regime permitting post-facto environmental clearances under the impugned Office Memoranda. A bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi was hearing a batch of writ petitions arising from the Court’s earlier decision recalling its order that had prohibited retrospective environmental approvals.

Additional Solicitor General Aishwarya Bhati, appearing for the Union of India, placed a flowchart before the Court explaining the process under the impugned Office Memorandum dated July 7, 2021, titled a Standard Operating Procedure (SOP) for identification and handling of violation cases under the EIA Notification, 2006. She highlighted that each violation case passes through a three-step “waterfall mechanism” involving closure or revision at the first stage, mandatory action under the Environment Protection Act at the second stage, and appraisal under the EIA Notification, 2006 at the third stage.

Bhati submitted that violating projects are required to undergo compensation, remediation and damage assessment processes, along with augmentation plans. She emphasised that environmental clearance is not automatic, and that impermissible projects would be demolished while even permissible ones would have to meet sustainability requirements or face closure. Justice Joymalya Bagchi asked whether the Centre’s stand was that the Office Memorandum was a stand-alone mechanism to stop continuing violations of environmental law. Bhati responded that it was and said the framework is designed to be deterrent while ensuring that violators are brought within the regulatory regime.

“The whole ecosystem has been made so that it remains deterrent and at the same time it stops violating further and it is brought into the regulation unless it is a case of violation. It is not a case of ex post facto EC. EC is not a guarantee. If the project is impermissible it will be broken down. Even if it is permissible it has to still be sustainable. For that it has to either be modified or if it cannot then it has to be struck down,” she emphasised.

Bhati argued that demolition of such projects would itself have environmental consequences, pointing to the large volume of waste generated by construction and demolition activities. Restarting projects after demolition to obtain fresh clearance would cause further pollution, she said. She further submitted that courts may need to consider the environmental cost of environmental litigation itself.

“At some stage your lordships will have to consider the environmental cost of environmental litigation. Purportedly many of these litigants come for protecting the environment but the environmental cost on environmental well-being of such litigation itself is a serious question. In the Delhi ridge contempt matter your lord ships adopted an approach of balancing the equities and a balanced approach was taken,” she concluded.

The Court permitted parties to file brief written submissions within a week.

Case Title: Vanashakti v. Union of India
Case No.: W.P.(C) No. 1394/2023 Diary No. 50009 / 2023