SC scraps govt notification exempting green nod for extraction of ordinary earth

The Supreme Court has struck down a March 2020 notification of the Union environment ministry that exempted green clearance for extraction of ordinary earth for linear projects such as laying of roads and pipelines.
Terming the notification “unguided and arbitrary”, a bench of justices AS Oka and Sanjay Karol on Thursday also questioned the “undue haste” that was shown by the Centre to issue the notification in “public interest”, as a nationwide lockdown was imposed days later in view of the Covid-19 pandemic and all linear projects had come to a halt.
The nationwide lockdown was imposed on March 25, 2020 and the notification was issued on March 28 that year.
“We have no hesitation in striking down item 6 of the substituted Appendix-IX forming part of the impugned notification dated March 28, 2020 and item 6 of the amended impugned notification dated August 30, 2023. Accordingly, we quash item 6 in the two notifications above,” the bench said.
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HT reached out to the Union environment ministry for a response but did not get one immediately.
In 2020, the government issued a notification, saying: “The following cases shall not require Prior Environmental Clearance, namely: Extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc.”
However, after the National Green Tribunal (NGT) said that blanket exemptions need to be hedged by appropriate safeguards, such as the process and quantum of excavation, the Centre issued another notification in August 2023. “Extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc. shall be subject to the compliance of standard operating procedures (SOPs) and environmental safeguards,” it said.
The bench’s order on Thursday came on a petition by environmental activist Noble M Paikada, who had initially challenged the 2020 notification before NGT that dismissed the appeal, prompting Paikada to approach the Supreme Court.
The top court noted that the notification in 2020 had failed to prescribe definition of linear projects, quantity of ordinary earth to be extracted, specified area and process for excavation.
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“Thus, item 6 (introduced by the March 2020 notification) is a case of completely unguided and blanket exemption, which is, per se, arbitrary and violative of Article 14 of the Constitution of India,” it said.
The bench also dismissed a counter-affidavit filed by the Centre in 2023, saying that item 6 in the latest notification shall be subjected to an SOP.
“We have perused the said SOP. We find that the SOP creates no regulatory machinery to ensure the implementation of the terms of the SOP. The SOP does not refer to item 6 at all; it merely refers to the activities relating to the identification to borrow areas to obtain earth or soil materials,” it said.
“The very object of issuing the first EC notification incorporating the mandatory requirement of obtaining EC for projects was that the damage to the environment must be minimised while implementing projects,” it added.
When an exception is made, it must be specific, the bench said.
It observed that before issuing the notification, the public notice requirement for inviting objections was dispensed with by the government.
The top court said “there was no tearing hurry” to issue the notification in “public interest” in 2020 as the country was under a nationwide lockdown. “Apart from the fact that no reasons have been assigned in the counter affidavit filed by the central government for coming to the conclusion that in the public interest, the requirement of prior publication of notice was required to be dispensed with, we fail to understand the undue haste shown by the central government,” it said.
Article 21 of the Constitution “guarantees a right to live in a pollution-free environment”, the bench said. “The citizens have a fundamental duty to protect and improve the environment. Therefore, the participation of the citizens is very important, and it is taken care of by allowing them to raise objections to the proposed notification. After all, citizens are major stakeholders in environmental matters. Their participation cannot be prevented by casually exercising the power under sub-rule (4) of Rule 5 of Environment Protection Rules,” it said.
Paikada said environmental clearance was required for extraction of ordinary earth prior to the March 2020 notification. Paikada said that even in the 2023 notification, there was no mention of green clearance.
“The object of the Environment Protection (EP) Act is to protect and improve the environment. Apart from the illegality committed by non-compliance with sub-rule (3) of Rule 5 of the EP Rules (providing for public notice), the exemption granted without incorporating any safeguards is completely unguided and arbitrary. Grant of such blanket exemption completely defeats the very object of the EP Act,” the bench said.