1. Introduction

The case of Md. Hayath Udin v. Union Of India And Others adjudicated by the National Green Tribunal (NGT) on October 20, 2020 addresses critical issues surrounding the environmental clearance process for large-scale infrastructure projects in India. The appellant, Md. Hayath Udin, a farmer directly affected by the Kaleshwaram Lift Irrigation Scheme (KLIS), challenged the Environmental Clearance (EC) granted by the Ministry of Environment, Forest and Climate Change (MoEF&CC) on December 22, 2017.

The KLIS project, with an original budget of ₹80,499.71 crores, aimed to irrigate over 738,851 hectares across seven districts in Telangana by diverting 180 TMC of water from the River Godavari. The project, however, faced significant opposition due to alleged procedural irregularities, environmental concerns, and the EC being granted after substantial construction activities had already commenced.

2. Summary of the Judgment

The NGT examined whether the environmental clearance for KLIS was granted ex post facto, violating the Environmental Impact Assessment (EIA) Notification, 2006. The appellant argued that substantial construction had begun prior to obtaining EC, rendering the clearance invalid. Additionally, the appellant highlighted procedural lapses, including changes in project scope without fresh scoping, discrepancies in forest land estimates, inadequate baseline data, and failure to conduct public hearings as per prescribed procedures.

The Tribunal found merit in the appellant’s objections, concluding that the EC was indeed ex post facto. It emphasized that granting EC after substantial project execution contravenes established environmental laws and principles of sustainable development. Consequently, the NGT set aside the impugned order and directed the MoEF&CC to form an expert committee to assess environmental damage and recommend remedial measures.

3. Analysis

3.1 Precedents Cited

The judgment extensively referred to various Supreme Court decisions to substantiate the importance of prior environmental clearances. Key precedents include:

• Vedire Venkata Reddy v. Union of India:

The Court held that state governments cannot proceed with project implementation without obtaining all necessary clearances, underlining the illegality of actions taken without environmental and forest clearances.

• Hanuman Laxman Aroskar v. Union Of India:

This case emphasized the balance between environmental protection and developmental needs, enforcing adherence to Environmental Impact Assessment (EIA) norms to ensure sustainable development.

• Alembic Pharmaceutical Ltd. v. Rohit Prajapati:

The Supreme Court reaffirmed that granting ex post facto EC undermines environmental safeguards, leading to potential irreparable ecological harm.

• Narmada Bachao Andolan v. Union Of India, N.D. Jayal v. UOI:

These cases dealt with river valley projects, highlighting the necessity of proper EIA and adherence to sustainable development principles.

3.2 Legal Reasoning

The NGT’s legal reasoning was anchored in the fundamental requirement that environmental clearances must precede any substantial project execution. The Tribunal underscored that ex post facto EC not only violates the procedural mandates of the EIA Notification but also contravenes the principles of sustainable development enshrined in Indian environmental jurisprudence.

Moreover, the Tribunal noted that the EC granted did not account for significant changes in the project’s scope, such as the inclusion of Mission Bhagiratha and the increase in water diversion from 2 TMC/day to 3 TMC/day without fresh scoping or re-evaluation of environmental impacts.

Referencing the precautionary principle and the polluter-pays principle, the Tribunal highlighted that environmental protection must not be compromised for development, reinforcing that legal requirements take precedence over project proponents' claims.

3.3 Impact

The judgment has far-reaching implications for future infrastructure projects in India:

• Strict Adherence to EIA Norms: Project proponents must secure environmental clearances before initiating any substantial construction activities, ensuring compliance with procedural requirements.
• Enhanced Scrutiny of Multipurpose Projects: Projects encompassing multiple objectives (e.g., irrigation and drinking water supply) must undergo comprehensive environmental assessments covering all aspects to prevent partial compliance.
• Accountability for Procedural Lapses: Authorities granting ECs will face increased scrutiny to ensure that all procedural and substantive requirements are meticulously followed, deterring the issuance of invalid clearances.
• Formation of Expert Committees: The directive to form expert committees for assessing environmental damage sets a precedent for post-judgment remedial actions in cases of non-compliance.

4. Complex Concepts Simplified

4.1 Ex Post Facto Environmental Clearance

Definition: An environmental clearance granted after significant project construction has already commenced.

Implications: It undermines the purpose of the EIA process, which is to assess environmental impacts before project approval, potentially leading to irreversible ecological damage.

4.2 Environmental Impact Assessment (EIA) Notification, 2006

This is a regulatory framework in India that mandates the assessment of environmental impacts of proposed projects. It outlines procedures for obtaining environmental clearances and ensures that projects comply with sustainability and environmental protection standards.

4.3 Forest (Conservation) Act, 1980

A law enacted to prevent the de-reservation of forests or the use of forest land for non-forest purposes without prior approval from the central government. It ensures that forest areas are preserved and only utilized for essential purposes following strict regulatory oversight.

4.4 Precautionary Principle

A strategy to cope with possible risks where scientific understanding is yet incomplete. It emphasizes caution, pausing, and review before leaping into new innovations that may prove disastrous.

4.5 Polluter Pays Principle

An environmental policy principle which mandates that the costs of pollution should be borne by those who cause it, incentivizing companies and individuals to minimize their environmental footprint.

5. Conclusion

The significance of this judgment lies in its steadfast adherence to environmental law and sustainable development. By invalidating the ex post facto EC for the KLIS project, the NGT has underscored the necessity for stringent compliance with environmental regulations, ensuring that developmental projects do not compromise ecological integrity. This serves as a crucial precedent, reinforcing the legal framework that governs environmental clearances in India and promoting accountability among project proponents and regulatory bodies alike.