Public Consultation Is Non‑Negotiable: Kerala High Court strikes down MoEF&CC’s S.O.1807(E) for mining; “Project life” is not “mine life”; Office Memoranda cannot rewrite statutory notifications

Introduction

This common judgment of the Kerala High Court (C. Jayachandran, J.) dated 26 August 2025 addresses a cluster of 67 writ petitions concerning the validity and application of a central environmental law amendment. Sixty-six petitions were filed by quarry and crusher operators seeking the benefit of Ministry of Environment, Forest and Climate Change (MoEF&CC) Notification S.O.1807(E) dated 12 April 2022 (“Ext.P8”), which extended the validity of Environmental Clearances (ECs). One petition, W.P.(C) No. 44547 of 2024 (Jijo Joy v. Union of India & ors.), challenged the constitutional vires of S.O.1807(E) as well as the ensuing Office Memorandum (OM) dated 13 December 2022 (“Ext.P9”) that purported to clarify and operationalise the extension.

The Court appointed Advocate Ramola Nayanpally as Amicus Curiae, reflecting the case’s wide ramifications. The central question was whether MoEF&CC could, without public consultation, (a) extend mining EC validity by amending Clause 9 of the EIA Notification, 2006 to make it coextensive with “project life as laid down in the mining plan” (subject to a cap and serial extensions), and (b) “clarify” via an OM that ECs not expired on 12 April 2022 automatically stood extended up to 30 years. The case also presented issues of maintainability (NGT vs High Court), the meaning of “project life” versus “mine life”, the role of expert appraisal bodies, and the constitutional discipline governing subordinate legislation under the Environment (Protection) Act, 1986 (EP Act).

Summary of the Judgment

• The Court allowed the vires challenge (W.P.(C) No.44547/2024) and struck down S.O.1807(E) insofar as it applies to mining projects by inserting/amending Clause 9(iv) of the EIA Notification, 2006. The Notification was held ultra vires the EP Act, the Environment (Protection) Rules, 1986 (EP Rules), and the EIA Notification, 2006, for:
  • Dispensing with mandatory public consultation under Rule 5(3) EP Rules without demonstrating genuine “public interest” as required by Rule 5(4), in the teeth of the Supreme Court’s decision in Noble M. Paikada v. Union of India (2024 SCC OnLine SC 369).
  • Defeating the EIA regime’s purpose by transferring the determination of EC validity (“project life”) from expert environmental appraisal bodies (EAC/SEAC) to mining-plan approval authorities under the Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) — a body not designed to undertake environmental impact balancing.
  • Being vague, ambiguous, and unworkable — “project life” is undefined in law and not a parameter in mining plans; the text conflates distinct concepts (project life, mine life, lease tenure) and assumes “renewal” of mining plans not grounded in the state rules; the claimed “alignment” with 50‑year leases is illusory.
• The Court also quashed the MoEF&CC OM dated 13 December 2022 (Ext.P9) for being ultra vires: it purported to automatically extend validity of existing ECs to 30 years and thereby expanded/altered the Notification itself — something an OM (an executive instruction) cannot do.
• On maintainability, the High Court held that the National Green Tribunal (NGT) does not possess writ jurisdiction to strike down subordinate legislation; therefore, the High Court’s Article 226 jurisdiction was the proper route (relying on TNPCB v. Sterlite Industries and allied precedents).
• Consequently, the 66 petitions seeking to rely on S.O.1807(E)/OM for extended EC validity were dismissed and interim orders vacated. The Court directed the Geologist (6th respondent in W.P.(C) No.44547/2024) to take action regarding the 9th respondent’s quarry treating its EC as expired. Follow-on action was directed, mutatis mutandis, for the connected quarries based on their actual EC validity.

Analysis

Precedents Cited and Their Influence

• Noble M. Paikada v. Union of India, 2024 SCC OnLine SC 369
  • Held that dispensing with the mandatory public notice/objection procedure in Rule 5(3) EP Rules requires real, recorded reasons showing “public interest,” and that citizen participation is central to environmental decision-making as part of Article 21.
  • The Kerala High Court treated Noble Paikada as the guiding light: MoEF&CC neither articulated public-interest reasons in the notification nor produced any documentary satisfaction in pleadings. The Court found a “casual” invocation of Rule 5(4), vitiating the decision-making process.
• Deepak Kumar v. State of Haryana, (2012) 4 SCC 629
  • Expanded the EC requirement to even minor minerals and emphasised scientific, sustainable mining and adequate oversight. The Union cited Deepak Kumar to argue longer leases foster systematic mining; the Court distinguished that sustainability requires environmental-expert oversight and periodic review, not merely synchronising ECs with lease terms.
• T. Mathew Abraham v. SEIAA, 2020 (6) KHC 596
  • Kerala HC had held SEIAA cannot mechanically grant only five-year ECs; validity must follow the EIA 2006 scheme — for mining, the “project life” as estimated by expert committees, subject to caps.
  • This benchmark underlined that environmental experts, not mining authorities, must fix EC validity.
• Hanuman Laxman Aroskar v. Union Of India, (2019) 15 SCC 401 and Rajeev Suri v. Delhi Development Authority, (2022) 11 SCC 1
  • Reinforced strict compliance with environmental processes and procedural legitimate expectation. The Amicus used them to buttress the need for stakeholder consultation when altering the EIA regime.
• Kerala Samsthana Chethu Thozhilali Union v. State of Kerala, (2006) 4 SCC 327
  • Subordinate legislation must conform to the parent statute’s purpose. The Court applied this to hold that the amendment undermining expert appraisal contravenes the EP Act’s object (protection and improvement of environment and abatement of pollution).
• Sree Sankaracharya University of Sanskrit v. Dr. Manu, (2023) 19 SCC 30, Goel Ganga Developers India Pvt. Ltd. v. Union of India, 2018 (3) KLT 782 (SC), and Vanashakti v. Union of India, 2025 (SC)
  • Clarifications cannot expand or alter substantive law; executive instructions cannot override statutory notifications; retrospective augmentation by OM is impermissible. These authorities grounded the quashing of the OM of 13 December 2022.
• TNPCB v. Sterlite Industries (I) Ltd., (2019) 19 SCC 479; contrasted with Mantri Techzone v. Forward Foundation, (2019) 18 SCC 494 and Municipal Corporation of Greater Mumbai v. Ankita Sinha, (2022) 13 SCC 401
  • While NGT has wide environmental jurisdiction and even suo motu powers, it lacks High Court–like judicial review to strike down rules/notifications. Hence, the High Court rightly entertained the challenge to S.O.1807(E).
• Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54; Guruvayoor Devaswom Managing Committee v. C.K. Rajan, (2003) 7 SCC 546; Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi, (1987) 1 SCC 227; Bihar Rajya Dafadar Chaukidar Panchayat (Magadh Division) v. State of Bihar, 2025
  • Recognised the High Court’s competence to examine vires suo motu or beyond the narrow confines of a party’s pleading when public law illegality is apparent. The Court invoked this to deal fully with S.O.1807(E) and the OM.

Legal Reasoning

1) Rule 5(3) EP Rules makes public consultation mandatory; Rule 5(4) is a narrow, reasoned exception

• S.O.1807(E) expressly invoked Rule 5(4) to “dispense with” public notice. Neither the Notification nor MoEF&CC’s pleadings articulated any concrete, environment-related public interest justifying such dispensation.
• Applying Noble Paikada, the Court held that in environmental rule-making, citizen participation is a core constitutional value. A blanket, unexplained invocation of Rule 5(4) is a non-application of mind and vitiates the process. The Court underscored that the 2015 MMDR amendment had been in place for years; there was no “tearing hurry” to bypass consultation.

2) The amendment defeats the EIA architecture and the EP Act’s purpose

• Unamended Clause 9 of EIA 2006 entrusted expert appraisal bodies (EAC/SEAC) with estimating “project life” for mining EC validity, integrating environmental factors, sustainable extraction, and local ecological carrying capacity.
• S.O.1807(E) substituted expert-estimated project life with “project life as laid down in the mining plan approved and renewed by the competent authority” under MMDR laws. Mining-plan approval is not an environmental appraisal function; it is not performed by multi-disciplinary environmental experts; and mining plans do not fix “project life” as an environmental parameter.
• By transferring validity determination from environmental experts to mining authorities, the amendment undermines the EP Act’s goal of environmental protection and the EIA regime’s risk-balancing design. It is therefore ultra vires the parent statute.

3) Vagueness, ambiguity, and unworkability

• “Project life” remains undefined in the EP Act, EP Rules, or EIA 2006. Mining plans typically state “mine life,” not “project life.”
• “Project life” is not synonymous with “mine life”:
  • Explanation to Section 3(i) MMDR Act clarifies that a mine continues until mineable reserves are exhausted and can have different owners over time. Different “projects” may occur within one “mine life.”
  • Even S.O.1807(E)’s provisos distinguish between EC validity, mining lease tenure, and “life of mine,” undermining any synonymy.
• The text assumes “approval and renewal” of mining plans “from time to time,” an assumption not borne out uniformly by the Kerala Minor Mineral Concession Rules, 2015 (KMCR) which provide for five-year reviews in specific contexts — not rolling renewals as a proxy for environmental appraisal.
• If the purpose was to “align” EC validity to the 50-year lease tenure, the amendment should have said so. Retaining “project life” while purporting to align with lease tenure creates incoherence and arbitrariness.

4) Periodic review is essential; very long EC validity is environmentally undesirable

• The Court noted that environmental baselines and risk profiles can change dramatically over time (e.g., the 2024 Chooralmala landslide). Long, automatic EC validity curtails regulatory capacity to re-appraise safety and environmental carrying capacity, frustrating precautionary and adaptive management principles central to environmental law.

5) The 13 December 2022 OM is ultra vires

• An OM is an executive instruction; it cannot expand or alter a statutory notification. Yet, the OM:
  • Converted a “cap of up to 30 years subject to project life” into an “automatic 30-year validity” for all ECs not expired on 12 April 2022.
  • Directed automatic extensions without statutory authority, effectively supplanting the EIA Notification’s scheme.
• On first principles and Supreme Court precedent, the OM’s expansionism was illegal. The Court quashed it (mining segment), while clarifying that the argument about “retrospectivity” of S.O.1807(E) was, in any event, misplaced: the Notification was intended to operate upon existing ECs — but since it is unconstitutional for mining, the point is moot.

6) Maintainability and representativeness

• Because NGT cannot strike down delegated legislation, the High Court rightly exercised Article 226 jurisdiction. The Court also explained why it could examine vires even beyond the narrow prayer confines, given the public law stakes and apparent illegality.
• Adequate representation existed: a state-level association of EC-holders and several quarry entities were impleaded and heard at length; the author-regulator (MoEF&CC) defended its case; 66 beneficiaries were co-petitioners in connected matters.

Impact

• Immediate effect in Kerala
  • For mining/quarry projects in Kerala, S.O.1807(E)’s Clause 9(iv) and the 13 December 2022 OM no longer apply. EC validity reverts to the unamended EIA 2006 regime: validity determined as “project life” estimated by expert appraisal committees (EAC/SEAC), subject to the statutory cap (30 years).
  • Operators relying solely on the 2022 notification/OM for continued operations without a still-valid EC now face cessation unless covered by a valid expert-determined EC. The Court directed enforcement action against the specific quarry (9th respondent) and indicated similar follow-up for connected petitioners based on their factual EC status.
• National ripple effects
  • While formally binding in Kerala, the judgment is likely to be highly persuasive elsewhere, especially on:
    • The stringent threshold for invoking Rule 5(4) EP Rules (public consultation cannot be bypassed without cogent, documented “public interest” linked to environmental protection).
    • The non-delegable role of environmental expert bodies in determining EC validity and the impropriety of transplanting that function to MMDR authorities.
    • The principle that OMs cannot enlarge or re-write statutory notifications, nor create automatic retrospective extensions.
  • MoEF&CC may seek to reframe any proposed change through the Rule 5(3) draft–objection–hearing process, with transparent reasoning demonstrating environmental benefits, and preserving expert appraisal for “project life.”
• Regulatory practice going forward
  • SEAC/SEIAA must estimate “project life” case-by-case, integrating environmental carrying capacity, local vulnerabilities, sustainable extraction rates, and precautionary considerations, rather than treating “mine life” or lease tenure as proxies.
  • Where ECs were previously granted only for five years contrary to EIA 2006 (as clarified in Mathew Abraham), fresh or reappraisal processes must restore expert-determined validity with appropriate conditions and periodic reviews.

Complex Concepts Simplified

• EP Act and EP Rules: The Environment (Protection) Act, 1986 empowers the Centre to frame measures to protect/improve the environment and control pollution. EP Rules prescribe procedure; Rule 5(3) mandates public notice and consideration of objections before imposing environmental prohibitions/restrictions; Rule 5(4) allows dispensing with this only in genuine, demonstrable “public interest.”
• EIA Notification, 2006: The central framework that requires prior Environmental Clearance (EC) for specified projects/activities after screening, scoping, public consultation, and appraisal by expert bodies (EAC/SEAC). Clause 9 fixes EC validity — for mining, it depended on “project life” as estimated by experts (subject to caps).
• SEAC/SEIAA: State Expert Appraisal Committee and State Environmental Impact Assessment Authority — multi-disciplinary expert/regulatory bodies under the EIA regime that appraise projects and decide on ECs.
• MMDR Act and Mining Plans: The mining law regime governs mineral concessions. A mining plan is a technical document prepared to plan extraction; it normally indicates “mine life” but is not an environmental appraisal or a determination of EC validity.
• “Project life” vs “mine life”:
  • “Mine life” is how long the mineral reserves can be exploited economically.
  • “Project life” (for EIA) is the period an EC remains valid in view of environmental considerations — it is to be estimated by EAC/SEAC and can be less than mine life or lease tenure, depending on environmental carrying capacity.
• Subordinate legislation vs executive instructions:
  • A statutory notification (like EIA 2006 or its amendments) is subordinate legislation; it must conform to the Act’s purpose and procedural safeguards.
  • An Office Memorandum (OM) is an executive instruction; it cannot alter or expand a notification’s substantive scheme.
• Ultra vires: A measure is “beyond powers” if it contravenes the parent Act’s purpose or mandatory procedural requirements.
• Writs used:
  • Certiorari: Quashing an illegal notification/OM.
  • Mandamus: Direction to an authority (here, the Geologist) to act according to law post-quash.

Key Takeaways and Practical Pointers

• MoEF&CC’s S.O.1807(E) (12 April 2022) and OM (13 December 2022) do not apply to mining/quarry projects in Kerala: they have been struck down for that sector.
• Public consultation under Rule 5(3) EP Rules is a constitutionalised safeguard. Invoking Rule 5(4) requires specific, cogent, recorded reasons showing a compelling public interest linked to environmental protection; mere policy convenience or alignment with MMDR tenure is insufficient.
• “Project life” is an environmental determination by EAC/SEAC; it is not to be borrowed from “mine life” or lease tenure stated in mining plans. Operators should expect SEAC/SEIAA to reassess validity based on environmental capacity and to require periodic reviews/conditions.
• Executive OMs cannot create automatic extensions or rewrite statutory caps; any change to the EIA scheme must be achieved via proper rule-making with stakeholder participation.
• Operators whose ECs expired, but continued on the strength of the struck-down amendment/OM, should prepare for lawful cessation and promptly approach SEAC/SEIAA for appropriate reappraisal/clearances where permissible.

Conclusion

This judgment restores constitutional discipline and environmental rationality to EC validity for mining projects. It reaffirms that:

• Public participation is integral to environmental governance; the Rule 5(3) process cannot be casually short-circuited.
• Environmental expert bodies, not mining authorities, must determine EC validity for mining (“project life”), integrating scientific appraisal and precaution.
• Vague, unworkable drafting that conflates “project life,” “mine life,” and lease tenure invites arbitrariness and cannot stand.
• Executive memoranda cannot expand the scope of statutory notifications or confer automatic retrospective benefits.

By striking down S.O.1807(E) (for mining) and the consequential OM, the Kerala High Court has emphasised the primacy of environmental protection and the integrity of the EIA process. The decision has immediate regulatory consequences in Kerala and persuasive value nationally. Going forward, any policy desire to revisit EC validity must pass through the constitutional sieve: transparent public consultation, demonstrable environmental public interest, and preservation of expert appraisal at the heart of EC decision-making.