Why SC Barred Unregulated Soil Extraction for Linear Projects?

Why in News?

The SC has set aside a notification issued by the Environment Ministry 3 years ago that exempted extraction of ordinary earth for linear projects (road, railways construction), from obtaining Environmental Clearance (EC). 

What’s in Today’s Article?

• What was the Notification that Exempted Extraction of Ordinary Earth for Linear Projects?
• Why was this Notification Issued?
• Grounds on which the 2020 Exemption/Notification Challenged
• Response of the Government
• What the SC Said?
• Similar Exemptions that have Faced Judicial Scrutiny in the Past

What was the Notification that Exempted Extraction of Ordinary Earth for Linear Projects?

• In 2006, the Environment Ministry had issued a notification under the Environment (Protection) Act 1986 (EPA) on activities that would require prior EC.
• In 2016, a 2nd notification was issued, exempting certain categories of projects from this requirement.
• The 3rd notification of 2020 added “Extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc” to the list of exempted activities.

Why was this Notification Issued?

• The Centre argued before the National Green Tribunal (NGT) that the exemption was necessary for the aid of the general public.
  • This would help the kumhars (potters), farmers, gram panchayats, vanjara, oads of Gujarat and all non-mining activities identified by the states.
• The general purpose of the 2020 notification was to conform to the amendments made to the Mines and Minerals (Development and Regulation) Act 1957 (in March 2020).
  • This would allow new lessees to continue mining for two years with the statutory clearances and licences issued to their predecessors.
• The Centre also said that grant of exemption was a policy matter that did not warrant judicial interference.

Grounds on which the 2020 Exemption/Notification Challenged:

• The exemption was challenged before the NGT on the ground that allowing the extraction of earth indiscriminately was arbitrary and violative of Article 14 of the Constitution of India.
• The petitioner argued that the exemption violated the requirement of prior EC in the leases as laid down by the top court in Deepak Kumar versus the State of Haryana (2012).
• It was submitted that the Environment Ministry had circumvented the legal procedure of inviting public objections before issuing the 2020 notification during the Covid-19 national lockdown.
  • This served and furthered the interest of private miners and contractors.
• According to the NGT, the Environment Ministry should strike a balance, and rather than providing a blanket exemption, it should be accompanied by suitable safeguards.
  • The Tribunal asked the Centre to “revisit” the notification within three months.

Response of the Government:

• The Centre sat on the NGT order until the appellant moved the SC.
• It was only after the SC concluded the hearing and reserved its judgement, that the Ministry issued an Office Memorandum laying down the enforcement mechanism for the exemption.
• The Ministry notified that the exemption in question would be subject to the compliance of standard operating procedures and environmental safeguards issued in this regard from time to time.

What the SC Said?

• The court held that completely unguided and blanket exemption was arbitrary and violative of Article 14 because the 2020 notification did not define ‘linear projects’ or specify the quantum and the extraction area.
• The notification failed to clarify on the notion of linear projects, designate the authority in charge of environmental safeguards or make arrangements for the same, or establish limits on the amount of extraction.
• The court failed to understand the govt's undue haste in issuing the impugned notification, when construction of linear projects had come to a standstill due to nationwide lockdown.

Similar Exemptions that have Faced Judicial Scrutiny in the Past:

• In 2018, the NGT quashed an exemption offered by the Ministry’s 2016 notification from the requirement of prior EC for building and construction activities having built-up areas of more than 20,000 sq m.
  • There was nothing to suggest an improvement in the quality of the environment to justify the exemption.
• Underlining that the EPA mandates prior approval, the NGT in 2015 struck down two Office Memorandums issued by the Ministry for granting ex-post facto EC to projects under the 2006 notification.
• Recently, the Kerala HC quashed a 2014 notification that exempted educational institutions and industrial sheds with built-up areas of more than 20,000 sq m from obtaining EC.

Q.1. What is the Mines and Minerals (Development and Regulation) Act 1957?

The MMDR Act is an Act of the Parliament of India enacted to regulate the mining sector in India. This act is applicable to all minerals except minor minerals and atomic minerals.

Q.2. Why was the Environment (Protection) Act 1986 enacted?

The Environment Protection Act (EPA) is widely considered to have been a response to the Bhopal gas leak. It seeks to protect and improve the environment and environmental conditions by taking strict actions against all those who harm the environment.