Supreme Court Stays Ministry’s Retrospective Clearances for Mining

Newsreel Asia Insight #94
Jan. 05, 2024

The Supreme Court of India has put a hold on environmental clearances previously granted by the environment ministry to mining companies that had commenced operations without the requisite environmental clearance, casting a spotlight on the country’s environmental governance, which must strike a balance between industrial interests and the imperative of environmental protection.

The Ministry of Environment, Forest and Climate Change issued official memos in July 2021 and January 2022 to allow “post-facto” clearance of mining projects that started operations without the necessary environmental clearances, as reported by Hindustan Times. In essence, these are projects that started without following the rules of the Environment Impact Assessment Act 2006 and were allowed to make their operations legal “after” they had already begun.

The Supreme Court’s intervention suggests that the actions of the ministry might not fully align with the basic principles of protecting the environment.

The Ministry says its rationale for these memos was to bring violators under regulatory scrutiny more swiftly. However, the concept of “ex post facto” clearance is, in itself, a contentious one. It essentially means granting approval for a project after it has already commenced or, in some cases, even completed. This approach seems to contradict the very purpose of environmental clearances, which is to assess and mitigate potential environmental impacts before a project begins.

A report by Newslaundry says 11 major mining and infrastructure companies benefited from these memos. These companies, some of which operated without clearances for over a decade, were granted retrospective approvals, albeit with penalties. However, the penalties imposed, while seemingly strict, do little to address the environmental damage already caused.

When a project operates without clearance for a long period, the environmental impacts – whether assessed or not – are irreversible. Retrospective approvals may inadvertently incentivise non-compliance, sending a mixed signal about the Ministry’s commitment to upholding environmental laws. When penalties become a feasible cost of non-compliance, the deterrent effect of environmental regulations is significantly weakened.

The Ministry’s approach also seems to be at odds with the precautionary principle – a guideline used in situations where an action or policy might potentially cause harm to people or the environment, but there is no clear scientific consensus about the risk. According to this principle, the responsibility lies with those who are planning to undertake the action. They must demonstrate that the action is safe and will not cause harm.

In simpler terms, this principle operates on the idea of “better safe than sorry.” If there’s any doubt about the safety of an action, especially when scientific understanding is not definitive, the principle advises erring on the side of caution to protect public health and the environment.

By issuing approvals post the initiation of mining operations, the Ministry appears to be circumventing this principle, permitting projects to advance without comprehensive preliminary evaluation.

Moreover, the Ministry’s actions seem to be more reactive than proactive. Ideally, environmental governance model should stop issues before they occur, making sure projects follow environmental laws from the beginning. But, the Ministry appears to be focusing more on making projects legal after they’ve already broken the rules, rather than stopping these violations in the first place.

This approach risks creating a precedent where non-compliance is not a deal-breaker but a negotiable hurdle. This is concerning, especially in a country grappling with diverse environmental challenges.

Mining significantly boosts India’s economy, employing over 1.1 million people and growing 4-5% annually for the last three decades, as per the “An Overview of Human Health Hazards in Indian Mining Industry” study by Aligarh Muslim University.

The study reveals that miners face numerous risks, including physical dangers from rock falls, fires, and equipment accidents, as well as health issues like noise-induced hearing loss and heat-related problems, particularly in tropical and deep underground mines. Workers are also exposed to chemical hazards such as crystalline silica, coal dust, and asbestos, with the highest risks during metallurgical processing, and biological hazards that increase the risk of diseases like malaria and dengue fever in isolated areas.

Furthermore, a report, “Local Communities and Mines,” by the International Institute for Environment and Development found that mining’s economic and infrastructural benefits often lead to uneven distribution, causing social tensions and conflicts. It called for preserving indigenous rights and involving communities in decision-making, addressing the social and economic impacts of mining, including compensation, relocation and migration issues that can exacerbate social challenges, especially in indigenous communities.

Given these concerns, the prospect of allowing commercial interests in the mining sector to operate without prior approval is alarming.

The Supreme Court’s stay on the Ministry’s memos offers an opportunity to the government for introspection and realignment. The future actions of the Ministry will be crucial in determining whether environmental protection is indeed at the forefront of its agenda or if industrial interests hold sway.