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SC: Inability to Obtain Previous Environmental Approval Can’t be Only Reason to Close Bio-medical Waste Treatment Facility

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Supreme Court Law Insider

Prerna Gala

Published on: 23 September 2022 at 18:09 IST

The Supreme Court ruled on Thursday in the case of D. Swamy v. KSPCB that the operation of a bio-medical waste treatment facility is in the public interest of preventing environmental pollution and that its closure solely for lack of prior environmental clearance (EC) would be against the interests of the general public.

Therefore, a panel of judges led by Justices Indira Banerjee and JK Maheshwari maintained a 2017 ruling by the National Green Tribunal (NGT) that had rejected a request to close a facility in Mysore, Karnataka, that treated common bio-medical waste.

The Court held that, “the closure of the facility only on the ground of lack of prior environmental clearance would be against the public interest.”

In order to establish the common bio-medical waste treatment facility for the collection, reception, transportation, treatment, and disposal of bio-medical waste, the Karnataka State Pollution Control Board (KPSCB) received permission from M/s GIPS Biotech in November 2012 under the provisions of the Water (Prevention and Control of Pollution) Act of 1974 and the Air (Prevention and Control of Pollution) Act of 1981.

Following a confusing legal process, the NGT finally upheld the permission given to operate the facility in an order dated May 10, 2017.

Relevantly, the Central government issued a notification on March 14, 2017, allowing project proponents who have started, continued, or finished a project without obtaining EC under the EP Act/EP Rules or the Environmental Impact Notification to apply for ex post facto EC.

Due to the facility’s violations of the Environmental Impact Assessment Notification 2006 and lack of receipt of an EC, the appellant contested the consent given to the plant.

The Supreme Court stated that ex-post facto EC should not typically be granted habitually, the Supreme Court stated, but it may be given in extreme instances while taking into account all the environmental conditions.

“Where the adverse consequences of denial of ex-post facto approval outweigh the consequences of regularisation of operations by grant of ex-post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms,” the Supreme Court said.

The Court ruled that ex post facto EC grants made in conformity with the law and in strict compliance with rules and regulations are not prohibited under the EP Act.

The Court said, placing reliance on Electrosteel Steels Limited’s judgment, “At the same time, ex post facto clearances and/or approvals and/or removal of technical irregularities in terms of a notification under the EP Act cannot be declined with pedantic rigidity.”

The court emphasised that, even if projects meet environmental standards, the court cannot ignore economics or the need to protect the livelihoods of hundreds of workers, others involved in the project, and others who rely on the project.

Therefore, it upheld the NGT order and declared that the tribunal had correctly determined that the treatment institution was being run with the necessary consent to operate and that it could not be shut down due to a lack of prior EC.

The bench also noted that there had been a 62-day delay in filing the appeal and that the case would likely be dismissed as a result of that delay alone.