Environmental Law:

Environment and utilization of natural resources - Balancing of equities - HELD: Time has come to apply the constitutional "doctrine of proportionality' to the matters concerning environment as a part of the process of judicial review in contradistinction to merit review - Utilization of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and . intemenerational equity, but balancing of these equities may entail policy choices - In the circumstances, barring exceptions, decisions relating to utilization of natural resources have to be tested on the anvil of the well-recognized principles of judicial review - The court should review the decision-making process to ensure that the decision of MoEF is fair and fully informed, based on the correct principles, and free from any bias or restraint - Once this is ensured, then the doctrine of "margin of appreciation" in favour of the decision-maker would come into play - Judicial Review -

Doctrine of proportionality- Doctrine of margin of appreciation - Polluter pays principle - Intergenerational equity. Mines and minerals - Limestone mining project in East Khasi Hills District, Meghalaya - Environmental clearance and forest clearance - Mining lease agreement signed with Village Durbar - In the application for environmental clearance it was mentioned that the land in question fell under Karst topography - No objection granted by KHADC -Site clearance granted by MoEF - DFO concerned certified that mining site was not a forest area - Environmental public hearing held - Finally, EIA clearance given by MoEF on 9.8.200 - Subsequently, when it was pointed out that non broken area in the leased mine was forest within the meaning of Forest (Conservation) Act, 1980, ex post facto environmental clearance and forest clearance granted on 19.4.2010 and 22.4.2010, respectively - Validity of - HELD: The word "environment" has different facets - That the land in question faffs under Kast topography is borne out by the certificate dated 27. 8. 1999 issued by KHADC - According to the NEHU Report, the site is located in the area on the outskirts of forest.- Requirement·of submitting the proposal for forest diversion is exclusively the obligation of the State Government - While granting environmental clearance dated 9.8.2001, there was an express finding that "no diversion of forest land was involved" - Since the area of mining lease did not fall in forest, State Government did not submit any proposal to Central Government u/s 2 of the 1980 Ac_t - It is in view of also the DFO understood the area in the light of the said Act - On facts of the case, it cannot be held that the decision to grant ex post facto clearances stood vitiated on account ofnon-application of mind or on account of suppressiOn of material facts by the applicant - Similarly, it cannot be held that ex post facto clearances have been granted by MoEF in ignorance of the existence of forests due to mis-declaration - The ex post facto clearance is based on the revised EIA - In the circumstances, EIA Notification of 2006 would not apply - The order of the Court is confined to the instant case only - United Khasi-Jaintia Hills Autonomous District (Management and Control of Forests) Act, 1958 - s. 2(6) - Forest (Conservation) Act, 1980 - s. 2 - Mines and Minerals Regulation and Development) Act, 1957 - s.5(1).

Environment and development - Limstone mining in tribal area - Role of tribals and rural public - HELD: Public participation provides a valuable input in the process of identification of forest - The natives and indigenous people are fully aware and they have knowledge as to what constitutes conservation of forests and development - They equally know the concept of forest degradation - They are equally aware of systematic scientific exploitation of limestone mining without causing of "environment degradation" - However, they do not have the requisite wherewithal to exploit limestone mining in a scientific manner - The word "development" is a relative term - One cannot assume that the tribals are not aware of principles of conservation of forest - In the instant case, limestone mining has been going on for centuries in the area and it is an activity which is intertwined with the culture and the unique land holding and tenure system of the area - On the facts of the case, the MoEF exercised due diligence in the matter of forest diversion. Environment and sustainable development - Utilization of natural resources - Guidelines to be followed in future cases - The words "environment" and "sustainable development" have various facets - Care for environment is an ongoing process - Identification of an area as forest area is solely based on the Declaration to be filed by the User Agency (project proponent) - The project proponent under the existing dispensation is required to undertake EIA by an expert body institution - The MoEFI State Government acts on the report (Rapid EIA) undertaken by the Institutions who though accredited submit answers according to the Terms of Reference propounded by the project proponent - At times the court is faced with conflicting reports - Similarly, the government is also faced with a fait accompli kind situation which in the ultimate analysis leads to grant of ex post facto clearance - Therefore, guidelines are required to be given so that fait accompli situations do not recur - Time has come for this Court to declare and it is hereby declared that the National Forest Policy, 1988 which lays down far-reaching principles must necessarily govern the grant of permissions u/s 2 of the Forest (Conservation) Act, 1980 as the same provides the road map to ecological protection and improvement ·Under the Environment (Protection) Act, 1986 - The principles/ guidelines mentioned in the National Forest Policy, 1988 should be read as part of the provisions of the Environment (Protection) Act, 1986 read together with the Forest (Conservation) Act, 1980 - This direction is required to be given because there is no machinery even today for implementation of the National Forest Policy, 1988 read with the Forest (Conservation) Act, 1980 - Further guidelines enumerated - National Forest Policy, 1988 - Environment (Protection) Act, 1986 Forest (Conservation) Act, 1980 - Environment (Protection) Rules, 1986 - r.5(3)(d).