Unregulated Soil Extraction for Linear Developments

Unregulated Soil Extraction for Linear Developments

News: The Supreme Court has overturned a notification by the Ministry of Environment that previously exempted the extraction of ordinary soil for linear projects like roads and railways.

Background:
• In 2006, the Ministry of Environment issued a notification under The Environment (Protection) Act, 1986, outlining activities that required prior Environmental Clearance (EC).
• Subsequently, in 2016, another notification was issued which exempted certain categories of projects from the requirement of obtaining Environmental Clearance (EC).
• In 2020, the ministry further amended the notification to include Extraction or sourcing or borrowing of ordinary earth for linear projects such as roads, pipelines, etc. among the exempted activities.
• The rationale behind this notification amendment was to align with amendments made to the Mines and Minerals (Development and Regulation) Act, 1957, which allowed lessees to continue mining for two years with statutory clearances and licenses issued to their 
predecessors.
• However, this exemption faced a legal challenge in the National Green Tribunal.

Grounds of challenges: 
• Violation of Article 14: The exemption allowing indiscriminate extraction of earth for linear projects was deemed arbitrary and a violation of Article 14 of the Constitution of India, which guarantees equality before the law and equal protection of the law to all persons.
• Arbitrary Favoritism: It was argued that the exemption unfairly favored private miners and contractors over public interest.
• Bypassing Legal Procedures: The petitioner contended that the Ministry misused its powers during the COVID-19 lockdown under the pretext of public interest to serve private entities interests, bypassing proper legal procedures.
• Lack of Environmental Safeguards: The exemption lacked necessary environmental safeguards and standards, posing risks to environmental conservation due to the absence of defined limits on extraction quantities or specified extraction areas.
• Absence of Justification: The Ministry failed to justify waiving the requirement of public notice or issuing a blanket exemption without proper consideration of environmental concerns or scrutiny.
• Precedent from Deepak Kumar vs State of Haryana (2012): The exemption conflicted with the top courts requirement of prior Environmental Clearance (EC) in mining leases, as established in the Deepak Kumar case.
• NGT Ruling: The National Green Tribunal (NGT) emphasized the need for a balanced approach, recommending that the exemption should be accompanied by appropriate safeguards regarding the excavation process and extraction quantities.
• Review Directive by NGT: The NGT instructed the Ministry to review the exemption within three months. Due to delays in this review, the matter escalated to the Supreme Court for resolution.

Stand of Supreme Court:
• Lack of Clarity in Definition: Critics argued that the exemption failed to clearly define what constitutes linear projects and did not specify limits on the amount and area of earth extraction allowed. This lack of clarity was deemed arbitrary and contrary to Article 14 of the Constitution.
• Unjustified Waiver of Public Notice: The Ministry did not provide a valid rationale for exempting the requirement of public notice, which is typically considered essential for such exemptions.
• Insufficient Details in Follow-Up Notification: A subsequent notification issued by the ministry in 2023 also lacked clarity on defining linear projects, identifying the responsible authority for environmental safeguards, or setting explicit limits on the amount of earth that could be extracted.
• Concerns Over Timing of Exemption: The Supreme Court highlighted flaws in the 2020 exemption and expressed confusion over the governments decision to rush its issuance during a nationwide lockdown that had halted construction activities.