Chief justice of India SH Kapadia set a new norm for approaching the “green bench” of the supreme court that he heads last Friday, which said: “In short, we want all statutory clearances from statutory authorities in place henceforth. After this only will it (environmental dispute) come to the supreme court. Henceforth this is the norm.”

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At first glance, it may seem to be quite logical as the court also explained that this norm is aimed at preventing a situation in which parties obtain an environment clearance from the supreme court in the initial stages, later fail to satisfy statutory norms and then start a “second round of litigation”.

But close scrutiny will reveal that it isn’t so logical because of the way the ministry of environment and forests (MoEF) functions and grants its clearances.

The present directive comes in connection with the litigation over Mayawati’s Noida Park memorial. The MoEF has been changing its position before the apex court –saying at times that the project needs no environment impact assessment (EIA) study and at other, it does. While the litigation is on, construction for the memorial is complete, save for the ‘final touches’. All the trees that needed to be felled, have been felled. The statues have been installed and the damage to the environment (it is next to the Okhla bird sanctuary) already done. For all practical purposes, the memorial is a “fait accompli”.

Let us take another example, say the Niyamgiri project of the Vedanta which was in news recently and in which Justice Kapadia played a role – by granting “in-principle” forest clearance for mining the Niyamgiri on August 8, 2008.

MoEF records show this project – which involved a smelting plant in Jharsuguda, a refinery in Lanjigarh and mining of the Niyamgiri – got a series of clearances at different points of time, starting from September 2004 to December 2008. The only one pending was that of the “final” forest clearance, which MoEF denied last month.

Let us say, the “green bench” of the apex court is approached at this point. The ground reality today is this: The smelting plant started its operation in 2008. The refinery started operation in 2007. Expansion of the refinery is 60 percent complete. A conveyor belt to the mining site is partially built. So is the case with a “mining access road”. All these violate environment, forest and tribal laws. What can the apex court do now? Can it undo the smelting plant, the refinery or the expansion of the refinery?

As MoEF confesses now, it gave environment clearance to the refinery in 2004which was not only based on a faulty EIA study but on an EIA which was different from the one on the basis of which public hearing was conducted! And that this involved forest land for which no clearance was sought or given. The plant became operational in 2007. Can the supreme court undo the damage?

There were similar charges with the smelting plant also, which was given clearance in 2007 and became operational in 2008. Can the supreme court do much about it?

In the case of French company Lafarge’s mining of the Khasi hills in Meghalaya for limestone, the mining started in 2006 after MoEF gave all clearances. Violations were “detected” only after that. The supreme court ordered a stay in February this year. What can it do beyond compounding the offence by way of compensatory affforestation and other financial burden for local development? Sooner than later, it will have to lift its stay.

The real problem lies with MoEF’s faulty policy of granting environment and forest clearances, which are not only given separately but also in various stages involving a time span of several years. In the meanwhile, the projects are allowed to proceed and by the time final clearance comes, the projects are already “fait accompli”.

The problem, therefore, is that MoEF gives clearances in piecemeal and in gross violation of various environment and forest laws, guidelines and notifications, allowing the projects to continue while some or other clearance is pending.

When the laws are followed mostly in their violations, Justice Kapadia’s new norm is an open invite to indulge in more of the same, because in spite of litigation, in many cases involving the supreme court's green bench, the projects become fait accompli. What will happen when challenged a project in the initial stage is denied?