Lafarge, and How a Forest Clearance Is Reviewed

In one line

A court reviewing a forest clearance does not decide whether the forest should be cleared; it decides whether the authority applied its mind, and the standard against which it must have done so is the National Forest Policy.

In the wording a student can write in an exam: in T.N. Godavarman Thirumulpad v. Union of India (the Lafarge case), (2011) 7 SCC 338, the Supreme Court upheld the clearances on the facts and declared that the National Forest Policy, 1988, must necessarily govern the grant of permissions under section 2 of the Forest (Conservation) Act, 1980, its principles being read as part of the Environment (Protection) Act, 1986 read with the 1980 Act; held that what a court reviews is the decision-making process, to ensure that the decision is fair, fully informed, based on correct principles and free from bias or restraint; said that the Central Government should appoint a National Regulator under section 3(3) of the 1986 Act to appraise projects, enforce environmental conditions and impose penalties on polluters; and laid down guidelines for all future cases until a regulatory mechanism is in place, including the completion of geo-referenced district forest maps.

The case

Facts. Lafarge Umiam Mining Private Limited worked a captive limestone mine of 100 hectares at Nongtrai in the East Khasi Hills of Meghalaya, sending the limestone by belt conveyor to a cement plant at Chhatak in Bangladesh. The Ministry granted environmental clearance on 9 August 2001 recording that no forest land was involved, the proponent's rapid impact report having described the land as wasteland. On 1 June 2006 the Chief Conservator of Forests (Central) reported the lease area surrounded by thick natural vegetation; the Ministry directed closure on 30 April 2007, and stage I forest clearance for 116 hectares was granted ex post facto on 22 April 2010, with a revised environmental clearance of 19 April 2010. The clearances were challenged in the continuing forest proceedings.

Held. The Court saw no reason to interfere with the site clearance of 18 June 1999, the environmental clearance of 9 August 2001 read with the revised clearance of 19 April 2010, or the stage I forest clearance of 22 April 2010. It found no non-application of mind: the Ministry had been diligent, and the Principal Chief Conservator had said the forest status of the site was not Lafarge's fault. It confined that result to the facts, but it laid down the framework for the future.

It declared that the National Forest Policy, 1988, must necessarily govern the grant of permissions under section 2 of the Forest (Conservation) Act, 1980, as the road map to ecological protection and improvement under the Environment (Protection) Act, 1986, and that its principles should be read as part of the 1986 Act read together with the 1980 Act, because no machinery had yet been established to implement the policy.