– Pranav Ganesan*
It is widely acknowledged that major infrastructure projects produce significant effects on the environment. These effects are not necessarily limited spatially or temporally. Indeed, if, as Edward Lorenz has observed, the movement of a butterfly’s wings can cause a major wind storm, imagine the sheer scale of the reactions which may be produced by a project that requires flattening parts of a forest, or carving out portions of the sea-bed. Unlike the flutter of a butterfly, however, it is humans in a society who have their finger on the button when it comes to decisions in regard to such projects. Infrastructure depends on humans for its construction, and humans, in turn, rely on existing infrastructure in order to develop new infrastructure. In this sense, humans and ‘infrastructure’ are co-dependent. However, their relationship is not one that always produces desirable results. At the outset, I acknowledge that it is highly myopic to perceive infrastructure as “out there”, taking the form of a system that is intentionally created and designed by humans. However, for the purposes of this paper, I define infrastructure projects as enterprises with the aim of developing and maintaining systems, services, and facilities that improve the quality of human lives and interactions. A ‘major’ infrastructure project is one that affects, and is intended to benefit, a large number of people (e.g. laying highways, telecommunication cables, etc).
Seeing these examples, one immediately thinks of property law and ‘environmental law’ as the two main bodies of law that play a role in the management of the environmental impact of such projects. However, as I will demonstrate, there is much more to the legal regulation of major infrastructure projects. In describing law’s role in managing their environmental impact, I will highlight that this role largely depends on the legal culture in the jurisdiction where such projects are undertaken. To this end, I shall compare two similar cases that arose in India and the United Kingdom (‘the UK’).
The Law and its Role
Property law and environmental law seem like the obvious answers to the question of which bodies of law regulate the environmental impact of major infrastructure projects. The former makes sense because the project in question may affect one’s property rights directly — say, because of ‘compulsory acquisition’ of immovable property which stands in the way of the project, or, by way of unreasonable interference in the enjoyment of property rights — for instance, by creating nuisance to the private enjoyment of property rights. The latter makes sense because the impact which is under the lens is not ‘social’ or ‘economic’ in nature, but rather environmental. This answer requires unpacking because it is difficult to define environmental law as a standalone subject. While one may point to legislations and regulations on, inter alia, flora, fauna, natural habitats, natural resources, and public health, these are but a few constituents of environmental law. As Fisher puts it, environmental law is “built on existing legal frameworks, but often requires the development of new legal obligations and doctrine”. It is “a mixture of the legally conventional and the legally novel”. Thus, she identifies (in the context of wind-energy projects), that the ‘disruption’ caused by such projects requires reconciliation with their consequences through ‘planning law’, as well as ‘administrative law’. These laws constitute environmental law not by virtue of some unique foundational features, but simply because they directly regulate environmental issues.
In most cases, the legal regulation of major infrastructure projects is a result of interaction among various laws rather than a singular comprehensive code that governs every step of a project. In legal challenges to the commencement of projects which may adversely affect the environment, petitioners tend to invoke a wide variety of laws ranging from constitutional to international environmental law. Whether courts would actually entertain such invocations will essentially depend on the legal system. Courts in a relatively strict dualist legal system like the United States (‘US’) will not entertain challenges based on international law unless it is incorporated into legislation. Whereas, Indian courts may, depending on the subject matter, readily refer to applicable international law where there are gaps in legislation. For instance, the Supreme Court of India referred to the ‘precautionary principle’, owing to its status as customary international environmental law (a questionable finding), in interpreting the fundamental right to life under Article 21 of the Constitution of India. The Heathrow Runway case which was recently decided by the UK Court of Appeal (analysed below), is illustrative of how international law was used by the Court in reviewing decision-making by an administrative body.
The laws that regulate the environmental impacts of such projects play multiple roles. First, they play an instrumental role in either allowing the project to progress, or acting as barriers to such progression. This role of the law comes to the fore clearly in legal disputes. Laws also play a ‘framing role’, in that, they make objects of regulation “appear hazardous or harmless, safe or risky, natural or unnatural, important or unimportant.” Moreover, given that certain infrastructure projects, such as renewable energy projects, are framed as being in pursuance of the positive obligation of states in averting climate change, the legal regulation of their environmental impact is generally less restrictive than, say, that of thermal power projects, notwithstanding that their immediate impacts on biodiversity might be similar. The two roles are interrelated. An example that highlights this interrelationship is the famous Snail Darter case. In this case, the US Supreme Court granted a permanent injunction against the completion of a dam project which risked wiping out the snail darter fish’s habitat. The classification of this tiny fish, which served little purpose to humans in the form of dietary or ecological benefits, as ‘endangered’ in the Endangered Species Act of 1973 (‘ESA’) meant that even though millions of dollars had been invested in the project, it could not be allowed to continue. Here, other than its instrumental role, the ESA played a framing role, in that it clearly demarcated the snail darter as a species whose protection ought to be taken seriously.
Two Cases with Similar Facts, Set in Different Legal Cultures
The way in which the law manages the environmental impact of major infrastructure projects is different in different jurisdictions. Environmental law, it has been argued in scholarship ad nauseam, is shaped by legal cultures. This thesis can be confirmed by an analysis of how the potential environmental impacts of two similar infrastructure projects in different jurisdictions were addressed by their respective courts in different ways. On the one hand, we have the case of Hanuman Laxman Aroskar v. Union of India & Ors., decided by the Supreme Court of India in two judgments (Mopa 1 and Mopa 2). On the other, is the Heathrow Runway case decided by the UK Court of Appeal. Before proceeding, a few points are worth bearing in mind about legal culture in India and the UK. Both have common law systems — ergo, litigation is adversarial rather than inquisitorial, and judicial decisions play a major role in the development of legal doctrine. A notable exception to the latter point is environmental law in the UK. Environmental cases in the UK show that courts tend not to articulate environmental principles, and take a pragmatic approach in adjudicating disputes. This is in contrast to the approach taken by the Supreme Court of India, which uses the Constitution as the basis to articulate environmental principles and their application. The UK courts’ timidness in fleshing out environmental principles could be explained by the doctrine of parliamentary sovereignty, and the lack of a written constitution. Despite the differences in legal culture, the following analysis of the two cases will be used to reflect on a single lesson about the limitations of the law’s role in managing the environmental impacts of major infrastructure projects.
The Mopa 1 and Mopa 2 Judgments
In short, the facts of the case are that the State of Goa sought to build a second airport in the Mopa Plateau, since the existing one is a defence airport, and therefore, does not allow for the operation of commercial flights between 8.30 a.m., and 1.30 p.m. Given the Government’s estimate (at the time) that passenger traffic was likely to increase from 7.5 million in 2019 to 12 million people in 2021, and since tourism was the greatest revenue source for the State (following the ban on mining activities within the State), the construction of the second airport was argued as an ‘imminent need’. The Ministry of Environment, Forest and Climate Change (‘MOEFCC’) on the recommendation of an Expert Appraisal Committee (‘EAC’) granted Environmental Clearance (‘EC’) to the project. This was challenged by an individual and an NGO before the National Green Tribunal (‘NGT’). The tribunal upheld the clearance, and the Petitioners appealed against this decision before the Supreme Court. In Mopa 1, the Supreme Court suspended the EC until the EAC carried out a fresh exercise of its functions in accordance with the Court’s specific and time-bound directions. The main reason for its decision was that the project proponent had applied for the EC without disclosing the relevant features of the project site, and the EAC had failed to discharge its duty under the 2006 Environmental Impact Assessment Notification by letting this slip past it. The Court noted that:
“The EAC, as an expert body abdicated its role and function by taking into account circumstances which were extraneous to the exercise of its power and failed to notice facets of the environment that were crucial to its decision making.” (¶ 116)
The Court also noted that the NGT had omitted to carry out a merits review, as well as failed to comprehend the true nature of its role and power under its parent statute (¶ 114). Despite these glaring mistakes, the Court stopped short of quashing the clearance. Noting the necessity to “maintain a balance between the need for an airport and environmental concerns”, it ordered a temporary suspension of the EC. The Court also took it upon itself to issue directions that would ensure “a wholesome balance between the development of infrastructure of an airport and the preservation of the environment”.
In Mopa 2, the Supreme Court lifted this injunction upon finding that the project proponent had remedied its failures, and that the EAC had addressed the deficiencies that were identified in the previous judgment. The development versus environment narrative was reiterated by the Court here as well, but unlike its proactive approach in the previous decision, it deferred to the authorities’ judgment in balancing the two. It reasoned in its judgment that “evaluation of merits” primarily concerns the expert authority, and that the Court is merely concerned with procedural compliance to see whether the executive authority has taken relevant material into account in decision-making. At first blush, we may conclude from this that there is only so much that the Court could have done as this was a case of judicial review. However, a holistic view of the case in light of contextual facts reveals that it could have done more. There is a legitimate argument to be made that a stricter scrutiny of administrative decision making was due in Mopa 2 owing to the suspect nature of the case. That is, given that the facts of Mopa 1 evinced a blatant lack of good faith on part of the State Government and EAC, the standard of review in Mopa 2 ought to have been stricter. Furthermore, the Court’s direction concerning mitigation measures to offset the clearance of forests did not account for the State Government’s poor track record in respect of compensatory afforestation during the last decade. Is this not a relevant fact in deciding making?
The Heathrow Runway Case
This case arose out of the challenge to the Secretary of State’s designation of the Airports National Policy Statement (ANPS), in accordance with which a third runway was sought to be constructed at Heathrow Airport. The plan for an infrastructure project to expand the UK’s aviation capacity in order to maintain its status as the largest aviation hub (‘hub objective’), had been in the works for well over a decade. The option of constructing a third runway at Heathrow Airport was the subject of a political debate owing to the environmental costs involved in the project. Faced with a politically charged case, the Court of Appeal clarified at the outset that it was dealing with an “entirely legal question”. The issues in this case concerned judicial review of administrative decision making. The Court rejected the Appellant’s contention that it ought to apply a stricter standard of scrutiny than that of ‘Wednesbury irrationality’ since European Union (EU) law requires environmental policy to be based on the ‘precautionary principle’. The Court refused to interfere with the UK legislature’s exercise of its discretion in its implementation of the European Council Directives on the conservation of natural habitats and of wild fauna and flora (‘Habitats Directive’), and on the assessment of the effect of certain plans and programmes on the environment (‘SEA Directive’), wherein it did not indicate the need for a stricter standard of review (¶ 75). This goes to show the importance of the doctrine of parliamentary sovereignty in the UK (in contrast to the doctrine of constitutional supremacy in India). Similar to Mopa 2, the Court showed deference to the Secretary of State when the question of the latter’s decision to reject an alternative option (expansion of the Gatwick Airport) arose. While the Gatwick option was less environmentally intrusive, the Secretary of State rejected it for its relative lack of suitability for the hub objective.
The significance of the Court of Appeal’s decision in this case lies in its finding that the Secretary of State’s failure to account for UK’s obligations under the 2015 Paris Agreement in designating the ANPS amounted to a contravention of the Planning Act, 2008. Of course, here the Court only found there to be an obligation to take the Paris Agreement into account (¶ 238), and so the Secretary of State was well within his rights under the Planning Act to accord lesser normative value to UK’s climate obligations than would be ‘ideal’.
Heathrow Runway demonstrates the limitations of the law’s instrumental potential before the courts in the UK, which tend to adhere to a stricter notion of separation of powers than Indian Courts, the latter of which have, in many cases, made normative evaluations and issued directions on account of the government’s failures. Furthermore, the Indian court’s approach in Mopa 1 was highly critical (and suspicious) of the government’s claims, in contrast to the UK Court’s approach in this case. In the former judgment, the Court underscored the seriousness of the government’s lapses by invoking the principle of ‘Environmental Rule of Law’ (as conceptualised by the UNEP) which is not explicitly found in the Constitution, legislation, or delegated legislation. The UK Court, on the other hand, relied on explicit references to the relevance of ‘climate change’ in sections 5(8) and 10 of the Planning Act, 2008, to reach its decision.
Environmental law (in its broadest sense) cannot fully mitigate and prevent all environmental problems. While issues of ideology dominate conversations about the environmental impact of major infrastructure projects, the role played by law in these cases is significant. Heathrow Runway shows that a re-imagination of what constitutes ‘policy’, in light of international law is possible in the UK. Mopa 1 represents how far the envelope can be pushed in fighting back against hasty governmental decisions in favour of infrastructure projects in India. However, it is important to highlight the law’s limitations. In many cases, law does not keep pace with morality, and infrastructure projects undertaken in accordance with the law may come at a heavy, irreversible cost. In these cases, the re-adjustment of laws through the political process is our best bet.
* Pranav Ganesan is currently enrolled in the BCL Programme at the University of Oxford (2020-21). He has a B.A., LL.B. (Hons.) from the National Law Institute University, Bhopal (2015-20).
 Ivar Ekeland, Mathematics and the Unexpected (1988) 66.
 Brian Larkin, ‘The Politics and Poetics of Infrastructure’ (2013) 42 Annual Review of Anthropology 327, 330.
 Elizabeth Fisher, Environmental Law: A Very Short Introduction (2017) 3 [Hereinafter ‘Fisher’].
 Elizabeth Fisher, ‘Law and Energy Transitions: Wind Turbines and Planning Law in the UK’ (2018) 38 Oxford Journal of Legal Studies 528, 531-536.
 Daniel Bodansky, The Art & Craft of International Environmental Law (2010) 213-214.
 Vishaka v. State of Rajasthan  6 SCC 241.
 Meinhard Schröder, ‘Precautionary Approach/Principle’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedias of International Law (2014) ¶ 16.
 Vellore Citizens Welfare Forum & Anr. v. Union of India & Ors.  5 SCR 241.
 R. (on the application of Plan B Earth) v. Secretary of State for Transport  EWCA Civ 214.
 R Lidskog, Y Uggla, and L Soneryd, ‘Making Transboundary Risks Governable: Reducing Complexity, Constructing Spatial Identity, and Ascribing Capabilities’ (2011) 40 AMBIO 111, 112.
 Tennessee Valley Authority v. Hiram Hill et al., 437 U.S. 153 (1978)
 Fisher (n 3) 61-73; Jane Holder, Environmental Assessment: The Regulation of Decision Making (2006) 23-24. Elizabeth Fisher and others, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213, 241-242. Eloise Scotford, Environmental Principles and the Evolution of Environmental Law (2017) 19; Natasha Affolder, ‘Contagious Environmental Lawmaking’ (2019) 31 Journal of Environmental Law 187.
 Fisher (n 3) 71.
 The case of Vellore Citizens Welfare Forum (n 9) exemplifies this point, as there the Court held the precautionary and polluter pays principles as “part of the environmental law of the country”, based on a robust interpretation of Article 21 of the Constitution [read with Articles 47, 48A and 51A(g)].
 In its application, the State Government of Goa left a blank entry, where it ought to have provided information about forest, lakes, mountains, ecologically sensitive areas, rivers, or wild flora and fauna within a 15 kilometre radius of the site.
 There are no doctrinal barriers that prevent Indian courts from accepting the argument for a stricter standard of scrutiny based on the ‘precautionary principle’, where administrative decision making affects the environment to the extent that it conflicts with the fundamental right to life under Article 21 of the Indian Constitution, which implicitly includes the right to a healthy environment.
 Parameshwar Rao, ‘Separation of Powers in a Democracy: The Indian Experience’ (2005) 37 Peace Research 113, 116.