Supreme Court on Ex-Post Facto Environmental Clearances (ECs)

Environmental Clearances (ECs) Latest News

• The Supreme Court has struck down the Union government’s 2021 Office Memorandum (OM) that permitted retrospective (ex-post facto) Environmental Clearances (ECs) for projects that had already commenced construction or operations without prior approval. 
• However, the Court upheld the possibility of a limited, statutory, public interest-based amnesty under the Environment (Protection) Act (EPA), 1986, thereby balancing environmental protection with developmental necessities.

Background – Ex-Post Facto Environmental Clearance

• Under the Environmental Impact Assessment (EIA) Notification, 2006, specified projects must obtain prior Environmental Clearance (EC) before commencement.
• Despite this requirement, many projects began operations without ECs.
• To address past violations, the Centre issued –
  • March 2017 Statutory Notification: One-time, six-month amnesty allowing violators to disclose violations and seek EC after environmental appraisal.
  • July 2021 OM: Introduced a Standard Operating Procedure (SOP) enabling an ongoing mechanism for granting ex-post facto ECs to violation cases.

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Key Supreme Court Ruling

• 2021 OM declared invalid: The Court held that –
  • The 2021 OM lacked statutory authority and was merely an administrative instruction.
  • It created a perpetual mechanism for regularising environmental violations.
  • An executive instruction cannot override or modify delegated legislation issued under a statute.
  • Consequently, the OM was declared ultra vires the Environment (Protection) Act, 1986.
• Limited statutory amnesty permissible: 
  • The Court clarified that –
    • Ex-post facto ECs cannot be granted through executive orders.
    • However, the Central Government may issue a narrowly tailored statutory notification under Section 3 of the Environment (Protection) Act, 1986, if –
      • justified by supervening public interest,
      • applicable only to clearly identified categories of projects,
      • satisfies the principles of reasonableness and proportionality.
  • Thus, blanket regularisation has been prohibited, while exceptional statutory relief remains constitutionally permissible.
• Prospective operation of judgment: To avoid disruption, existing environmental clearances granted under the 2021 OM will remain valid. The judgment will apply prospectively.

Administrative Order vs Statutory Notification

• While OM is a administrative instruction, statutory notifications are issued under statutory authority.
• OM has no force of law, while statutory notifications are legally enforceable.
• While OM cannot amend delegated legislation, statutory notifications can create a legally valid regulatory framework.
• OMs are issued by the Ministry, and statutory notifications are issued under powers delegated by Parliament.
• The Court emphasised that environmental regulation must derive authority from law, not merely executive convenience.

Evolution of Supreme Court Jurisprudence

• Common Cause v. Union of India (2017):In this case, the SC held that mining activities requiring EC cannot begin without prior approval. It reinforced the preventive nature of environmental regulation.
• Alembic Pharmaceuticals v. Rohit Prajapati (2020): The SC declared ex-post facto EC inconsistent with the Precautionary Principle, and Preventive environmental governance.
• Pahwa Plastics v. Dastak (2022): The apex court adopted a pragmatic approach, and held that remediation and regulation may sometimes better serve environmental protection than immediate closure.
• Vanashakti litigation:
  • May 2025 judgment: Struck down both the 2017 notification, and 2021 OM. It held ex-post facto ECs impermissible “in any form or manner.”
  • Review (November 2025): A 2:1 majority recalled the judgment, observing that earlier binding precedents and public interest considerations had not been adequately examined.
  • Present judgment (July 2026): Distinguished between a time-bound statutory amnesty, and a permanent administrative regularisation mechanism.

Constitutional and Legal Principles Involved

• Environment (Protection) Act, 1986: Section 3 – It empowers the Central Government to issue environmental protection notifications, and provides legal basis for exceptional statutory amnesty.
• General Clauses Act, 1897: Sections 20 and 21 support modification or issuance of statutory notifications where authorised.
• Fundamental Rights: The Court held that the 2021 OM violated –
  • Article 14 – Equality before law, due to arbitrary and perpetual regularisation.
  • Article 21 – Right to life, which includes the right to a healthy environment.
• Role of Jan Vishwas Act, 2023: The Court observed that –
  • It decriminalised several regulatory contraventions under the Environment (Protection) Act, reflecting legislative intent towards regulatory compliance rather than punitive action.
  • However, decriminalisation does not justify unrestricted post-facto environmental approvals.

Projects Affected and the Significance of the Judgment

• Projects: 
  • Before the Supreme Court stayed the 2021 OM (January 2024) – 
    • More than 100 projects had already received ex-post facto ECs.
    • Around 150 additional projects had entered the appraisal process.
  • These included coal, iron and bauxite mines; greenfield airports; cement and steel plants; chemical industries; industrial estates; hospitals; and commercial buildings.
• Significance:
  • Reinforces: The Precautionary Principle while recognising developmental realities.
  • Prevents: Routine legalisation of environmental violations.
  • Strengthens: The distinction between executive instructions and delegated legislation.
  • Establishes: Public interest as the constitutional benchmark for any future amnesty.
  • Balances: Environmental governance, sustainable development, and administrative flexibility.

Source: IE | IE