The Supreme Court of India has ruled against the practice of granting "ex-post facto" Environmental Clearances (EC) for projects that began without obtaining prior approval. In a significant decision delivered on May 16, a bench of Justice Abhay S Oka and Justice Ujjal Bhuyan declared that the Central Government cannot issue any future notifications allowing ex-post facto EC.
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The court's ruling means that projects that began without the mandatory Environmental Clearance cannot later be regularised through post-facto approvals. The bench clarified:
"There are no equities in favour of those who committed gross illegalities without obtaining prior ECs. The persons who acted without ECs were not illiterate persons. They are companies, real estate developers, public sector undertakings, mining industries, etc. They knowingly committed illegalities."
The bench further declared that the 2017 notification, the 2021 Office Memorandum (OM), and any other circulars or orders issued for providing ex-post facto EC are "illegal" and "struck down".
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The two Office Memoranda issued by the Central Government in July 2021 and January 2022 had allowed post-facto environmental clearance for projects that commenced operations without obtaining the required clearance under the Environment Impact Assessment (EIA) Notification, 2006. These memoranda have now been invalidated by the Supreme Court's decision.
The verdict came in response to a batch of petitions filed by NGO Vanashakti and others, challenging the legality of the Standard Operating Procedure (SOP) in the government memoranda. The petitioners argued that the EIA Notification, 2006, explicitly required "prior environmental clearance" before a project could start.
Vanashakti highlighted that the term "prior environmental clearance" appeared 34 times in the EIA Notification, underlining its mandatory nature. The petitioners contended that the 2021 and 2022 memoranda violated this requirement by allowing a process of post-facto approval, effectively bypassing the law.
The Union Government defended the 2021 OM, claiming that it aimed to address projects that began without obtaining prior clearance, without diluting the requirement for prior EC.
Additional Solicitor General Aishwarya Bhati argued that denying such projects the chance to regularise would lead to demolition and environmental damage. She cited the demolition of the Supertech Twin Towers in 2021 as an example of such consequences.
However, the Supreme Court firmly rejected these arguments, maintaining that allowing ex-post facto EC undermines the core purpose of environmental regulations.
Case no. – Writ Petition No. 1394 of 2023
Case Title – Vanashakti v. Union of India and connected matters.
