Supreme Court Strikes Down Ex Post Facto Environmental Clearances

Context:

Recently, the Supreme Court of India quashed the Central Government's 2021 Office Memorandum (OM) that permitted projects constructed without prior environmental approval to obtain retrospective (ex post facto) environmental clearances. The Court held that executive instructions cannot dilute statutory environmental safeguards and reaffirmed that prior environmental clearance (EC) is the rule.

What is Retrospective Environmental Clearance?

Retrospective Environmental Clearance (Ex-Post Facto Clearance) refers to the process of granting environmental approval to a project after it has already commenced construction or operations without obtaining prior Environmental Clearance (EC). Normally, projects must receive approval before starting to assess and mitigate potential environmental impacts.

Background:

The Environmental Impact Assessment (EIA) Notification, 2006, issued under the Environment (Protection) Act, 1986, mandates prior EC for specified projects before construction begins. However, the 2017 amnesty notification and the 2021 OM allowed projects that had already commenced or completed construction without approval to seek post-facto environmental clearance, raising concerns about environmental compliance.

Key Highlights of the Verdict:

• • • Blanket Regularisation Invalid: The Court struck down the 2021 OM, describing it as a perpetual amnesty scheme that legitimized illegal projects.
    • Executive Orders Cannot Override Law: It ruled that an administrative instruction cannot supersede the statutory EIA Notification, 2006.
    • Constitutional Violations: The OM violated Article 14 by allowing arbitrary treatment and Article 21 by weakening environmental protection, an integral part of the Right to Life.
    • Limited Exception: The Court held that ex-post facto clearance is generally impermissible. However, in exceptional cases, the government may exercise powers under Section 3 of the Environment (Protection) Act, 1986, to regularize a project only when it is expressly authorized by law and justified by a compelling public interest.

Impact of the Judgment:

• • • The ruling has prospective effect, ensuring that:
      • Clearances already granted under the 2017 notification and 2021 OM remain valid unless individually challenged.
      • Major public infrastructure, including AIIMS Odisha, Vijayapura Greenfield Airport (Karnataka), and common effluent treatment plants, will not face demolition.
      • Future projects cannot routinely seek retrospective approval after violating environmental laws.

Significance:

The judgment strengthens the Rule of Law by reaffirming that executive convenience cannot override statutory safeguards. It reinforces preventive environmental governance, discourages deliberate violations, and upholds the constitutional principles of equality (Article 14) and the right to a clean environment under Article 21. It also balances environmental protection with economic stability by safeguarding existing public investments.

Way Forward:

The government should streamline environmental clearance procedures, strengthen monitoring mechanisms, ensure transparency in the EIA process, and impose strict penalties for non-compliance. Environmental regulation should continue to promote sustainable development, ensuring that economic growth does not come at the cost of ecological security.