SYLLABUS
GS-3: Conservation, Environmental Pollution and Degradation, Environmental Impact Assessment.
Context: The Supreme Court has quashed the 2021 Office Memorandum (OM) issued by the Ministry of Environment, Forest and Climate Change (MoEFCC), which enabled the Centre and other regulatory authorities to grant ex post facto Environmental Clearances (ECs) to projects that had commenced operations without obtaining prior environmental approval.
Background of the Issue
- EIA Notification, 2006: Issued under the Environment (Protection) Act, 1986, it mandates that specified projects obtain prior Environmental Clearance (EC) before commencing construction or operations.
- 2017 Notification & 2021 OM: To address projects that had commenced work without prior EC, the Centre issued a 2017 notification providing a one-time six-month window for appraisal of specified violation cases.
- Subsequently, the 2021 Office Memorandum (OM) laid down a Standard Operating Procedure (SOP), creating a continuing administrative mechanism for processing proposals seeking ex post facto Environmental Clearance.
- Judicial Evolution:
- The validity of these measures was challenged by environmental groups led by Vanashakti, which argued that ex post facto clearances undermine the precautionary principle and reward violations of environmental law.
- In 2025, a two-judge Bench struck down both the 2017 notification and the 2021 OM.
- However, later that year, a three-judge Bench recalled the judgment, observing that previous Supreme Court rulings had, in exceptional cases, permitted projects to continue after imposing environmental safeguards and compensation instead of ordering demolition.
- The matter was thereafter heard afresh by a three-judge Bench.
Key Highlights of the Supreme Court Verdict
- 2021 Office Memorandum Quashed
- The Supreme Court struck down the 2021 Office Memorandum, holding that a substantive dilution of environmental safeguards cannot be introduced through an executive instruction.
- It ruled that any such mechanism, if considered necessary, must be introduced through a statutory notification issued under the Environment (Protection) Act, 1986.
- Prior Environmental Clearance Remains the Norm
- Reaffirming the EIA Notification, 2006, the Court held that obtaining prior Environmental Clearance remains the governing legal principle.
- It clarified that ex post facto Environmental Clearance cannot become a routine mechanism for regularising violations and may be permitted only in limited circumstances recognised by law.
- A Balanced Approach
- While reaffirming the importance of prior environmental clearance, the Court recognised that ordering closure or demolition of completed projects—particularly those serving a public purpose—may, in certain cases, cause greater environmental, economic and public harm.
- It therefore held that the Central Government may issue an appropriately tailored statutory notification to address specific categories of violation cases, rather than relying on a blanket administrative mechanism such as the 2021 OM.
- Prospective Application: The judgment will operate prospectively; therefore, environmental clearances already granted under the 2021 OM will remain valid and will not be automatically invalidated.
Significance of the Judgment
- Reinforces the Precautionary Principle: Reaffirms that environmental impacts should be assessed before project execution rather than after violations have occurred.
- Strengthens Environmental Governance: Upholds prior Environmental Clearance as the cornerstone of India’s environmental regulatory framework.
- Upholds the Rule of Law: Clarifies that executive instructions cannot substantially modify or dilute statutory environmental safeguards established under the EIA framework.
- Provides Legal Clarity: Establishes that any future framework for addressing ex post facto environmental clearances must follow the statutory route, ensuring greater transparency, accountability and legislative oversight.