SC strikes down ex-post facto environmental clearances, bars Centre from issuing future approvals

New Delhi: In a landmark decision with significant environmental implications, the Supreme Court on Friday categorically barred the Central Government from granting ex-post facto Environmental Clearances (EC) for any projects in the future.

The Court also invalidated past Office Memoranda (OMs) and notifications that permitted such retrospective approvals, especially in the mining sector.

A two-judge bench comprising Justice Abhay S. Oka and Justice Ujjal Bhuyan delivered the ruling, holding that prior environmental clearance is a non-negotiable legal prerequisite under the Environment Impact Assessment (EIA) Notification, 2006.

Reading out the operative part of the judgment, Justice Oka said, “There are no equities in favour of those who committed gross illegalities without obtaining prior ECs. These are not cases of ignorance. The violators include companies, real estate developers, PSUs, and the mining industries. They knowingly proceeded without mandatory clearances,” Justice Oka said.

The Court declared that the 2017 notification, the 2021 Office Memorandum, and all related circulars or orders enabling ex-post facto environmental clearance were illegal and hence struck down. It also restrained the Centre from issuing any future guidelines or notifications that would permit such retrospective approvals.

However, the Court clarified that ECs already granted under the now-struck-down 2017 and 2021 directives would remain valid and unaffected by the judgment.

The ruling came in response to a batch of petitions led by the environmental NGO Vanashakti, which contested the legal basis of the government’s Standard Operating Procedures that allowed the regularisation of projects already operational without prior EC.

The petitioners highlighted that the term “prior environmental clearance” appeared 34 times in the Environment Impact Assessment (EIA) Notification, underlining its compulsory nature.

The Centre had defended its position by arguing that the 2021 OM and earlier 2017 notification were necessary to deal with legacy violations, claiming that a rigid interpretation would lead to mass demolitions and disrupt essential services. The government further asserted that these instruments were aligned with the Environment (Protection) Act, 1986 and intended to assess and mitigate environmental damage.

However, the Supreme Court rejected this rationale, reiterating that legal compliance cannot be an afterthought, particularly in matters concerning environmental protection.

The Court’s interim stay on the impugned OMs, granted in January 2024, has now been made permanent with this final verdict.

The decision sets a precedent for stricter adherence to environmental laws and curbs the recurring practice of regularising violations post-facto.

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