Supreme Court Rules Against Ex-Post Facto Environmental Clearances, ET LegalWorld

The Supreme Court has struck down the Ministry of Environment, Forest and Climate Change (MoEFCC)’s 2017 notification and 2021 Office Memorandum, holding that ex-post facto Environmental Clearances (ECs) violate the constitutional right to a pollution-free environment under Article 21.

“Conservation of environment and its improvement is an essential part of the concept of development,” the Court said. “Therefore, going out of the way by issuing such OMs to protect those who have caused harm to the environment has to be deprecated by the Courts, which are under a constitutional and statutory mandate to uphold the fundamental right under Article 21 and to protect the environment.”

The court barred the government from issuing circulars, orders, Office Memorandum, notifications providing for grant of ex post facto EC in any form or manner or for regularising the acts done in contravention of the EIA notification issuing any future notifications allowing such post facto clearances but clarified that ECs already granted under the quashed notifications would remain unaffected.

The bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan clarified that the Environment Clearances already granted till date under the 2017 notification and the 2021 OM shall, however, remain unaffected.

“Illegality cannot be legalised”

The Court said, “In other words, what is granted is EC with retrospective effect as it regularises illegality committed earlier.”

The ruling came in response to petitions, including one by environmental NGO Vanashakti, challenging the 2017 Notification and the 2021 OM, which provided a route for retrospective regularisation of projects that had bypassed mandatory environmental approvals.

“The concept of ex post facto or retrospective EC is completely alien to environmental jurisprudence, including the EIA notification,” the bench observed.

“They were the persons who knowingly committed illegality,” the court said, “The persons who acted without prior EC were not illiterate persons. They were companies, real estate developers, public sector undertakings, mining industries, etc.”

Implications

Legal experts say the verdict effectively closes a controversial policy loophole that had allowed industries and infrastructure projects to begin work illegally and seek clearance later, often by paying penalties or offering remediation.

“The Court, while emphasising the importance of protecting and preserving the environment, reiterated that the concept of ex post facto or retrospective EC is completely alien to environmental jurisprudence and the EIA Notification,” said Saloni Kapadia, Partner, Cyril Amarchand Mangaldas.

She explains, “On account of the law laid down in the judgment, without prior EC, construction of new projects or activities, expansion or modernisation of existing projects or activities listed in the EIA Notification, cannot be undertaken.” Further adding, “This means that before any of the aforesaid activities are undertaken the entire procedure for grant of prior EC as laid down in the EIA notification must be followed.”

Going forward, all new and existing projects — including expansion and modernisation efforts — will need prior EC before any physical work begins. Any violations will attract penalties under existing environmental laws, with no option for regularisation.

The judgment also imposes a heavy compliance burden on MoEFCC and State Environment Impact Assessment Authorities (SEIAAs) to ensure strict adherence to the EIA framework.

“This Judgment strengthens environmental governance and emphasis on compliance before operation and eliminates legal loopholes,” said Alay Razvi, Managing Partner, Accord Juris.

He adds, “It delivers a major blow to the practice of granting ex post facto environmental clearances for projects that begin without prior approval.”

He argues that the Union Ministry of Environment, Forest and Climate Change (MoEFCC) will now have to restructure its clearance framework, as the earlier mechanism to condone violations via post-facto approvals is invalidated.

Retrospective clearances: Protected, but scrutinised

While the Court spared ECs already granted under the 2017 Notification and 2021 OM from retrospective invalidation, experts believe these projects may now face greater judicial and regulatory scrutiny.

“All projects must now obtain prior EC before commencement, and any attempt to regularise violations through ex post facto mechanisms is barred,” said Shryeshth Ramesh Sharma, Partner, SKV Law Office.

He explains, “In other words, projects that were granted retrospective clearances prior to the date of this judgment may continue to rely on those approvals, and the validity of such past clearances will not be reopened or disturbed.”

Projects that have relied on such clearances may also face increased monitoring and compliance checks. Experts say High Courts, the National Green Tribunal (NGT), and PIL litigants now have a stronger legal foundation to question these approvals.

“The judgment emphasises that the requirement of ‘prior’ EC is not a mere formality but a substantive safeguard for the protection of the environment and the enforcement of the fundamental right to life under Article 21 of the Constitution,” said Abhinay Sharma, Managing Partner, ASL Partners.

“The verdict sends a clear warning that penalty payments and remedial measures cannot serve as post-facto justifications for violating environmental laws,” he added.

He further emphasised that regulatory authorities will now be compelled to ensure stringent enforcement of the EIA Notification, 2006, as the Supreme Court has reaffirmed that environmental protection is intrinsic to sustainable development and a constitutional obligation.

The verdict reinforces the precautionary principle and the polluter pays doctrine, cornerstones of India’s environmental jurisprudence. It also reiterates the judiciary’s constitutional role in ensuring that the state does not sacrifice environmental safeguards at the altar of economic expediency.

As India continues its infrastructure and industrial expansion, the Supreme Court’s ruling is a timely reiteration of the principle that environmental compliance is not a bureaucratic hurdle, but a legal and ethical obligation.

• Published On May 30, 2025 at 05:20 PM IST

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