Institute of Legal and Management Studies

The Supreme Court on Friday (May 16) restrained the Central Government from granting "ex-post facto" Environmental Clearances (EC) in future and set aside the previous Office Memoranda and notifications which allowed for the grant of ex-post facto Environmental Clearance for mining projects.

This means that the projects which commenced without obtaining the mandatory prior Environmental Clearance cannot be later regularised by granting them EC in future.

A bench of Justice Abhay S Oka and Justice Ujjal Bhuyan pronounced the verdict.

Justice Oka read out the operative portion as follows :

"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 were the persons who knowingly committed the illegalities. We therefore make it clear that hereafter the Central Government shall not come out with any version of the 2017 notification which provides for grant of ex-post facto EC. We have also set aside the 2021 OM. We hold that the 2017 notification and the 2021 OM, as well as all circulars, orders, and notifications issued for giving effect to these notifications are illegal and hereby struck down. We restrain the Central Government from issuing circulars, orders, notifications, OMs providing for grant of ex-post facto EC in any form or manner. We clarify that ECs already granted under the 2017 notification and the 2021 OM shall remain unaffected."

The two Office Memoranda issued by the Union government in July 2021 and January 2022 memoranda allowed ex-post facto environmental clearance for mining and other projects that commenced operations without obtaining the prior clearance mandated under the Environment Impact Assessment (EIA) Notification, 2006.

The batch of petitions was filed by NGO Vanashakti and others. The petitioners challenged the legality of the Standard Operating Procedure (SOP) outlined in the two government memoranda for regularising projects that had begun without environmental clearance.

Background

Vanashakti argued that the EIA Notification, 2006, clearly requires “prior environmental clearance” before a project can start, and this condition was not open to modification. The NGO pointed out that the phrase “prior environmental clearance” appears 34 times in the Notification, stressing the mandatory nature of the requirement.

It submitted that the 2021 and 2022 memoranda contradicted this requirement by creating a framework that allowed post-facto approval. The petitioners also contended that the January 2022 memorandum attempted to process clearance applications even after the expiry of the window provided in the original EIA Notification.

The Supreme Court had granted an interim stay on the operation of the impugned Office Memoranda on January 2, 2024.

In July 2024, the Ministry of Environment, Forest and Climate Change filed a counter affidavit in a connected matter filed by NGO One Earth, which had challenged a March 14, 2017 Notification along with a July 7, 2021 Office Memorandum.

The affidavit stated that the 2017 Notification provided a six-month window for violators to apply for environmental clearance and that this window closed on September 13, 2017. It said that the July 2021 Office Memorandum was issued to deal with violation cases not covered by the 2017 Notification, as there was no existing procedure under the 2006 Notification for dealing with projects that began without prior clearance.

The Union argued that the July 2021 Office Memorandum did not dilute the requirement of prior clearance or grant retrospective clearance. Instead, it was a separate and independent regulation to handle ongoing violations. The affidavit listed other earlier regulatory measures issued by the Ministry.

According to the Union, denying such projects the opportunity to regularise their operations would lead to demolition and removal. It maintained that its measures were consistent with the Environment (Protection) Act, 1986 and are meant to assess and prevent environmental damage through the application of the polluter pays principle.

Additional Solicitor General Aishwarya Bhati for the Union of India defended the July 7, 2021 Office Memorandum as a mechanism for addressing violations of the EIA Notification.

She submitted that the measure aimed to deal with projects that had commenced without proper clearance and highlighted that consequences such as demolition also cause environmental damage, drawing attention to the demolition of Supertech Twin Towers in 2021.

Case no. – Writ Petition No. 1394 of 2023

Case Title – Vanashakti v. Union of India and connected matters.