Supreme Court strikes down ex-post facto environmental approvals

New Delhi: The Supreme Court on Friday barred the Central government from granting “ex-post facto” Environmental Clearances (EC) in future.

The apex court struck down previous Office Memorandums (OMs) and notifications issued by Centre that had permitted such post-facto approvals for mining and industrial ventures.

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The bench, comprising Justices Abhay Shreeniwas Oka and Ujjal Bhuyan, ruled that projects initiating operations without the mandatory prior environmental clearance cannot be subsequently legalized.

Justice Oka, while reading the operative parts of the judgment, emphasized that corporations, real estate developers, public sector undertakings, and mining industries that deliberately disregarded environmental regulations would not be shown any leniency.

Axing a Legal Loophole

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The court explicitly prohibited the government from reintroducing any policy akin to the 2017 notification, which had facilitated retrospective ECs.

Additionally, the 2021 OM and all related circulars were declared unlawful and subsequently quashed. However, the court clarified that environmental clearances already granted under these now-invalidated provisions would remain unaffected.

The ruling stemmed from petitions filed by the non-governmental organization Vanashakti and other entities, challenging the legality of government memorandums issued in July 2021 and January 2022.

These OMs had established a mechanism to grant environmental clearance to projects that had commenced operations without obtaining prior approval as mandated by the Environment Impact Assessment (EIA) Notification, 2006.

The petitioners had argued that these memorandums violated the fundamental requirement of prior clearance, a term emphasized 34 times in the 2006 Notification, and consequently weakened environmental safeguards. The Supreme Court had previously imposed an interim stay on these contested OMs in January 2024.

Government’s Defense Rejected

The Union Ministry of Environment, Forest and Climate Change had defended its position, stating in a counter-affidavit that the 2017 Notification offered a limited six-month window for violators to seek regularization, which expired in September 2017.

The 2021 OM, it argued, was introduced to address ongoing violations not covered by earlier rules, aiming to assess environmental damage under the ‘polluter pays’ principle.

The government also cautioned that denying regularization could lead to large-scale demolitions, citing the environmental repercussions witnessed during the 2021 demolition of the Supertech Twin Towers.

However, the Supreme Court dismissed these arguments, firmly stating that environmental laws cannot be relaxed to accommodate projects initiated unlawfully. The court underscored that the very concept of granting ex-post facto environmental clearance is illegal.

Justice Oka questioned the rationale behind the central government’s efforts to protect entities that knowingly violated the EIA notification by not obtaining prior EC.

“We hold that the 2017 notification and the 2021 OM (office memorandum) as well as all circulars/orders/OMs/notifications issued for giving effect to these notifications are illegal and are hereby struck down. We restrain the Central Government from issuing circulars/orders/OMs/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,” Justice Oka stated in the 41-page judgment.

The bench further clarified that the central government is now barred from introducing any new notification that provides for the grant of ex-post facto EC in any manner.

Justice Oka pointed out that the EIA notification was already eleven years old when the 2017 notification was issued, implying no grounds for leniency towards those who committed the “gross illegality” of proceeding without prior EC.

He emphasized that these were not “illiterate persons” but included companies, real estate developers, public sector undertakings, and mining industries who knowingly violated the law.

‘Polluter Pays’ Argument Dismissed

The Centre’s counsel had argued that the 2021 OM was merely a Standard Operating Procedure (SOP) and not intended to grant ex-post facto EC.

They contended that it provided for the demolition of non-permissible projects and the closure of permissible projects lacking prior EC.

The counsel also argued that even if EC was granted under the OM, it would be effective from the date of issuance, and the project proponent would be liable to pay penalties based on the ‘polluter pays’ principle.

The objective, according to the Centre, was to protect projects that could have been granted EC initially but commenced activities prematurely, thus preventing the wastage of significant construction investments.

However, the bench refuted this, stating that granting EC under the 2021 OM effectively regularizes illegal activities with retrospective effect.

“The grant of EC under the 2021 OM in substance and in effect amounts to ex post facto grant of EC, and the court must come down very heavily on the attempt of the central government to do something which is completely prohibited under the law,” the bench asserted.

The court found the 2021 OM to be “completely arbitrary and illegal,” issued in violation of previous Supreme Court decisions.

Strict View on Environmental Violations

Justice Oka stressed the need for courts to adopt a strict stance in environmental matters, emphasizing the fundamental right to live in a pollution-free environment guaranteed under Article 21 of the Constitution.

He highlighted the severe consequences of environmental destruction, citing the alarming air pollution levels in Delhi and other major cities. The bench stated that measures like the 2021 OM violate this fundamental right to a pollution-free environment and infringe upon the right to health.

The court firmly rejected the argument of development at the cost of the environment, stating that conservation and improvement of the environment are integral to the concept of development. Therefore, any attempts to protect those who harm the environment through such OMs must be deprecated.

While striking down the policies enabling retrospective ECs, the apex court clarified that environmental clearances already granted under the 2017 notification and the 2021 OM up to the present date would remain valid.

The bench acknowledged that the 2017 notification was intended as a one-time measure for existing violations. However, it reiterated that even such a “one-time measure” or “one-time relaxation” was illegal as it encourages pollution by entities that failed to obtain prior EC, thus infringing upon the right to a pollution-free environment.