Supreme Court on Ex-Post Facto Environmental Clearances (ECs)

July 30, 2026

Why in News?

The Supreme Court has struck down the Union government's 2021 Office Memorandum (OM) that permitted retrospective (ex-post facto) Environmental Clearances (ECs) for projects that had already commenced construction or operations without prior approval.
However, the Court upheld the possibility of a limited, statutory, public interest-based amnesty under the Environment (Protection) Act (EPA), 1986, thereby balancing environmental protection with developmental necessities.

What’s in Today’s Article?

Background - Ex-Post Facto Environmental Clearance:

Under the Environmental Impact Assessment (EIA) Notification, 2006, specified projects must obtain prior Environmental Clearance (EC) before commencement.
Despite this requirement, many projects began operations without ECs.
To address past violations, the Centre issued -
- March 2017 Statutory Notification: One-time, six-month amnesty allowing violators to disclose violations and seek EC after environmental appraisal.
- July 2021 OM: Introduced a Standard Operating Procedure (SOP) enabling an ongoing mechanism for granting ex-post facto ECs to violation cases.

Key Supreme Court Ruling:

2021 OM declared invalid: The Court held that -
- The 2021 OM lacked statutory authority and was merely an administrative instruction.
- It created a perpetual mechanism for regularising environmental violations.
- An executive instruction cannot override or modify delegated legislation issued under a statute.
- Consequently, the OM was declared ultra vires the Environment (Protection) Act, 1986.
Limited statutory amnesty permissible:
- The Court clarified that -
  - Ex-post facto ECs cannot be granted through executive orders.
  - However, the Central Government may issue a narrowly tailored statutory notification under Section 3 of the Environment (Protection) Act, 1986, if -
    - justified by supervening public interest,
    - applicable only to clearly identified categories of projects,
    - satisfies the principles of reasonableness and proportionality.
  - Thus, blanket regularisation has been prohibited, while exceptional statutory relief remains constitutionally permissible.
Prospective operation of judgment: To avoid disruption, existing environmental clearances granted under the 2021 OM will remain valid. The judgment will apply prospectively.

Administrative Order vs Statutory Notification:

While OM is a administrative instruction, statutory notifications are issued under statutory authority.
OM has no force of law, while statutory notifications are legally enforceable.
While OM cannot amend delegated legislation, statutory notifications can create a legally valid regulatory framework.
OMs are issued by the Ministry, and statutory notifications are issued under powers delegated by Parliament.
The Court emphasised that environmental regulation must derive authority from law, not merely executive convenience.

Evolution of Supreme Court Jurisprudence:

Common Cause v. Union of India (2017):In this case, the SC held that mining activities requiring EC cannot begin without prior approval. It reinforced the preventive nature of environmental regulation.
Alembic Pharmaceuticals v. Rohit Prajapati (2020): The SC declared ex-post facto EC inconsistent with the Precautionary Principle, and Preventive environmental governance.
Pahwa Plastics v. Dastak (2022): The apex court adopted a pragmatic approach, and held that remediation and regulation may sometimes better serve environmental protection than immediate closure.
Vanashakti litigation:
- May 2025 judgment: Struck down both the 2017 notification, and 2021 OM. It held ex-post facto ECs impermissible "in any form or manner."
- Review (November 2025): A 2:1 majority recalled the judgment, observing that earlier binding precedents and public interest considerations had not been adequately examined.
- Present judgment (July 2026): Distinguished between a time-bound statutory amnesty, and a permanent administrative regularisation mechanism.

Constitutional and Legal Principles Involved:

Environment (Protection) Act, 1986: Section 3 - It empowers the Central Government to issue environmental protection notifications, and provides legal basis for exceptional statutory amnesty.
General Clauses Act, 1897: Sections 20 and 21 support modification or issuance of statutory notifications where authorised.
Fundamental Rights: The Court held that the 2021 OM violated -
- Article 14 – Equality before law, due to arbitrary and perpetual regularisation.
- Article 21 – Right to life, which includes the right to a healthy environment.
Role of Jan Vishwas Act, 2023: The Court observed that -
- It decriminalised several regulatory contraventions under the Environment (Protection) Act, reflecting legislative intent towards regulatory compliance rather than punitive action.
- However, decriminalisation does not justify unrestricted post-facto environmental approvals.

Projects Affected and the Significance of the Judgment:

Projects:
- Before the Supreme Court stayed the 2021 OM (January 2024) -
  - More than 100 projects had already received ex-post facto ECs.
  - Around 150 additional projects had entered the appraisal process.
- These included coal, iron and bauxite mines; greenfield airports; cement and steel plants; chemical industries; industrial estates; hospitals; and commercial buildings.
Significance:
- Reinforces: The Precautionary Principle while recognising developmental realities.
- Prevents: Routine legalisation of environmental violations.
- Strengthens: The distinction between executive instructions and delegated legislation.
- Establishes: Public interest as the constitutional benchmark for any future amnesty.
- Balances: Environmental governance, sustainable development, and administrative flexibility.