Post-Facto Environmental Clearance Allows Impermissible Projects To Continue Till State Intervenes: Supreme Court Raises Concern

The Supreme Court on Wednesday expressed concerns that allowing the grant of post-facto environmental clearance would result in projects, which are harmful to the environment, continuing until state intervention.

The Court noted that in contrast, if a prior environmental sanction is treated as non-negotiable, authorities would be duty-bound to stop any activity undertaken without it.

“When laws are made, they are made uniformly. But they are not applied uniformly. If the OM says it will be closed, it will only be closed when you implement that OM effectively. The cleansing effect that you want to make will not really give any significant difference to the impact on the environment. If we say prior consent is not negotiable then anything done without prior consent, you are duty bound to stop. If OM regime comes in, then everything is permissible till you implement the OM and close it”, Justice Bagchi said.

A bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi was hearing a batch of writ petitions challenging post-facto environmental clearances. The matter arises from the Court's earlier decision recalling its own order that had prohibited retrospective environmental approvals.

During the hearing, Justice Bagchi contrasted two possible regulatory consequences. He said that if the legal position is that prior environmental clearance is mandatory, then authorities are duty-bound to stop any activity undertaken without such consent. However, under the regime created by the impugned Office Memorandum, projects may continue until the State identifies them and enforces closure.

“You bring down the illegal perpetrators. But the OM allows the continuation of activities without prior sanction till your intervention. But if the OM is not there and only 2006 EIA notification is there, it is a complete road block to anything without a prior consent”, he highlighted.

He questioned whether the intended “cleansing effect” would be achieved if implementation is uneven. He also pointed out that governments cannot claim ignorance of environmental clearance.

“State and the central government certainly cannot argue that they were unaware of environmental clearance.”

Justice Bagchi was responding to Additional Solicitor General Aishwarya Bhati's argument that the impugned Office Memorandum provides for closure of impermissible activities and imposition of environmental penalties on such project proponents.

ASG Bhati for the Union of India submitted that the impugned OM does not provide for ex-post-facto environmental clearance or regularisation of past violations. She said its purpose is to bring projects operating outside the EIA regime within scrutiny by expert appraisal committees.

Taking the Court through the impugned OM, she highlighted that impermissible activities have to be closed and environmental penalties imposed, while permissible activities would be assessed for remediation measures, penalty for the environmental harm, and prospective clearance from the date of grant.

Bhati argued that the framework does not incentivise project proponents to bypass seeking prior clearance under the EIA Notification, as it makes ex post facto compliance more onerous through remediation requirements and minimum penalties. She contended that if the Court finds errors in the exercise in individual cases, it can intervene. She said the Union was open to further safeguards if the Court considered them necessary.

Chief Justice Surya Kant observed that the mechanism could be seen as expanding environmental jurisprudence rather than compromising it.

Earlier, Advocate Srishti Agnihotri, for NGO One Life, One Earth argued that the architecture of the environmental impact assessment regime shows why any blanket framework for post-facto clearance should not be permitted.

She submitted that while the Court may exercise powers under Article 142 in individual cases, that could not justify dilution of the requirement of prior environmental clearance, as project proponents would find it easier to seek forgiveness than permission.

Taking the Court through Environmental Impact Assessment notification, 2006, she highlighted that prior clearance enables authorities to assess whether cumulative development in a particular area is environmentally sustainable.

She pointed to risks of irreversible contamination of land and water once projects become operational without prior clearance. “Once the project is operational how does one turn the clock back in terms of pollution?”, she asked.

She further highlighted that environmental impact assessment processes also examine the presence of vulnerable populations and cultural sensitivities, including areas of religious significance to tribal communities.

Agnihotri submitted that prior clearance allows meaningful evaluation of alternatives and ensures public participation through consultation. Allowing post-facto clearance, she argued, deprives affected communities of an opportunity to participate in decision-making.

She highlighted that even Central and State governments have initiated projects without prior clearance, when they are the ones who frame environmental regulation.

“They have come and said look we have built government buildings, hospitals, airports and those are valuable. But today two decades after the EIA notification you have built this without an EC. So if that window is left open, it will be left throwing the baby out of the bath water. Doctrine of proportionality and doctrine of sustainable development is baked into the environmental regulation. You cannot make the Regulation and then say that the impact on us is disproportionate. It is reducing concept of polluted pays to the concept of pollute and pay”, she highlighted.

She urged that a clear line must be drawn to prevent projects from seeking regularisation decades later. Referring to successive regulatory measures permitting post-facto clearances, she described the framework as resembling a “many-headed hydra”, with new windows emerging as earlier ones close.

The Court would continue hearing the matter next week.

Case no. – W.P.(C) No. 1394/2023 Diary No. 50009 / 2023

Case Title – Vanashakti v. Union of India