Post-Facto EC Not Automatic, Impermissible Projects Can Be Demolished, Says Centre; Supreme Court Reserves Judgment

The Supreme Court on Wednesday reserved judgment in the Vanashakti plea challenging the regime permitting post-facto environmental clearances.

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.

In earlier hearings, the Supreme Court had questioned whether courts could adopt a rigid rule barring ex post-facto environmental clearances altogether, and if the legislature or a delegated law-maker could be treated as completely denuded of power to provide for such a regime.

The Court had also raised concerns about the consequences of permitting the regime under the impugned Office Memoranda for projects lacking prior environmental clearance. Justice Bagchi had observed that if prior consent is treated as non-negotiable, authorities would be required to stop such activities, whereas under the OM framework projects may continue until the State intervenes and enforces closure.

Today, Additional Solicitor General Aishwarya Bhati, appearing for the Union of India, placed a flowchart before the Court explaining the process under the impugned Office Memorandum dated July 7, 2021, titled a Standard Operating Procedure (SOP) for identification and handling of violation cases under the EIA Notification, 2006.

She highlighted that each violation case passes through a three-step “waterfall mechanism” involving closure or revision at the first stage, mandatory action under the Environment Protection Act at the second stage, and appraisal under the EIA Notification, 2006 at the third stage.

Bhati submitted that violating projects are required to undergo compensation, remediation and damage assessment processes, along with augmentation plans. She said environmental clearance is not automatic, and that impermissible projects would be demolished while even permissible ones would have to meet sustainability requirements or face closure.

During the exchange, Justice Joymalya Bagchi asked whether the Centre's stand was that the Office Memorandum was a stand-alone mechanism to stop continuing violations of environmental law. Bhati responded that it was and said the framework is designed to be deterrent while ensuring that violators are brought within the regulatory regime.

“The whole ecosystem has been made so that it remains deterrent and at the same time it stops violating further and it is brought into the regulation unless it is a case of violation. It is not a case of ex post facto EC. EC is not a guarantee. If the project is impermissible it will be broken down. Even if it is permissible it has to still be sustainable. For that it has to either be modified or if it cannot then it has to be struck down”, she emphasised.

Bhati argued that demolition of such projects would itself have environmental consequences, pointing to the large volume of waste generated by construction and demolition activities. Restarting projects after demolition to obtain fresh clearance would cause further pollution, she said.

She further submitted that courts may need to consider the environmental cost of environmental litigation itself.

“At some stage your lordships will have to consider the environmental cost of environmental litigation. Purportedly many of these litigants come for protecting the environment but the environmental cost on environmental well-being of such litigation itself is a serious question. In the Delhi ridge contempt matter your lord ships adopted an approach of balancing the equities and a balanced approach was taken”, she concluded.

The Court permitted parties to file brief written submissions within a week.

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

Case Title – Vanashakti v. Union of India