Supreme Court Curbs Retrospective Environmental Clearance Through Administrative Orders

Why in the News ?

The Supreme Court has struck down the 2021 Office Memorandum (OM) that allowed ex post facto Environmental Clearance (EC) for projects started without prior approval. The judgment reinforces the precautionary principle, rule of law, and environmental governance under the Environment (Protection) Act, 1986.

Supreme Court’s Ruling on Retrospective Environmental Clearance:

●  The Supreme Court quashed the 2021 Office Memorandum (OM) prospectively, holding that the Union Government cannot alter the mandatory Environmental Clearance (EC) process through administrative instructions.

●  The Court observed that the 2021 OM created a permanent parallel mechanism for granting ex post facto (retrospective) environmental clearances, bypassing the mandatory prior EC requirement under the EIA Notification, 2006.

●  It ruled that any amnesty scheme must be temporary, exceptional, and backed by a proper legal notification, not by an executive order.

●  The judgment declared that the OM violated Articles 14 and 21 of the Constitution, as it weakened environmental safeguards and promoted a “pollute first, pay later” approach.

●  However, the Court protected ongoing projects by applying the judgment prospectively, ensuring that previously granted clearances remain valid unless challenged individually.

Significance of the Judgment for Environmental Governance

●  The verdict strengthens the principle that environmental protection must precede development, rather than regularising violations after project execution.

●  The Court held that prior Environmental Clearance is mandatory for sectors such as mining, highways, airports, townships, industries, and infrastructure projects.

●  It prohibited the Government from issuing similar administrative orders granting retrospective clearances in the future.

●  The judgment emphasized accountability of public authorities, directing that future amnesty schemes should include disciplinary action and personal liability for officials responsible for violating environmental laws.

●  The ruling balances development and environmental sustainability, while preserving judicial powers under Article 142 to grant relief in exceptional cases.

About Environmental Clearance (EC) Framework in India: ●  Environmental Clearance (EC): A mandatory approval granted before commencing specified projects to assess and minimize their environmental impact under the Environment (Protection) Act, 1986. ●  Environmental Impact Assessment (EIA) Notification, 2006: Issued under the Environment (Protection) Act, 1986, it mandates prior EC for notified developmental projects after environmental appraisal. ●  Ex Post Facto Environmental Clearance: Approval granted after a project has already commenced or been completed without obtaining mandatory prior clearance. Courts have generally discouraged this practice except in rare circumstances. ●  Key Environmental Principles: Precautionary Principle, Sustainable Development, Polluter Pays Principle, Inter-generational Equity, and the Public Trust Doctrine guide environmental decision-making in India.