Can There Be Development At The Cost Of Environment?: Supreme Court Strikes Down Notifications Permitting Ex Post Facto Environmental Clearances

The Environment Impact Assessment (EIA) Notification, 2017 (2017 notification) was issued to deal with projects that had started work or expanded without obtaining prior EC, providing a window for them to apply for ex post facto EC. The Office Memorandum (2021 OM) was subsequently issued as a Standard Operating Procedure (SOP) for handling violation cases.

A Bench of Justice Abhay S Oka and Justice Ujjal Bhuyan held, “Therefore, in substance, what is provided is grant of ex post facto EC. In other words what is granted is EC with retrospective effect as it regularises illegality committed earlier. The grant of EC under the 2021 OM, no doubt, is subject to making payment of compensation determined based on Polluter Pays Principle and undertaking activities relating to remedial plan. Once there is a violation of the EIA notification, the project proponent has to compensate following the Polluter Pays Principle. Even if, EC is not granted to him he has to pay for remedial plan to remedy the damage done to the environment. He has to also pay the penalty under Section 15 of the 1986 Act. Therefore, what is done by the 2021 OM is something which was completely prohibited by this Court.”

Senior Advocates Gopal Sankaranarayanan and Sanjay Parikh appeared for the Petitioner, while ASG Aishwariya Bhati and Senior Advocates Ruchi Kohli, Swarupama Chaturvedi, Vinay Navare, Devadatt Kamat, AM Singhvi, Atmaram N.S. Nadkarini, V. Chitambaresh, Sanjay Upadhyay and Amar Dave represented the Respondent.

Brief Facts

The 2017 notification and the 2021 OM issued by the Ministry of Environment Forests and Climate Change (MoEFCC) were challenged on the ground that they permitted the grant of EC after projects or activities had already commenced without obtaining the mandatory prior EC required under the EIA Notification, 2006.

The requirement for prior Environmental Clearance stems from the powers granted to the Central Government under the Environment (Protection) Act, 1986 (the Act) and the Environment (Protection) Rules, 1986, aimed at protecting and improving the environment and preventing pollution.

Court’s Reasoning

The Supreme Court held that “there is already a concluded finding of this Court that the concept of ex post facto or retrospective EC is completely alien to environmental jurisprudence and the EIA notification.”

“The object of protecting and improving the environment and preventing and abating environmental pollution was achieved by the EIA notification. The object of the 2017 notification appears to be to protect the industries and entities which violated the EIA notification,” the Bench remarked.

“Can there be development at the cost of environment? Conservation of environment and its improvement is an essential part of the concept of development,” the Court remarked. The Bench stated that going out of the way by issuing such OMs to protect those who have caused harm to the environment has to be deprecated by the Courts, which are under a constitutional and statutory mandate to uphold the fundamental right under Article 21 and to protect the environment

“Apart from the fact that the very concept of grant of ex-post facto EC is illegal, it is not possible to understand why the Central Government made efforts to protect those who committed illegality by not obtaining prior EC in terms of the EIA notification. As the EIA notification was eleven years old when the 2017 notification was issued, there was no equity in favour of those who committed such gross illegality of not obtaining prior EC. The persons who acted without prior EC were not illiterate persons. They were companies, real estate developers, public sector undertakings, mining industries, etc. They were the persons who knowingly committed illegality. We, therefore, make it clear that hereafter, the Central Government shall not come out with a new version of the 2017 notification which provides for the grant of ex-post facto EC in any manner,” the Court stated.

“We are, however, conscious of the fact that ex post facto EC may have been granted in certain cases both under the 2017 notification and the 2021 OM. ECs already granted under 2017 notification and the 2021 OM, at this stage, should not be disturbed,” the Bench clarified.

Consequently, the Court ordered, “We hold that the 2017 notification and the 2021 OM 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.”

Accordingly, the Supreme Court allowed the Writ Petition.

Cause Title: Vanashakti v. Union Of India (Neutral Citation: 2025 INSC 718)

Appearance:

Petitioner: Senior Advocates Gopal Sankaranarayanan and Sanjay Parikh; AOR Vanshdeep Dalmia, Srishti Agnihotri and Naveen Hegde; Advocates Anisha Jain, Shambhavi Singh, Trisha Chandran, Natasha Dalmia, Shourya Dasgupta, Dhaval Mehrotra, Rahul Garg, Abhishek Singh, Aditi Desai, Sanjana Grace Thomas, Kritika, D.P. Singh, Tara Elizabeth Kurien and T.V.S. Raghavendra Sreyas

Respondent: ASG Aishwariya Bhati; Senior Advocates Ruchi Kohli, Swarupama Chaturvedi, Vinay Navare, Devadatt Kamat, A.M. Singhvi, Atmaram N.S. Nadkarini, V. Chitambaresh, Sanjay Upadhyay and Amar Dave; AOR Gurmeet Singh Makker, Anshula Vijay Kumar Grover, Vanshdeep Dalmia, Prabhat Ranjan Raj, Nishanth Patil, E.C. Agrawala, Anuj Bhandari, et al; Advocates Ketan Paul, Rajat Nair, Kanu Agrawal, Rohan Gupta, Sharmishtha Shukla, Abhinav Aggarwal, Saket Mone, Lenpithang Sithlou, Gayatri Gulati, Ayush P Shah, Arijit Dey, Mehul Kumar Garg, Mahesh Agarwal, Arshit Anand, Shashwat Singh, Siddhant Sahay, et al

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