The Supreme Court on Wednesday voiced concern that a regime permitting post-facto environmental clearance could allow environmentally harmful projects to keep operating until the State identifies the violation and intervenes.
A Bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi heard a batch of writ petitions challenging post-facto environmental clearances. The matter stems from the Court’s earlier decision recalling its own order that had barred retrospective environmental approvals.
Justice Bagchi Questions Whether the OM Can Prevent Ongoing Harm
During the hearing, Justice Joymalya Bagchi contrasted two regulatory outcomes. He said that when the law treats prior environmental clearance as mandatory, authorities must stop any activity that proceeds without it. However, under the regime created by the impugned Office Memorandum (OM), projects can continue until the State detects the breach and enforces closure.
“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.
He emphasised that the OM allows illegal activities to continue until the authorities intervene, whereas the Environmental Impact Assessment Notification, 2006 creates a complete legal barrier against any activity undertaken without prior consent.
“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 said.
Justice Bagchi also questioned whether the intended “cleansing effect” could succeed if authorities implement the framework unevenly. He added that neither the State government nor the Central government could claim ignorance of the environmental clearance requirement.
“State and the central government certainly cannot argue that they were unaware of environmental clearance,” he observed.
Union Defends the Office Memorandum
Additional Solicitor General Aishwarya Bhati, appearing for the Union of India, argued that the impugned OM does not grant ex-post-facto environmental clearance or regularise past violations. Instead, she said, it brings projects operating outside the EIA regime under the scrutiny of expert appraisal committees.
Taking the Court through the OM, Bhati submitted that authorities must close impermissible activities and impose environmental penalties on the project proponents. She added that authorities would assess permissible activities for remediation measures, determine penalties for environmental harm, and consider prospective clearance from the date of grant.
Bhati argued that the framework does not encourage project proponents to bypass prior clearance under the EIA Notification because it makes post-facto compliance more burdensome through remediation requirements and minimum penalties. She also submitted that the Court could step in if individual cases reveal errors in the exercise. According to her, the Union remains open to additional safeguards if the Court considers them necessary.
Chief Justice Surya Kant observed that one could view the mechanism as an expansion of environmental jurisprudence rather than a compromise of it.
NGO Opposes Blanket Post-Facto Clearance
Earlier, Advocate Srishti Agnihotri, appearing for NGO One Life, One Earth, argued that the design of the environmental impact assessment regime itself shows why the law should not permit any blanket framework for post-facto clearance.
She submitted that although the Court may exercise powers under Article 142 in individual cases, that power cannot justify any dilution of the requirement of prior environmental clearance. She argued that if such a framework survives, project proponents would choose to seek forgiveness rather than permission.
Referring to the Environmental Impact Assessment Notification, 2006, Agnihotri stressed that prior clearance allows authorities to assess whether cumulative development in a particular area remains environmentally sustainable.
She also warned that once projects begin operations without prior clearance, they may cause irreversible contamination of land and water.
“Once the project is operational how does one turn the clock back in terms of pollution?” she asked.
Agnihotri further pointed out that the environmental impact assessment process also examines the presence of vulnerable populations and cultural sensitivities, including areas of religious significance to tribal communities.
She argued that prior clearance enables authorities to evaluate alternatives in a meaningful way and secures public participation through consultation. According to her, post-facto clearance deprives affected communities of the chance to participate in decision-making.
Prior Clearance Cannot Become Optional, Counsel Argues
Agnihotri also told the Court that even Central and State governments have initiated projects without prior environmental clearance, despite framing environmental regulations themselves.
“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 the Court to draw a firm line so that projects cannot seek regularisation decades later. Referring to successive regulatory measures that permit post-facto clearances, she described the framework as a “many-headed hydra”, where new windows open whenever older ones close.
Hearing to Continue Next Week
The Court will 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.
