Context
- The Supreme Court has quashed the 2021 Office Memorandum (OM) of the Ministry of Environment, Forest and Climate Change (MoEFCC), which allowed ex post facto (post-facto) environmental clearance for projects that had started without obtaining prior Environmental Clearance (EC). The Court held that prior EC is mandatory under the Environment (Protection) Act, 1986 and the EIA Notification, 2006.
What is Environmental Clearance (EC)?
- Environmental Clearance (EC) is the statutory approval required before starting certain developmental projects that may significantly impact the environment.
- It assesses the likely environmental impacts and prescribes safeguards before project execution.
- EC is granted by the Ministry of Environment, Forest and Climate Change (MoEFCC) or the State Environment Impact Assessment Authority (SEIAA), depending on the category of the project.
Importance of Prior Environmental Clearance
- Prevents irreversible environmental damage before project execution.
- Ensures scientific assessment of environmental impacts.
- Promotes sustainable development.
- Provides opportunities for public participation.
- Enforces compliance with environmental safeguards from the beginning.
What is Ex Post Facto Environmental Clearance?
- It refers to granting environmental approval after a project has already commenced or been completed.
- Such clearance effectively legalizes violations committed by projects that began without obtaining prior EC.
- The Supreme Court has consistently held that this defeats the preventive objective of environmental law.
Supreme Court Judgment
- Struck down the 2021 Office Memorandum permitting ex post facto environmental clearance.
- Held that the OM was ultra vires the EIA Notification, 2006.
- Reiterated that prior environmental clearance is mandatory, not optional.
- Ruled that executive instructions cannot override statutory notifications.
- Clarified that future ex post facto clearances cannot be granted through administrative orders.
- However, the judgment does not affect limited one-time amnesty schemes framed under the Court’s constitutional powers (Article 142).
Environmental Impact Assessment (EIA) Notification, 2006
- Issued under the Environment (Protection) Act, 1986.
- Makes prior Environmental Clearance mandatory for notified projects.
- Classifies projects into:
- Category A – Appraised by the MoEFCC.
- Category B – Appraised by the SEIAA.
- Includes screening, scoping, public consultation (where applicable), appraisal, and grant/rejection of EC.
Previous Supreme Court Stand
- Ex post facto EC is contrary to environmental jurisprudence.
- Environmental protection follows the Precautionary Principle.
- Development cannot bypass mandatory environmental safeguards.
Environment (Protection) Act, 1986:
- Umbrella legislation for environmental protection in India.
- Empowers the Central Government to issue rules and notifications for environmental safeguards.
Article 21: Right to Life includes the Right to a Clean and Healthy Environment.
Article 48A: Directs the State to protect and improve the environment.
Article 51A(g): Fundamental duty of every citizen to protect and improve the natural environment.
Article 142 (Plenary Powers): The judgment explicitly states that while the executive is restrained from passing future administrative orders for retrospective nods, the Supreme Court retains its unique plenary power under Article 142 to grant ex post facto clearances in exceptional cases to deliver “complete justice”.
| Important CTC from this article for UPSC: ARTICLE 142 Environmental Clearance (EC) under the EIA Notification, 2006 |
Q. With reference to the Environmental Clearance (EC) regime in India, consider the following statements:
1. The EIA Notification, 2006 mandates prior Environmental Clearance for specified developmental projects.
2. The Supreme Court has upheld the validity of the 2021 Office Memorandum permitting ex post facto environmental clearance for infrastructure projects.
3. Environmental Clearance for Category A projects is granted by the Ministry of Environment, Forest and Climate Change (MoEFCC).
Which of the statements given above is/are correct?
A. 1 and 2 only
B. 1 and 3 only
C. 2 and 3 only
D. 1, 2 and 3
Answer: B. 1 and 3 only
• Statement 1 is Correct: The EIA Notification, 2006, issued under the Environment (Protection) Act, 1986, makes prior Environmental Clearance (EC) mandatory for notified categories of projects before construction or operation begins.
• Statement 2 is Incorrect: The Supreme Court quashed the 2021 Office Memorandum, holding that ex post facto (post-facto) environmental clearance through an executive instruction is contrary to the EIA Notification, 2006. It reaffirmed that prior EC is mandatory.
• Statement 3 is Correct: Category A projects are appraised and granted Environmental Clearance by the MoEFCC, while Category B projects are generally handled by the State Environment Impact Assessment Authority (SEIAA).