In a landmark ruling, the Supreme Court struck down a 2017 controversial notification and an Office Memorandum of 2021 issued by the Ministry of Environment, Forest and Climate Change (MoEFCC), permitting environmental clearance to be granted to developmental projects after they had already started operations.
This judgment is a strong reaffirmation of the "mitigation hierarchy" which is the foundation of any environmental decision-making. This follows a principle that any activity with potential environmental harm must first be avoided, and if avoidance is not possible, the impacts shall be minimised.
The court made it clear that "ex post facto" EC is illegal and undermines the very foundation of environmental law.
“The court must come down very heavily on the attempt of the Central government to do something which is completely prohibited under the law. Cleverly, the words ex post facto have not been used, but without using those words, there is a provision to effectively grant ex post facto EC.”Supreme Court of India (Vanshakti vs Union of India, 17 May 2025)
The court also emphasised the constitutional right to a clean and healthy environment, guaranteed under Article 21 of the Indian Constitution.
In case the environmental impacts are not possible to be minimised, the damages must be restored wherever possible, and only as a last resort, offset shall be adopted. The first and most important step—avoidance—reflects the precautionary principle under which the Environmental Impact Assessments (EIA) and various other procedures are undertaken before grant of EC.
That’s why prior EC is so crucial. It allows potential impacts to be assessed before any damage is done.
By allowing projects to apply for EC after beginning construction or operations, the government wasn’t just giving violators a second chance—it was actually weakening the key regulatory safeguard meant to prevent environmental harm in the first place and was clearly against the principles of mitigation hierarchy followed in environmental law.
As the apex court rightly pointed out, penalties and remediation cannot legalise what was illegal to begin with. Paying for damage is not a substitute for preventing it.
Importance of Environmental Clearance
Environmental Clearance, commonly referred as EC, is a mandatory approval required under the EIA Notification, 2006, for certain developmental and industrial projects like mining, power plants, highways, factories, and so on, before they can begin construction or operations.
The process involves submitting detailed project applications, exploring alternative sites and technology, conducting thorough EIA and additional studies based on site-specific Terms of Reference prescribed by the regulator, holding public consultations, addressing public concerns, and thereafter a detailed expert appraisal of all EIA documents before the government grants the approval. The entire procedure to be followed for obtaining the EC is notified as 'EIA Notification, 2006' under the Environment (Protection) Act 1986.
A project can be rejected right at the stage of application or during appraisal if it is found to be not suitable for that particular location.
Even expansions or modifications of such projects with existing EC also need to apply for new EC before such modifications are allowed. Simply put, EC is a mandatory safeguard, and not a rubber stamp. Projects can be denied if they’re likely to cause serious harm. And most importantly, the public consultation process ensures a public review, and helps the regulatory authorities in making transparent and informed decisions while allowing or rejecting any developmental project.
How the MoEFCC Tried to Protect Violators
On 14 March 2017, the MoEFCC issued a notification allowing a one-time opportunity for projects that had violated the EIA Notification, 2006 by starting work without EC as on the date of the notification to apply for it retrospectively. In a previously related matter, the ministry told the Madras High Court that this was an exceptional and one-time measure.
However, on 7 July 2021, the ministry went back on its word and issued a fresh OM which laid out a Standard Operating Procedure (SOP) that effectively regularised such illegal projects.
It allowed violators to apply for EC after starting work, by paying penalties and submitting “remedial” and “community accommodation” plans.
This move undermined the core legal requirement of prior EC, violated environmental principles, and gave law-breaking companies a convenient way to legalise their operations. It was also contradictory to the directions of the Supreme Court in matters Alembic Pharmaceuticals vs Rohit Prajapati (2020), and Common Cause vs Union of India & Ors. (2017) where the concept of ex post facto or retrospective EC was termed as completely alien to environmental jurisprudence.
The Supreme Court’s Strong Observations
The Supreme Court firmly rejected this attempt to bend the law by the MoEFCC. It ruled that both the 2017 notification and the 2021 OM were illegal. Although it did not cancel ECs already granted under these orders, it made it clear that no such regularisations will be allowed in the future.
The court also exposed the flawed logic behind using the “polluter pays” principle to justify retrospective clearance.
It clarified that this principle applies after compliance, not as a way to excuse non-compliance. In simple terms, you cannot break the law first and pay for it later.
Importantly, the court noted that most violators were not innocent or unaware, but large companies and industries that knew the rules and deliberately broke them. The government’s role in shielding such violators was also condemned as evident from the following observations within the judgment:
"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 11 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." (para 23)
"The 2021 OM seeks to protect the violations of the EIA notification which have taken place or continue to take place 15 years after the EIA notification came into force. Thus, the 2021 OM seeks to protect violators who have acted with full knowledge of consequences of violating the EIA notification. Those who violate the law regarding obtaining prior EC are not only committing gross illegality, but they are acting against the society at large." (para 31)
What’s Next
The Supreme Court’s ruling marks a much-needed course correction, but it also sheds light on a broader pattern of weakening environmental safeguards through administrative routes by the MoEFCC which is constitutionally mandated to protect the environment and forests as a public trustee.
A 2022 study by the Vidhi Centre for Legal Policy analysed 123 regulatory instruments issued by the MoEFCC under the Environment (Protection) Act, 1986 between March 2020 and March 2022—including gazette notifications, OMs, and various circulars.
The findings reveal that one in every three of these instruments amended environmental regulations, with most changes targeting the Environment Protection Rules, 1986, and the EIA Notification, 2006.
Worryingly, nearly three-fourths of these amendments were made to ease compliance or offer exemptions from legal obligations, raising concerns about their impact on environmental protection.
In many cases, critical procedural safeguards were bypassed. For instance, in 16 out of 74 gazette notifications, the ministry used the “public interest” exception under Rule 5(4) of the Environment Protection Rules to skip the mandatory public notice while amending the EIA Notification. The report points out that such a reading of “public interest” is not only inconsistent with the purpose of the legislation but has also been used to dilute safeguards for polluting industries without proper environmental assessment.
What’s more alarming is that OMs and circulars which are intended for internal communication have been used to make substantive changes in the law.
In total, 18 percent of such notifications and circulars analysed were found to be ultra vires (beyond one's legal authority) the Environment (Protection) Act, and 30 percent were found to be regressive in weakening environmental norms or bypassing accountability. Additionally, 16 percent undermined the institutional integrity of regulatory processes by ignoring requirements such as consulting expert committees and public consultations.
The Supreme Court’s message is clear. Any development must follow the environmental rule of law, not rewrite it for convenience.
It must now be followed by serious reforms by the government. The MoEFCC as an institution and principal regulator needs to restore transparency, accountability and public trust in environmental governance. This requires the immediate withdrawal of all such ambiguous and regressive OMs and notifications while ensuring that any regulatory changes are brought out to strengthen-not dilute the environmental safeguards and uphold the principles of environmental justice.
(Debadityo Sinha is a conservationist and works as lead, climate & ecosystems at Vidhi Centre for Legal Policy. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)