Syllabus: Conservation, environmental pollution and degradation, environmental impact assessment.
Context
- A Supreme Court Bench reversed its May 2025 order that halted post-facto environmental clearances (ECs).
- Case concerns the legality of post-facto ECs under the Environment (Protection) Act, 1986, and EIA notifications of 1994 and 2006.
Legal Framework
- The EC framework is built on prior (ex-ante) clearance, requiring assessment before project initiation.
- Earlier judgments—Common Cause (2017) and Alembic Pharmaceuticals (2020)—ruled that post-facto ECs are not permissible where prior EC is mandatory.
- In Vanashakti (May 2025), the Court interpreted these rulings as prohibiting post-facto ECs entirely.
Majority View in New Order
- Majority does not discard the “EC first” principle.
- It identifies a narrow window for post-facto regularisation when substantial investment already exists.
- Such clearances remain exceptional and remedial, accompanied by penalties or mitigation orders.
- Court questioned the discriminatory treatment: older post-facto ECs were upheld while future ones were barred.
Concerns
- Post-facto ECs weaken the preventive purpose of EIAs because impacts are assessed after irreversible changes.
- These approvals cannot replace ex-ante scrutiny; they only impose penalties, closures, or demolitions.
- Frequent regularisation risks legitimising violations and undermining environmental jurisprudence.
Implications
- Court reopened the legal question, enabling limited regularisation but reaffirming ex-ante clearance as the default.
- Ministry must treat post-facto ECs as rare exceptions, consistent with statutory intent.
- Issues of unequal treatment should be resolved by tightening legacy approvals, not reviving permissive regimes.