The Supreme Court on Wednesday expressed deep concern that permitting post-facto environmental clearance would result in projects harmful to the environment continuing unabated until state intervention occurs. A bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi was hearing a batch of writ petitions challenging the Office Memorandum that provides a framework for post-facto environmental approvals. The matter arises from the Court’s earlier decision recalling its own order that had prohibited retrospective environmental clearances.
Justice Joymalya Bagchi contrasted two regulatory approaches during the hearing. He observed that if prior environmental clearance is treated as non-negotiable, authorities would be duty-bound to stop any activity undertaken without it. However, under the regime created by the impugned Office Memorandum, projects may continue until the State identifies them and enforces closure. Justice Bagchi remarked, “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.” He further questioned whether the intended cleansing effect would be achieved if implementation remains uneven and pointed out that governments cannot claim ignorance of environmental clearance requirements.
Additional Solicitor General Aishwarya Bhati, appearing for the Union of India, defended the impugned Office Memorandum. She submitted that it does not provide for ex-post-facto environmental clearance or regularisation of past violations but instead brings projects operating outside the EIA regime within scrutiny by expert appraisal committees. She highlighted that impermissible activities have to be closed with environmental penalties imposed, while permissible activities would be assessed for remediation measures, penalty for environmental harm, and prospective clearance from the date of grant. The ASG contended that the framework does not incentivise project proponents to bypass prior clearance under the EIA Notification, as ex-post-facto compliance becomes more onerous through remediation requirements and minimum penalties. She added that if the Court finds errors in individual cases, it can intervene, and the Union remains open to further safeguards.
Advocate Srishti Agnihotri, appearing for the NGO One Life, One Earth, strongly opposed any blanket framework for post-facto clearance. She submitted that the architecture of the Environmental Impact Assessment regime under the 2006 Notification shows why prior clearance is essential. She pointed out that prior clearance enables authorities to assess whether cumulative development in a particular area is environmentally sustainable and allows meaningful evaluation of alternatives and public participation. Allowing post-facto clearance, she argued, deprives affected communities of an opportunity to participate in decision-making and risks irreversible contamination of land and water once projects become operational. She described successive regulatory measures permitting post-facto clearances as resembling a “many-headed hydra” and urged that a clear line must be drawn to prevent projects from seeking regularisation decades later.
The Court is scheduled to continue hearing the matter next week.
Cause Title: Vanashakti v. Union of India | W.P.(C) No. 1394/2023 (Diary No. 50009/2023)
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