SC Restricts ‘Retrospective’ Environmental Clearances, Pg1

Key Highlights:

• The Supreme Court on Wednesday quashed a 2021 Office Memorandum (OM) that allowed ex post facto environmental clearances for infrastructure projects.
• The court ruled that the Union government cannot substantially alter protective environmental checks through mere administrative instructions.
• It emphasized that prior environmental clearance, as mandated by the Environmental Impact Assessment (EIA) Notification, 2006, is mandatory.
• The judgment applies prospectively, meaning environmental clearances already granted under the 2017 notification or the 2021 OM will remain valid unless individually challenged.

EP Act.jpg

Detailed Insights:

• The Supreme Court held that an administrative order like the 2021 OM cannot supplant delegated legislation such as the EIA Notification, 2006.
• The court stated that the 2021 OM promoted a "pollute and then pay" principle rather than sustainable development.
• While quashing the OM, the court affirmed that the Centre retains the power to introduce "appropriate, narrowly tailored amnesty notifications" for select projects in public interest.
• Such amnesty measures, however, must be finite, rare, and introduced through valid statutory notifications under Section 3 of the Environment (Protection) Act, 1986, not administrative OMs.
• The judgment does not restrict the Supreme Court's inherent power to grant ex post facto clearances in exceptional cases under Article 142 of the Constitution.
• The prior environmental clearance regime covers various sectors including highways, airports, real estate, and mining.

Key Concepts Involved:

• Ex post facto environmental clearance: Environmental approval granted after a project has already commenced or been completed.
• Environmental Impact Assessment (EIA) Notification, 2006: A statutory framework requiring prior environmental clearance for various projects in India.
• Office Memorandum (OM): An administrative instruction issued by a government department or ministry.
• Article 142 of the Constitution: Empowers the Supreme Court to pass any decree or order necessary for doing complete justice in any cause or matter.