Supreme
Court Restricts Ex Post Facto Environmental Clearances
Prelims:
Environment & Ecology
Mains:
GS Paper II-Judiciary, GS Paper III-Environment
Conservation
Current relevance:
The Supreme Court quashed, the 2021 Office Memorandum (OM) prospectively, holding that it created a permanent mechanism for granting ex post facto environmental clearances to projects that had
commenced without prior Environmental Clearance (EC).
At a glance:
Judicial Background:
1.
A Division
Bench (May 2025) declared retrospective environmental clearances a gross illegality.
2. In November 2025, a larger Bench diluted the ruling, observing that abolishing the
retrospective clearance regime could have a devastating effect on ongoing public projects worth thousands of crores
of rupees.
3. Administrative Orders Cannot Override Law
i.
The Supreme Court held that the 2021
Office Memorandum, being an administrative
order, could not modify the
environmental clearance framework established under the 2006 Notification.
ii.
It ruled that delegated legislation cannot be replaced or modified through administrative instructions.
iii. The Court observed that an amnesty measure cannot become a permanent parallel mechanism to bypass the mandatory prior environmental clearance process.
Prior Environmental Clearance
Regime:
i. The Court reaffirmed that prior Environmental Clearance (EC)
under the 2006 Notification is mandatory for sectors including
highways, airports, real
ii.
Any relaxation to the prior EC regime can
be introduced only through an
appropriate amnesty notification for select
deserving projects involving supervening
public interest, and not through administrative orders.
Court's Observations:
i.
The Court observed that the 2021 OM indiscriminately regularised projects for
a meagre compensation, promoting a "pollute and then pay"
approach instead of sustainable
development.
ii.
The Centre has been barred from issuing administrative orders to grant ex post facto environmental clearances
in the future.
iii.
Legal
framework:
The judgment clarified that the Supreme Court retains its power under Article 142 to grant ex post facto environmental clearances in appropriate cases.
Source: THE HINDU- https://www.thehindu.com/news/national/the-middle-path-explaining-supreme-courts-latest-verdict-on-post-facto-environmental-clearances/article71284888.ece