Supreme Court Stays Centre's Orders Which Allowed Ex Post Facto Environmental Clearance

In a significant development this week, the Supreme Court suspended two union government orders from July 2021 and January 2022 for ex-post facto clearance for mining projects without the prior environmental clearance mandated under the 2006 Environment Impact Assessment (EIA) notification.

The interim order was passed by a division bench of Justices BR Gavai and Sandeep Mehta in a public interest litigation (PIL) petition by non-governmental organisation (NGO) Vanashakti, contending that the EIA notification, a statutory document with the force of law, explicitly mentions prior environmental clearance 34 times, leaving no room for exceptions. The non-profit argued that the July 2021 order issued by the environment ministry, which provides a Standard Operating Procedure (SoP) for ex-post facto clearance, contradicted the non-negotiable requirement of prior approval before the commencement of any activity under the EIA framework, and as such was "without jurisdiction and ultra vires the provisions of Section 3 of the Environment (Protection Act), 1986 as well as various judgments of the Supreme Court". 

During the hearing, Senior advocate Gopal Sankaranarayanan, representing Vanashakti, highlighted the fundamental nature of the EIA's requirement for prior approval and cited Supreme Court judgments in order to emphasise the balance to be struck between sustainable development and environmental protection. 

For more context, the orders under the scanner deal with ex-post facto clearance for projects. The one issued in July 2021 prescribes an SoP for the identification and handling of 'violation cases' to promulgate a uniform procedure for the implementation of a Ministry of Environment, Forest and Climate Change (MoEFCC) notification from March 2017. This 2017 notification allowed such cases operating without a prior environmental clearance (EC) to be accorded an ex post facto clearance, but only for a limited window of six months. It has been alleged by the non-governmental organisation that despite the expiry of this window more than five years ago, pursuant to the 2021 notification, expert appraisal committees at the central and state level and state environmental impact assessment authorities began "treating the SoP as substantive procedure to process fresh applications for the grant of ex post facto environmental clearance".

Notably, Vanashakti had challenged the validity of the 2021 notification, leading to a stay by the Madras High Court. However, a subsequent order by the Supreme Court in an allegedly unrelated case (related to the Bokaro steel project) limited the scope of the stay to the state of Tamil Nadu, which was quoted by the MoEFCC in an office memorandum issued in January 2022. As a result of this latest memorandum, the SoP continues to be treated as substantive procedure for ex post facto EC, even beyond the limited six month period that had originally been stipulated in the 2017 notification, the NGO has argued. 

Accordingly, Vanashakti's writ petition has invoked Article 32 of the Constitution, seeking the quashing of the standard operating procedure, and a mandamus directing the government not to process applications for ex-post facto environmental clearance filed after April 13, 2018, the expiration date of the specified window period in the 2017 notification. It is argued that the SoP, despite being an administrative circular, was being erroneously treated as an extension of the 2017 notification, allowing projects violating the window period to seek ex-post facto clearance. An administrative order, the non-profit has contended, cannot supersede, amend or modify the mandatory requirement of a prior EC. Relying on the Supreme Court's judgments in Common Cause (2017) and Alembic Pharmaceuticals (2020), the petition has contended that not only have ex post facto environmental clearance been consistently deprecated by the top court as alien to environmental jurisprudence and a violation of its fundamental principle, but no positive amendments can be made and no retrograde or regressive steps taken as per the purport of Section 3 of the EP Act.

The petition, filed through Advocate-on-Record Vanshdeep Dalmia, further states -

"A provision of 'prior EC' and 'ex post facto EC' cannot co-exist being mutually destructive and an oxymoron, for the simple reason that an impact assessment can only take place before commencement of activity and not after, and that an EC is an approval which is taken prior to the commencement of activity and emanates from the 'precautionary principle' which is one of the cornerstones of environmental jurisprudence. The 2006 notification, a statutory document having the force of law has used the words 'prior environmental clearance' 34 times and in addition thereto the expression 'prior' has been used six times to emphasise the need for obtaining environmental clearance prior to the commencement of any project activity. In other words, the notification mandates the requirement of 'prior environmental clearance' without exception. However the entire mandate of prior environmental clearance has not only been diluted but completely rendered infructuous or ineffective by issuance of these impugned office memoranda. Stated to be 'guidelines', they are potently destructive of the 2006 notification of 2006...The wrongful and illegal act of the MoEFCC in processing application for the grant of ex post facto environmental clearance, across all sectors, under the garb of the 2021 office memorandum invariably has a severe, deleterious and adverse impact on ecologically sensitive and vulnerable areas."

On Tuesday, January 2, in response to this public interest litigation, the Supreme Court restrained the government from implementing the two impugned orders nationwide, acknowledging the potential ecological impact of allowing mining projects without the mandated clearances. It also sought the union government's response and scheduled the next hearing in four weeks.

Case Details

Vanashakti v. Union of India | Writ Petition No. 1394 of 2023

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