Centre Can Allow Post-Facto Environmental Clearance Only By Statutory Notification : Supreme Court Quashes 2021 OM Prospectively

The Supreme Court on Wednesday held that while the Central Government has the power to provide for the grant of post-facto environmental clearances (ECs) through valid statutory notifications issued under Section 3 of the Environment (Protection) Act, 1986, it cannot do so through a mere administrative office memorandum.A bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi accordingly quashed the Union government's 2021 Office Memorandum (OM), which created a mechanism for granting environmental clearance to projects that had commenced operations without obtaining prior EC. However, the Court gave the ruling prospective effect and protected clearances already granted under the impugned regime.The Bench held that the 2021 OM was ultra vires the Environment (Protection) Act, 1986 because it sought to alter the existing environmental clearance framework through an administrative order rather than a statutory notification."The prior EC regime under the 2006 notification is mandatory unless amended through a statutory notification," Justice Bagchi said at the time of pronouncement.Clarifying the legal position on post-facto environmental clearances, the Court observed that its earlier decisions in Common Cause and Alembic Pharmaceuticals were rendered in the context of the then prevailing law. These judgments did not create an absolute prohibition on the Central Government's power to frame a narrowly tailored amnesty scheme in appropriate cases.The Court said the observations in Common Cause and Alembic Pharmaceuticals v. Rohit Prajapati that ex-post facto environmental clearance is "alien" to environmental jurisprudence must be understood in the statutory context of the 2006 Environmental Impact Assessment (EIA) Notification, which mandated prior environmental clearance."The observation in Common Cause and Alembic that ex-post facto EC is alien must be seen in the statutory context of the 2006 notification. They do not put a clog on the power of the Centre to issue a narrowly tailored amnesty scheme in the supervening public interest," the Bench observed.The Court explained that while Common Cause and Alembic laid down the normative legal position under the then prevailing statutory framework, later decisions in Pahwa Plastics v Dastak NGO and D Swami v Karnataka State Pollution Control Board (which permitted post-facto EC) must be understood in that context. It further noted that the ruling in Electrosteel turned on the peculiar facts of that case and "cannot be read as statutes."The Bench approved the reasoning in Pahwa Plastics and D Swami insofar as they upheld the validity of the 2017 notification providing a limited mechanism for dealing with violations. However, it overruled those decisions to the extent they upheld the validity of the 2021 Office Memorandum.According to the Court, unlike the 2017 notification issued under the statutory framework, the 2021 OM was merely an administrative order that envisaged a perpetual regime for granting environmental clearance to projects that had commenced without prior approval."The 2021 OM is an administrative order, and envisages a perpetual regime for grant of EC for projects undertaken without prior EC. The 2021 OM supplants an earlier executive regime through an administrative order, which is impermissible," the Court held. The bench further held that the OM failed the constitutional tests of proportionality and reasonableness because it created an open-ended amnesty for all eligible projects without any intelligible basis linked to overriding public interest. It was therefore declared ultra vires the Environment (Protection) Act as well as Articles 14 and 21 of the Constitution.Accordingly, the Court declared the 2021 OM ultra vires the Environment (Protection) Act, 1986 and quashed it prospectively.At the same time, it protected environmental clearances already granted under both the 2017 notification and the 2021 OM, observing that they would continue to remain valid unless individually challenged in accordance with law. The Court also directed that no further applications would be entertained under either the 2017 notification or the 2021 OM. Pending applications under both instruments are to be processed to their logical conclusion, including applications that were rejected solely because of the Supreme Court's earlier interim orders or the now-recalled Vanashakti-I judgment.The judgment further held that the 2023 Jan Vishwas amendments, which decriminalised several regulatory violations under the Environment (Protection) Act, reinforce the Centre's power under Section 3 of the Act to frame appropriate statutory amnesty schemes for specified categories of non-compliant projects where larger public interest so demands.The Court also restrained the Central Government from issuing future administrative orders granting ex post facto environmental clearances to projects commenced in violation of the 2006 Notification. It...

Centre Can Allow Post-Facto Environmental Clearance Only By Statutory Notification : Supreme Court Quashes 2021 OM Prospectively

Amisha Shrivastava & Debby Jain

The Court held that the 2006 notification, which made prior EC mandatory, could not have been supplanted through an administrative order.

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Amisha Shrivastava & Debby Jain

Centre Can Allow Post-Facto Environmental Clearance Only By Statutory Notification : Supreme Court Quashes 2021 OM Prospectively

Amisha Shrivastava & Debby Jain

The Court held that the 2006 notification, which made prior EC mandatory, could not have been supplanted through an administrative order.

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

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Amisha Shrivastava & Debby Jain

This is a premium content
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