MoEFCC’s permitting ex post facto environmental clearance

Supreme Court: While hearing an intervention application for clarification and modification of the order dated 02-01-2024, whereby, the Ministry of Environment, Forest and Climate Change’s (‘MoEFCC’) office memoranda dated 07-07-2021 and 28-01-2022 was stayed, the Division Bench of B.R Gavai and Sandeep Mehta, JJ. allowed the intervention application and clarified that the order dated 02-01-2024 would not come in the way of the competent authorities for considering the applications for modifications/alterations in the Environmental Clearances.


Vanashakti, a non-profit organisation had challenged the MoEFCC’s office memorandas. The office memorandum dated 07-07-2021 laid down standard operating procedure (‘SOP’) for the identification and handling of violation cases under the EIA notification 2006. It permitted ex post facto clearance for the projects operating without prior environmental clearance for a limited time period.

The said office memorandum was challenged before the Madras High Court in Fatima v. Union of India, 2021 SCC OnLine Mad 12936, whereby an interim stay was granted on the operation of the office memorandum dated 07-07-2021 vide order dated 15-07-2021.

In Electrosteel Steels Ltd. v. Union of India, (2023) 6 SCC 615, the Court vide order dated 09-12-2021 held that the interim stay order passed by the Madras High Court can have no application on the operation of the Standard Operating Procedure to projects in territories beyond the territorial jurisdiction of Madras High Court.

Another office memorandum dated 28-01-2022 clarified the stance taken by the Court on the Madras High Court’s interim stay on the SOP laid down in 07-07-2021 office memorandum.

On 02-01-2024, while hearing Vanashakti petition against the office memorandas, the Court granted a stay on their operation, until further orders. Hence, the present intervention application.

The present applicant’s case was that their projects had acquired environmental clearances much prior to the Office Memorandum dated 07-07-2021 and only certain modifications or alterations were required therein. However, the applications for the same were not being considered in view of the Court’s order dated 02-01-2024. Hence, they sought modifications of the order.


The Court clarified that the order dated 02-01-2024 would not come in the way of the competent authorities in considering the proposals for modifications/alterations in the Environmental Clearances, if area of such projects had any valid environmental clearances prior to 07-07-2021. The Court also added that such applications for modification/alteration would be considered by the competent authorities strictly in accordance with law as it existed prior to 07-07-2021.

[Vanashakti v. Union of India, 2024 SCC OnLine SC 139, Order dated: 02-02-2024]

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