The Supreme Court on the Ex Post Facto Environment Impact Assessment?

Protecting land, the only primordial, pristine and extremely limited resource available to man for survival offers no redemption from any spoilation. However, mega projects of energy, mining, industries and utilities bulldoze environmental conservation and disturb an already perplexing balance between environment and development. The procedure for Environment Impact Assessment (EIA) under the Environment (Protection) Act, 1986¹ has a sketchy history in India. Mass movements from hills, deserts and coastal areas demanding stringent implementation of EIA were looked as anti-development and foreign funded conspiracies against a rising India. The Government nailed down these controversies by bringing the 2017 Notification and the 2021 Office Memorandum (OM) to allow ex post facto (retrospective) environmental clearances (EC) to ongoing, expanding or completed projects. On 16-5-2025, the Bench of Justice Abhay S. Oka and Justice Ujjwal Bhuyan in a landmark judgment of Vanashakti v. Union of India² tendered human obeisance to sacred land by striking down this Notification and the OM as arbitrary, illegal and ultra vires the provisions of the Environment (Protection) Act, 1986, Articles 21³ and 14⁴ of the Constitution⁵.

The first half of the 1970s is a period of renaissance in global environmental history. Rachel Carson’s book Silent Spring (1962) on chemical pollution and human health followed by the catastrophic Santa Barbara oil spill in California where the world witnessed for the first time the clear blue ocean water coated with dark crude and beaches littered with dead birds and sea animals. The moral outrage against the nature of irresponsible laissez faire industrialisation was building up strongly against the State when a Report from the Club of Rome, Limits to Growth⁶ turned it into a mass movement across the world on 22-5-1970 which later came to be known as the Earth Day. The Report brought out alarming facts about the limits and scarcity of all natural resources feeding industrial advancement such as oil, coal and minerals that Governments were left with no option but to put a screeching break on irresponsible consumption by industries. If the supply of natural resources is not unlimited then regulations are needed on its supply and usage. The United Nations called an urgent Conference in 1972 on Human Environment in Stockholm.⁷ Within India, the first Chipko Movement matched the international events, as grassroot leaders such as Chandi Prasad Bhatt, Sundarlal Bahuguna and Gaura Devi fought the contractors against rampant tree felling in the Garhwal belt of mountains. The first day 5th June, of the Stockholm Conference was declared as the world’s first Environment Day by United Nations and the rest is history about environment and development unrelenting debate in courts all over the world.

The National Commission on Environment Planning and Coordination (NCEPC) was set up in 1972 but with all its personnel coming from the Department of Science and Technology (DST) it served no honest and independent assessment of environment. It is no secret that Smt Indira Gandhi always attached immense urgency to the need for conserving environment even to the extent of admitting possibility of mistakes in decision making or biting a humble pie in order to prevent environmentally harmful projects such the Tehri Dam or the Silent Valley. She pushed the Tiwari Committee in the Planning Commission to set up a Department of Environment within the DST and then a full-fledged Ministry of Environment and Forests as a focal point for all developmental projects. By 1994 a powerful EIA Notification⁸ was brought out, which was later amended in 1997 and in 2006 was again amended to make the process more transparent and aligned to constitutional principles of environmental conservation. However, the whole outlook on environment suddenly changed in 2017 when environment came to be seen as such a visible obstruction to mega projects that it lost its priority placement above these projects.

The Ministry issued a Notification No. S.O. 804(E) dated 14-3-2017⁹ under the Environment (Protection) Act, 1986:

“to appraise and regularise the projects, already taken up or under implementation without obtaining the prior environmental clearance in terms of the provisions of the EIA Notification, 2006 and thus identified to be in violation of the same. The Notification enables consideration of such proposals at Central level by providing one-time opportunity to submit the request in this regard within 6 months”.

Even though the term “ex post facto” is not mentioned in the Notification, it suggests a scheme of amnesty for violators of EC. Provoked by this liberty to violators, the National Green Tribunal (NGT) in its order of 24-5-2021 asked the Ministry to at least prepare a standard operating procedure (SOP) for the grant of environmental clearance for such projects which have violated EC.¹⁰ The OM of 2021 was soon brought out to list the SOP alongside a list of exempted industries. The 2017 Notification and the 2021 OM together triggered the beginning of an end to any environmental sanity in developmental decisions by pushing ex post facto environmental clearances.

It becomes necessary to understand the ex post facto environmental clearance as understood by the Supreme Court in the batch of petitions it addressed along with Vanashakti case¹¹. Under para 28, three points explained the ex post facto approvals i.e.

(a) having retrospective effect or force;

(b) from a thing done afterwards; and

(c) retroactive or affecting something that has already happened.

The above discerning points clearly suggest that the concept of ex post facto EC is fundamentally at odds with the 1994 EIA Notification which prohibited any expansion or modernisation of an activity or setting up of a new project listed in Schedule I unless it has been accorded EC. This concept of an ex post facto EC is also seen by the Court as a derogation of the fundamental principles of environmental jurisprudence and an anathema to the EIA Notification of 1994. The reading of the judgment emphasised that EC cannot be taken as a mechanical exercise as made out to be in the 2017 Notification because the principle of due diligence and reasonable care is mandatory in environmental conservation. In the judgment in Common Cause v. Union of India¹² , this was considered detrimental to the environment as it could lead to irreparable degradation. The explanation given against a retrospective EC or an ex post facto clearance is that it does not warrant a careful application of mind on the likely consequences of the proposed activity on environment. Many stages get compromised when a standing project is exonerated for its environmental clearance, which include public hearing, screening, scoping and appraisal prior to a reasonable decision-making process. In fact, condoning a violator is leaving environment without adequate safeguards against its destruction. Interestingly, the argument given in the Notification is, “The idea is to take away the economic benefit (if any) derived by the company due to violation and pay for the remediation of damage caused due to violation.”

The judgment¹³ particularly mentions in detail three relevant recitals (Nos. 9 to 11) in the 2017 Notification which can briefly be described as a ground rationalisation for projects which have started work or expanded production or changed product mix without EC. The aim is to bring them under compliance within the environmental laws rather than leaving them unregulated and unchecked, which will be more damaging to the environment. Lastly, the said Notification attempts to ensure that pecuniary benefit of violation and damage to environment is adequately compensated for. The Notification blatantly stood in contempt of the Supreme Court verdict in M.C. Mehta v. Union of India¹⁴, which disallowed any expansion or modernisation of activity without a prior EC. It is also found violative of the law laid down by the Supreme Court in Common Cause case¹⁵ and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati¹⁶.

The Court seem to remind the principle of “ignorantia juris non excusat” or that ignorance of law is no excuse especially when persons who acted without prior EC were neither illiterates nor poor to have committed such an illegality unknowingly. Therefore, compliance to 1994 EIA Notification was non-negotiable for the long-term environmental protection.

The Supreme Court finally declared the Notification illegal and struck it down and restrained the Central Government from issuing circulars/orders/OMs/notifications providing for grant of ex post facto EC in any form or manner or for regularising the acts done in contravention of the EIA notification. What catches attention of the reader is Court’s acknowledgement of the drastic consequences of large-scale destruction of environment on human lives in the capital city of our country and in many other cities. The verdict in this case strongly establishes that there can be no development at the cost of environmental conservation and its improvement is an essential part of the concept of development as well as a constitutional and statutory duty of the State to uphold the fundamental right under Article 21 by protecting the environment. There is definitely no substitute for an enlightened and independent judiciary which has the prowess to act in protecting life, land and our planet from ambitious and unsustainable developmental policies.

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