Case Note & Summary
The Supreme Court of India considered a group of petitions challenging the validity of ex post facto environmental clearance (EC) granted under the Environment Impact Assessment Notification 2006. The Environment (Protection) Act, 1986 was enacted to protect and improve the environment, and the EIA Notification 2006, issued under Section 3 of the Act, mandates that certain projects must obtain prior EC before commencing any work. In 2017, the Ministry of Environment, Forests and Climate Change issued a notification allowing projects that had started work without EC to apply for ex post facto clearance within six months. This was represented as a one-time measure. Subsequently, an Office Memorandum dated 7th July 2021 was issued to standardize the procedure for such clearances. The petitioners, including environmental activists and organizations, challenged these instruments as arbitrary and ultra vires the Act. The Madras High Court quashed the 2021 OM but gave its order prospective effect. The Supreme Court examined the scheme of the Act and the EIA Notification, emphasizing that prior EC is a mandatory requirement to prevent environmental harm. The court held that ex post facto clearance defeats the purpose of environmental impact assessment, which is to evaluate potential harm before a project begins. Allowing such clearance would encourage violations and undermine the regulatory framework. The court also noted that the 2017 notification was a one-time measure and could not be extended indefinitely. Consequently, the Supreme Court dismissed the appeals against the Madras High Court's judgment and upheld the quashing of the 2021 OM. The court directed that all projects that have violated the EIA Notification must be dealt with under Section 15 of the Act, which provides for penalties, and no ex post facto clearance shall be granted. The judgment reinforces the principle that environmental protection requires strict adherence to prior clearance requirements.
Headnote
A) Environmental Law - Ex Post Facto Environmental Clearance - Validity - Environment (Protection) Act, 1986, Section 3 - The court held that the EIA Notification 2006 mandates prior environmental clearance before commencement of any project or activity. The 2017 notification and 2021 OM allowing ex post facto clearance are ultra vires the Act as they defeat the object of preventing environmental harm. The court emphasized that environmental clearance must be obtained before starting work, and any violation must be dealt with under Section 15 of the Act, not regularized through ex post facto clearance (Paras 13-30). B) Constitutional Law - Fundamental Duties - Article 51A(g) - The court reiterated that it is the duty of every citizen to protect and improve the natural environment. This duty, read with Article 21, imposes an obligation on the state to ensure prior environmental assessment and prevent unauthorized projects (Paras 1-2). C) Environmental Law - One-Time Measure - Scope - The 2017 notification was a one-time measure as per the undertaking given to the Madras High Court. The court held that extending such a measure indefinitely would undermine the statutory scheme and encourage violations (Paras 8-12).
Issue of Consideration
Whether the grant of ex post facto environmental clearance under the 2017 notification and the 2021 Office Memorandum is valid under the Environment (Protection) Act, 1986 and the EIA Notification 2006
Final Decision
The Supreme Court dismissed the appeals and upheld the Madras High Court's judgment quashing the 2021 OM. The court held that ex post facto environmental clearance is ultra vires the Environment (Protection) Act, 1986 and the EIA Notification 2006. All projects that have violated the notification must be dealt with under Section 15 of the Act.
Law Points
- Ex post facto environmental clearance is ultra vires the Environment (Protection) Act
- 1986
- Environmental Impact Assessment Notification 2006 mandates prior environmental clearance
- Fundamental duty under Article 51A(g) to protect environment
- Right to pollution-free environment under Article 21
- One-time measure cannot be extended indefinitely
