Author: Resha Aanabh, Aligarh Muslim University

"Is it possible for development to ignore environmental regulations and remain sustainable?" "The Supreme Court responds with a 'no. " In its recent ruling of Vanashakti vs Union of IndiaThe Hon’ble Supreme Court of India declared Ex Post Facto clearances as invalid. It held that these clearances violate Article 21 of the Indian Constitution, which states that everyone has the right to a pollution-free environment. This case was filed to challenge the Government’s notification of 14 March 2017 and the Office Memorandum of 7 July, which was issued by the Ministry of Environment, Forests, and Climate Change (MoEFCC). The Supreme Court has actively taken part in protecting the Environment. Like any other judgment, this also seeks to enhance India’s environmental framework to promote sustainable development.  

In the realm of environmental law, the concept of ex post facto clearance (EC) has generated a lot of debate. This term refers to the practice of approving projects that have already begun without obtaining the necessary environmental clearance in the past. To carry on those projects that can cause possible harm to the environment, an individual is required to obtain environmental clearance under the Environmental Impact Assessment Notification (EIA) of 2006, issued by the MoEFCC, which is read along with the Environment (Protection) Rules, 1986. However, the question arises for those projects that skip this crucial stage, whether they should be allowed to get clearance afterward or not. The Supreme Court of India, in its various judgments, has presented a range of viewpoints about ex post facto clearances. For example, in the case of Alembic Pharmaceuticals Ltd. Vs Rohit Prajapati and Common Cause v. Union of India, it refused to provide any retroactive permission. These rulings made it clear that following environmental laws from the start is very important and completely avoiding the EIA process compromises the legal framework that safeguards communities and ecosystems. On the other hand, in the case of Electrosteel Steels Ltd. Vs Union of India, it held that ECs can’t be completely denied. As rigorous adherence to environmental regulations is unavoidable, the court recognized that it might not always be in the public interest to refuse ex post facto clearances.  

Environmental Impact Assessment (EIA) refers to the tool that is used to measure the impact of a project on the environment. Its major purpose is to ensure that those who are framing the policies should look into the effects that all these projects cause to the environment, and by doing so, chances are there that such harmful effects can be eradicated at the earliest stage. Usually, EIA reports are submitted in written form along with the application for development consent. People are also given a chance within such proceedings. 

In India, there are usually five steps in the EIA process:

1. Screening- It determines, based on predefined criteria and thresholds, whether a project requires an EIA based on its potential impacts on the environment.

2. Scooping- It is used to identify key environmental issues and their potential impacts. It sets up a boundary to focus only on those issues that are relevant and manageable. Scoping typically results in a scoping report or terms of reference (TOR) that serves as a guide to the subsequent detailed impact assessment.

3. Impact Assessment and Analysis- It is used to evaluate the magnitude and significance of the potential environmental impacts with the help of data collection and other analytical methods. It calculates both direct, indirect, and cumulative effects upon the environment.

4. Mitigation and Management- It means proposing all those measures that are used to avoid, minimize any adverse impacts on the environment. Moreover, it also includes the development of an Environmental Management Plan (EMP) to monitor and manage the effects on the environment.

5. Reporting and Decision-Making- This includes the preparation of an EIA report, i.e., an Environmental Impact Statement, which is submitted to the authorities, and further, it also includes public consultations and reviews, which ultimately lead to the approval or rejection of the project. Any kind of modification or suggestions are also made in this stage.

On 14^th March, 2017 Ministry of Environment, Forest and Climate Change (MoEFCC) issued a notification which allowed ex post facto environmental clearances. This government’s notification provided six months, i.e., from March 14, 2017, to September 13, 2017, for the approval of those projects that started without any environmental clearances. These projects were mainly in the field of mining, industry, construction, and infrastructure. In other words, it included all those projects that are listed under Schedule 1 of the Environmental Impact Assessment (EIA) notification, 2006. All of these projects required prior permission from the government for their continuation. Non-compliance with these guidelines leads to a financial penalty, which is calculated on the basis of project scale and duration of non-compliance. On the other hand, the Office Memorandum (OM), which was issued on 7^th July 2021, mentioned the procedure that was to be followed while granting ex-post facto environmental clearances to the projects that started without the prior approval of the government. As mentioned under the Environmental Impact Assessment (EIA) Notification, 2006.

This judgment is a landmark ruling aiming to strengthen the environmental laws by striking down the ex post facto clearances. It seeks to bolster India’s environmental laws by ensuring robust protection of the ecosystem, constitutional rights, and sustainable development. Below are some of the points that highlight the importance of this judgment:

1. Reinforces the Precautionary Principle – It mandates strict adherence to all those precautionary principles, which are considered to be the cornerstone of environmental laws, as they seek to prioritize prevention over correction. With this judgment the court seeks to ensure that projects like mining, industries, and construction undergo a strict environmental assessment before commencing their work. This ultimately prevents the irreversible damage that is caused to the environment. It is indeed a proactive tool for the purpose of environmental governance.

2. Upholds Constitutional Rights – The Supreme Court linked this judgment with those fundamental rights that aim to protect the environment. 

3. Article 21 (Right to Life)The Court held that to ensure the right to life, a pollution-free environment must be present. To protect the citizens from the adverse impact of any project Hon’ble Supreme Court has outlawed ex post facto clearance.

4. Article 14 (Equality Before Law)The Court was of the view that no leniency should be shown against those who deliberately non-comply with the government's notification, and these individuals should take full accountability for any damage caused to the environment. It will prevent those who are in power not to take advantage of any regulatory loophole.

5. Article 51A(g) (Fundamental Duties)This ruling invokes the duty of citizens to collectively take responsibility for the protection of the environment.

6. Curbs Executive Overreach- This judgment seeks to reduce the influence of the executive in bypassing those laws that are made exclusively for the protection of the environment. The Court struck down the 2007 notification and the 2021 Office Memorandum by declaring them to be unconstitutional and ultra vires. Overall, Judicial oversight has also been increased with the help of this judgment, as it ensures that environmental governance remains transparent and accountable.

The Supreme Court’s decision in this case marks an important step in the environmental laws of India. It rejects all those projects that are approved retroactively without any prior environmental clearance. By overturning the Government’s notification of 2017 and Office Memorandum of 2021, the Court has tried to restore the Environmental Impact Assessment process as outlined in the 2006 EIA notification, which is essential for the project approval. Through this judgment, the court emphasized the fact that sustainable development can only occur after a thorough review and not by after-the-fact validation when damage has already been done. It mentions India’s shift towards preventive governance rather than retrospective leniency. It tries to safeguard the vulnerable ecosystem and all those communities that are affected by the adverse impact of these retrospective approvals while promoting sustainable development.