Supreme Court bars government from post facto green clearance to projects
The Supreme Court quashed the Ministry of Environment, Forest and Climate Change's 2021 Office Memorandum (OM) that had laid down a Standard Operating Procedure for granting ex-post-facto (retrospective) environmental clearance to projects which began operations without obtaining prior clearance.
The Court held that the Central Government cannot use an administrative office memorandum to create an amnesty window for such violations; any such relaxation can only be made through a proper statutory notification issued under Section 3 of the Environment (Protection) Act, 1986.
The ruling was given prospective effect — clearances already granted to projects under the now-quashed OM regime remain protected, shielding projects reported to be worth roughly Rs 20,000 crore from demolition.
Going forward, prior environmental clearance under the Environmental Impact Assessment (EIA) Notification, 2006 remains mandatory before any covered project or activity can commence.
The judgment is the latest turn in the long-running Vanashakti v. Union of India litigation, which has moved between a 2025 ruling banning post-facto clearances outright, a subsequent review recalling that position, and this 2026 ruling recalibrating the standard.
Prior Environmental Clearance under the EIA Notification, 2006
The EIA Notification, 2006 (issued under Section 3 of the Environment (Protection) Act, 1986 and Rule 5(3)(d) of the Environment (Protection) Rules, 1986) makes prior environmental clearance a mandatory precondition before 39-odd categories of projects (mining, thermal power, infrastructure, industries) can start construction or operation. Projects are classified as Category A (cleared by the Union Ministry of Environment, Forest and Climate Change on appraisal by an Expert Appraisal Committee) or Category B (cleared by the State/UT Environment Impact Assessment Authority, SEIAA, on appraisal by a State Expert Appraisal Committee, SEAC); Category B is further split into B1 (needs a full EIA study) and B2 (does not).
Key Details
- Notified in September 2006 under the Environment (Protection) Act, 1986.
- Prior EC (before commencement) is distinct from — and legally superior to — any "post-facto" or ex-post-facto clearance granted after a project has already started.
- Clearance process involves four stages: screening, scoping, public consultation and appraisal.
The 2021 OM had tried to create a backdoor SOP letting violators regularise unauthorised construction after the fact; the Court's ruling reaffirms that prior clearance under the 2006 Notification — not retrospective regularisation via administrative circular — is the legally mandated route.
Judicial Doctrine Against Ex-Post-Facto Environmental Clearances
The Supreme Court has repeatedly held that retrospective "clearance" is a contradiction in terms, since the entire purpose of an EIA is to assess and mitigate environmental impact before a project is built — once construction happens, the assessment can no longer meaningfully influence project design or siting.
Key Details
- Common Cause v. Union of India (2017) held that the concept of an ex-post-facto or retrospective environmental clearance is "completely alien to environmental jurisprudence" and can cause irreparable degradation.
- Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020) reaffirmed that post-facto clearances are contrary to law because environmental clearance is a precondition for commencing a project, not a cure for having skipped it.
- The 2026 ruling does not overturn this doctrine outright — it holds that any exception must be made through a "narrowly tailored" statutory notification in the public interest for exceptional cases, not blanket administrative fiat.
The Court's quashing of the 2021 OM is a direct application of this doctrine — an executive circular cannot be used to dilute a binding legal principle established through a chain of Supreme Court precedent.
Office Memorandum vs. Statutory Notification (Delegated Legislation)
An Office Memorandum is an internal administrative instruction issued by a ministry to guide its own functionaries; it does not go through the rule-making safeguards (drafting under a specific statutory power, publication, and in many cases being laid before Parliament) that a notification issued under a parent Act does. A statutory notification under Section 3 of the Environment (Protection) Act, 1986, by contrast, is subordinate legislation exercised under an express delegation from Parliament and is subject to legal scrutiny for consistency with the parent Act's objectives.
Key Details
- Section 3, Environment (Protection) Act, 1986 empowers the Central Government to take measures for protecting and improving environmental quality, including issuing rules/notifications regulating industrial processes and locations.
- Courts have consistently distinguished "executive instructions" (OMs, circulars) from "law" made through the statutory route — an OM cannot override or carve exceptions out of a binding statutory notification like the EIA Notification, 2006.
This is precisely the ground on which the 2021 OM fell — the Court held any amnesty for unauthorised projects must come through the formal notification route under Section 3, not an internal SOP.
- The 2021 Office Memorandum was dated 7 July 2021 and laid down a Standard Operating Procedure for identifying and regularising EIA Notification, 2006 violation cases.
- The Supreme Court's ruling gave the judgment prospective effect, protecting already-granted clearances covering projects estimated at around Rs 20,000 crore.
- The EIA Notification, 2006 was issued under Section 3, Environment (Protection) Act, 1986.
- Key precedents on ex-post-facto clearances: Common Cause v. Union of India (2017) and Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020).