Environment Ministry Resumes Processing of Pending Post-Facto Environmental Clearances: What the Law Says
On 30 September 2026, the Union Ministry of Environment, Forest and Climate Change (MoEFCC) wrote to its central and state expert panels. It asked them to resume processing "post-facto" environmental clearance proposals (approvals asked for after a project has already started).
The letter went to the Expert Appraisal Committees (EACs), the State Environment Impact Assessment Authorities (SEIAAs) and pollution control boards. It said only pending proposals, and ones earlier rejected or returned, should be taken up. No fresh proposals are to be accepted.
The step follows a Supreme Court judgment of 29 July 2026. A three-judge bench said prior clearance is the rule, but the Centre may create a narrow, time-bound exception through a proper statutory notification. It allowed pending proposals to be taken "to their logical conclusion in accordance with law".
This was the third big Supreme Court ruling on the issue in about 14 months: a ban in May 2025, a recall of that ban in November 2025, and the July 2026 ruling.
The resumption has drawn criticism that allowing pending cases to go ahead weakens the principle that clearance must come before a project starts.
Environmental Impact Assessment (EIA) Notification, 2006
The Environmental Impact Assessment (EIA) Notification, 2006 is the main rulebook that decides whether a big project in India can be built. It says that certain projects, like mines, power plants, dams, highways, factories and large buildings, must get an environmental clearance (EC) before any work starts. To get this clearance, the project's likely harm to air, water, land, forests and local people must be studied first. Experts then check the study and the government says yes, yes-with-conditions, or no.
The whole debate about post-facto clearance exists because the EIA Notification, 2006 says clearance must come before a project starts. The ministry's letter of 30 September 2026 asks the EACs and SEIAAs, the same bodies that appraise and decide normal EIA cases, to resume work on pending cases where projects started without that prior clearance.
Ex Post Facto Environmental Clearance: The Vanashakti Case and After
An ex post facto environmental clearance (also called a post-facto or retrospective clearance) is an approval given to a project after it has already started building or running without the required environmental clearance. "Ex post facto" is Latin for "after the fact". It is like getting a driving licence after you have already been caught driving for two years. The law normally says clearance must come first, so this kind of approval is a big legal and ethical debate in India.
The ministry's letter of 30 September 2026 puts the July 2026 ruling into practice. It allows only pending, rejected or returned post-facto proposals to be decided, and bars fresh ones. The debate now is whether this limited window respects the rule that clearance must come first.
- Ministry letter to EACs, SEIAAs and pollution control boards: 30 September 2026; no fresh post-facto proposals allowed
- Supreme Court rulings: 16 May 2025 (ban), 18 November 2025 (recall, 2:1), 29 July 2026 (rule with narrow exception)
- 2017 notification (14 March 2017) upheld; 2021 OM (7 July 2021) struck down with prospective effect
- EIA Notification issued 14 September 2006 under Section 3 of the Environment (Protection) Act, 1986
- Category A: MoEFCC; Category B: SEIAA (B1 with EIA and hearing, B2 without)
- EC validity after April 2022: 10 years (general), 13 (river valley), up to 50 (mining), 15 (nuclear)