Supreme Court struck down Ex-Post Facto Environmental Clearance through Office Memorandum

The Supreme Court on Wednesday struck down the 2021 Office Memorandum (OM) that had provided for granting ex-post facto environmental clearance to infrastructure projects that had commenced operations without obtaining prior environmental approval.

A three-judge Bench comprising Justice Surya Kant, Justice Joymalya Bagchi, and Justice Vipul Pancholi held that while the Central Government may introduce a provision for granting ex-post facto environmental clearance through a statutory notification, it cannot do so merely through an Office Memorandum (OM), which is an administrative order.

The Court observed that the 2021 Office Memorandum was an administrative order that created a permanent mechanism for granting environmental clearance to projects that had commenced without obtaining prior environmental clearance. This fundamentally altered the nature of the scrutiny process and approval criteria prescribed under the 2006 Environmental Clearance Notification.

Writing the judgment, Justice Joymalya Bagchi stated that the 2006 Notification makes prior environmental clearance mandatory, and any change to this requirement can only be made through a statutory notification.

The Supreme Court further held that the 2021 Office Memorandum was ultra vires the provisions of the Environment (Protection) Act, 1986, as it attempted to modify the existing environmental clearance framework through an administrative order rather than a statutory notification.

The Court also observed that the 2021 Office Memorandum effectively operated as a permanent amnesty scheme for all eligible projects. It failed to specify the criteria on which ex-post facto environmental clearance would be granted or explain how such a policy served a larger public interest. Consequently, the Court ruled that the Office Memorandum was contrary to the objectives of the Environment (Protection) Act, 1986, and was therefore legally invalid (ultra vires).

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