Context: Recently, the Supreme Court has ruled that granting retrospective environmental clearances to construction and infrastructure projects is illegal, arbitrary, and contrary to environmental law and constitutional principles.
Relevance of the Topic: Prelims: Key facts related to Retrospective Environment clearance, EIA etc.
What is Retrospective Environmental Clearance?
- Retrospective Environmental Clearance (also called ex-post facto EC) means giving environmental approval to a project after it has already started construction or operations, instead of getting permission before beginning the project.
Background:
- The EIA (Environmental Impact Assessment) Notification of 2006, under the Environment (Protection) Act, 1986, mandates prior environmental clearance before commencing any construction or industrial activity.
- However, the Environmental Amnesty Notification 2017 introduced a one-time amnesty window (March-September 2017), allowing violators who had commenced projects without EC to apply for retrospective clearance.
- The 2021 Office Memorandum, issued by the Ministry of Environment, Forest and Climate Change, established a Standard Operating Procedure (SOP) to handle such violation cases. Thus it effectively continued the regime of ex-post facto approvals.
SC strikes down retrospective Environmental Clearances:
- In Vanashakti vs Union of India, the Supreme Court of India ruled that Ex-post facto ECs are illegal, arbitrary, and anathema to environmental jurisprudence.
- The SC struck down the Environmental Amnesty Notification 2017, and the Office Memorandum 2021 which allowed for ex-post facto (retrospective) Environmental Clearances (ECs).
- Environmental Clearances already granted under the 2017 and 2021 policy regime will not be invalidated, but no new such clearances shall be granted.
- The Union government is restrained from issuing any future policies or circulars that seek to regularise such violations.
- The judgment is rooted in the Precautionary Principle, a cornerstone of Indian environmental law, ensuring environmental risks are assessed before harm occurs
- The Court emphasised that the government has a constitutional duty (Article 48A and 51A(g)) to protect the environment.
- Retrospective clearances violate Article 21, infringing upon citizens' right to health and clean air.
- Also, Ex-post facto clearances defeat the very purpose of Environmental Impact Assessments (EIAs), which are meant to assess risks before project approval, not after damage is done.