Centre to resume appraising post facto green clearance cases after top court ruling

Why in the News

Post facto environmental clearance proposals that were stalled, rejected, returned or de-listed because of the Supreme Court’s interim orders will now be processed again to a logical conclusion. The Ministry of Environment, Forest and Climate Change (MoEFCC) issued the direction to implement the Supreme Court’s judgment in Vanashakti v. Union of India (2026).

What is post facto clearance, and why was it introduced?

1. What it is: A post facto environmental clearance (EC) is approval given after a project began work, expanded or modernised without the legally required prior clearance, like a building permit sought after the house is built.
2. The 2017 amnesty: The Centre first offered it in 2017 as an amnesty, a one time six month window for “violations” cases, projects that had started without clearance under the Environment Impact Assessment (EIA) Notification, 2006.
3. Stated purpose: The aim was to limit damage from such projects by bringing them under environmental impact scrutiny.
4. The 2021 Office Memorandum: In 2021 the Ministry issued an Office Memorandum (OM), an executive instruction, laying down a standard operating procedure for violations cases, so the one time window became a continuing route.
5. The takeaway: A route meant to close past violations became a standing way to regularise them, which is why it reached the Supreme Court.

How did the legal challenge unfold?

1. Petitions against the regime: Petitions, including one by the Mumbai based non profit Vanashakti, challenged this after the fact clearance route. Several developers had already benefited, but many proposals stayed stuck.
2. Stay in 2021: The Supreme Court stayed, meaning paused, the 2021 OM in the same year it was issued.
3. Quashed in May 2025: The Court then struck down the entire mechanism, calling it illegal.
4. Review and recall: On a review petition by the Confederation of Real Estate Developers’ Associations of India (CREDAI), the Court recalled, meaning withdrew, its May 2025 order and heard the matter afresh.

What did the Vanashakti judgment hold?

1. The Bench: Chief Justice of India Surya Kant and Justices Joymala Bagchi and Vipul M Pancholi ruled on July 29, 2026.
2. 2021 OM quashed: The Court struck down the 2021 OM that had made violations cases a routine procedure.
3. Past approvals protected: Post facto approvals already granted remain valid. Applications pending under the mechanism must be taken to their logical conclusion in accordance with law.
4. Prior clearance mandatory: The prior clearance regime under the 2006 Notification is mandatory unless amended.
5. 2017 window upheld: The Court upheld the 2017 notification because it was narrowly tailored and time bound.

What has the Ministry now ordered?

1. Bodies directed: On September 30, two months after the ruling, the Ministry told the project appraisal bodies to resume processing: Expert Appraisal Committees (EACs) at the Centre, State Environment Impact Assessment Authorities (SEIAAs) and pollution control boards.
2. No fresh proposals: The direction carries a caveat that no fresh proposal will be accepted, so the route is closed to new violators.

Challenges

1. Rewarding violation: Clearing projects after construction weakens the incentive to seek approval first. Eg. Alembic Pharmaceuticals v. Rohit Prajapati (2020) rejected ex post facto clearance.
2. No baseline left: Appraisal needs a site’s original condition, which construction has already erased.
3. Thin appraisal capacity: Lapsed or non functional SEIAAs already stall routine clearances, and the revived backlog adds load.

Way Forward

1. Damage recovery first: Appraisal bodies should levy the cost of environmental damage under the polluter pays principle before granting any clearance.
2. Change only by amendment: Any standing violations route should come only through an amended EIA Notification after public consultation.
3. Deadline for the backlog: MoEFCC should fix a date by which every pending case is decided.

Conclusion

The Ministry has reopened only the pipeline of pending violation cases. No date is set for disposing of these cases, and whether the Centre amends the Notification to create a permanent violations route is the next thing to watch.

Back2Basics: EIA Notification, 2006

1. About: EIA predicts and seeks to mitigate a project’s environmental effects before approval. It became statutory under the Environment (Protection) Act, 1986, and was consolidated in 2006.
2. Category A projects: These are appraised centrally by the MoEFCC through an EAC.
3. Category B projects: These are appraised by the SEIAA with a State Expert Appraisal Committee (SEAC). Category B1 needs a full EIA study and public hearing; B2 is exempt from both.

Matching Previous Year Question

“[2024, GS3, 10 marks] What role do environmental NGOs and activists play in influencing Environmental Impact Assessment (EIA) outcomes for major projects in India? Cite four examples with all important details.”