Supreme Court quashes Central govt OM on retrospective environmental clearance

• The Supreme Court has quashed the Central government's 2021 office memorandum (OM) allowing for retrospective environmental clearances.
• The OM was deemed impermissible in law as it supplanted delegated legislation through an administrative instruction.
• The Centre can still grant ex post facto or retrospective clearances, but only through valid amending notifications under Section 3 of the Environment (Protection) Act.
• Existing projects without prior environmental clearance must review their compliance with the Environment (Protection) Act.

The 2021 Office Memorandum thereby supplants delegated legislation through an administrative instruction, which is impermissible in law,

In a significant ruling, the Supreme Court has struck down the Central government's 2021 office memorandum (OM) that allowed for retrospective environmental clearances to projects commenced without prior clearance. The OM had created a protocol for granting ex post facto or retrospective clearances in public interest, but the Court ruled that this could only be done through valid amending notifications under Section 3 of the Environment (Protection) Act.

The Court's decision is a setback for the Centre, which had been using the OM to grant retrospective clearances to various projects. The ruling has implications for existing projects without prior environmental clearance, and lawyers are advising clients to review their compliance with the Environment (Protection) Act.

The Supreme Court's ruling is a clarification of the Centre's power to issue retrospective clearances. While the Court acknowledged that the Centre retains the power to grant ex post facto or retrospective clearances in exceptional cases, it emphasized that this must be done through valid amending notifications under Section 3 of the Environment (Protection) Act. The Court also highlighted the importance of adhering to the Environment Impact Assessment (EIA) Notification of 2006, which makes prior environmental clearance mandatory for projects.

The ruling is significant because it sets a precedent for the Centre's power to issue retrospective clearances. It also underscores the need for transparency and accountability in the grant of environmental clearances.

The Supreme Court's decision has far-reaching implications for existing projects without prior environmental clearance. Lawyers are advising clients to review their compliance with the Environment (Protection) Act, as the ruling sets a precedent for the Centre's power to issue retrospective clearances. The ruling also underscores the importance of adhering to the Environment Impact Assessment (EIA) Notification of 2006 and the need for transparency and accountability in the grant of environmental clearances.

The ruling is a victory for environmental activists, who have been fighting against the Centre's attempts to bypass the law and grant retrospective clearances. The decision is also a reminder that the judiciary will not hesitate to intervene when necessary to uphold the rule of law and protect the environment.

Lawyers should watch for the implications of this ruling on existing projects without prior environmental clearance, and advise clients to review their compliance with the Environment (Protection) Act.

Source: Original reporting via Bar and Bench