The middle path | Explaining Supreme Court’s latest verdict on post facto environmental clearances
The story so far The Supreme Court has quashed an Office Memorandum issued by the Ministry of Environment, Forest and Climate Change in 2021 on
The story so far The Supreme Court has quashed an Office Memorandum issued by the Ministry of Environment, Forest and Climate Change in 2021 on the ground that an administrative order cannot create a perpetual and parallel regime to grant retrospective authorisation to big-ticket infrastructure projects commenced without prior, valid environmental clearance. A three-judge Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and Vipul M. Pancholi held on Wednesday (July 29, 2026) that the permanent regime of ex post facto grant of environmental clearances (EC) introduced through the 2021 Office Memorandum (OM) supplanted the mandate of prior green permit under an Environment Impact Assessment (EIA) notification of 2006. However, the court has not barred retrospective ECs totally. It has in fact adopted a note of reconciliation and called for "measured regularisation". The court held that ex post facto environmental regularisation must be restricted to "a narrow, time-bound, reasoned and supervised window", and done only in projects of "supervening public interest". What is the post facto environmental clearance regime? India’s EIA framework is built around a simple principle: projects requiring environmental clearance (EC) must obtain it before construction or operations begin. The 2006 EIA Notification explicitly mandates “prior environmental clearance”, allowing regulators to evaluate ecological impacts, hear public objections and prescribe safeguards before irreversible environmental damage occurs. A post facto or ex post facto clearance reverses this sequence. It allows projects that have already commenced work without mandatory approval to subsequently seek legalisation. The Centre first introduced the concept through a March 2017 notification. It was presented as a one-time amnesty window for projects that had already violated the prior clearance requirement. Such projects were allowed six months to disclose violations, undergo environmental appraisal, pay compensation, undertake remediation measures and seek environmental clearance. The controversy arose after the Ministry of Environment, Forest and Climate Change issued a 2021 Office Memorandum laying down a Standard Operating Procedure that effectively converted this one-time exercise into a continuing mechanism. Unlike the 2017 notification, the OM prescribed no cut-off date, enabling projects commencing without prior clearance to routinely seek retrospective approval. It was this perpetual regime that became the centrepiece of litigation. Which projects benefited from retrospective clearances? The regime extended across sectors requiring environmental clearance, including highways, airports, mining, ports, industrial plants and large real-estate developments. During the review proceedings in Supreme Court in 2025, the Union government argued that striking down the regime would affect public projects worth nearly ₹20,000 crore. These included a 962-bed AIIMS hospital in Odisha, a greenfield airport at Vijayanagar in Karnataka, common effluent treatment plants, Steel Authority of India projects and other public infrastructure that were otherwise environmentally permissible but lacked prior clearance. The Court repeatedly cited these projects to illustrate the practical consequences of an absolute prohibition on post facto approvals. When did the Supreme Court step in?
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