Supreme court on ‘ex post facto’ green clearances: diluting green protection

Supreme Court withdrawing its prohibition of ex post facto green clearances weakens environmental regulation

The Supreme Court’s recall of its May 2025 Vanashakti judgment, which barred ex post facto environmental clearances (EC) — a mechanism to regularise violations “in exceptional circumstances” — weakens environmental regulation in the country. The majority decision to recall the judgment not only buttresses the acceptability of regularising environmental non-compliance but also undermines the deterrence value of the regulatory regime. The majority decision leans heavily on the costs of dismantling projects that violated the environmental clearance regime; it cites financial costs — especially public finances in the case of some projects — and environmental costs in terms of increased pollution following demolition. It also says that the State can’t be totally denuded of its power to grant relaxations.

The majority decision to recall the judgment not only buttresses the acceptability of regularising environmental non-compliance but also undermines the deterrence value of the regulatory regime. (HT Archive)

However, it is difficult to see how these considerations outweigh the costs of ex post facto EC. The mechanism, instituted through an environment ministry notification in 2017 as a one-time reprieve, effectively diluted the precautionary principle in environmental regulation that ensured a regime oriented towards prevention of harm rather than compensation and atonement under the “polluter pays” principle. Regularising past breaches meant legitimisation of non-compliance and diminishing of environmental safeguards that deterred projects ill-suited to the ecology of their proposed sites. Given that it drew on environment ministry office memorandums (OMs) from 2012 and 2013, both of which had been struck down by the courts, it also ran contrary to the established jurisprudence on the need for prior environmental approval.

Reviving the ex post facto EC regime reinforces regularisation of non-compliance, bartered for a financial penalty. Despite government assurances in 2017 that this was a one-time mechanism — with the window for seeking clearances ending six months after the date of notification — and that future clearances would require public hearings, a 2021 OM reversed this stance. This, and the top court’s recall, create a moral hazard where project proponents don’t see the prior approval regime as a deterrent. Breaches get incentivised, especially when penalties do not pinch or where business gains outweigh the fines. India’s environmental regulation draws from many sources, including judicial interpretations of laws, regulatory provisions, and constitutional mandates. But, on a first principles basis, it needs to prioritise environmental interests over other concerns. The Court’s recall falls significantly short on this count.