Supreme Court shuts one door on retrospective green clearances. Experts say it leaves a backdoor open

The top court barred administrative orders regularising past environmental violations, but referred to a legal route the Centre could still use in the future.

The Supreme Court on Wednesday ruled the Centre cannot use administrative orders to grant environmental clearance to projects that broke ground without approval — but experts say a route that still allows such clearances in the future is still open.

The ruling spared a slate of projects already given post-facto environmental clearances. (Featured image: HT)

The verdict comes after years of legal argument over whether India’s environmental law can regularise past violations, and clarifies the terms on which governments may try in the future.

It also spares a slate of projects already cleared under the now-invalidated regime — a slate that includes hospitals, medical colleges, an airport and irrigation works.

Environmentalists, including the petitioner NGO Vanashakti, have said that post-facto clearance is fundamentally at odds with efforts to protect the environment by avoiding destruction before it happens. It is why, they say, approving projects that require large-scale tree felling or flattening of natural landscapes should be done only after thorough assessment of their environmental impact.

What is a post-facto environmental clearance?

"Post-facto" or "ex-post facto" clearance upends that sequence.

It refers to environmental approval granted after a project has already begun construction or operations without the mandatory clearance — in effect, a regularisation of the violation.

Environmentalists argue if the appraisal happens after the damage, it cannot prevent the damage. The Centre has defended it as the only realistic way to bring existing violators back under regulatory oversight, arguing that shutting down operational projects would cause greater harm than integrating them into the compliance regime.

The instruments in the case

To understand the conflict, it helps to look back at the specific legal and executive instruments used, their timing and how courts have seen it.

The 2006 EIA notification is the parent regulatory framework that laid down the need for prior environmental clearance for specified categories of large projects — mining, thermal power, cement, real estate developments beyond a threshold size, ports, airports, and others — following impact assessment, public consultation and expert appraisal.

Then came a notification in 2017, issued on March 14 that year, which was framed as a “one-time” six-month window for industries already operating in violation to apply for clearance retrospectively. The Ministry of Environment, Forest and Climate Change (MoEFCC) argued it was better to bring such units under the regulatory umbrella than to leave them "unregulated and unchecked".

The 2021 office memorandum (OM), issued on July 7 that year, laid down a standing procedure for handling violation cases — effectively creating a pathway for post-facto regularisation, with penalties, damage assessments and remediation attached. A related 2022 OM clarified that a Madras high court stay of the 2021 OM applied only within that court's jurisdiction, leaving the memorandum operative in the rest of the country.

Section 3 of the Environment Protection Act

Under the 1986 Act, this is the umbrella rule-making provision. It empowers the central government to take all measures necessary to protect and improve the environment and control pollution, and specifically authorises the Centre to issue notifications and directions to give effect to those powers.

Every major environmental regulation in India — including the 2006 EIA notification — traces to Section 3. The section is the difference between a regulation under a parent Act and an ordinary administrative memo.

What the Supreme Court did

Behind Wednesday’s decision is the challenge by Mumbai-based NGO Vanashakti, which approached the top court in 2022 against the 2021 office memorandum, or OM. It argued that Section 3 of the EPA could not be used to create a framework for regularising projects that had begun operations without prior clearance, and that the regime violated Articles 14 and 21 of the Constitution — the guarantees of equality before the law and the right to life — by placing compliant project proponents at a disadvantage while allowing violators to seek regularisation later.

The case first went to a two-judge bench

In May 2025, a two-judge bench led by justice Abhay S Oka, now retired, struck down both the 2017 notification and the 2021 OM as illegal. That verdict held there were "no equities in favour of those who committed gross illegalities", directed the Centre not to issue any version of the 2017 notification in future, and rested on the precautionary principle and the Article 21 right to a pollution-free environment.

This verdict prompted a review petition from an apex body of real estate developers, which warned that enforcement of the order would result in demolition of projects worth over ₹20,000 crore — including that of hospitals, bridges, highways and civic amenities.

On their plea, a three-judge bench of the Supreme Court, by a 2:1 majority, set aside the May judgment and directed a fresh hearing on November 18, 2025. That rehearing concluded when the bench headed by Chief Justice Surya Kant issued Wednesday's verdict.

The bench drew a distinction between the 2017 notification and the 2021 OM. The court upheld the 2017 notification on the reasoning that it was issued as a "narrowly tailored" amnesty scheme under Section 3 of EPA and served a "supervening public interest" that favoured environmental protection. "The exception is not founded upon indulgence to the wrongdoer, but upon the need to reconcile environmental enforcement with a demonstrable public interest," the bench said.

The 2021 OM was struck down. The court held that as an administrative memorandum, it could not "supplant" the statutory requirement of prior clearance under the 2006 EIA notification. The OM, the bench said, "equates the compliant and the defiant, treats unequals as equals and to that extent offends Article 14. It yields to a principle of 'pollute and then pay' rather than to sustainable development". It was found to violate Articles 14 and 21, the order said.

The OM route was the door the court firmly shut.

Crucially, the court quashed the 2021 OM prospectively, which means that clearances already granted under both the 2017 and 2021 regimes remain valid.

What experts mean by a backdoor

Analysts welcomed the striking down of the 2021 OM but flagged that the bench left one route open: the Centre may still create a post-facto clearance regime through a fresh statutory notification under Section 3 of the Environment Protection Act.

Wednesday's ruling said the Centre was "restrained from passing administrative orders in future to grant ex post facto ECs to projects which commenced in violation of 2006 Notification, save and except by way of a valid notification in exercise of powers under section 3 of the 1986 Environment Protection Act".

"By holding that the Centre may create a post facto EC regime through a statutory notification, the judgment leaves open a pathway to legitimise projects that commenced in violation of the law," Debadityo Sinha, lead for climate and ecosystems at the Vidhi Centre for Legal Policy, told HT.

"In doing so, it weakens the precautionary principle and the principle of prevention that lie at the top of the mitigation hierarchy in environmental rule of law," he added.

Environmentalist Bhavreen Kandhari echoed the concern. "By recognising that post-facto clearances may still be granted through a statutory notification under Section 3 of the Environment (Protection) Act, the judgment paves the way for the possibility of future statutory notifications regularising and encouraging violations. The challenge now is to ensure that this remains an exceptional remedy and does not become another route to dilute prior EC (environmental clearance)," she said.