100 projects in forests already benefited, before SC struck down Centre's ex-post facto clearances

The Supreme Court on May 16 struck down measures introduced by the Centre that allowed ex-post facto environmental clearances to projects inside forests and held the official memorandum issued by the Union Environment Ministry “illegal”.

However, by the time the SC judgment came, over 100 projects were granted environmental clearances and terms of reference (ToR) were issued by the ministry. These projects include cement plants, mining and quarrying, steel and iron factories and airports. Once a project that has started construction without obtaining environment clearance is considered fit for appraisal, ToR is issued for assessing its environmental impact and a final decision on the clearance depends on that assessment.

Ex-post facto clearance refers to the granting of approval or ratification of an action after it has already been completed.

In 2017, the environment ministry notified an ex-post facto clearance measure under which any construction project in a forest area that was started without obtaining mandatory environmental clearance from the Centre would be regularised. In 2021, the Centre notified a “standard operating procedure (SOP) for identification and handling of violation cases”.

The SC judgment also restrained the Centre from issuing similar notifications or office orders for regularising acts violating the Environment Impact Assessment (EIA) notification of 2006.

It is mandatory for any agency to take prior clearances from the Centre so that a project’s impact on environment could be assessed and only on the basis of assessment the project could be cleared. The Environment ministry argued that it wanted to bring such illegal constructions under compliance.

The ministry in the apex court argued that the notification was consistent with the Environment (Protection) Act, 1986 and that denying developers an opportunity to regularise their projects would lead to demolition, which would cause environmental damage.

The SC has clarified that environment clearances already granted till date under the 2017 notification and 2021 office memorandum shall remain unaffected. Congress leader Jairam Ramesh lauded the Court’s ruling stating the decision has reaffirmed the principles and practices of sustainable development.

“The Supreme Court held that the 2017 Notification issued by the Modi Government had the sole purpose of shielding violators who knowingly did not secure the mandatory requirement of prior environmental clearance under the Environment (Protection) Act, 1986. It further ruled that the 2017 Notification and the 2021 Office Memorandum jointly violated binding precedents, encouraged polluters, and legitimised the degradation of air and water quality—blatantly infringing upon the fundamental right to a clean environment guaranteed under Article 21 of the Constitution,” Ramesh said.

He said the court’s judgment was a damning indictment of the Prime Minister Narendra Modi-led government “whose domestic walk is completely at variance with its global talk as far as environmental protection is concerned”.