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Bengaluru: Calling it unconstitutional and a violation of the Environment (Protection) Act 1986, the Supreme Court on Wednesday (July 29) quashed the Union Environment Ministry’s Office Memorandum (OM) of 2021 which permitted projects to avail of retrospective environmental clearances. However, the court upheld clearances afforded to projects till date under the OM, while also saying that the Union government can issue post-facto environmental clearances in some cases – in “larger public interest” – by issuing a statutory notification to this effect.

While it is good that the apex court quashed the 2021 Office Memorandum, the order is a “mixed bag” because the court has struck down the OM only on a legal technicality; it has let violators go free by permitting existing clearances obtained under the OM, and is advising the government on how to break the law by recommending they issue a notification to enable post-facto environment clearances, the petitioner in the case told The Wire.

SC terms OM ‘unconstitutional’

The court was hearing a case in which Mumbai-based NGO Vanshakti had challenged the 2021 OM. The OM, issued in July 2021, had established a Standard Operating Procedure to provide retrospective environmental clearances (EC) for projects that had begun work on a site, and expanded or changed its production facilities without a prior EC, taking off from the Ministry’s notification in 2017 that called for this. Prior ECs – permits given to projects including industries by the Union environment ministry after assessing the projects’ environmental impacts – are mandated under the Environmental Impact Assessment (EIA) Notification of 2006. 

On Wednesday, a bench of the Supreme Court – comprising Chief Justice of India (CJI) Surya Kant, and Justices Joymalya Bagchi and Vipul Pancholi – said that prior ECs were mandatory.

“The prior environmental clearance (EC) regime under the 2006 Notification is mandatory and, unless amended by an appropriate notification, does not accommodate the grant of ex post facto EC or the retention of projects where construction has commenced or operations have begun without a valid EC,” Bar And Bench quoted Justice Joymalya Bagchi as saying.

“The 2021 Office Memorandum is an administrative order and envisages a perpetual regime for grant of environmental clearances to projects........

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