India Supreme Court quashes 2021 office memo on ex post facto environmental clearances

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Publication date: 2026-07-30 08:41:30

The Middle Path | Explaining Supreme Court’s Latest Verdict on Post Facto Environmental Clearances

The Supreme Court quashes the Centre’s 2021 Office Memorandum on ex post facto environmental clearance, ruling that any future amnesty under the Environment (Protection) Act must flow from a statutory notification, not an administrative order, and be confined to projects of supervening public interest under the EIA framework.

Updated - July 30, 2026 02:11 pm IST

Jacob Koshy, Krishnadas Rajagopal

Image for the purpose of representation only. | Photo Credit: File

The Story So Far

The Supreme Court has quashed an Office Memorandum (OM) issued by the Ministry of Environment, Forest and Climate Change in 2021. The Court ruled that an administrative order cannot create a perpetual and parallel regime to grant retrospective authorisation to large infrastructure projects that commenced without prior, valid environmental clearance.

A three-judge Bench—comprising 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 OM supplanted the mandate of prior green permit under the Environment Impact Assessment (EIA) Notification of 2006.

However, the court has not barred retrospective ECs entirely. It adopted a note of reconciliation, calling 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 applied only to projects of "supervening public interest."

What is the Post Facto Environmental Clearance Regime?

India’s EIA framework is built on a simple principle: projects requiring environmental clearance 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 this concept through a March 2017 notification, 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
• Seek environmental clearance

The controversy arose after the Ministry 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
• Large real-estate developments

During review proceedings in the 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
• Other public infrastructure that was 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?

The principal challenge to the OM came from environmental groups, led by Vanashakti, who challenged the 2017 notification and the subsequent OM in the Supreme Court in 2023. They argued that retrospective clearances fundamentally undermine the precautionary principle that lies at the heart of India’s environmental jurisprudence.

In January 2024, a two-judge Bench headed by Justice A.S. Oka...