Supreme Court bars executive route for post-facto environmental clearances

Top court quashes the 2021 office memorandum but upholds the 2017 notification, saying any future relaxation must come only through a statutory notification

The Supreme Court (SC) on Wednesday struck down the Centre's 2021 office memorandum (OM), which allowed projects that had commenced work without prior environmental clearance (EC) to seek approval later.

 

The apex court, however, held that the Union government may still permit retrospective environmental clearances in exceptional cases and in the public interest, provided it does so through a valid notification issued under the Environment (Protection) Act, 1986, and not through an executive order.

 

A Bench comprising Chief Justice of India (CJI) Surya Kant, Justice Joymalya Bagchi and Justice Vipul Pancholi held that the Centre cannot dilute the mandatory requirement of prior environmental clearance through an OM.

 

 

"The 2021 OM is an administrative order and envisages a perpetual regime for grant of environmental clearances to projects undertaken without prior EC... It substantially alters the nature of enquiry as well as the criteria for grant of EC under the 2006 notification... thereby supplants delegated legislation through an administrative instruction, which is impermissible in law," the Bench said.

 

The top court held that the 2021 OM effectively created a permanent amnesty for violations, going beyond the powers conferred under the Environment (Protection) Act.

 

"Even otherwise, being a perpetual amnesty scheme... it fails to lay down an intelligible differentia... It is, therefore, ultra vires the object of the Environment (Protection) Act, 1986," the judgment said.

 

Holding that the OM failed the tests of proportionality and reasonableness, the court quashed it prospectively.

 

"In these circumstances, the OM does not satisfy the test of proportionality and reasonableness, and is violative of Articles 14 and 21 of the Constitution. Accordingly, the 2021 OM is quashed prospectively," it held.

 

At the same time, the Bench upheld the Centre's 2017 notification, describing it as a one-time, narrowly tailored measure issued under statutory powers. It clarified that environmental clearances already granted under the 2017 notification or the 2021 OM would remain valid.

 

"All environmental clearances granted under the 2017 notification or the 2021 OM shall remain valid unless individually assailed in accordance with law," it said.

 

The Bench also weighed the practical consequences of invalidating projects that had proceeded without prior EC.

 

The court noted that public projects worth nearly ₹20,000 crore, including 24 Central projects worth about ₹8,293 crore and 29 state projects worth around ₹11,168 crore, had faced the risk of demolition. These included projects such as a 962-bed AIIMS in Odisha, a greenfield airport in Karnataka, and common effluent treatment plants.

 

Since these projects were otherwise legally permissible and awaited only formal clearance, demolishing and rebuilding them after fresh approval would cause greater environmental harm than it would prevent, the top court observed.

 

The court said no fresh applications under either the 2017 notification or the 2021 OM would be entertained. It also barred the Centre from granting retrospective environmental clearances through executive orders in future.

 

"The central government is restrained from passing administrative orders in future granting ex post facto environmental clearances... save and except by way of a valid notification issued in exercise of powers under Section 3 of the Environment (Protection) Act, 1986," the Bench said.

 

The verdict came on a review petition filed by environmental group Vanashakti against the apex court's November 2025 decision that had revived retrospective environmental clearances.

 

While the court had struck down both the 2017 notification and the 2021 OM in May 2025, that ruling was partly recalled on a review petition filed by the Confederation of Real Estate Developers' Associations of India (Credai).

 

Deciding Vanashakti's plea, the court restored the validity of the 2017 notification but invalidated the 2021 OM, making it clear that any future relaxation must be introduced only through a statutory notification.

 

Law experts said the ruling reinforces prior environmental clearance as a non-negotiable requirement and significantly narrows the scope for post-facto approvals.

 

Saurav Agrawal, advocate at the Delhi High Court, said developers can no longer rely on executive orders to regularise violations. While the Centre retains the power to introduce a limited amnesty scheme, it can do so only through a statutory notification under the Environment (Protection) Act.

 

He added that the ruling would make upfront environmental due diligence and lender scrutiny more critical.

 

Suhael Buttan, partner at SKV Law Offices, said projects commencing without prior environmental clearance now have no route to seek regularisation until a fresh statutory framework is introduced.

 

Existing clearances under the 2017 notification and the 2021 OM remain protected but can still be challenged individually, he said.

 

Alay Razvi, managing partner at Accord Juris, said the judgment makes environmental compliance central to project planning and financing, while strengthening the ability of regulators and affected communities to act against projects that begin work without mandatory clearances.