SC Imposes Stay on MoEF’s Ex Post Facto Environmental Clearance

The Supreme Court has imposed a stay on an office memorandum issued by the Ministry of Environment, Forest and Climate Change, permitting ex post facto environmental clearance for projects to conduct operations without obtaining prior environmental clearances.

A bench comprising Justices B R Gavai and Sandeep Mehta has served notice to the Ministry of Environment and Forests (MoEF) in response to a plea filed by NGO Vanashakti.

“Issue notice returnable in four weeks. Until further orders, there shall be a stay of the office memorandum dated January 20, 2022,” the bench stated.

Senior advocate Gopal Sankaranarayanan, representing Vanashakti, argued that the Environmental Protection Act requires prior approval through environmental impact assessment before initiating any activity. He contended that allowing ex post facto environmental clearance contradicts the provisions of the Environment Impact Assessment notification of 2006. The issue arose with a 2017 office memorandum that provided a six-month window for alleged violators to seek post facto clearance.

The NGO’s plea emphasizes that environmental impact assessment for a project must occur before the commencement of activity, not afterward. The petition challenges the validity of the office memorandum and seeks a directive to the MoEF and state environment impact assessment authorities, urging them “not to process and entertain any application for the grant of ex post facto environment clearance.”