It thus closed the doors on the “ex-post facto” route for granting Environmental Clearances (EC) “in any form or manner” to projects that started work without obtaining a mandatory prior environmental clearance or exceeded the limits set under the clearance conditions.

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While sources in the Environment Ministry did not rule out the possibility of a review petition, Friday’s order follows two earlier Supreme Court judgments — Common Cause versus Union of India (2017) and Alembic Pharmaceuticals versus Rohit Prajapati (2020) — that also held that the concept of ex-post facto clearance is against the fundamental principle of environmental jurisprudence and the Environmental Impact Assessment (EIA) Notification 2006 which requires a prior environment clearance.

Conceived as a one-time opportunity in 2017, ex-post facto clearance became routine when the ministry notified a “Standard Operating Procedure (SOP) for identification and handling of violation cases” in July 2021.

In its various submissions before the Supreme Court, the Environment Ministry argued there was no existing procedure under the rules for dealing with projects that started work without prior clearance, and that the July 2021 OM was issued to deal with violation cases not covered by the 2017 notification.

Arguing that the move was consistent with the Environment (Protection) Act, 1986 and the polluter pays principle, the ministry reasoned that denying developers an opportunity to regularise their projects would lead to demolition, which would also cause environmental damage.

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Days after ordering a stay in January 2024, the Supreme Court underlined that the stay would “not come in the way” of considering proposals for modifying EC conditions if the EC was granted before July 2021.

On Friday, noting that “the object of the 2017 notification appears to be to protect the industries and entities which violated the EIA notification,” the apex court order observed: “The 2021 OM talks about the concept of development. Can there be development at the cost of the environment?”

By the time the stay was imposed last year, the Ministry of Environment had already cleared over 100 projects under a novel “violation category”. These projects include Coal, iron and bauxite mines, a greenfield airport, multiple distilleries, steel and iron factories, industrial estates, cement plants and limestone quarries, chemical units and building construction sites etc.

Besides clearing over 100 projects, the ministry also issued terms of reference (ToR) for impact assessment to at least another 150 projects. Once a project is considered fit for appraisal, ToR is issued for assessing its environmental impact and a final decision on the clearance depends on that assessment.

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Project developers who benefitted over the last six years include Singareni Collieries Company Limited, Mahanadi Coalfields Limited, Jaypee Cement, UltraTech Cement, Ramco Cements, Bhushan Steel Limited (Tata Steel), Steel Authority of India, Godrej Agrovet Limited, Hindustan Copper, Lloyds Metals & Energy Limited, Hindustan Marble, Artemis Hospital, Pushpawati Singhania Hospital, Spaze Towers, Hotel Leela Venture Ltd, Special Protection Group etc.

As reported by The Indian Express on February 20, 2024, Ministry records show that an Expert Appraisal Committee (EAC) set up to deal with violation cases met 46 times between June 2017 and June 2021 and recommended at least 112 projects. Of this, at least 55 were granted environmental clearances. The rest have been issued terms of reference (ToR) for environmental impact assessment and remediation plans.