A. Issue in Brief
- The Supreme Court of India has agreed to re-examine the legality of the “ex post facto” environmental clearance (EC) regime, i.e., granting EC after a project has already begun construction or operations.
- A three-judge Bench noted possible overlooking of earlier precedents and referred the matter to a larger Bench, signalling constitutional and environmental significance.
- The case arises from challenges to government actions that allowed retrospective regularisation of projects lacking prior EC.
Relevance
GS 2 (Polity & Judiciary)
- Judicial review, constitutional environmentalism, role of SC.
GS 3 (Environment)
- Precautionary principle, EIA framework, sustainable development.
B. What is Ex Post Facto EC?
- Ex post facto EC = environmental approval granted after project commencement, instead of prior clearance mandated under the EIA Notification, 2006.
- It effectively legalises violations, allowing projects to continue with penalties or additional safeguards.
- Critics argue it converts a preventive regime into a post-damage regulatory system.
C. Constitutional / Legal Dimension
- Article 21: Right to life includes the right to a clean and healthy environment (SC jurisprudence).
- Precautionary Principle & Polluter Pays Principle are part of Indian environmental law (Vellore Citizens case).
- Earlier SC rulings (e.g., Common Cause v. Union of India) held ex post facto EC contrary to environmental jurisprudence, except in rare cases.
- Key legal question: Can administrative notifications dilute statutory environmental safeguards?
D. Governance Dimension
- Prior EC ensures impact assessment, public consultation, and mitigation planning before irreversible damage.
- Allowing post-facto approvals weakens regulatory credibility and deterrence.
- Raises concerns of moral hazard, where violators may proceed expecting later regularisation.
E. Environmental Dimension
- Environmental damage (deforestation, pollution, biodiversity loss) is often irreversible or costly to restore.
- Post-facto clearances defeat the purpose of anticipatory environmental governance.
- Undermines India’s commitments under SDGs (12, 13, 15) and climate goals.
F. Economic Dimension
- Industry argues ex post facto EC avoids project shutdowns, sunk costs, and job losses.
- However, regulatory dilution may create long-term uncertainty and harm ESG credibility of Indian markets.
- Strong environmental rule of law improves investor confidence in the long run.
G. Ethical Dimension
- Conflict between developmental pragmatism vs environmental justice.
- Fairness issue: Law-abiding firms incur compliance costs while violators may be regularised.
- Inter-generational equity: future generations bear ecological costs of present violations.
H. Key Concerns / Criticisms
- Normalising violations weakens rule of law.
- Reduces incentive for timely compliance.
- Public participation becomes redundant if decisions are post-facto.
- Potential for regulatory capture.
I. Way Forward
- Reaffirm prior EC as the norm; allow post-facto approvals only in exceptional, well-defined circumstances.
- Strengthen monitoring, digital compliance tracking, and penalties.
- Fast-track EC processes to reduce delays that push firms toward violations.
- Enhance capacity of State Environment Impact Assessment Authorities (SEIAAs).
- Link violations to financial disincentives and restoration liabilities.
J. Exam Orientation
Prelims Pointers
- EIA Notification 2006 mandates prior environmental clearance for listed projects.
- Precautionary Principle: Act to prevent harm even without full scientific certainty.
- Polluter Pays Principle: Polluter bears cost of remediation.
Practice Question (15 Marks)
- “Ex post facto environmental clearances undermine the preventive nature of environmental governance.” Critically examine in the context of India’s regulatory framework.
