LOOPHOLE PLUGGED

On May 16, 2025, while hearing a case based on a petition by Vanashakti, a Mumbai-based non-profit, which questioned the validity of development projects initiated without environmental clearance (EC), the Supreme Court struck down two executive instruments issued by the Union environment ministry allowing ex post facto ECs, or retrospective clearance granted after a project had begun construction or operation. The court also barred the Union government from issuing any “new version” of the instruments—a 2017 notification and a 2021 Office Memorandum. Legal experts tell Down To Earth the judgement not only upholds principles of environmental law, but also holds the government accountable for its role in safeguarding the country’s environment.

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'Judgement restores legal principles'

Union environment ministry's credibility is now on trial

Debadityo Sinha

THE SUPREME Court’s strikedown of the two executive instruments of the Union Ministry of Environment, Forest and Climate Change (MOEFCC) for ex post facto environmental clearances (ECs) is significant. At the heart of the case was a simple but critical question—can industries be allowed to start operations first and seek environmental clearance later? The simple answer is no. The law requires that environmental risks be assessed before a project breaks ground. Yet, MOEFCC attempted to circumvent this principle.

The judgement has questioned the role of MOEFCC, a ministry tasked with safeguarding the nation’s environment, for repeatedly enabling violators instead of holding them accountable and stopping violations. As the court unequivocally stated, “The Central Government shall not come out with a new version of the 2017 notification which provides for the grant of ex post facto EC in any manner.” Thus, the judgement is significant not merely for what it quashes, but for what it restores—the foundational legal principle that prevention must precede remediation.