Environmental clearance: A legal safeguard, not an administrative hurdle

By Raj Kumar Sinha* 

For decades, India has grappled with the challenge of balancing development with environmental protection. Large projects—including roads, dams, mining operations, thermal power plants, industrial projects and nuclear power plants—are often presented as essential drivers of economic growth. Yet before such projects are undertaken, environmental impact assessments and measures to prevent or minimise potential harm are not merely desirable; they are legal requirements.

Against this backdrop, the Supreme Court’s recent judgment is being viewed as a significant development in India’s environmental governance. The Court struck down the Union government’s Office Memorandum (OM) dated July 7, 2021, which had provided a mechanism for dealing with projects that had begun construction or operations without obtaining the mandatory prior environmental clearance.

A three-judge bench comprising Chief Justice of India Justice Surya Kant and Justices Joymalya Bagchi and Vipul M. Pancholi considered a fundamental question: can the executive, through a mere administrative Office Memorandum, alter a legal framework that requires environmental clearance before a project is allowed to commence?

The Supreme Court’s answer is clear: a statutory environmental regime cannot be weakened, altered or replaced merely through an administrative order.

Under the Environmental Impact Assessment Notification, 2006, projects falling within its scope are required to obtain prior environmental clearance before commencing construction or undertaking expansion. The purpose of this requirement is not simply to secure government permission. It is to ensure that the potential environmental and social consequences of a project are assessed before the project begins.

How many villages will be affected by a large dam? How much forest will be submerged? What will be the impact on river flows and biodiversity? How will a mining project affect groundwater and agricultural land? To what extent could an industrial project increase pollution? What environmental risks could be associated with a nuclear power project?

These questions must be examined before construction begins. This prior assessment lies at the heart of environmental law.

If construction starts first and environmental clearance is sought later, the assessment of environmental impacts may take place only after damage has already occurred. At that stage, stopping the project can become practically, financially and politically difficult. The principle of “build first, obtain clearance later” therefore undermines the preventive character of environmental law.

On July 7, 2021, the Ministry of Environment, Forest and Climate Change issued an Office Memorandum laying down a procedure for projects that had commenced construction or operations without obtaining the required prior environmental clearance. Critics argued that such a mechanism could create the wrong incentives for project proponents.

If a company can begin a project without the required clearance and subsequently obtain approval—subject to penalties, compensation or certain conditions—the statutory requirement of prior clearance risks becoming considerably weaker. The Supreme Court has intervened precisely on this issue by setting aside the 2021 Office Memorandum.

The Court held that the statutory requirement of prior environmental clearance under the 2006 EIA regime cannot be altered merely through an administrative order. At the same time, the Court did not hold that the Union government can never create a mechanism for post-facto environmental clearance. Rather, it made it clear that if such an arrangement is to be introduced in exceptional circumstances, it must be done through a statutory notification under Section 3 of the Environment (Protection) Act, 1986.

In other words, the Court has not completely eliminated executive power; it has clarified the constitutional and statutory route through which that power must be exercised. This distinction is extremely important.

If, in the future, the Union government wishes to introduce such a mechanism for specific circumstances or categories of projects, it will have to follow a transparent, lawful and statutory process. A routine administrative Office Memorandum cannot be used to dilute a fundamental requirement of environmental law.

Environmental governance has repeatedly witnessed attempts to provide avenues for regularising projects that have already violated regulatory requirements. This raises a fundamental question of fairness: is it just to subsequently provide relief to a project that violated the law, when another project complied with the law from the beginning and underwent the lengthy process of obtaining environmental clearance?

The Supreme Court’s judgment therefore goes beyond the cancellation of a single Office Memorandum. It sends a broader message about governance: constructing a project in violation of environmental law cannot be treated as an ordinary administrative irregularity that can simply be corrected later.

The significance of the judgment is particularly evident in states such as Madhya Pradesh, where major dams, mining projects, thermal power plants, industrial projects and proposed nuclear power projects have generated environmental and social concerns.

In the case of nuclear power plants, environmental concerns are not limited to land use. Water resources, biodiversity, thermal impacts, radioactive waste, disaster management, the safety of local communities and long-term environmental risks are all important considerations.

Similarly, large dams can affect forests, rivers, agricultural land, fisheries, wildlife and local communities facing displacement. Mining projects can have significant consequences for groundwater, forests, agriculture and local livelihoods.

For such projects, allowing construction to begin before environmental clearance is obtained can undermine the very purpose of environmental impact assessment.

Environmental clearance is often portrayed as an administrative obstacle to development. But that is not its true purpose. Environmental clearance is intended not to prevent development, but to ensure that development takes place within environmental limits and in accordance with legal standards.

The Constitution of India also gives environmental protection an important place. The judicial interpretation of Article 21 has expanded the right to life to include the right to a clean and healthy environment. Article 48A directs the State to protect and improve the environment and safeguard forests and wildlife.

From this perspective, environmental laws are not anti-development. They are instruments for making development more responsible, sustainable and consistent with the interests of future generations.

In India, there is often an argument that once a project has commenced, shutting it down becomes difficult because substantial investments have already been made and employment and economic activity depend upon it. But if this argument is accepted without qualification, a person or company that violates the law could ultimately gain an advantage over one that complied with the law from the outset.

This is where the Supreme Court’s judgment assumes particular importance. The Court has made it clear that investment in a project cannot, by itself, become a licence to violate environmental law. The economic importance of a project is a legitimate consideration, but compliance with environmental law is a prior legal requirement.

The judgment also carries a broader constitutional message for future governments. Governments have the authority to formulate policies, issue administrative directions and establish procedures for development projects. But when a fundamental change is sought in an environmental protection regime established through a statutory notification, the procedure prescribed by law must be followed.

Therefore, if the Union government wishes in the future to introduce post-facto clearance or some form of “amnesty” for a particular category of projects, it must do so through an appropriate statutory notification. A mere Office Memorandum will not suffice.

This can strengthen both transparency and accountability in environmental administration.

Another important aspect of the judgment is that the Court has not applied it in a manner that would automatically create widespread disruption in projects already underway or in environmental clearances that had already been granted. The consequences of the judgment for clearances issued on the basis of the 2021 Office Memorandum have therefore been addressed separately.

The Supreme Court’s judgment is undoubtedly significant, but the real test of environmental protection begins now.

The Union and state governments, environmental authorities, pollution control boards and other regulatory institutions must ensure that no project begins construction or operations without the required prior environmental clearance. Enacting laws is not enough. Effective monitoring and enforcement are equally essential.

Local communities, Gram Sabhas, environmental organisations and affected citizens also have an important role to play. Those living in and around a proposed project often possess valuable knowledge about its likely environmental and social consequences. Their participation in environmental decision-making and their access to relevant information must therefore be strengthened.

The Supreme Court’s judgment carries an important constitutional and policy message for India’s environmental regime: environmental clearance is not a mere formality that can be completed after a project has already begun. Its very purpose is to ensure that the risk of environmental harm is assessed before that harm occurs and that necessary safeguards are put in place before construction begins.

The lasting significance of the judgment will depend on whether governments and project authorities treat it merely as a judicial directive or embrace it as an essential principle of environmental accountability in the development process.

The true meaning of development is not development at the cost of the environment. It is development pursued with environmental justice, legal accountability and due regard for the rights of future generations.

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*With Bargi Dam Displaced and Affected Persons Association