Instead of ensuring development is sustainable, the ministry has dished out retrospective clearances to polluting industries set up illegally
Days after the Narendra Modi government assumed charge, in May 2014, “climate change” was added to the Ministry of Environment and Forests (MoEF) to make it the Ministry of Environment, Forests and Climate Change (MoEFCC). This was to apparently to demonstrate its deep commitment to add climate mitigation to its mandate.
But the MoEFCC has been doing the exact opposite since then. Instead of protecting the environment to fight the climate crisis, it has undermined it in multiple ways.
An ex post facto environmental clearance allows the functioning of an entity or project that started operating without obtaining the green clearance and disclosing the probable environmental impacts of the project.
Ex post facto environment clearances (ECs) to polluting industries, which the Supreme Court’s order of May 16 put an end to, are only one manifestation of the ministry's anomalous behaviour. There have been many others, such as diluting multiple laws meant to safeguard the environment in the past decade.
But before going into those aspects, here is what the latest Supreme Court order points to.
Ends free pass
The apex court, on May 16, issued three orders:
(i) It struck down ex post facto ECs — both through the 2017 notification and the 2021 office memorandum (OM) — as “illegal”
(ii) It issued a 'restraining' order against the Centre, preventing it from “issuing circulars/orders/OMs/notifications providing for grant of ex post facto EC in any form or manner or regularising the acts done in contravention of the EIA notification”.
The Environmental Impact Assessment (EIA) notifications of 1994 and 2006 were issued under the Environment (Protection) Act (EPA) of 1986, providing multidisciplinary inputs for environment clearances by the MoEFCC. The EIA strikes a balance between development and environment to ensure sustainable development, not reduce ECs to a zero-sum game between development and environment.
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(iii) At the same time, though a prior EC is the only legal recourse to set up or modify industries in India, the apex court also handed over a fait accompli, declaring that all ex post facto ECs “already granted till date” would “remain unaffected”.
Unsustainable in law
This order should have come long ago and needed no legal arguments because courts have long recognised and ruled that the EPA of 1986 prohibits retrospective environment clearances to polluting industries.
The National Green Tribunal (NGT) ruled, in January 2016, that ex post facto ECs are “illegal, void and inoperative”. The apex court also said so in April 2020, declaring it “unsustainable in law”. Then, it stayed the operation of retrospective ECs for mining companies in January 2024.
Look at the damage the delayed order has caused.
Time lost
Citing MoEFCC documents, an investigating report pointed out that between June 2017 and June 2021, the ministry had cleared over 100 projects under a novel “violation category”.
This included coal, iron and bauxite mining projects, a greenfield airport, multiple distilleries, steel and iron factories, industrial estates, cement plants and limestone quarries, chemical units and building construction sites, among others.
Of those 112 projects, “at least 55” were granted ex post facto ECs. Besides, the terms of reference (ToRs) were issued to at least another 150 projects for impact assessments and remedial plans (paving the way for EC).
Imagine the harm all these polluting projects have done.
Green flag
Ex post facto EC is the ministry’s green-flag to polluting industries which set up shops without the mandatory legal clearances imposed by the EPA. At the centre of the apex court’s order are two of its executive orders (not laws) — a 2017 circular and a 2021 OM — which allowed polluting industries to continue operating by paying a penalty.
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India started protecting its environment after the 1972 UN Conference on Human Environment in Stockholm urged all countries to take such measures.
Apart from the EPA of 1986, India enacted the Forest Conservation Act of 1980, Air (Prevention and Control of Pollution) Act of 1986, Water (Prevention and Control of Pollution) Act of 1974 and also issued the Environment Impact Assessment (EIA) notification of 1994, which was further strengthened in 2006 to govern green clearances.
Ex post facto approvals thrive
The ministry’s first move to condone or give retrospective clearances (ex post facto) to polluting industries began in 1998, under the AB Vajpayee-led NDA-I government. These industries had begun constructions or were operating illegally (without the mandatory environment clearance).
This practice continued with the third such circular in 2002, extending the deadline (up to March 2003) for the defaulting units to get retrospective waiver/relief. That is when it was first challenged before the NGT, which struck it down in 2016 as “illegal, void and inoperative”.
The ministry challenged this order before the apex court but the court also upheld it to be “unsustainable in law”.
Ministry undeterred
However, the court struck down two other NGT rulings in the case (Ankaleshwar Industrial Area in Gujarat) which ordered immediate revocation of green clearances and closure of the polluting units (three pharma units) — by invoking the “principle of proportionality”.
Meanwhile, the ministry was undeterred.
In March 2017, it issued a fresh executive order (extended in March 2018) and then again in February 2021 (for CRZs) and July 2021 official memorandum (for all others) — to perpetuate what the courts had held illegal. Those were opposed again in multiple high courts, which stayed their operations.
Of these executive dictates, the July 2021 OM didn’t use the words but effectively granted ex post facto environmental clearances, said the latest apex court order.
SC strikes
The apex court first stayed the executive orders of 2017 and 2021 in January 2024 and finally struck those down on May 16, 2025, while also restraining the ministry from doing so in future.
In the interim, the apex court, in August 2017, called the ex post facto clearances under the March 2017 notification “alien to environmental jurisprudence including the EIA notification”, yet the ministry didn’t withdraw it.
In all their rulings in the matter, including the latest one, courts have said that retrospective clearances to polluting industries are “completely prohibited under the law”, that is, the EPA.
Also read: NGT issues notice to UP govt over open defecation at Maha Kumbh
Why then did the apex court take so long to strike it down, especially when it repeatedly flags in its latest order that the EIA of 2006 (governing green clearances) “was nearly 15 years old” when the July 2021 circular (OM) was issued?
That is, the law and regulation (EIA) existed long enough for everyone to know that retrospective clearance was not permitted under the EPA of 1986.
The apex court’s ire was, however, directed more at the polluting industries seeking such clearances for “gross illegality” and “acting against society at large”.
Other regressive moves
But this is not the only regressive move by the MoEFCC. It has changed all critical laws protecting the environment to dilute legal safeguards.
Here are a few key examples:
1. The Forest (Conservation) Rules of 2022 allows the MoEFCC to give forest clearances (to projects for non-forest use) without (a) settling forest rights and (b) prior consents of “gram sabha” – violating the Forest Rights Act (FRA) of 2006 and Panchayats (Extension to the Scheduled Areas) Act (PESA) of 1996.
These rules pass (c) the responsibility to state governments to settle (a) and (b) post facto the MoEFCC’s final clearance – effectively making states rubber stamp the MoEFCC’s clearances.
2. The Forest Conservation (Amendment) Act of 2023 dilutes protections against de-forestation by (i) changing the definition of forests (later reversed by the apex court to that of the Godavarman case of 1996) and (ii) exempts forest clearances up to 100km in international borders, up to 10 ha for security-related infrastructure, up to 5 ha in naxal-affected areas and to land not notified as forest (“deemed forest” accounting for 27.62 per cent of the total forest cover not notified as forests).
On August 8, 2024, MoEFCC minister Bhupender Yadav said in the Rajya Sabha that India had lost 1,733 sq km forests in 10 years due to developmental activities – a clear environmental loss (of carbon sink, cleaner air, cooler temperature) that compensatory afforestation with monoculture tree plantation can’t replace even if matched in scale.
3) The Jan Vishwas (Amendment) Act of 2023 de-criminalises violations (thereby weakening/diluting environment protections) under the Environment Protection Act of 1986, Air (Prevention and Control of Pollution) Act of 1986 and Water (Prevention and Control of Pollution) Act of 1974.
Besides, adjudicating power have been handed over to the executive —away from independent authorities and courts.
Adani's new plant
Whether courts will stop the MoEFCC in any of the above cases remains to be seen.
Meanwhile, when the entire world is winding down fossil fuel use and boosting renewable energy resources (except for Donald Trump’s America), the Adani group is all set to build a brand new 1,600 MW high-polluting coal-fired power plant in Uttar Pradesh’s Sonbhadra, after winning the (UPPCL) bid to supply 1,500 MW for a period of 25 years, earlier this month.
The MoEFCC and Ministry of New and Renewable Energy (MNRE) could have intervened, but they clearly did not.
