SC stays MoEF’s office memorandum on ex post facto environmental clearance

The Supreme Court has imposed a stay on an office memorandum issued by the Ministry of Environment, Forest and Climate Change allowing ex post facto environmental clearance which permits projects to carry out operations without getting environmental clearances.

A bench of Justices B R Gavai and Sandeep Mehta issued a notice to the Ministry of the Environment and Forests (MoEF) on the plea filed by NGO Vanashakti.

“Issue notice returnable in four weeks. Until further orders there shall be stay of the office memorandum dated January 20, 2022,” the bench said.

Senior advocate Gopal Sankaranarayanan, appearing for Vanashakti, submitted that environmental impact assessment mandates prior approval before the commencement of any activity and allowing ex post facto environmental clearance was anathema to the Environment Protection Act.

He argued that the Environment Impact Assessment notification of 2006 stipulates prior environment clearance for all projects and the problem arose with an office memorandum of 2017 which provided a six-month window for alleged violators to apply for post facto clearance.

The NGO, in its plea, said environmental impact assessment for a project can only take place before the commencement of activity and not after.

The plea challenged the validity of the office memorandum and sought a direction to the MoEF and state environment impact assessment authorities “not to process and entertain any application for grant of ex post facto environment clearance.

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