Published On: July 22nd 2026
Authored By: Astha Yaduvanshi
Law Centre ll, Faculty of Law, DU
I. Introduction
Environmental governance involves processes through which decisions regarding the management and control of the environment and natural resources are taken. Environmental regulation in India has evolved in response to the threat of environmental degradation and pollution from the activities of industries. The objective of the regulation is to ensure that any form of development takes place without harming the environment. One of the aspects of environmental governance in India is the Environmental Impact Assessment. This process acts as a safeguard which allows the evaluation of the likely environmental impacts of a proposed project.
Environment Impact Assessment (EIA) process is the process of evaluating the likely environmental impacts of a proposed project including the social, economic, cultural, and human health impacts, whether positive or negative.
In accordance with UNEP, the EIA process involves the identification of environmental, social, and economic impacts of a project before any decisions are made. It allows the anticipation of environmental impacts during the early stages of the project planning, the suggestions of measures to minimize the adverse effects and adaptation of projects to local environmental conditions, and provides information to decision makers. The objective of the EIA is to strike a balance between development and environmental protection through informed decision-making. [1]Environmental Clearance (EC) provided or denied on the basis of EIA is one of the outcomes of the EIA process. Prior EC is required under the environmental regulatory framework in India including the Environment (Protection) Act,1986 and the EIA Notification,2006.
Environmental Clearance is intended to act as a preventive safeguard by addressing environmental issues in the early stage of planning the project. However, process Ex-Post Facto Environmental Clearance refers to the granting of environmental clearance after a project starts operation, expands or is completed despite not having obtained the required prior EC. In the case of ex-post facto EC, environmental impacts are assessed after the completion of the project, and hence it is aimed at regularizing environmental violations.
Such approach has led to serious controversy. Those supporting the provision of ex-post facto clearances view it as a solution for correcting procedural mistakes and preventing economic disruption. Those opposing ex-post facto environmental clearance consider such a provision contradictory to the idea of EIA and the objective of which is to prevent environmental harm and hence environmental clearance should be obtained before the commencement of the activity. Ex-post facto clearance of the projects is considered to be a controversial issue due to recent judicial developments in India.
II. Legal Analysis
A. Arguments against Ex-Post Facto Environmental Clearances
The main argument against the ex-post facto environmental clearances is that it weakens the preventive aspect of environmental regulation. The core of environmental regulation lies in the requirement to assess the likely environmental impacts of the project prior to its commencement. After the project starts operating, it becomes more difficult to prevent any harm to the environment. In such situations, environmental assessment becomes an exercise in regularisation rather than environmental protection.
This argument is directly connected with the Precautionary Principle included into Indian law by the SC in Vellore Citizen Welfare Forum v.UOI [2]. The principle states that the authority shall anticipate and prevent environmental harm even in the absence of scientific certainty. Prior EC is in line with the principle by allowing identifying and addressing any risks before causing irreparable harm to the environment. Providing EC after the project started working would defeat the precautionary principle.
Ex-Post facto environmental clearances might encourage regulatory non-compliance. If the project initiators expect that it will be possible to obtain EC after the start of their activity, they may decide to ignore its requirements. In such situations, the requirements of environmental clearance would become just a formal procedure and would lose its deterring effect.
Moreover, such a procedure is likely to cause irreversibility of harm to the environment. The damage done to the ecosystem, biodiversity, forests, water resources, local community is difficult, if not impossible to reverse. Once forests are cut, groundwater sources are depleted, and habitat is ruined, ex-post facto clearances cannot restore the initial state of the environment. Therefore, ex-post facto clearances might fail to achieve their objective.
These considerations were reflected in the SC decision in Vanashakti v.Union of India[3]. The Court stressed that the environmental clearance process is intended to act as preventive safeguards and not the procedure which is conducted after the construction of the project. By examining the practices allowing retrospective approvals, the Court reaffirmed the preventive approach of the environmental regulation and the necessity of compliance with environmental norms.
B. Arguments in favour of limited ex-post facto clearances
Although there are many arguments against the retroactive clearances of projects, a full ban on this practice poses certain problems. Contemporary economy depends upon industrial and infrastructure projects and commercial investments which make a major contribution to employment and economic growth. Closure of projects as a punishment for failure to comply with the formal procedures might be disproportionately harsh in many cases.
One of the factors to be considered is the economic implications of the closure order. Some projects lacking prior EC might still be complying with the requirements for pollution control and environmental standards. Closure of such projects might lead to serious economic losses, disruption of supply chain, and employment of a large number of people. When it is possible to mitigate the environmental impacts with appropriate corrective measures, closure of the project might not serve public interests.
Existing investments in industry also should be taken into account. Large-scale infrastructure and industrial projects require considerable public and private expenses. In case if a project has already been constructed and meets the environmental requirements, the cost of closure or demolition might outweigh the environmental benefits. Such situation is especially true when projects provide for public needs or develop regional infrastructure.
The Supreme Court took such considerations into account in CREDAI v.Vanashakti. [4]The Court stated:
“Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances cannot be declined with pedantic rigidity regardless of the consequences of stopping the operations.”
This statement shows how judicial thinking in the field of environmental law has developed. Although the Court reconfirmed the requirement of prior EC, it did not establish that closure will be mandatory in all cases of failure to comply with the requirements of the procedure. It showed that environmental adjudication should consider both ecological aspect and public interests as well.
III. The Emergence of the Proportionality Approach
The practical use of the proportionality-based approach could be observed in Neetu Solvents v. Vineet Nagar[5], in which the Court preferred a reasonable balance between compliance with environmental law and negative consequences for society over automatic closure of industrial units. The approach established by the Court means that violations of environmental laws and rules do not necessarily lead to the closure of the industrial units when it is possible to achieve compliance. Nonetheless, the approach to the problem under discussion does not mean that ex post facto clearances should weaken the requirement for environmental accountability. When companies apply for retrospective clearances, they might be required to provide environmental compensation and restore environment. In order to make the approach successful, it is necessary to make sure that ex-post facto clearances remain exceptional.
IV. Supporting Authority
A. Statutory Framework
The legal grounds for environmental regulation in India include the Environment (Protection) Act,1986 [6] adopted after the Bhopal Gas Tragedy. This Act works as an umbrella Act, providing the Central Government with powers for environmental protection, establishment of standards and regulations of the activities that have adverse effect on the environment. Prior environmental clearance regime gets its legal power from the Act.
Under this Act, Environmental Impact Assessment (EIA)Notification,2006 [7]requires prior Environmental Clearance for certain categories of projects. This document provides mechanisms of environmental appraisal, expert assessment and public participation in order to solve environmental problems before the start of the project. This requirement represents the preventive approach to the environmental law and policy.
B. Constitutional and International Framework
The constitutional basis for environmental protection in India includes Article 21,[8] which establishes the right to clean environment as a part of the right to life. Moreover, according to Article 48A, [9]the State is supposed to protect and improve the environment, whereas Article 51A(g) [10]states that citizens have a duty to protect natural resources.
Moreover, Indian environmental jurisprudence was also influenced by international environmental principles. The Rio Declaration,1992[11] recognised the Precautionary Principle and sustainable development as key concepts for environmental decisions making. These principles have been included in the Indian judicial reasoning since then.
C. Judicial Authorities
In Alembic Pharmaceuticals Ltd. v.Rohit Prajapati[12], the SC laid down the basis for modern approach to the ex post facto environmental clearances by establishing that such clearances are usually contrary to the objective of the environmental impact assessment process. Likewise, in Common Cause v.Union of India[13], the Court has emphasized that environmental compliance cannot be overlooked for the sake of economic benefit.
Vanashakti v.Union of India (2025) is another case in which the Court has taken a strict position toward the retroactive EC and questioned the administrative practice of retrospective approvals. This case has emphasized the preventive nature of the environmental clearances.
However, in the CREDAI Review Judgment (2025) the Court reconsidered the consequences of such strict prohibition and has developed a proportionality-based framework. Even though the Court has reconfirmed that ex-post facto clearances should remain exceptional, it has acknowledged the necessity to take account of other public and economic consequences during environmental adjudication.
The practical application of the above-mentioned approach could be seen in Neetu Solvents v. Vineet Nagar(2026) when the Court preferred to take into account environmental compliance rather than to automatically close the industrial unit. The above-mentioned cases show how the jurisprudence on EC in India has evolved from strict prohibition to more nuanced proportionality approach.
V. Conclusion
As one may see, the evolution of India’s jurisprudence on the issue of ex post facto environmental clearances between 2025 and 2026 reveals the problem of finding the right balance between environmental protection and the need for development. While Vanashakti v.Union of India expressed a strict adherence to the preventive principles of the environmental law, the following cases, CREDAI Judgment and Neetu Solvents marked a new approach based on proportionality and practical considerations.
Nevertheless, prior EC remains the key element of the Indian environmental regulation regime. The ex-post facto clearances should not be used as routine mechanism of regularisation of non-compliance, because this would contradict to the preventive goals of the EIA. The retrospective clearances  should therefore remain exceptional and should be combined with the strict scrutiny, environmental compensation and remediation measures.
The emerging proportionality approach aims to provide the balance between environmental accountability and avoiding disproportionate economic and social consequences in each particular case. However, this approach will be successful if applied consistently by the courts and regulatory agencies. The future environmental governance should be aimed at strengthening compliance measures, improvement of the control systems and violation detection at an early stage.
Thus, the real challenge for the Indian environmental law is not the existence of the ex-post facto clearances, but whether they can remain an exceptional tool.
VI. References
[1] Environmental impact assessment -Glossary – UNESCO World Heritage Centre
[2] Vellore Citizens Welfare Forum v.Union Of India 1996 (5) SCC 64
[3] Vanashakti v.Union of India, 2025 SCC OnLine SC 1139
[4] CREDAI v. Vanashakti & Ors., Review Petition (C) No. 41929 of 2025, Supreme Court of India, Judgment dated 18 Nov. 2025
[5] Neetu Sol vents v. Vineet Nagar &Ors., 2026 INSC 455
[6] Environment (Protection) Act, 1986
[7] Environmental Impact Assessment Notification, 2006, issued under the Environment (Protection) Act, 1986
[8] Constitution of India, art. 21
[9] Constitution of India, art. 48A
[10] Constitution of India, art. 51A(g)
[11]Rio Declaration on Environment and Development, 1992, Principle 15
[12] Alembic Pharmaceuticals Ltd. v.Rohit Prajapati, 2020 SCC OnLine SC 347
[13] Common Cause v.Union of India, (2017) 9 SCC 499
