Knowledge Nugget | Why is Environmental Impact Assessment back in the spotlight?

Key Takeaways: 

1. The court held that ex-post facto ECs cannot be created through an OM, but recognised that the government may, in exceptional circumstances and in public interest, provide such a mechanism through a statutory notification issued under delegated legislative powers.  The court held that the OM had created a continuing or “perpetual” regime for condoning violations. It did not invalidate the March 2017 notification, which provided a limited, one-time six-month amnesty window.

2. The judgment also departed from the court’s May 2025 position that prohibited ex-post facto ECs “in any form or manner”. Instead, it held that a “narrowly tailored amnesty scheme” may be permissible where justified by “supervening public interest”. In Vanashakti v. Union of India, the Supreme Court struck down both the March 2017 notification and the July 2021 OM, holding that ex-post facto ECs were impermissible “in any form or manner”.

3. The court also held that the one-time amnesty introduced in 2017 had exhausted itself and could not justify future regularisation. The subsequent judgment now draws a distinction between a limited statutory amnesty justified by public interest and a continuing administrative mechanism that permits routine regularisation of environmental violations.

What is Environment Impact Assessment? 

4. EIA is a systematic process used to evaluate the potential environmental effects – both positive and negative – of a proposed project or development before it is approved. The primary objectives of EIA include the prediction and evaluation of the environmental, economic and social impacts of development projects. 

5. It facilitates informed decision-making by providing in-depth analysis of a proposed project and promotes sustainable development by identifying potential negative effects early in the planning stage, while also suggesting appropriate alternatives and mitigating mechanisms. EIA also fosters popular participation in developmental decision-making by holding public consultations where citizens can express their concerns regarding a project.

How has India’s EIA regime evolved over time? 

6. The EIA was first established in the US in 1969. In the case of India, a beginning in this direction was made with the impact assessment of river valley projects in 1978-79. The EIA in India initially focused on large-scale infrastructure projects such as dams and power plants, and later expanded to a wider range of projects, including industrial facilities, mining operations and urban development initiatives.

7. Subsequently, the EIA was made mandatory under the Environment (Protection) Act, 1986, for large projects. Under the Environment (Protection) Act, 1986, India notified its first EIA norms in 1994, setting in place a legal framework for regulating activities that access, utilise, and affect (pollute) natural resources. Every development project has been required to go through the EIA process for obtaining prior environmental clearance ever since.

8. The 1994 EIA notification was replaced with a modified draft in 2006. In 2020, the government redrafted it again to incorporate the amendments and relevant court orders issued since 2006, and to make the EIA “process more transparent and expedient.”

Which developmental projects require EIA? 

9. The EIA Notification of 2006 classifies projects into two main categories: Category ‘A’ and Category ‘B’ based on their potential environmental impacts. Category ‘A’ projects require prior environmental clearance from the Central Government on the recommendations of an Expert Appraisal Committee (EAC).

10. Category ‘B’ projects also require prior environmental clearance from the State/Union territory Environment Impact Assessment Authority (SEIAA). The SEIAA shall base its decision on the recommendations of a State or Union territory level Expert Appraisal Committee (SEAC). Moreover, Category ‘B’ projects are subdivided into two types: Category B1 and Category B2. 

11. The projects requiring an Environmental Impact Assessment report fall within Category ‘B1’. Remaining projects fall within Category ‘B2’ and don’t require an Environment Impact Assessment report. Thus, Category ‘A’ and Category B1 projects undergo the complete EIA process and Category B2 projects are exempt from Assessment.

Environmental Impact Assessment (EIA) Process — Key stages from screening and scoping to public consultation and final decision-making. (Image source: AI generated)

What is Draft Environment Impact Assessment Notification 2020? 

12. The Draft EIA Notification 2020 which seeks to replace the EIA Notification 2006 with the declared goal of modernising and streamlining the EIA process courted controversy for its potential to weaken environmental safeguards and reduce public participation.

13. One of the most contentious changes in the draft is the reduction of the notice period for public hearings from 30 to 20 days. While the Ministry for Environment, Forests and Climate Change justifies this reduction based on advancements in technology and the reduction of red-tapism, it raises concerns about adequate public consultation and awareness. 

14. Moreover, the draft proposes to exempt a wide range of projects from public scrutiny, including those in the oil and gas, hydropower, irrigation, and manufacturing sectors, by adding them to the B2 category. This could have severe ecological impacts as all these projects have the potential to cause significant environmental damage.

15. The proposed post-facto clearance provision, which allows projects to be regularised after they have been established without EC, is also a bone of contention, particularly in the context of the Alembic Pharmaceuticals v Rohit Prajapati judgement of 2020, wherein the Supreme Court stated that ex post facto clearances are unsustainable in law and any attempt to grant ex post facto clearance would be void. 

16. Furthermore, the draft excludes public reporting of violations and non-compliance. This places greater reliance on government authorities to identify and address environmental infractions, potentially compromising transparency and accountability. Thus, there are concerns that Draft EIA Notification 2020 weakens environmental protections, reduces public participation, and undermines India’s commitment to international environmental agreements as it does not align with UNFCCC norms on EIA.

17. On the other hand, the notification also has several positive sides to it. It provides for streamlining of the EIA process, which can remove delays and administrative burdens for projects. The fact that it seeks to align EIA with Sustainable Development Goals (SDGs) and its provisions to facilitate quicker ECs for low-risks projects, particularly for small and medium enterprises (SMEs) and infrastructure projects might aid India’s journey toward the ‘Viksit Bharat’ goal. 

18. The provisions to increase transparency through the use of digital platforms could lead to better awareness and public scrutiny. The provisions for post-clearance monitoring and compliance can also help prevent flouting of norms once ECs are obtained. The Draft contains some flexibility in EIA requirements according to the specific needs of different project types and regions, making the process of getting clearance more efficient.

BEYOND THE NUGGET: EIA through judicial lens 

1. The Supreme Court of India has made several observations highlighting the importance of the EIA process. In the TN Godavarman Thirumulpad v Union of India case of 1997, the apex court recognised the right to a clean environment by stressing the importance of EIA and Environmental Clearance (EC) before the commencement of projects, particularly in forest areas. 

2. In the MC Mehta v Union of India case of 1996, popularly known as the Ganga Pollution Case, the Supreme Court highlighted the necessity of environmental impact assessments in projects affecting water bodies to prevent pollution and protect rivers from industrial and urban pollution, underlining the idea that citizens have a right to clean environment. 

3. In Common Cause v. Union of India (2017), Supreme court held that mining operations requiring EC could not commence without prior approval. It emphasised that the EIA regime is preventive and intended to assess environmental consequences before irreversible harm occurs.

4. In Alembic Pharmaceuticals v. Rohit Prajapati (2020), Supreme Court held that ex-post facto EC was inconsistent with fundamental principles of environmental jurisprudence. The court observed that retrospective approval undermines the precautionary principle by allowing project proponents to commence activities first and seek approval later.

5. However, in Pahwa Plastics v. Dastak (2022), the Supreme Court adopted a more pragmatic approach that closure was not always the appropriate remedy, particularly where regulatory uncertainty existed and environmental compliance remained possible. The court held that regulation and remediation could, in some cases, better serve environmental protection than immediate closure. 

(File Photo)

Post Read Questions

(1) What role do environmental NGOs and activists play in influencing Environmental Impact Assessment (EIA) outcomes for major projects in India? Cite four examples with all important details. (UPSC CSE, 2024)

(2) How does the draft Environment Impact Assessment (EIA) Notification, 2020 differ from the existing EIA Notification, 2006? (UPSC CSE, 2020)

(Sources: Supreme Court balances ecology and public interest. Centre must pay heed, Why Supreme Court struck down the Centre’s orders on retrospective environmental clearances, Environmental Impact Assessment: Navigating the development-environment dilemma, 

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