India SC Reopens Door to Ex Post Facto Environmental Clearances

In a significant shift, the Supreme Court of India has reopened the door to ex post facto environmental clearances, allowing projects to seek approval after construction has commenced. This decision, delivered in the CREDAI v. Vanashakti case, directly overturns a recent ruling that had categorically banned the practice, deeming it contrary to environmental protection principles.

The reversal allows real estate developers to proceed with projects, even in sensitive zones, and later seek regularization, potentially with fines. This contrasts sharply with the previous ruling that prioritized environmental scrutiny before economic development. The move is seen by supporters as pragmatic, preventing costly demolitions and economic disruption, especially when procedural delays are cited as reasons for non-compliance.

However, the decision faces strong criticism for potentially eroding the precautionary principle and encouraging developers to bypass initial environmental checks, viewing violations as negotiable with fines. Justice Bhuyan's dissent highlighted concerns that environmental protections could be reduced to financial transactions, betraying the right to a clean environment and potentially leading to increased violations, akin to the 'cobra effect' phenomenon.