New Delhi, March 25 The grant of "prior" environmental clearances to projects is not merely a formality, but a substantive safeguard, and the principle of "polluter pays" must not be reduced to "pollute and pay," the Supreme Court was told on Wednesday.
These submissions were made before a bench comprising Chief Justice Surya Kant and justices Joymalya Bagchi and Vipul M Pancholi by lawyer Srishti Agnihotri, who is opposed to the idea of granting retrospective environmental clearances to projects found violating environmental norms, even after paying a hefty penalty.
When Agnihotri cited the Rio Declaration and other international conventions and their resolutions on environmental protection, the bench said, "The Rio declaration, the Paris principles, and all the international environmental laws are facing the challenge of nation states trying to wiggle out of them."
The bench also noted that countries like the US and China are indifferent to these declarations and hardly do anything.
The Supreme Court is currently hearing a batch of pleas, including review petitions challenging the Vanashakti verdict.
The 2025 ruling initially barred the Centre from granting ex post facto (retrospective) clearances to projects that began operations without mandatory environmental approvals, but was later stayed to prevent the potential waste of thousands of crores in public investment.
On November 18 last year, a three-judge bench headed by the then Chief Justice of India (CJI) B R Gavai, by a majority of 2:1, reversed its own verdict with an interim order, paving the way for retrospective environmental clearance to projects found violating environmental norms, saying that otherwise "thousands of crores of rupees would go in waste".
The top court had held that numerous vital public projects constructed with nearly Rs 20,000 crore of the public exchequer money would be demolished if the May 16, 2025, verdict, which barred the Centre from granting retrospective environmental clearance to projects, was not recalled.
It had ordered a fresh hearing on the pleas.
On Wednesday, the CJI-led bench heard lawyers, including advocate Agnihotri and Additional Solicitor General Aishwarya Bhati on behalf of the Centre.
Agnihotri, appearing for one of the petitioners, argued that the requirement for "prior" environmental clearance is not a mere formality but a substantive safeguard.
She contended that once a project is operational, any analysis of alternatives becomes a "paper exercise" because the damage is already done.
"The principle of 'polluter pays' must not be diluted into a regime of 'pollute and pay'. That would be a dangerous path," she said, adding, "If a project is ill-conceived, located in a seismic zone or an area prone to soil erosion, public funds are ultimately wasted."
She warned that diluting these norms for the sake of "expediency" would be akin to "throwing the baby out with the bathwater."
She further cautioned against the doctrine of proportionality being used to justify illegalities.
The additional solicitor general Bhati defended the government's office memorandum (OM), saying it does not grant "blanket" regularisation.
"We do not have any recommendations for diluting the environmental jurisprudence," she said, adding that the government was committed to expanding the horizon of the law.
She explained the evolution of regulatory regimes and said there are a class of industries or projects which did not need ECs earlier were brought under the net.
Even for units that could have legally operated, the first step is closure and they must then undergo a rigorous assessment by an Expert Appraisal Committee (EAC), pay heavy environmental penalties, and submit a remediation plan for past damage, she said.
"This is not an ex post facto mechanism. It makes it more expensive, more difficult, and more onerous for violators," Bhati said.
"It is not compromising with environmental jurisprudence; it is expanding it," the CJI said.
However, Justice Joymalya raised concerns regarding the enforcement of environmental norms and questioned whether the state could claim ignorance of projects operating without clearances.
"State and central governments are supposed to be the repository of the rule of law," he said.
Justice Bagchi further observed that while the OM mandates closure as a first step, the reality on the ground often differs.
"If the OM is not there... it is a complete roadblock to anything without prior consent. The regime you created amounts to a complete liquidation of the requirement of adherence to environmental regulations," he said.
The hearing remained inconclusive and would resume next week.
On March 23, the bench resumed its final hearing on the pleas.
The top court's Vanashakti ruling in May 2025 had barred the Ministry of Environment, Forests and Climate Change and authorities concerned from granting retrospective environmental clearances to projects which are found in violation of environmental norms.