What does a 962-bed AIIMS hospital in Odisha, a greenfield airport in Karnataka and a cancer research institute in Tamil Nadu have in common? These are all infrastructure projects that commenced construction or operations without obtaining the mandatory “prior environmental clearance” under the Environment Impact Assessment (EIA) Notification, 2006. On 29 July 2026, a three-judge Bench of the Supreme Court ('SC') saved these and several other non-compliant projects from potential closure or demolition, and opened a door for their regularisation considering their “public interest”. This judgment has, thus, seemingly settled a long-standing debate on what to do with projects that commenced without obtaining prior environmental clearance in violation of the EIA Notification.
The SC has held that while prior environmental clearance is a mandatory requirement under law, the Union Government can exercise its powers in exceptional cases to regularise non-compliant projects which are rooted in genuine public interest. The schemes to regularise such projects should be exceptional, narrowly tailored, and duration-limited, and offer a reasonable window to bring violators into the regulatory fold after subjecting them to EIA requirements, damage assessment, penalty, remediation and future compliance. The SC has further ruled that relief may be granted only if adverse action against the project would affect innocent third-party interests, livelihood, or essential public, environmental or infrastructural functions associated with it. Such schemes can be executed only through a statutory notification with legal standing at-par with the EIA Notification, 2006, not mere departmental instructions.
Considering the size of these projects and the nature of the violation, a few critical questions arise which this July 2026 judgment does not fully engage with: how did these large-scale violations happen in the first place; how was evidently unlawful development work permitted to continue; do we know, with any degree of certainty, how many projects are being developed without an environmental clearance; and how do we ensure this will not happen again? This piece examines the common thread running through all these questions, i.e., capability of the institutions responsible for enforcing the EIA notification.
The judgement and context
An Environmental Impact Assessment is carried out that so that various categories of infrastructure projects, such as mines, power plants, ports, highways etc, are pre-emptively assessed for any adverse impacts they may have upon the ecology, air and water quality and proximate communities. In India such process is mandatory under the EIA Notification, which thereafter determines whether such project may be given a go-ahead with or without conditions for alleviating the potential damage.
While the EIA notification only allows for prior environmental clearance, the Union Ministry of Forests and Environment and Climate Change ('MoEFCC') has issued different instruments of varied legal standing, some in the form of legal notifications and some in the form of mere departmental instruction or office memorandums to regularise non-compliant projects. Such regularisation resulted in these projects gaining an “ex-post facto” clearance, in a complete reversal of the procedure and safeguards mandated in the EIA notification, negating crucial steps such as consulting with public and stakeholders and expert-led appraisal of projects which are meant to be undertaken before any activity is commenced at the site.
These 'violation-management' instruments issued intermittently over the course of more than a decade have faced scrutiny before various Courts, most prominently, the National Green Tribunal ('NGT'), the Madras High Court and the Supreme Court. To get around an NGT judgment of 2015 which set aside the first in these series of instruments, the MoEFCC in 2017 introduced an instrument of relatively stronger legal mandate, a notification which provided a limited-period amnesty scheme for regularising non-compliant projects. This was approved by the Madras High Court in 2018 based on the government's undertaking that it was a strictly one-time measure of six months. However, the MoEFCC issued yet another Office Memorandum in 2021 which sought to convert this one-time exception into a regular practice.
Both these instruments were quashed by a two-judge bench of the SC in May 2025, holding that India's environmental jurisprudence doesn't permit grant of an ex-post facto clearance and even a 'one-time' measure to regularise non-compliant projects is not permitted. The SC further restrained the MoEFCC from issuing any similar instrument in the future. This, however, was recalled in a review judgment which found the 2025 judgment legally erroneous. Now, through its July 2026 judgment, SC has reversed its earlier judgement and permitted ex-post facto clearances in principle while laying down narrow criteria for framing them.
However, as the SC observed briefly, the lax implementation of the EIA notification resulted in rampant violations as projects were commenced or expanded without prior clearance. The SC noted that public projects worth INR 20,000 crores are in violation, consisting of twenty-four central projects and twenty-nine state projects including the three mentioned above. During 2017-24, it is estimated that over 100 projects have received ex-post facto clearances and over 150 have received terms of references, i.e., terms on which the project proponent needs to undertake the EIA process.
Who is responsible?
Upholding the government's power to grant ex-post facto clearance through a statutory notification can create adverse implications, especially when we are not paying attention to how so many violations went undetected by authorities responsible for enforcing the EIA notification in the first place.
Multiple authorities are responsible for implementation of the EIA notification, including the MoEFCC, the State Environment Impact Assessment Authorities ('SEIAA'), the State Pollution Control Boards ('SPCBs') and the Pollution Control Committees ('PCCs'). The MoEFCC and the SEIAAs are the regulatory authorities responsible for granting environmental clearance and for carrying out post-clearance monitoring but the SPCBs are responsible for identifying violations on the ground and reporting them. The breach of prior clearance requirement earlier attracted criminal prosecution and civil penalty under the Environment (Protection) Act, 1986, but its amendment through the Jan Vishwas (Amendment of Provisions) Act, 2023 has now decriminalised its breach. This has further reduced deterrence as violations would now only attract civil penalties instead of prosecution.
But all these institutions suffer from capacity gaps, significantly hampering their ability to perform their statutory mandate. This has been seen from multiple studies and litigations over the years. In a 2019 affidavit before the National Green Tribunal ('NGT'), the MoEFCC admitted that at then existing capacity level, its regional offices would need 13 years for monitoring all existing clearances and 4.5 years to re-inspect every project.
The NGT had also directed performance audits of SEIAA in states like UP and Maharashtra to assess gaps between their requirement and capacity, which found significant gaps between statutory requirements and capacity of SEIAAs. Before the NGT, the MoEFCC could not comment on the capacity of SEIAAs and SEAC as they fall under state's administrative control, but the fact that the situation is still critical is evident from MoEFCC's recent amendment to the EIA notification. This amendment creates new interim institutions for appraising projects at the state level if there are no functional SEIAAs or SEACs. It comes against the backdrop of reconstitution delays and tenure expiry affecting regular functioning of SEIAAs and SEACs and highlights serious governance gaps arising from the absence of functional state-level institutions responsible for enforcing the EIA notification in states.
In the same 2019 affidavit, MoEFCC had announced a Six Monthly Action Plan to reduce vacancies, create new regional offices, and strengthen new monitoring cells for better enforcement of the EIA notification. But whether these admitted gaps have been addressed still remains unclear. Project proponents need to submit six-monthly compliance reports as a condition to the clearance. Though aimed at facilitating compliance and monitoring, these reports are largely self-certifications from project proponents which, without adequate physical verification, may contribute little in spotting violations or discrepancy.
Meanwhile the SPCBs and PCCs are mandated to ensure compliance on the ground. But with nearly 50% of posts lying vacant across multiple states, their ability is seriously constrained. This is not a new story either. Multiple studies over the years have also revealed capacity gaps across SPCBs / PCCs. For instance, studies by Tata Institute of Social Sciences (2013) and Centre for Policy Research (2023) highlighted that challenges related to technical expertise, trained personnel, finance, and leadership still remain unresolved across several SPCBs/PCCs.
In 2019, the NGT had directed performance audits of all SPCBs/ PCCs to assess adequacy of monitoring systems, regulatory mechanisms, competence, etc. These audits found serious deficiencies in human and technical infrastructure, affecting the functioning of environmental regulators. Based on this, the CPCB was expected to formulate a mechanism for effective functioning of SCPBs/PCCs, but whether it has been done remains unclear. In 2025, the SC also directed filing of vacant posts across all SPCBs/PCCs and equipping them with modern technology for performing their functions. Similarly, the NGT is also considering the capacity challenges in these institutions in an ongoing case; the recent filings before the NGT by these institutions indicate that almost all SPCBs / PCCs still lack adequate facilities and capacity to perform their functions.
The story ahead
The Supreme Court has now allowed the Union Government to regularise non-compliant projects which did not obtain prior environmental clearance, provided they serve public interest. But the case didn't attend to a crucial issue that in order to spot these violators and bring them to book, the government needs to first address the underlying institutional crisis that cripples the environmental law regime in the country, which has made the construction and operation of several projects without prior clearances possible over several years.
Meanwhile, the monetary penalties for violation, combined with an ex-post facto regime, would risk converting the prior clearance requirement into a cost of doing business that would need to be accounted for only if violations are detected.
Multiple judicial directions and studies have highlighted capacity challenges in India's environmental regulators, yet these crucial governance actors have not been given adequate attention. The goal should be to prevent projects from breaching environmental regulations, which requires adequately funded, appropriately staffed and independent regulators to detect violations at an early stage, not several years later. In the Court's own words, “Once the die is cast, what is done cannot now be undone”; we need to recognise that environmental harm once done or habitats once affected may not be reversible and prevention is the best approach for environmental conservation
Author Himanshu Pabreja is a Research Lead & Neha Miriam Kurian is an Associate Fellow at the Sustainable Futures Collaborative. Views are personal.