The Supreme Court has stayed two Union government orders of July 2021 and January 2022 for ex-post facto clearance for mining projects without prior environmental clearance mandated under the Environment Impact Assessment (EIA) notification of 2006.

A bench of justices BR Gavai and Sandeep Mehta on Tuesday stayed the orders on NGO Vanashakti’s petition. It sought the government’s response and posted the matter for the next hearing after four weeks.

In its plea, Vanashakti said the EIA notification is a statutory document having the force of law and refers to prior environmental clearance 34 times. It added the notification mandates prior environmental clearance without exception.

Senior advocate Gopal Sankaranarayanan, who appeared for Vanashakti, told the court that the July 2021 order provided for the Standards Operating Procedure (SOP) for ex-post facto clearance for projects that fall foul of the EIA notification.

Sankaranarayanan said EIA mandates a prior approval before the commencement of any activity. He added this is a “non-derogable” requirement under the law. Sankaranarayanan cited Supreme Court orders seeking to balance the goals of sustainable development and environmental protection.

The Madras high court stayed the SOP in July 2021. The Union government issued an office memorandum in January 2022 to make the stay applicable to Tamil Nadu. The environment impact assessment authorities accordingly began processing applications for ex-post facto clearance for the rest of the country.

The memorandum was based on the Supreme Court order in a matter related to the Bokaro steel project. The Supreme Court in December 2021 held the high court’s interim stay would not apply beyond its territorial jurisdiction. It was to examine the office memorandum and SOP in light of its previous judgment.

Vanashakti argued that the SOP/office memorandum cannot supersede, modify, or amend the statute under the EIA notification as prior clearance and ex-post facto clearance cannot coexist.