Introduction
The environmental impact assessment process has occupied an uneasy place in Indian environmental governance for nearly three decades. Mandated under the Environment Protection Act 1986 and operationalised through successive notifications, the EIA regime is theoretically the most important gatekeeping mechanism in India’s project approval architecture. Before any project of specified category and scale receives an environmental clearance, it must submit to an assessment of its anticipated impacts on air, water, soil, biodiversity, and human communities, and must allow those communities to participate in public hearings before a decision is made. The promise of this process is that environmental costs are counted before they are imposed.
The reality has diverged significantly from this promise. A pattern of post-facto regularisation of projects, reductions in mandatory consultation periods, the expansion of exemption categories, and administrative pressure to accelerate approvals has hollowed out the substantive function of the EIA regime. Judicial intervention, primarily from the Supreme Court and the National Green Tribunal, has repeatedly checked the most egregious departures from procedural requirements. The draft EIA Notification 2020, which would have institutionalised several of these departures, became the focal point of the most significant public mobilisation around environmental law in years before being effectively withdrawn. This article examines the architecture of India’s EIA framework, the judicial decisions that have defined its contours, and the structural pressures that continue to test its integrity.
Legal Framework
The Environment Protection Act 1986, enacted in the aftermath of the Bhopal disaster, grants the Central Government broad powers to take measures for protecting and improving the quality of the environment. Section 3 of the Act empowers the government to restrict the location of industries and to impose restrictions on any person carrying on any industry or process that is likely to cause environmental pollution. Under this authority, the Ministry of Environment, Forest and Climate Change (MoEFCC) has issued a series of EIA notifications.
The current governing notification is the EIA Notification 2006, which replaced the earlier 1994 notification. The 2006 notification established a categorisation system distinguishing between Category A projects, which require environmental clearance from the MoEFCC at the central level, and Category B projects, which are appraised by State Level Expert Appraisal Committees (SEACs) and receive clearances from State Environmental Impact Assessment Authorities (SEIAAs). Category B projects are further subdivided into B1 projects, which require full EIA studies and public hearings, and B2 projects, which receive screening only.
The EIA process as prescribed under the 2006 notification involves four stages. Screening determines the category of the project and whether a full EIA is required. Scoping identifies the terms of reference for the EIA study. The public consultation stage requires publication of the EIA report, receipt of written responses from the public, and a public hearing in the project area. Finally, appraisal by the Expert Appraisal Committee (EAC) leads to a recommendation to grant, refuse, or grant with conditions the environmental clearance.
The Forest Conservation Act 1980 operates in parallel with the EIA framework, requiring a separate forest clearance for any diversion of forest land for non-forest purposes. The amended Forest Conservation Act 1980, renamed the Van Sanrakshan Evam Janjaati Hitkari Sanshodan Adhiniyam 2023, has significantly modified the conditions under which forest land may be diverted, with implications that are addressed in the separate article on forest rights in this collection. An environmental clearance under the EIA Notification and a forest clearance under the FCA are both required for projects affecting forest land, and neither substitutes for the other.
Judicial Developments
The most consequential judicial intervention on post-facto regularisation came in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020), where a Constitution Bench of the Supreme Court categorically held that post-facto environmental clearance is impermissible in law. The case concerned industrial units in Gujarat that had been operating without environmental clearances and sought regularisation after the fact. The court held that the grant of ex post facto environmental clearances violates the principles of sustainable development and the precautionary principle, because the very purpose of prior assessment is to evaluate environmental impacts before they occur, not to legitimise impacts that have already been caused. The court also held that the State cannot condone violations of environmental law by offering a regularisation pathway, as doing so creates perverse incentives for developers to proceed without clearances and seek regularisation later.
The Alembic ruling should have effectively ended the practice of post-facto clearances, but administrative practice has been more resistant. The MoEFCC issued Office Memorandums in 2017 and again in subsequent years offering regularisation windows for projects that had commenced without clearances, arguing that these windows were one-time measures to address legacy violations. The NGT has repeatedly struck down individual post-facto clearances granted pursuant to these memorandums, relying on the Supreme Court’s Alembic ruling. The tension between executive policy and judicial doctrine on this point remains unresolved at the structural level, with case-by-case litigation continuing.
The NGT, in Common Cause v. Union of India and related matters, has scrutinised the grant of environmental clearances for coal mining projects and other large infrastructure developments in forest areas. The Tribunal has emphasised that public hearing requirements must be genuinely implemented, not treated as a formality. In several decisions, the NGT has set aside environmental clearances where public hearings were inadequately notified, where the EIA report was not made available to communities in the local language in adequate advance of the hearing, or where concerns raised at the hearing were not addressed in the appraisal committee’s decision. These procedural requirements, the Tribunal has held, are not merely technical requirements but are expressions of the constitutional right to information and the right to a fair hearing under Article 21.
The Bombay High Court’s decisions on coastal projects and the Allahabad High Court’s orders on stone quarrying in the Vindhyas have similarly reinforced the principle that the EIA notification’s procedural requirements cannot be waived in the interest of project speed. The Kerala High Court’s engagement with linear infrastructure projects in the Western Ghats has added another dimension, examining whether the cumulative impacts of multiple individual projects need to be assessed together rather than in isolation.
Contemporary Issues and Analysis
The draft EIA Notification 2020 brought into sharp relief the conflict between the government’s stated commitment to environmental protection and its simultaneous pursuit of rapid project approval for infrastructure and industrial development. The draft notification proposed several changes that critics argued would fundamentally weaken the EIA regime. The notification period within which the public could respond to draft EIA reports was proposed to be reduced from thirty to twenty days. Certain categories of projects, including expansion projects where the increase in production or capacity fell below specified thresholds, were to be exempted from public consultation. Projects in border areas and defence-related projects were to receive exemptions from several EIA requirements. Most controversially, the draft included expanded provisions for post-facto regularisation under the euphemism of “violation category” projects.
The draft provoked an unprecedented volume of public responses, estimated at over two thousand organised objections from civil society organisations, academic institutions, tribal communities, and individuals. Several High Courts entertained petitions challenging the draft’s validity. Following significant opposition and a change in political context after the 2021 pandemic period, the MoEFCC did not finalise the 2020 draft, though it has not been formally withdrawn either. This ambiguity leaves project developers and civil society organisations uncertain about the regulatory framework that applies.
The administrative pressure to accelerate project approvals has intensified with the Government of India’s infrastructure push under the National Infrastructure Pipeline and the PM Gati Shakti programme. These programmes set aggressive timelines for project completion that create institutional pressure on EIA appraising bodies to approve projects quickly. The Expert Appraisal Committees, composed of technical experts serving in personal capacity, face this pressure directly, and several NGT orders have noted instances where EACs approved projects at single meetings without adequate examination of EIA reports running to thousands of pages.
The quality of EIA reports themselves is a persistent concern. Most EIA studies in India are conducted by consultants engaged and paid by project proponents, creating an obvious conflict of interest. Several independent analyses have found systematic underestimation of impacts and overoptimistic baseline data in consultant-prepared EIA reports. The accreditation system for EIA consultants, overseen by the Quality Council of India, has not effectively addressed this problem.
Comparative and International Perspective
The United States National Environmental Policy Act (NEPA), enacted in 1969, is the foundational model for environmental impact assessment globally. NEPA’s requirement that all federal agencies prepare Environmental Impact Statements for major federal actions significantly affecting the environment has been enforced through robust judicial review. Courts in the United States have held that NEPA imposes procedural rather than substantive obligations, but the procedural obligations are rigorously enforced. Agencies that prepare inadequate Environmental Impact Statements or that fail to consider a reasonable range of alternatives face judicial orders to prepare supplemental analyses before projects proceed. The hard look doctrine developed in US administrative law requires agencies to consider all relevant factors and to explain their reasoning in a manner that is not arbitrary or capricious.
The European Union’s Environmental Impact Assessment Directive, most recently updated in 2014, similarly requires member states to ensure that projects likely to have significant environmental effects are subject to assessment before development consent is given. The EU’s strategic environmental assessment framework extends impact assessment requirements to plans and programmes, not just individual projects. This upstream assessment is something India lacks; the cumulative impacts of sectors such as highway construction, coal mining expansion, or port development are not comprehensively assessed at the planning stage before individual project clearances are sought.
The Aarhus Convention, which India has not ratified but which has influenced international best practice, establishes legally binding rights of access to information, public participation in decision-making, and access to justice in environmental matters. The Convention’s requirements for meaningful public participation, including adequate notice, access to relevant information, and effective opportunity to comment before decisions are made, represent a standard against which India’s EIA process can be usefully benchmarked.
Practical and Policy Implications
The practical implication of weakened EIA processes is not merely the approval of individual projects that should have been refused. It is the systematic degradation of the information base upon which environmental governance decisions are made. When EIA reports are prepared by compromised consultants, reviewed by overburdened committees, and approved without genuine consideration of alternatives, the entire fabric of environmental knowledge about project impacts dissolves. Communities affected by projects proceed without the information they need to engage effectively in hearings. The state proceeds without the information it needs to impose meaningful conditions. The judiciary is left to make factual determinations about environmental impacts in the context of litigation, years after the damage has begun.
The solution is not simply more litigation. The NGT and the Supreme Court cannot substitute for a functioning administrative process; their interventions are necessarily reactive and do not provide the systematic upstream evaluation that EIA is supposed to accomplish. The solution requires institutional investments in EIA quality: independent, publicly funded EIA consultants who are not beholden to project proponents, enhanced training and resourcing of Expert Appraisal Committees, mandatory public access to raw data from baseline surveys, and a strengthened accreditation regime with real consequences for substandard work.
Suggestions and Reforms
A standing National EIA Review Commission should be established by statute, with independent expert members serving fixed terms with security of tenure. This body should have the power to conduct post-clearance monitoring of projects, commission independent audits of EIA quality, and publish annual assessments of EIA process integrity. Its reports should be tabled before Parliament.
The conflict of interest in EIA consulting must be addressed structurally. One model is the escrow financing approach, under which project proponents deposit EIA study fees into a government-administered pool from which consultants are selected through independent procurement and paid directly. This severs the direct financial relationship between consultant and proponent while preserving the proponent’s obligation to finance the study.
Strategic Environmental Assessment should be legislatively mandated for major sectoral policies and plans. The coal block allocation system, the highway corridor planning process, and the coastal development planning process all need upstream environmental evaluation before individual projects are designed and appraised.
Finally, the post-facto regularisation pathway must be permanently closed by statute rather than left dependent on judicial interpretation of executive memorandums. A clear legislative statement that no environmental clearance may be granted retrospectively for a project that has already commenced construction or production would eliminate the legal uncertainty that currently allows regularisation to persist.
Conclusion
India’s EIA regime stands at a crossroads. The judicial architecture for environmental protection, anchored by the Supreme Court’s Alembic ruling and the NGT’s consistent enforcement of procedural requirements, has prevented the most egregious departures from the legal framework. But judicial intervention after the fact is an inadequate substitute for a well-functioning administrative process. The draft EIA Notification 2020’s retreat under public pressure demonstrates that civil society engagement can check regulatory rollback, but cannot replace institutional reform.
The deeper problem is that EIA in India has come to be understood primarily as an administrative hurdle to be cleared rather than as a genuine tool for decision-making. Rebuilding the substantive function of EIA requires confronting the political economy of project approval, where the short-term interests of developers and state revenue departments consistently outweigh the long-term interests of communities and ecosystems. This is fundamentally a governance challenge, not merely a legal one. Addressing it requires political will, institutional investment, and a judicial culture that continues to hold the executive accountable to the procedural and substantive requirements of environmental law.
