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National Green Tribunal Suspends Environmental Clearance for NTPC Thermal Power Plant in Karnataka

(14-03-2014) In a significant decision in the matter of M.P Patil Versus Union of India and ors (Appeal No 12 of 12), the Principal Bench of the National Green Tribunal (NGT) on 13-3-2014 suspended the Environmental Clearance granted by the Ministry of Environment and Forest on 25-1-2012 for setting up the 3x 800 MW Super Thermal Power Plant in Bijapur and directed that the Environmental Clearance  be reappraised and a fresh decision be taken as to whether the project should be granted Environmental Clearance or not. 

The Environmental Clearance was challenged by Appellant M.P Patil, President of Parisara Raksana Seva Vedike before the National Green Tribunal  on several grounds which included wrong declaration with respect of the nature of land, R&R Plan not prepared and shared with the public, no proper EIA prepared and specifically no study on the Ambient Air Quality (AAQ)

Delivering the Judgment, the Bench headed by Justice Swatanter Kumar which comprised of Justice U.D Salvi, Prof A.R Yusuf, Dr Trivedi and  Dr G.K Pandey concluded that the Environmental Clearance was granted based on wrong declaration with respect to the nature of land i.e agricultural land with double crops were shown as barren and rocky land. In addition it concluded that the EIA report was faulty since no proper study was done on the impact due to

NGT DIRECTIONS :

 The NGT passed the following main direction:

 · The order dated 25th January, 2012 is hereby remanded to the MoEF to pass an order granting or declining environmental clearance to the project proponent afresh in accordance with law and this judgment. Till then, the said order shall be kept in abeyance.

 · The EAC shall visit the site in question, give public notice and hear the project-affected or displaced persons individually or in a representative capacity and then proceed to record its findings.

 · The EAC may impose such additional conditions to the order dated 25th January, 2012, as it may deem fit and proper, unless the EAC comes to the conclusion that the project ought not to be granted EC.

IMPORTANT FINDINGS AND OBSERVATIONS:

 The NGT in its judgment held :

‘A perusal of the satellite imagery appended by the EIA Consultant to the EIA Report on record does not support the contention of the NTPC that the major part of the project area is barren. Further the revenue documents as well as the photographs of the area placed on record by the Appellant clearly indicate that the area under reference is mostly agricultural land. Hence the plea taken by the NTPC for seeking EC for the project, i.e., “most of the area is barren” clearly indicates that the NTPC misled the EAC’ [Para 38]

39. From the above discussion, it can safely be concluded that the land in question is primarily not barren and rocky land, as informed by NTPC and there appears to be improper disclosure of facts on the part of the NTPC which remained unverified even till the stage of issuance of the EC. [Para 39]

ON R&R

The NGT held that the Public hearing and Environmental Clearance was granted without preparation of the Resettlement and Rehabilitation (R&R) plan which was required. The NGT held that

“…..R & R is an essential feature of any project which comes up for consideration before the competent authorities in accordance with the EIA Notification.

 ….It is, therefore, evident that the NTPC did not submit the R&R Plan as was required before EAC/MoEF at the time of appraisal of project and rather it was submitted about 5-6 months after the EC was accorded by MoEF which is clearly in violation of TOR conditions.

 Submission of such scheme, despite being so significant, had not been submitted by NTPC even after passing of the order of EC. [Para 44]

 A perusal of the documents placed on record by the NTPC leads one to observe that in the case of the Kudgi STPP, the NTPC R&R policy seems to be restricted to paper only and the ground reality is that the NTPC has not even bothered to prepare the list of project-affected persons although about two years have passed from the date of issuance of Land Acquisition notice [Para 54]

LOCATION OF AAQ MONITORING STATIONS:

 The downwind monitoring station would have given the actual prevailing AAQ level with respect to particulate matter, sulphur-di-oxide and oxides of nitrogen near human settlements. The data would have been helpful in providing the prevailing background pollution levels in the area, which is important to see the actual impact on the AAQ after the thermal power plant is in operation. Thus, the requirement of TOR has not been met by NTPC for reasons best known to it.

 On Public Consultation Process:

 The NGT held that:

“an appropriate R&R scheme was not available at the time of the public hearing. Also, the other objections raised at the public hearing were not properly answered during the public hearing. The Committee concluded that major issues had been noticed but it is evident that the nature and category of the land, location of monitoring stations, shifting of coal and deficiencies in the R&R plan were not dealt with in consonance with the TOR. The R&R plan, which was to be prepared within four months, in fact, had not been placed before the competent authorities at the time of consideration or even after the grant of the EC”

 Onus/ Burden  of Proof in environmental cases:

 Onus is not on the objectors to prove their objections by leading scientific evidence at that stage. It is the duty of the EAC to examine the worth of the objections raised and the consequences thereof. It was, in fact, for the NTPC to show that the various apprehensions of the objectors were not well-founded, and that the project is not likely to do any environmental damage or cause deprivation of the livelihood and income of the project-affected persons. The onus squarely lies upon the NTPC to bring the establishment and operation of the project within the ambit of balanced sustained development. [Para 87]

The judgment can be accessed at http://www.greentribunal.gov.in

Please go to the Judgment Section and look for M P Patil vers Union of India

Courtesy: National Green Tribunal

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A Green Minister, a Green Ministry and a Green Tribunal

A Green Minister, a Green Ministry and a Green Tribunal

People and companies employing the word ‘green’ in environmental contexts are guilty of “misuse, overuse, general uselessness.”: This was the conclusion of the 2009, Annual Survey of Lake Superior State University in Michigan of words that should be banished. India is no different and the use (and the misuse) of the word ‘Green’ is common -‘Green Clearances’, ‘Green Minister’, ‘Green India Mission’, ‘Green Bench’ and the latest: the National Green Tribunal.

But then who can be termed as ‘Green’? Jairam Ramesh, was the only environment minister after Maneka Gandhi to be termed as ‘Green’ by the media and the section of the ‘green’ NGOs’. He was credited for being transparent (through his various speaking orders and updated website of the MoEF which strangely enough does not operate on weekends and after office hours) and accessible (glass door at his office). On hindsight, it is clear that the changes were cosmetic. All controversial projects from Lavasa, Navi Mumbai Airport, Jaitapur Nuclear Power Plant, POSCO to name a few were approved without any adherence to environmental norms. The Minister and his officials submitted meekly to the dictates of other Ministries and Departments and justified the same only through long speaking orders which only revealed the bankruptcy in the Government structure and its subordination to corporate interest. The recent observation of the Himachal Pradesh High Court that the officials of the MoEF behaved like ‘meek lambs being taken for slaughter’ while approving the Cement project of Jaypee in violation of all laws, best describes its functioning.

If Jairam was not in the real sense ‘green’, how does one rank his successor: Jayanthi Natrajan? Well the once vocal congress spokesperson is hardy seen or even heard in her new role as India’s Environment and Forest Minister. Yet she has managed to ensure that her writ runs large in the MoEF, so much that even in the rare instances where the Forest Advisory Committee recommends for rejection of projects, she is quick to overrule them. No major policy and institutional reform has taken place or even seem to have been initiated since she took over as Minister. At the most extreme instance all that the Ministry has done is to ensure that ‘show cause’ notices are issued against the alleged violators (essentially aimed at the media to give an impression of action) without any follow up.

Going by the track record of nearly one year, Jayanthi Natrajan is truly a ‘Green Minister’: having ensured that a green signal is given to every single ecologically destructive project in the country. As is evident, the vocal congress leader is unlikely to lose her “green” tag soon.

In this rather gloomy situation, the National Green Tribunal comes as a fresh ray of hope. A judicial and technical body set through a statute, it is expected to render environmental justice to affected citizens and communities who are at the mercy of the arbitrary decisions of the MoEF and the overall lack of compliance to environmental laws. Since it started functioning almost a year back, the National Green Tribunal has already emerged as the most important institution to watch on environmental matters. In the last eight months, it has delivered a record 73 judgments and is presently hearing around 170 cases from across the country. By suspending environmental clearance granted by the MoEF based on faulty assessment in more than a dozen cases, the Green Tribunal has sent a clear signal that the ‘green signals’ of the MoEF will necessarily not be the final. The red flag by the NGT to some significant projects approved by the MoEF is a clear reminder to MoEF that its decision will no longer be accepted without a legal challenge. On the Green Tribunal rests again the ‘green’ hope of the citizens of India…

Ritwick Dutta

Editor – eRc Journal

Editorial appeared in the eRc Journal Vol V, Issue 1, January – May 2012

Tribunal mandates Radiation studies

Tribunal mandates Radiation studies before granting ‘environment clearance’ to thermal power plants

EAC failed to consider impact due to radiation; ‘Terms of Reference’ for all projects to include impact due to radiation

The National Green Tribunal in the judgment dated 20.09.2011 issued directions to the Ministry of Environment & Forests to conduct a scientific study with regard to the long term

impacts of nuclear radiation caused by the thermal power plants. The directions were issued by the NGT Bench comprising Justice C.Venkata Ramulu and Dr. Devendra Kumar Agrawal on hearing the appeal [Appeal No. 7/2011(T)] filed by the residents of the Koradi village against the ‘Environment Clearance’ granted to the Maharashtra State Power Generation Co. Ltd for expansion of 3x660 MW coal based thermal power plant at Koradi in Nagpur district of Maharashtra. [Case : Krishi Vigyan Arogya Sanstha & Ors Vs Ministry of Environment & Forests & Ors]

Observations made by the Tribunal

The Tribunal observed that while granting environment clearance to the project, the following aspects were not considered by the Expert Appraisal Committee/Ministry of Environment and Forests:

 Impact of nuclear radiation caused by thermal power plant on human habitation and ecology of the area

Cumulative impact of various existing and proposed thermal power plants in and around the project area

 The Tribunal observed that the issue with regard to effect of nuclear radiation on human population and ecology in and around the area was raised in the public hearing but the same was neither examined nor incorporated in the final Environment Impact Assessment report.

The Tribunal relied on various research publications on Radioactivity submitted by the appellants, which highlighted the fact that the waste produced by the coal plants is more radioactive than that generated by the nuclear power plants which can result into severe environment and human health problems.

Directions issued to the Ministry of Environment & Forests

The Tribunal issued the following directions to the Ministry of Environment & Forests and disposed of the appeal with liberty to the Appellants to take appropriate steps if the same are not complied with:

I. Long term study with regard to the impacts of Nuclear radiation:

To conduct a long term study of the impacts caused by nuclear radiation from the thermal power projects by involving Bhabha Atomic Research Agency or any such other recognized institution dealing with nuclear radiation with reference to the coal ash generated by the thermal power project particularly the cumulative effect of a number of thermal power projects located in the area on human habitation, environment and ecology and to also consider the health profile of the residents within the area in which the pollutants are expected to spread from the thermal power project.

II Radiation studies to be a mandatory part of the Terms of Reference:

To include in the Terms of Reference of all the future projects asking the proponent to furnish details of possible nuclear radioactivity levels of the coal proposed to be used for the thermal power plant.

II. National Standards to be prescribed from the Department of Atomic Energy:

To get the national standards prescribed from the Department of Atomic Energy, Govt. of India within a period of one year from the date of receipt of this order, as to the permissible levels of nuclear radiation in residential, industrial and ecologically sensitive areas of the country.

Considering the above, the Tribunal also took note that the grant of Environment Clearance is basically a procedural law and any procedural lapses such as collection and evaluation of basic data which may lead to threat to the environment, ecology and conservation of natural resources, shall have to be taken seriously by the Tribunal while dealing with the disputes coming before it. It further stated that the Expert Appraisal Committee/ Ministry of Environment and Forests should consider even small deficiencies in the Environment Impact Assessment report which should be rectified by the project proponent.

Article appeared in the eRc Journal Vol V, Issue 1, January – May 2012

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