The National Green Tribunal (NGT) has in a sharp and succinctly worded 25 page order rapped the Tehri Hydro Development Corporation (THDC) and the Uttarakhand government for dumping  muck, stones and soil directly into the Alaknanda river. Fining the corporation Rs 50 lakhs for the pollution on the Polluter Pays Principle, the NGT has ordered that all the dumped debris be removed by the THDC within four weeks failing which an additional Rs 25 lakhs will have to be paid up for default. The order was passed on April 13, 2017. The river is to be restored to its former condition and a committee appointed by the NGT to oversee the process.

 
The entire order of the NGT may be read here.
 
The NGT Order outlines the principles of Environmental Jurisprudence in Detail:
 
“The Precautionary Principle has two fold obligations. Firstly, the project proponent must take all expected precautions and preventions to ensure that no pollution results from its activity.
 
“Secondly, it has to take into consideration the Principle of Inter Generational Equity and therefore ensure that it causes no irretrievable damage to natural assets. In addition, a definite obligation is placed upon the project proponent to protect these assets.
 
“Even the Principle of Strict Liability in terms of Section 17(3) of the Act of 2010 would apply upon the applicant with its rigour. In the case of ‘Gurpreet Singh Bagga vs. Ministry of Environment & Forest & Ors.”, O.A. No. 184/2013 dated 18th February, 2016 while applying the Precautionary Principle and the safeguards which the project proponent is obliged to take and its failure, therefore, must attract the Polluter Pays Principle, the Bench held as under:
 
“The 'precautionary principle' places onus upon the industry, on the one hand, while on the other hand, it obligates the State Government, local authorities and State Pollution Control Boards to ensure prevention and control of pollution. Lack of scientific knowledge would be an irrelevant consideration for determining such a factor. We may refer to the judgment of this Tribunal in the case of Krishan Kant v. Triveni OA No. 317/2014 pronounced on 10th December, 2015 wherein the Tribunal while discussing the precautionary principle and its applicability held as under:–
 
"14. The Rule of 'No Fault' or 'Strict Liability' was enunciated by the House of Lords in the case of Rylands v. Fletcher, (1868) L.R. 3 H.L. 330, wherein it was stated that if the defendant was not negligent or rather, even if the defendant did not intentionally cause the harm, he could still be held liable under this Rule for the damage or adverse impact of his activity. To succeed in such an action in tort, the claimant was expected to show:
1. That the defendant brought something onto his land;
2. That the defendant made a "non-natural use" of his land (per Lord Cairns, LC);
3. The thing was something likely to do mischief if it escaped;
4. The thing did escape and cause damage. The rationale behind the rule of Strict Liability is that the activity going within its fold are those entailing extraordinary risk to others, either in seriousness or the frequency of the harm threatened. Extending the basis of such liability, Blackburn, J. held as under: "We think that the rule of law is, that the person who for his own purposes brings on his lands and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default; or perhaps that the consequence was of vis major, or the act of god; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."
 
“In the recent past, there has been a basic shift in the approach to environment protection. Earlier, the concept was based on the 'Assimilative Capacity' Rule as is evident from Principle 6 of the Stockholm Declaration of United Nations Conference on Human Environment in 1972.
 
“This principle assumed that science could provide policy makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilative impacts and it also presumes that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to avoid such harm.
 
“Under the 11th Principle of the United Nations General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the 'Precautionary Principle', which was then reiterated in the Rio Conference of 1992 in its Principle No. 15. The inadequacy of science is the real basis that has led to the 'Precautionary Principle'. It is based on the theory that it is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.
 
“The Precautionary Principle suggests that where there is identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution, in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or the entity proposing the activity that is potentially harmful to the environment. In the event of uncertainty, presumption should operate in favour of environmental protection and primary onus would shift in light of the presumption in favour of the environment and statutory obligation of the industry as afore referred. The test to be applied is that of a 'reasonable person'.
 
“The 'Precautionary Principle' thus, demonstrates that an activity which poses danger and threat to the environment is to be prevented. Under this Principle, the State Government and the Local Authorities are supposed to first anticipate and then prevent the cause of environmental degradation by checking the activity. Lack of scientific knowledge as to whether particular activity is causing degradation should not stand in the way of government in analysing such harm. 'Onus of Proof under this Principle is on the actor or the developer to show that the action is environmentally friendly.
 
“We must notice here that the provisions of the Act of 2010 under Section 20 mandates that the Tribunal has to apply the 'Precautionary Principle' while adjudicating the cases under the environmental jurisprudence."
 
“Man has changed the nature of many of the world's Rivers by controlling their floods, constructing large impoundments, overexploitation of living and non-living resources and using Rivers for disposal of wastes.”
 
“Among these, indiscriminate extraction of non-living resources like sand and gravel from Riverbed is the most disastrous as this activity threatens the very existence of the River ecosystem (Kondolf, 1994 supra). Indiscriminate extraction of River sand and gravel, many folds higher than natural replenishments, imparts serious offsite and onsite impacts, leading ultimately to changes in channel form, physical habitats and food webs, engineering structures associated with River channels and inland sediment supply to coastal and near-shore environments.”
 
“Sand is vital for sustenance of Rivers. Sand mining is the removal of sand from their natural configuration. Sand and gravel are mined world-wide and account for the largest volume of solid material extracted globally. Formed by erosive processes over thousands of years, they are now being extracted at a rate far greater than their renewal.
 
“A conservative estimate for the world consumption of aggregates (sand and gravel) exceeds 40 billion tonnes a year. This is twice the yearly amount of sediment carried by all of the Rivers of the world [Milliman and Syvitski (1992) in: Journal of Geology Vol. 100 (5): 525-544], making humankind the largest of the planet's transforming agent with respect to aggregates.
 
“Determining the amount of sand that can be sustainably extracted from a particular stream reach requires site-specific topographic, hydrologic, and hydraulic information.
 
“This information is used to determine the amount of sand that can be removed from the area without causing undue erosion or degradation, either at the site or at a nearby location, upstream or downstream. In-channel or near-channel sand-and-gravel mining changes the quantity of that can be extracted vis-à-vis the sediment deposited sediment, and may result in substantial changes in the channel hydraulics. These interventions can have variable effects on aquatic habitat, depending on the magnitude and frequency of the disturbance, mining methods, particle-size characteristics of the sediment, the characteristics of riparian vegetation, and the magnitude and frequency of hydrologic events following the disturbance.”
 
“Useful reference can be made in the case of ‘Ashwini Kumar Dhal vs. Odisha Pollution Control Board and Ors.’, dated 25th May, 2016 where the Tribunal held as under:
 
“'Polluter Pays" principle, which is an overarching principle, mandates the polluter to bear the cost of pollution, prevention, control and reduction measures. This principle is an integral component of sustainable development. The Apex Court of India in Indian Council for Enviro-Legal Action vs. Union of India (1996) 3 SCC, Karnataka Industrial Area Development Board vs. C. Kenchappa : (2006) 6 SCC 371, M.C. Mehta vs. Union of India: (2006) 3 SCC 399, has held that the "remediation of the damaged environment is a part of the process of sustainable development and as such the polluter is liable to pay the cost to the individual sufferer as well as the cost of reversing the damaged ecology." Similarly in Hindustan Coca Cola Beverages Pvt. Ltd. vs. West Bengal, it has been held that "it is no more res integra, with regard to the legal proposition, that a polluter is bound to pay and eradicate the damage caused by him and restore the environment.”
 
 
 
 

The Tribunal Compels Accountability from the Power Project and the Governments essential to protecting our Natural Resources

 
The National Green Tribunal (NGT) has in a sharp and succinctly worded 25 page order rapped the Tehri Hydro Development Corporation (THDC) and the Uttarakhand government for dumping  muck, stones and soil directly into the Alaknanda river. Fining the corporation Rs 50 lakhs for the pollution on the Polluter Pays Principle, the NGT has ordered that all the dumped debris be removed by the THDC within four weeks failing which an additional Rs 25 lakhs will have to be paid up for default. The order was passed on April 13, 2017. The river is to be restored to its former condition and a committee appointed by the NGT to oversee the process.
 
The judgement was delivered on an application filed by Vimalbhai, an activist with the National Alliance for People’s Movements (NAPM) following an April 12, 2016 report published in the Hindi newspaper, Amar Ujala titled, “Dumping of Construction Debris into Alaknanda River.”
 
It was cogently urged in the application that this indiscriminate dumping of construction material and debris into the Alaknanda river (by the construction underway for the Vishugud-Pipalkoti Hydroelectric Power Project) is causing irreparable dam to the river. The judgement also upheld the claim of the petitioner that the conditions in the Environmental Clearance (EC) granted on August 22, 2007 imposed on the said Power Project were violated  by this callous dumping of debris.
 
The imposing Power Project to build a 65 meter diversion dam near Helang Village in Chamoli District of Uttarakhand (to enable the creation of a small reservoir on the river) had an installed capacity of 444 MW. The Power House of the Project is underground and situated near village Haat, about three kilometers from Pipalkoti. As much as 120 hectares of land was acquired for the project of which 40 hectares was agricultural land and 80 hectares government land: nearly 346 families were affected and re-located due to the project. THDC, in constructing a road between the power house of the hydro electric project and the river outlet, was dumping the muck and debris caused due to the road construction into the river. When the EC was finally granted to the project on August 22, 2007, the permission specifically stated that the muck had to be disposed of at the dumping site, above the high flood level.
 
Even before the article that appeared in Amar Ujala,  the petitioner, Vimalbhai had through a letter dated October 17, 2015, written to the GOI demanding the cancellation of the EC of the Vishugud-Pipalkoti Hydroelectric Power Project due to the non-compliance of the conditions.
 
Ironically, the Ministry of Environment & Forests(MOEF) has in its separate affidavit before the NGT stated that the Vishugud-Pipalkoti Hydroelectric Power Project was supposed to strictly adhere to the terms and conditions of the EC as laid down on August 22, 2007.
 
While delivering its unequivocal order holding the Vishugud-Pipalkoti Hydroelectric Power Project guilty of violating Sections of the Environmental Act, 2010, the NGT has also dismissed the arguments of the respondents that Vimlabhai’s application cannot be entertained since he is not a resident of Chamoli village.
 
“The construction of a Hydro-electric project in an eco-sensitive state like Uttarakhand would not be a localized issue of the village but its impact would be felt all over. The language of Section 14 read in conjunction with section 18 of the Act of 2010 clearly provides that the expression locus-standi will have to receive liberal interpretation and the application cannot be thrown out on this ground, if it otherwise raises a substantial question of environment in accordance to the implementation of any legal right in relation to the Acts mentioned in Schedule-I of the Act of 2010. In fact, this issue need not detain us, in view of the law settled by the Tribunal in the case of ‘Goa Foundation versus Union of India’ O.A. No 26 of 2012, All India NGT Reporter, 2013 (1), Part 5, Page 234, where it had held that the term ‘aggrieved person’ is to be understood in common parlance and cannot be confined within the bounds of a rigid formula. Aggrieved is a person who has suffered a legal grievance, against whom a decision has been pronounced or who has been refused something. This expression is very generic in its meaning and has to be construed with reference to the provisions of a statute and facts of a given case.
 
In the course of the hearing of the case, applicant Vimalbhai had filed photographs taken on April 15, 2016 showing the area near the project site where the road is being constructed along with the stones, muck, soil and other waste which are being thrown directly into the river. The photographs show that all this muck and construction waste is not only being thrown into the flood plains of the river but right into the middle of it.  Besides, in a rejoinder to the false claims made by the Project and state government, the applicant pointed out to the NGT that this direct dumping of muck into the river using heavy machinery such as trucks was being done even on April 29, 2016 well after the date when the project proponent claimed before the NGT to have stopped the work. The NGT categorically held that these photographs are clear evidence that the claims of the Vishugud-Pipalkoti Hydroelectric Power Project are completely false.
 
The order of the NGT upholds “the Polluter Pays Principle which makes it mandatory for the project proponent to take all possible precautions and ensuring that there should be no pollution resulting from such activities which if carried in normal course would cause pollution. Water body is a natural asset and resource. It is an entity in itself and is entitled to all protection in law. Environmental law in our country gives due protection to natural assets particularly rivers. It, in fact, places an obligation upon the State as well as stakeholders, including the project proponent to provide due protection to these rivers and ensure that they are not polluted.”
 
The NGT Order was passed by Chairperson of the NGT, Swatanter Keer, Judicial Member, Raghuvendra Rathore and Expert Member Bikram Singh Sajwan. Advocates Ritwik Dutta, Rahul Chowdhury and Ms Meera Gopal appeared for the applicant.
 
The NGT has granted the prayers made by the applicant that fall within the ambit and scope of the Section 14, 15 and 17 of the Act of 2010 since the damage to the Alaknanda River is obvious and stands proved on record.
 
Further the NGT has remarked that “It is unfortunate that the Vishugud-Pipalkoti Hydroelectric Power Project can take such a stand to shirk from the consequences of its irresponsible and negligent act. If the public authorities would carry projects in the present manner and would attempt to cause such depletion of natural assets as in the present case, the day is not far when these eco-sensitive areas would refuse to tolerate infliction of damage by the human beings using machinery and this may result in un-manageable and uncontrollable damage.
 
Detailing the extent to which the authorities and the corporation have violated environmental laws, the NGT states that,
 
“Applying the (above) settled principles of environmental jurisprudence to the facts and circumstances of the present case, there is no escape from the conclusion that the project proponent has utterly failed to comply with the fundamental principles of environment protection. It has violated the conditions of the EC.
 
“The Respondent (project proponent) has not even made an effort to bring on record as to which of the dumping sites have been earmarked for dumping of muck and what is their present status. The Respondent no. 1 has placed on record the documents to show the estimated capacity of the sites and likely generation of the waste from the excavation, etc.
 
“This itself shows lack of responsible behaviour on the part of the project proponent. It could have discharged its onus by placing on record before the Tribunal, documents to show the total extracted debris including from the project, how much of the muck had been deposited on the site and how all concerned persons i.e. the media, local authorities, officers, the applicant as well as the Pollution Control Board, other stakeholders had noticed that muck was indiscriminately thrown into the river. It is nobody’s case that the photographs in question are doctored and they are not of the actual sites.
 
“The stand taken by the respondents that PWD has also thrown the muck into the water bodies is no defence. In fact, the State Government itself being a party should have taken steps against the PWD for committing such environmental offence.
 
“The project proponent is liable to be directed to take preventive and precautionary measures coupled with the prohibitory orders that are patently called for, in the facts and circumstances of the present case.
 
“We are unable to condone these irresponsible omissions, acts, and avoidable damage to the nature. They have certainly polluted the water of the river. The analysis reports that have been placed on record do not show that these samples were collected at the relevant time and from the site in question where the muck was being thrown into the River. If the samples are taken upstream and downstream, the samples from the affected sites and the consequences that follow would be totally different and would be immaterial for determining the controversy in the present case.
 
“The photographs placed on record clearly show that even the colour of the water has changed along the course of the River. These are uncondonable breaches and actions. Development does not mean destruction of nature.
 
“The Respondent no. 1 has certainly violated the spirit of Principle of Sustainable Development and therefore must bear the consequences that will follow in law in the facts of the present case.
 
The entire order of the NGT may be read here.
 
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NGT Explains the Precautionary Principle in Indian And International Law