On April 28, the southern bench of NGT nullified a policy in place for the past five years whereby thermal power plants were allowed to change their “source of coal”, irrespective of ash content, calorific values or potential environmental hazards.

The Union Ministry of Environment, Forests & Climate Change (“the ministry”) had issued the policy through a “office memorandum” dated November 11, 2020, without consultation with stakeholders or conducting scientific assessments. Setting aside the office memoranda, a division bench of the tribunal comprising judicial member Justice Pushpa Sathyanarayana and expert member Satyagopal Korlapati said:

“The MoEF&CC [the ministry] which is a regulatory body of the environment and ecology, instead of converting towards higher accountability it is drifting towards dilution in the name of reforms.”

The bench also rapped the ministry on its knuckles for effecting a policy change through an office memorandum which is merely an instrument to be used for administrative purposes.

“The OMs [office memoranda] in question are not legislative rules as they do not undergo the public consultation, stakeholder engagement or gazette publication in the same manner as that of the S.O or any statute. The OMs are issued without any scientific study or in fact assessment. The legal character of the OMs is administrative but their effect is legislative creating de facto exemptions from legal mandates. Such a shift in regulatory thresholds through OMs is inconsistent with the Principle of Legality and with well-established limits on delegated legislation,” the bench further said.

The petitioner in the case, highlighting the arbitrary nature of the policy change, had told the tribunal that “it indicates commercial interests prioritize over environmental protection” and that “it only reflects industrial facilitation approach rather than environmental regulation.”

The policy was among a series of reforms by the Modi government, brought quick on the heels of opening the coal sector for commercial mining by corporate entities. Experts had warned that such the reforms could have catastrophic consequences on local environment and livelihood of project-affected communities living in the vicinity of power plants. It was alleged that power projects would switch over to cheaper sources of coal, owing to higher quantity of ash content, without necessary environmental safeguards.

The opening of the coal sector for commercial mining has unlocked dozens of blocks, the reserves of which are of comparatively cheaper prices owing to higher ash content. Most domestic coal in India is known to have higher ash content than imported coal. As a result, quantity of fuel combusted for generation of one unit of electricity increases with usage of cheaper coal.

Though the office memorandum allowed power plants to change the fuel source without fresh environmental clearances, it prohibited establishment of additional ash ponds to store the commensurate increase in fly ash generated from the combustion of cheaper coal.

The new policy envisaged for “High Concentration Slurry Disposal (HCSD) systems due to their ecological advantages including reduced ash pond size, lower water consumption and minimal environmental contamination from runoff water or dust dispersion”.

However, the tribunal observed that the ministry failed to take cognizance of the fact that increased coal usage and ash generation will directly impact the quantum of water consumed by thermal power plants. “Water required for cooling purposes increases on account of increased quantity of coal combustion, water consumed in ash handling system will increase greatly as more water is required for making the dust cooling higher quantity of ash into slurry to be transported through pipelines,” it said.

Twice during hearing of the case – as the tribunal has observed in its judgement – the ministry amended the notification to apparently portray that environmental safeguards were being taken care of in allowing industries to change the source of coal at will.

The NGT observed that permission to change fuel source without amendment of environmental clearance would tantamount to “submission of false information or suppression of information since the character of pollution as well as quantum of pollution load varies with the source of coal and combination of domestic and imported coal”.

The tribunal further noted that “shifting to domestic coal will result in higher loads of fly ash generation which can impact both air and water quality” while in case of imported coal (which has higher quantities of sulphur), emission of toxic sulphurous oxides “will increase which can affect the air quality and could also result in acid rains which can in turn impact water and soil qualities.”

When the above mentioned apprehensions were expressed during the arguments, the ministry brought an amendment to the office memorandum on December 6, 2023 capping the limits of blending domestic and imported coal for industries to avoid fresh environment impact assessment. The necessity of carrying out environment impact assessment was still ruled out in cases of switching over from “domestic coal to domestic coal” or from “imported coal to domestic coal with the same calorific value”.

The ministry amended the notification yet again on January 7, 2025 when it was asked by the tribunal to examine the technical aspects of the policy granting permission for change in coal source without environmental clearance.

In the latest amendment, the ministry made a reference to its own notification regarding fly ash utilisation deadlines for thermal power plants. Through a notification dated December 31, 2021 – among a series of guidelines issued over the past 27 years to tighten compliance obligations and timeline for ash disposal and reuse – the ministry has set clear deadlines for power plants to complete disposal of fly ash.

The ministry made it clear in the new amended office memorandum that the guidelines dated December 31, 2021 were to apply irrespective of change in coal source. It further made it mandatory for thermal power plants changing coal source to ensure that “loading, unloading, transport, storage and disposal of ash is done in an environmentally sound manner and that all precautions to prevent air and water pollution are taken and status in this regard shall be reported to the concerned State Pollution Control Board”.

However, the NGT noted that the thermal power sector continues to under-preform in ash utilisation taking cognizance of various reports of the Comptroller & Auditor General (CAG) of India and the Central Pollution Control Board. “In the light of the above, the invocation of 2021 notification in the 2025 amendment appears performative, lacking real regulatory bit,” said the tribunal.

Apart from missing deadlines, thermal power projects have in the past also resorted to improper disposal of fly ash resulting in adverse impacts on environment and livelihoods of local communities. As per the Central Electricity Authority (CEA), which is India’s premier government body for policy formulation in the power sector:

“Indian Coal is of Low Grade with Ash Content of the order of 24 – 63 % in comparison to Imported Coal which has Low Ash Content of the order of 3 – 20 %. Large Quantity of Ash is, thus being generated at Coal / Lignite based Thermal Power Stations in the Country, which not only requires Large Area of precious Land for its disposal but is also one of the sources of Pollution of both Air and Water.”

The CEA’s fly ash utilisation report of March 2023 states that a mere 78.14% of total fly ash generated by all thermal power projects across the country during the first half of the financial year 2022-23 was properly utilised. This compares poorly with the corresponding figure for the first half of the previous financial year, which stood at 81.65%.

Experts have pointed out that arbitrary change to cheaper coal not only causes unforeseen pollution during combustion but also during transportation.

“The quality of coal and the route it takes to reach power plants after mining contribute significantly to air pollution and socio-economic impacts of a coal-based power plant. Any change in the coal source must be thoroughly evaluated by the competent committee vide the Environment Impact Assessment (EIA) Notification, 2006. This will ensure a proper assessment of environmental and socio-economic impacts and help minimize incremental pollution, if the power plants seek a change in source for economic or logistical reasons,” Sunil Dahiya, founder and lead analyst of Envirocatalysts, an independent organisation working on the crossroads of environment, climate change and livelihoods, told this correspondent.

The petitioner had argued that environmental clearance to a thermal power plant is granted based on a firm coal linkage and disclosure of the coal source and coal characteristics. “The impact of various aspects like air emissions, impact due to transport, storage, coal handling, water requirement, ash generation and storage, ash ponds and utilization etc. are assessed, and anticipated impact is forecasted. Only based on the above factors, a public hearing is conducted after which the project is appraised and the Environmental Clearnce is issued,” the petitioner had argued.

The court said that “integrity of environmental governance” cannot be undermined for the sake of “prioritizing ease of business and operational flexibility”. It said, that from the environmental stand point, the changes brought in through the office memoranda “can permit transition to coal sources that may in practice result in higher emission or other forms of pollution due to blending practices, differences in coal quality or operation inefficiencies, none of which are evaluated prior to the exemption taking effect.” It quashed the memoranda saying that those “do not offer any methodology for assessing or verifying pollution load differences before exempting the project from regulatory oversight”.

The writer is an independent journalist.

Courtesy: Newsclick

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New Delhi: A Bill drafted for the first time to protect and preserve areas of geological importance across the country has been criticised on the grounds that it does not take into account special governance mechanisms applicable to areas dominated by Adivasi communities. The Bill – titled Geo-heritage Sites and Geo-relics (Preservation and Maintenance) Bill, 2022 – also envisages empowering the executive with absolute powers in so far as deciding upon denotification of any of these areas for the purpose of infrastructure or industrial development.

The importance and urgency of the Bill, particularly in the light of rampant and unregulated industrial activities in areas with potential geo-heritage importance, have been acknowledged by experts from across many diverse fields. But at the same time, the absence of focus in the Bill on participatory governance, as a possible model for the conservation of geologically important areas, has also been pointed out. The draft Bill was put out on the website of the Union Ministry of Mines on December 15 for public consultations.

So far, 32 sites with rich geological heritage have been notified as National Geological Monuments by the Geological Survey of India (GSI), a central government organisation mandated with the responsibility of creating and updating of national geoscientific information and mineral resource assessment. In future, the Bill envisages acquiring land, for the purpose of notifying geo-heritage sites, under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

However, it has been pointed out by experts that heritage impact assessments are necessary before notifying any area as a geo-heritage site.

Retired bureaucrat, EAS Sarma, a 1965-batch IAS officer, told NewsClick that, as a part of the Environment Impact Appraisal (EIA) study under the Environment Protection Act, 1986, a “heritage impact assessment study” should be mandated within 10-km radius of a geo-heritage site before the Union Ministry of Environment, Forests and Climate Change approves the sites for notification.

“The Bill, in its present form, extends its application to the whole of India. However, some geo-heritage sites may be located in tribal tracts in Scheduled Areas. A special clause needs to be inserted in the Bill to ensure that provisions of the Panchayat (Extension to the Scheduled Areas) Act, 1996 and such other special laws which are applicable, in so far as it applies to the areas notified in the Fifth Schedule of the Constitution, are fully complied with, before any restrictions under this Bill become applicable. The Ministry of Mines may seek the considered views in the matter of the National Commission for the Scheduled Tribes, which is a Constitutional authority. The Ministry of Tribal Affairs must also be consulted,” said Sarma.

Notably, areas with pre-ponderance of the Adivasi population are designated as Scheduled Areas under Schedule V of the Constitution of India and are accorded special governance mechanisms. The Panchayat (Extension to the Scheduled Areas) Act, 1996 ensures that the rights of Adivasi communities living in Scheduled Areas are protected vis-à-vis diversion of land from these areas for the purpose of industrial development. This Act ensures protection of the rights of Adivasi communities by making it mandatory for the government to obtain the consent of Gram Sabhas (local self-governing councils comprising all adult members of any particular village) before diverting or notifying land for any purpose.

However, the Bill does not take into consideration the aforementioned rights which experts point out would be necessary because most sites of geological importance are perceived to be located in areas with preponderance of Adivasi population.

Section 4 of the draft Bill states: “Once a site is declared as a geo-heritage site of national importance under section 3 [of the draft Bill], the Central Government may acquire such area under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as if the acquisition were for a public purpose within the meaning of that Act.”

The Bill defines geo-heritage sites as sites of rare and unique geological and geomorphologic significance having the geomorphological, mineralogical, petrological, paleontological and stratigraphic significance including caves, natural rock-sculptures of national and international interest. It defines geo-relics as any relic or material of geological significance or interest like sediments, rocks, minerals, meteorites or fossils.

As per provisions of the draft Bill, the GSI will be empowered to acquire a geo-relic if it apprehends that it is in danger of being destroyed, removed, damaged or misused. On these grounds, the GSI can decide to remove a geo-relic from the original site and put it in a public place.

The central government has justified the framing of legislation, as has been envisaged under the Bill, on the grounds that though 32 sites have been notified as geo-heritage sites or national geological monuments, there exists no mechanism in the country at present for protection and maintenance of these sites.

“… due to the absence of any legislation in the country for the protection, preservation and maintenance of the geo-heritage sites, these are increasingly threatened with destruction not only by the natural causes of decay but also by population pressure and changing social and economic conditions which is aggravating the situation,” states the ministry in a note on the aforementioned Bill.

However, though the Bill mentions changing social dynamics, it also fails to take cognisance of the diversity of population and natural resources existing for centuries in areas that could potentially be declared as sites with geological heritage.

“This is an extremely important Bill which recognises geological heritage sites as natural heritage which need to be mapped and conserved. However, the framework of conservation is based on conservation through acquisition of rights the implications of which require parliamentary and public debate,” said Kanchi Kohli of the Centre for Policy Research, a Delhi-based leading policy thinktank.

Moreover, the only model for the protection and preservation of the geological heritage of the country that has been envisaged through the Bill is that by the government after taking over land and geo-heritage resources from the control of local communities.

“Different models of co-governance, participatory governance and community-based governance can also be considered as options, especially because these geo-heritage sites overlap with culturally, ecologically and occupationally important spaces,” added Kohli.

In addition, no public consultation has been envisaged in the Bill prior to the denotification of any particular geological heritage site for the purpose of industries, infrastructure or any other purpose. The entire onus of clearing or rejecting proposals on or near notified sites of geological heritage has been sought to be envisaged with the GSI which, as per the Bill, has been sought to be designated as the competent authority.

“The Director General or the officer authorised by the Director General in this behalf shall consider the application made under section 10 [of the draft Bill] and the impact of such construction or reconstruction or repair or renovation (including the impact of largescale development project, public project and project essential to the public) and shall, within two months of the receipt of application, either grant permission or refuse the same after giving an opportunity to the applicant of being heard,” states the Bill.

Experts say that even though the entire Indian sub-continent is a rich repository of geo-heritage sites, a number of important sites in the country have already been destroyed due to a lack of knowledge about the resources and the pressure on land for infrastructural and economic development. The ministry’s note to the Bill itself lists a number of geo-heritage sites that are located in various parts of the Indian peninsula including the Himalaya ranges, the Deccan Traps, the Precambrian Indian peninsula, the Thar Desert and the rain-soaked areas of Northeast India. Important sites listed out in the note to the Bill include the dinosaur fossils of Madhya Pradesh and Gujarat, marine fossils of Kutch and Spiti, wood fossils of Gondwana, the oldest life forms viz. stromatolites of Rajasthan and Madhya Pradesh and the vertebrate fossils of Siwaliks.

“The world’s oldest metallurgical records of gold, lead and zinc in Rajasthan and Andhra Pradesh are still preserved but are under great threat,” states the note to the Bill.

Dr Om Narain Bhargava, a professor of Geology at the Panjab University in Chandigarh, said many sites with rich geological heritage have been wiped out from the Indian sub-continent owing to unregulated and unscientific developmental activities. He said developed countries are increasingly waking up to the need for conserving sites with rich geological heritage. China, for example, has notified as many as 41 areas as geoparks because of their geological significance.

“In India, a number of sites have been lost already. A coral reef in Spiti Valley, which was almost 240 million years old, was lost because a canal was constructed above it. Areas with high geological significance need to be conserved in order to build our repository of knowledge and for the purpose of academics, study and research. In certain instances, our geological heritage can help us predict and build models for dealing with possible extreme climatic incidents in the future,” said Bhargava.

Courtesy: Newsclick

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New Delhi: Notwithstanding Prime Minister Narendra Modi’s display of commitment toward environmental conservation, the central government has, within the past 18 months, twice extended deadlines set upon thermal power projects to control the emission of toxic and harmful gases. Two days ahead of the International Day of Clean Air for Blue Skies, which is observed by the United Nations on September 7 every year to strengthen international cooperation in improving air quality and reducing air pollution, the Modi government did away with the deadlines that it had itself set in March 2021.

The new deadlines – to reduce emissions of the toxic oxides of sulphur generated from the combustion of coal in thermal power plants – were issued through a gazette notification by the Union Ministry of Environment, Forests & Climate Change (MoEFCC) on September 5.

“In a country marked by high death rates due to air pollution, the cost of inaction is high when it comes to non-enforcement of emission control norms upon coal-based power plants. These emission norms were put in place after realising the fact that coal-based power plants are a major contributor to air pollution. Non-adherence to emission control deadlines eventually results in higher mortality rates amongst the population living in the vicinity of thermal power projects. Numerous extensions provided by the central government to implement emission control guidelines only goes to show that public health in India takes a backseat when it comes to safeguarding the interests of polluting thermal power plants,” said Sunil Dahiya, an analyst at the Centre for Research on Energy and Clean Air, an independent research organisation.

In December 2015, the MoEFCC issued ultimatums upon coal-based power plants to reduce emissions of the oxides of sulphur and nitrogen. Through a notification, the ministry had initially set a two-year time period for all thermal power plants to achieve the new emission standards. However, the Central Pollution Control Board (CPCB), a statutory body entrusted with powers and functions to control air pollution, extended this deadline by five years after most thermal power plants failed to achieve the new standards by December 2017. Depending on their respective years of commissioning and installed capacities, different thermal power projects were thereafter set with different timelines till December 2022 for achieving the emission standards.

However, before the aforementioned deadline was set to expire, the ministry issued a new set of deadlines in March 2021 in which power plants were divided into three categories depending on the location and area of the projects. Through this notification, “non-retiring” as well as “retiring” units within a 10-km radius of Delhi-NCR or cities with populations exceeding one million had to achieve the emission control standards by December 2022. Power plants meeting these qualifications fell into the first category of projects.

The second category of projects comprised those within a 10-km radius of Critically Polluted Areas or Non-Attainment Cities. (The CPCB has identified certain cities in India as Critically Polluted Areas on the basis of their low scores on various environmental parameters. Similarly, Non-Attainment Cities are those that do not consistently meet air quality standards, as envisaged under the central government’s National Clean Air Programme, over a five-year period.) Non-retiring units were set the deadline of December 2023 while retiring units were set the deadline of December 2025 in the second category. The third category of coal-based power plants comprised those that did not qualify for the two categories described above. Non-retiring plants in this category were set the deadline of December 2024 while the retiring plants were given the target of December 2025.

Through the latest notification, the ministry has extended the deadline until December 2024 and December 2027, respectively, for non-retiring and retiring thermal power plants within a 10-km radius of Delhi-NCR and in cities with populations exceeding one million. Non-retiring and retiring units falling within a 10-km radius of Critically Polluted Areas or Non-Attainment Cities have been set the deadline of December 2025 and December 2027, respectively. Similarly, non-retiring units and retiring units falling in the third category of thermal power plants have been set the deadline of December 2026 and December 2027, respectively.

“The extensions in the implementation of emissions norms technically mean that most of the operational power stations will never need to install any equipment to control the emission of sulphurous oxides. It is clear that India’s target to reduce air pollution by 30 to 40% by the end of the year 2024, under the National Clean Air Programme, will never be achieved given the repeated leeway that the central government is giving to violators. With this extension, a clear message has gone from the central government to all power companies that they should not take environmental norms seriously,” said environmental lawyer Ritwick Dutta.

Further, all power plants that are set to retire before the end of December 2027 will no longer require to adhere to regulations concerning emission standards for sulphurous oxides at all by submitting exemption requests to the CPCB and the Central Electricity Authority (CEA). Notably, the CEA, a statutory organisation that advises the central government on all matters pertaining to policies and plans for the development of electricity systems, has never compiled a list of “retiring” and “non-retiring” thermal power projects in the country.

On the other hand, CEA’s data shows that compliance by thermal power plants for achieving norms regarding the emission of sulphurous oxides, in terms of installing pollution control equipment like Flue Gas Desulphurization (FGD) systems, is very poor in the country. Only 21 out of the 600 thermal power units across the country have installed FGD systems to date, as of data released by the CEA in September 2022. These include 15 units in the private sector and six units belonging to the central government. It accounts for a mere 4.15% of the total installed thermal power capacity in the country. None of the 222 thermal power units belonging to different state governments has installed FGD systems to date.

Experts have flagged the issue that the deadline for adhering to sulphurous oxide emission standards is being continuously pushed even as the central government has allowed permission to open up more coal blocks in the past couple of years and given a record number of new Environmental Clearances for the establishment of thermal power projects.

However, a section of experts also advocates for alternate methods to reduce pollution caused by the emission of sulphurous oxides instead of sticking to FGD technology which is considered a costly affair. “Domestically produced coal does not contain high amounts of sulphur as compared to imported coal. Over the past few years, the thrust of the thermal power sector in the country has been to reduce dependency on imported coal. In this scenario, installation of FGD equipment may not be worthwhile. Domestic coal, on the other hand, has a high percentage of ash content due to several impurities. Washing of coal at the source of production could be an alternative that would reduce emissions and increase its calorific value,” Partha Sarathi Bhattacharya, former Chairman of Coal India Limited, told NewsClick.

The MOEFCC has given leeway to coal-fired power plants, considered primary sources of air pollution, notwithstanding the fact that Modi has been ceaselessly launching programmes aimed at conserving the environment, ecology and wildlife in the country. In June 2022, Modi launched a global initiative called Lifestyle for the Environment ( LiFE), which is a movement for citizens to adopt an environment-conscious lifestyle. In September 2022, Modi also launched Project Cheetah for the re-introduction of the felines, which were considered extinct around seven decades ago, in India.

Following a highly-publicised event to release eight Cheetahs procured from Namibia into the Kuno National Park in Madhya Pradesh on the occasion of his 72nd birthday on 17 September, Modi tweeted, “I spent the day attending programmes that cover our economy, society and the environment. I truly believe that when we collectively work on these spheres, we will fulfil our goal of sustainable and inclusive development. May we keep working harder and harder in the times to come.”

(The writer is an independent journalist. Views expressed are personal.)

Courtesy: Newsclick

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