An AP photo from Visakhapatnam shows a distraught man running bare feet with a child in his arms, the little girl appears unconscious and her arms hang listlessly by her side. The silver anklets she’s wearing may have jingled as she was carried, hopefully to timely medical care. An image that would shake everyone who still has a beating human heart.

The child one hopes has been helped and has survived. Over 11 people have lost their lives including two girls aged 6 and 9 years. Many more residents from villages including RR Venkatapuram, Venkatapuram, Padmanabhapuram, Ashok Nagar, B C Colony, Banta Colony, near the factory are now sick after being exposed to the gas. 

Taking suo motu notice the National Green Tribunal (NGT) has ordered LG Polymers India to deposit an initial amount of ₹50 crore for the damage caused by the gas leak from their plant. According to news reports, the bench headed by Justice Adarsh Kumar Goel ( NGT Chairperson) has also sent a notice to the Andhra Pradesh Pollution Control Board, Central Pollution Control Board and the Union Environment Ministry, seeking their response on the incident.  They have been asked to submit it by May 18.

The Hindu reported that the NGT has also constituted a five-member fact-finding committee, headed by a former A.P. High Court judge, to probe the incident.

“The committee may specifically report on the sequence of events, causes of failure and persons and authorities responsible, extent of damage to life, human and non-human, public health and environment – including water, soil and air, steps to be taken for compensation of victims and restitution of the damaged property and environment and the cost involved,” the bench said.

The  LG Polymers Visakhapatnam unit manufactures polystyrene and expandable polystyrene, using styrene. It also reprocessed primary plastics into engineering plastics. News Reports quote the Manufacture, Storage and Import of Hazardous Chemical Rules 1989, which classify styrene as a “hazardous and toxic chemical”.

Newsreports cite a statement issued on Thursday in Seoul, where LG Chem, the parent company of LG Polymers, said the gas leak was under control and that the company was cooperating with authorities. “…the leaked gas can cause nausea and dizziness, so we are investing every effort to ensure proper treatment is provided swiftly,” it said. “We are investigating the extent of damage and the exact cause of the leak and deaths.”

What is appalling is the fact that this factory did not have a “valid environmental clearance” at all. A report in the Indian Express has revealed that an affidavit submitted to the State Level Environment Impact Assessment Authority (SEIAA), by LG Polymers India states that the unit did not have a “valid environmental clearance”, as of May 10, 2019. According to the IE report the Visakhapatnam unit of LG Polymers India,  did not have an environmental clearance for its petrochemical plant for its operations between 1997 and 2019. The company in its affidavit had also admitted that “it had expanded the production at the plant “beyond the limit of environmental clearance or changed the product mix without obtaining prior environmental clearance as mandated under the EIA notification, 2006”. The company had then also undertaken that it would not “repeat any such violation in future”

However, as the gas leak has proved, the company’s negligence has resulted in the loss of innocent lives and endangered many more. Taking note, the All India Trade Union Congress (AITUC) has demanded an enquiry to punish those guilty of negligence at the L G Polymer Company, a South Korean company with the parent firm LG Chem. They have also demanded compensation for the deceased and those undergoing treatment. 

The gas leakage has so far killed 11 and over two dozen people are said to be on ventilators, and hundreds have been hospitalised. Villages around the factory have been evacuated. According to the statement by AITUC General Secretary Amarjeet Kaur this incident has once again raised the issue of occupational safety and health (OSH), for those who  work at such hazardous places and also for those who live around such industrial plants. “It reminds us of the Bhopal gas leak tragedy. The lessons have not been learnt from the previous accidents to ensure a continuous process of safety measures in industries,” stated Kaur.

“Trade Unions have always been demanding for OSH to be a serious issue,” she stated. Everyone affected from the gas leak, lives in the villages around. Some news reports have also stated that the place was not maintained well, and perhaps was not guarded at the time when the silos started leaking gas.

According to the IE report the company’s expansion plans had been classified as a ‘Category A’ project and they had to secure a clearance from the Union Ministry of Environment, However, reporte IE, “the company filed for clearance with the Andhra Pradesh State Environmental Impact Assessment Authority, which in June 2019, transferred the proposal to the Centre.” 

The company’s proposal was delisted from the environmental clearance portal in November 2019 saying that “it seems that the PP (company) is not interested to continue the project”, stated the Express report.

“The government hereby appoints a High-Power Committee to probe into the causes behind the #gasleak & to take stock of the recovery steps being taken in response to the incident. Shall submit its final recommendations to the Govt within 1 month,” said Mekapati Goutham Reddy, Andhra Pradesh Minister of Industries, Commerce, IT & Skill Development 

The government hereby appoints a High-Power Committee to probe into the causes behind the #gasleak & to take stock of the recovery steps being taken in response to the incident. Shall submit its final recommendations to the Govt within 1 month. @PTI_News @PMOIndia @PIBHomeAffairs

— Mekapati Goutham Reddy Official (@MekapatiGoutham) May 8, 2020

While the AP government has sanctioned Rs.30 cr as ex-gratia from CM’s Relief Fund to victims, word on the street is that locals have begun to demand that the plant be shut down.

The post Visakhapatnam Gas leak: National Green Tribunal orders LG Polymers India to deposit ₹50 crore for damage caused appeared first on SabrangIndia.

First of all, as a warning that nothing but the stringent-most application of reasoning will suffice when it comes to deciding issues involving destruction of the planet. And secondly, as a warning that environmental law is no more to be treated as a juvenile field of law, and the words as well as principles of environmental law must not be treated casually under any circumstance.

On the stricter end of the interpretation spectrum is the judgment by a Supreme Court bench of Justices R.F Nariman and Naveen Sinha in the case of Tamil Nadu Pollution Control Board versus Sterlite Industries (I) Ltd. & Others dated the 18th of February, 2019. The subject matter of this batch of Appeals before the Court was the operation of a copper smelter plant at the State Industries Promotion Corporation of Tamil Nadu Ltd. (SIPCOT) Industrial Complex at Thoothukudi, Tamil Nadu, by Vedanta Limited. This is the same plant which was the subject matter of great social unrest and upsurge last year.

These appeals principally arose from two judgments passed by the NGT, in both of which it allowed Vedanta to operate its plant, deciding against the petitioners who raised serious concerns with respect to the seemingly perpetual pollution caused by the plant since it began operations in 1997. Of particular concern is the judgment of the NGT dated 15th of December, 2018, passed by the NGT in the case of Vedanta Limited versus State of Tamil Nadu & Others.

In this judgment, the NGT was hearing an appeal filed by Vedanta against a group of orders issued by the Government of Tamil Nadu directing closure of its Copper Plant. The NGT, in its wisdom, decided to refer the entire dispute to a Committee consisting of a retired Judge and two technical members for hearing and recommendations. On receiving the report of the committee which suggested, among various measures to mitigate the pollution caused by Vedanta, that the closure orders issued by the Government of Tamil Nadu were not valid, the NGT was swift to pass judgment, accepting almost all recommendations made by the committee. The result was the judgment dated 15th December, 2018, where the NGT allowed the operation of Vedanta’s Copper Plant at Thoothukudi.

Almost immediately thereafter, the Government of Tamil Nadu decided to go in Appeal against this judgment before the Supreme Court. The judgment, penned by Justice Nariman, is a fine example of plain or in other words, black & white interpretation of the law. The judgment did not go into the merits of whether the copper plant caused pollution to attract closure or not. However, the judgment shed considerable amount of light on the limitations of the NGT as a Tribunal exercising its appellate powers over decisions made by Government Authorities. The court repeatedly stressed on the fact that the NGT did not have jurisdiction to even hear the appeal because of the availability of another subordinate dispute resolution forum, the Appellate Authority of the Tamil Nadu Pollution Control Board. As per the law, it is this Appellate Authority which is to be approached before the NGT, when any decision of the Pollution Control Board is to be challenged. The orders to shut down operations which were issued by the Board must have been therefore challenged before this Authority. However, as the Court noted, the NGT passed judgment in the case before the Authority could even decide the issue. In doing so, according to the Supreme Court, the NGT overstepped its jurisdiction as laid out under the NGT Act of 2010.

The judgment clearly states that no jurisdiction could have been exercised by the NGT where none was provided for under the law of the land, irrespective of the failure of the Appellate Authority to decide the matter in a time bound manner. The Supreme Court therefore set aside the judgment of the NGT and gave all the parties before it the liberty to approach the Madras High Court to seek and obtain relief.

The signal sent by the Supreme Court in the Vedanta case is clear. The NGT may be an expert institution having a mandate to decide on questions of what is sustainable and what isn’t, but in the end, it is a statutory Tribunal which could not possibly have reviewed and set aside orders passed by the Government under in its capacity as an appellate tribunal. This was especially when the law never allowed the NGT to take up such a case in the first place.

As a side note, one would also wonder why the NGT, being an expert institution, felt the pressing need to refer the entire case brought before it to a committee having the same kind of constitution as the Appellate Authority of the Tamil Nadu Pollution Control Board. The level of concern compounds when one notes that this committee constituted by the NGT operated from the Southern Zonal Bench of the NGT at Chennai, which has been shut for more than a year, due to lack of appointment of Judicial and Technical members to the Southern Bench. Does the new NGT under Chaiperson Justice Adarsh Goel wish to replace its zonal benches with committees lacking the institutional independence of the NGT? How long can this top down approach sustain?

Moving on to the more liberal end of the interpretation spectrum is the judgment by a Supreme Court bench comprising of Justices Dr. D.Y Chandrachud and Hemant Gupta, in the case of Hanuman Laxman Aroskar versus Union of India & Ors. dated 29th of March, 2019.

As background, the case was initially filed by a batch of petitioners against an Environmental Clearance dated 28th of October, 2015, granted for the construction of an Airport at the village of Mopa located at Pernem Taluka in North Goa, bordering Maharashtra before the NGT.

The petitioners painstakingly argued that the said Airport was given Environmental Clearance from the Central Government despite serious illegalities in the decision making process leading up to the Clearance as well as large scale concealment of information relating to forests, biological diversity, ecological sensitivity and integrity of the Airport site and surrounding areas. In other words, the Central Government failed to take note of blatant lies spoken by the Government of Goa in its application for grant of Environmental Clearance and disregarded the red flags regarding the project raised by the public as well as by various experts in the field.

About three years of fighting before the NGT lead up to the judgment of 21st August, 2018, wherein the NGT refused to set aside the Environmental Clearance and instead stipulated certain additional conditions to be followed by the Government of Goa in the process of construction and operation of the Airport.

Aggrieved, the petitioners moved in appeal against this judgment before the Supreme Court. The Court, in its judgment dated 29th of March, 2019 effectively set aside the judgment of the NGT and suspended the Environmental Clearance and directed that the project be considered afresh by the expert panel of the Central Government taking into duly taking into consideration the environmental impact of the project.

It is important to note that the Supreme Court chose not to remand the case back to the NGT but instead itself went through the entire process leading up to an Environmental Clearance under the Environmental Impact Assessment Notification, 2006, with detailed commentary on why complete and honest disclosure of information pertaining to environmental impact of a project is necessary in order to achieve the laudable Sustainable Development Goals in addition to the need for highest scrutiny by the expert panel of the Central Government taking into consideration all views raised by public and information provided by the Government of Goa. The Supreme Court directed that after the project is considered afresh by the Central Government, the case is to be referred back to it for final consideration.

If one were to read the judgment of the Supreme Court, penned by Justice Dr. Chandrachud, it would  naturally seem like the work that the NGT ought to have put in, in its own judgment dated 21st of August, 2018. The Court clearly stated that absence of any consideration by the NGT with respect to the various flaws in the process leading up to the Environmental Clearance only compounded the already existing problem of lack of consideration by the Central Government. What could be more clear than the Supreme Court of India telling the NGT that it should have been more thorough, citing two past judgments of the NGT itself. The ire of the Supreme Court is clear from the following extract of its judgment:
‘121. The failure to consider materials on a vital issue and indeed the non-consideration of vital issues raises a substantial question of law leading to the invoking of the jurisdiction of this Court under Section 22 of the NGT Act 2010. The failure of process in the present case has been compounded by the absence of a merits review by the NGT.’

The court clearly stated that the NGT was mandated to duly consider the case before it as per the three principles of Sustainable Development, Precautionary and Polluter Pays and in failing to do so, it has failed to exercise its jurisdiction under the NGT Act, 2010.

Therefore, in a way, the Court strictly interprets the provisions regarding Appeal under the NGT Act, 2010 while engaging in the liberal most interpretation of what the Tribunal ought to have done once such jurisdiction was supposed to be exercised by it.

There was a time when the Supreme Court was not taking the liberty of telling the NGT what to do and what not to. The reason was simple, the NGT, being an expert institution, was equipped to arrive at a rounded resolution of an environmental dispute from a legal as well as scientific paradigm and in fact, it was passing judgments of high quality and fearless in their nature. There have been cases before the NGT in the early part of the decade, where the NGT  has asked billionaire industries and massive governmental projects to shut shop. The judgments of Jeet Singh Kanwar versus MoEF & Others dated 16th of April, 2013 and Prafulla Samantrey & Another versus Union of India & Others dated 30th of March, 2012 come to mind. In the former, the NGT quashed the Environmental Clearance granted by the Central Government to M/s Dheeru Powergen Private Limited for construction of a 700 MW Coal Fired Thermal Power Plant at Korba, Chhattisgarh for reasons including that of failure of the expert panel of the Central Government to properly consider the environmental impact of the project.

In the latter, the NGT effectively suspended the Environmental Clearance granted by the Central Government to M/s POSCO India and directed for fresh consideration of the project by the Central Government for reasons including failure to duly conduct Public Hearing and carrying out Appraisal of the project by the Government.

The NGT back in 2011-13 can very well be characterized as an institution which was fearless and uncompromising in meeting its mandate of providing expert environmental justice to common Indians. Those were the days when a bench of just two or three members of the NGT did not hesitate to show the door to massive scale projects for their failure to comply with environmental norms. Today’s NGT is far more reluctant in passing judgments, let alone considered judgments and instead seems keen on disposing off cases and forming committees to deal with environmental issues.

However, the NGT,  with the recent warnings issued by the Highest Court of the land may be well advised to look back into its own past and begin continuing the trend of fearlessness established at a time when a lot of people of my generation were taking their Board Examinations.

Courtesy: Counter View

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A sacred site downstream of Lower Demwe project

These projects proposed by the central government have been unpopular with the public of the Northeast as well as a wide range of independent environmental researchers. Their ministerial approvals based on expert appraisals took years. In fact, the projects also met with much political criticism including from the Bharatiya Janata Party (the party that is now in power at the Centre) during the period from 2010 to 2014. The collective opposition was so effective that these projects did not materialise for 15 years, except for the half built Lower Subansiri Dam. This project has been called the tomb of India’s hydropower program.[1]

Years have passed, but the Central and Arunachal governments continue to be attached to these and several other hydropower projects in the region. Their attachment to these projects belies the shifts that have taken place in the energy sector over a decade and a half. The revival of hydropower in Northeast India under the new regime at the Centre since 2014 shows the intransigence of politics that threatens both development in the Northeastern region and its socio-ecological dynamics.

Hydropower based development

Lower Subansiri and Dibang dams are iconic projects of India’s hallowed water bureaucracy. The projects are massive structures of 116m and 288m height proposed to be built on free flowing Himalayan rivers, the Subansiri and the Dibang by NHPC Ltd. (earlier National Hydroelectric Power Corporation), a public sector dam builder. These rivers gush down from the Arunachal Himalaya to join and form the Brahmaputra. They wash Assam’s plains every year, causing massive floods but also leave behind rich soil sediments. For years, economists and planners have tried to regulate these rivers and turn them into a valuable resource. But controlling these rivers has been far from possible.

In the early 2000s, India’s energy requirements were expanding at the back of a rising economic growth rate. To the BJP government in power then, hydropower offered a seemingly simple solution to provide non-carbon fuel for this growth. One could call the Northeast hydropower programme, the NDA’s energy transition version 1.0. Dams designed in the 1970s were revived as part of this programme in the attempt to green India’s economy by increasing the share of hydropower in it.

At the time when these new dam proposals for Northeast India were announced, India’s dam building efforts had already caused large scale displacement, tremendous ecological impacts on vast landscapes and a near shut down of the sector due to lack of domestic and foreign investments. Yet, the Northeast dams were argued as necessary to alter Northeast India’s pervasive underdevelopment.

One benefit that was expected from large dams in this region was flood control. The Dibang Multipurpose Dam is designed as a conventional storage dam with a flood cushion component to protect downstream areas from flooding. More importantly, the projects were geared to be profit-making ventures by maximising their power generation capacity. Lower Subansiri is a “Run of the River” or RoR project. A regular RoR is a benign project that generates power from undammed flowing water. But the Northeast RoRs are aimed to be peaking power stations.These projects involve creating a ‘head’ by stocking water behind a large dam for 24 hours and every evening when the demand for electricity peaks, the waters are released to pass over turbines to generate power.

The amendments to the Electricity Act of 2003 opened up a new front for private investment. Once electricity production was thrown open to private actors, dams in Northeast India also presented a means of attracting financial capital into this corner of India. The 1,750 MW Lower Demwe project proposed on the river Lohit, a tributary of the Brahmaputra that flows through the Mishmi hills in the eastern part of Arunachal Pradesh, was among the hundreds of new ones that hoped to profit by investing in this sector which had zero fuel costs, extremely low operation costs and high returns through its lifetime. Besides, the public sector dam building organisations, other prominent project developers include Reliance and Jindals besides many smaller players looking to expand their construction portfolio[2]. The state government of Arunachal Pradesh holds 26 per cent share in the Athena Demwe Power Limited, an SPV with Athena Energy Ventures Infraprojects Private Limited. As the state where most of the proposed dams and their associated infrastructure would be built, Aruanchal Pradesh was hoping to see capital flow in at an unprecedented scale.

Environmental impacts

Globally, hydropower dams are being redefined as renewable energy projects. But in tropical regions rich in biodiversity and where communities have socio-cultural and economic uses of rivers, such projects can have serious consequences. Scholars have suggested that dams in the tropics are an anatopism or ‘out of place’.[3] As expected, the projects proposed in Northeast India, a region that is part of the Indo-Myanmar biodiversity hotspot, one of the 25 recognised global biodiversity hotspots and where indigenous communities are the traditional stewards of the region’s forests, ran into consent troubles.

Large projects seeking environmental approvals have to undertake mandatory public hearings. The hearings for the Dibang project were cancelled or disrupted a dozen times between 2007 and 2013 because of a near total community opposition before the government could claim that they were “successfully”done. The Lower Subansiri and Lower Demwe public hearings were stretched by protracted negotiations and demands for jobs and compensations. They also faced opposition due to displacement, forest loss and takeover of community lands by the project.

The projects’ environmental impact assessment reports limited the impact zone of the projects to a 10 km radius, an arbitrary standard. This helped to contain the studies, present the projects as less damaging and negotiate the project with fewer affected people. This left the people of Assam out of the consent procedures for most projects in Arunachal Pradesh, even though the dams would affect them in the most profound ways. Nearly 20 million people live in the Brahmaputra valley. They are, as Richter and others note, the people in the “shadow zone” of these projects, uncounted for and unspoken to.[4] The people of Assam could engage with these dams only through the antagonistic routes of protests and litigation because they were ignored by the project authorities. In the view of the Assamese protestors, these project studies legitimised water grabbing by an upstream entity.

Rich biodiversity at a dam site

The Northeast dams also struggled to obtain the nod of environmental experts. The national level Expert Appraisal Committee (EAC) for hydropower projects and the Forest Advisory Committee (FAC) are in charge of recommending environmental and forest approval to large projects. An approval from the standing committee of the National Board for Wildlife (NBWL) is needed in case of projects that affect Protected Areas. The Dibang project was rejected twice by the FAC. It took the intervention of the Cabinet Committee on Investments (CCI) and the Ministry of Power and a reconstituted FAC in 2015 to revise this decision. The project was legally permitted to use over 4,500 ha of forest land holding 350,000 trees.

The non-official expert members of the NBWL including noted bird expert and former director of the Bombay Natural History Society (BNHS), Dr Asad Rahmani, practically staged a protest at the meetings to discuss the approval for the Lower Demwe project. While the senior most government officials of the Arunachal government claimed that the delay was frustrating the people of the state, the experts argued that the project would affect Protected Areas such as the Kamlang Wildlife Sanctuary and the Dibru Saikhowa National Park in addition to several riverine islands or chapories, grasslands and forests. The project would use 1,415 ha of forest land. Finally, the then environment minister, Jayanti Natarajan, who headed the NBWL, approved the project in December 2011.

These committees received scores of letters from independent experts, environmentalists and protestors pointing to the underestimation of impacts in the EIA reports done with the aim of obtaining approvals. Ideally these complaints should have put a cap on these projects, but all the projects received approvals based on questionable arguments and were subsequently challenged in courts.
Water regulation
Among all the impacts that the projects would cause, the extreme regulation of river flows downstream of the dams has been the most contentious and has stoked statewide protests in Assam. The release of dammed water by projects every evening to generate power would permanently alter the very nature of these rivers. The flow regime imposed by the projects, which activists called the daily starving and flooding of the river, would destroy the seasonality of rivers in this region and all the livelihoods attached to them such as fishing, floodplain farming, driftwood collection and grazing during the lean season.[5]

Debates on downstream impacts of dams, mainly provoked by Assam’s concerns, have thrown up the question of how much water does a river need? So far, there is no consensus on what should be the ecological standards imposed on large hydraulic structures so that rivers, our main source of freshwater, are not turned into dead channels. Is flowing water a waste or a valuable environmental feature? What should be the tradeoff between maintaining water stocks for power generation and ecological flows for human and non-human needs? Should these decisions be based on certain governance principles or must it be left to economists and engineers? The answers to these questions have not been ascertained before investing in the Northeast dams.

There are also no scientifically backed regulations addressing the role of dams in water disasters. Last year, the Kerala floods brought to public view the contribution of dams in such situations. In the Northeast, monsoon floods have been routinely exacerbated by dam discharges in the neighbourhood. During the 2018 monsoon, both the Doyang Dam in Nagaland and the Ranganadi project in Arunachal Pradesh, expelled their dam waters increasing the scale and intensity of the floods. Yet their attribution to the destruction caused to over 2,000 villages in Assam is left unaddressed.[6] These projects are much smaller in comparison with the new ones proposed to come up.

In this region, the problems of river regulation are queered further because most of the rivers on which dams are proposed flow through territories beyond Indian borders. India has no sources for real time hydrological information to manage these rivers rationally. Secondly, the Indian government has proposed multiple projects on each of the river basins. The plans are based on impromptu policies, made on the go, of the minimum distance between projects and minimum flows from dams.

Due to public pressure, expert appraisals of dams now require cumulative impact studies and carrying capacity studies in addition to the EIA reports for individual projects. However, the Lower Subansiri, Dibang and Lower Demwe projects are left out of these studies on the claim that they are the first to be built in their respective river basins. All three projects received approvals as single projects.

Litigation

The three projects have gone through long years of litigation. The environmental clearance (EC) of Lower Subansiri project was challenged in 2003 and the case went on for six years in the Supreme Court before the EC conditions were settled in favour of the Arunachal government. But this did not resolve the downstream concerns on the ground. Protestors in Assam have stonewalled the project construction since 2011. In 2013, Aabhijeet Sharma of an NGO, Assam Public Works filed a case in the National Green Tribunal (NGT), a specialised green court, over these unresolved issues. The judgement of the NGT in this case states that a “neutral” three-member team will mediate a way forward for the project. Their report will inform the reappraisal of the project by the Environment Ministry. However petitioners of the case opposed the ministry’s selection of these members as they were retired employees of government institutions well entrenched in India’s large dam bureaucracy. The NGT upheld their selection to the committee in November 2018. The petitioner of the case has challenged the NGT’s decision in the Supreme Court.

After its journey in the approval tunnel for eight years, the legal challenges to the approvals for the Dibang project went on for three years in the NGT. Finally, in November 2018, the project’s approvals were upheld because “more stringent” conditions had been imposed on the dam including reducing the dam height by 10m to reduce the loss of forests by 445 ha. The Lower Demwe project’s approvals were challenged in the NGT for eight years starting 2010. In this case, the final judgments and Union environment minister Dr. Harsh Vardhan’s decision as NBWL chief have tied the project’s operations to the recommendations of a wildlife study. But the study itself will take two more years to complete.
Regulatory and legal challenges to the projects have forced the production of several new studies by government agencies. The studies influence and in some cases contradict the water, forest, land and other calculations done by project EIA reports. Like the EIAs, the new studies generously model different scenarios of water regulation giving the illusion that these have no real consequences for the people of the region. Irrespective of their methodologies or approaches, these studies are tailored to encourage private investment in dam projects in the region. The acceptance of these studies and simulation models in the final decision-making on the dam projects has technicalised the subject of water management in the Northeast.

The opposition to the projects within and outside courts has restricted the future operations of the dams to balance development with environmental concerns. For example, the NHPC was pushed to keep one turbine of Lower Subansiri running through the day to maintain water in the river and the NGT recommended a monitoring committee to oversee the implementation of Dibang project’s environmental measures. The legal sanction to these projects poses an unprecedented challenge to regulatory institutions to monitor their operations in one of the most ecologically and seismically sensitive regions of the world. The period of construction and then the lifelong regulation of downstream flows once the projects are operational would require intense monitoring of multiple dam proponents on a daily basis. With the Arunachal Pradesh government having a considerable stake in the profits from running these dams, the regulatory system will have to reign in the state government and dam builders.

More importantly, the additional safeguard conditions that bind projects create a conundrum for project investments. To be in compliance with the revised parameters, projects will have to operate under less favourable cost-benefit calculations. Their financial arrangements with the state government, with lending banks and the power purchasers to whom they have promised merchant sales may have to be renegotiated. Who will underwrite the financial losses due to these aspects, in addition to the cost overruns due to project delays? The cost of the Lower Subansiri project, for example, has more than doubled to over Rs.15,000 crore since 2003[7]. News reports state that the Athena Power Company is already battling insolvency and has urged the Arunachal government to bail it out. Would these costs be palmed off to consumers or tax payers as is usually the case?

Water politics

The spate of legal clearances to these projects notwithstanding, the political problem caused by the dam proposals looks more menacing today. Water sharing has been a historical problem in South Asia. Unusually, the protests against these proposed dams in Northeast India have politicisied the issue of interstate water sharing before the dams are built, unlike in other parts of India where water conflicts have blown up after projects have come up. How will the sharing of water between Assam and upstream dam building states like Arunachal Pradesh be arrived at? Will it be in favour of project developers and the Arunachal government, which seeks to generate ‘hydrodollars’, as stated by the former chief minister Dorjee Khandu, or will it accommodate a more fair approach to water management in the region?

In 2010, this question was taken up by political parties in opposition to the Congress government in Assam as well as in Parliament. The political backlash to dams in Arunachal Pradesh forced the setting up of an Assam expert group and a house committee of the legislative assembly to assess the downstream impacts of these projects. In September 2010, the then Union environment minister Jairam Ramesh made a trip to the Brahmaputra valley to meet protestors. He came back convinced of Assam’s problems with the dams. But it seemed too late to change the course of events. By that time, his party’s members in the state were complicit by omission or commission in the over hundred deals and monetary arrangements struck with first time dam builders.

Today it is the turn of the BJP-led governments in Assam, Arunachal Pradesh and at the Centre to take a political decision on these dams. While these projects were being litigated, the energy sector has undergone huge changes and solar and wind power are far more competitive than traditional energy projects. Rather than eschewing destructive mega dams, the central government has recently drafted policies to make large hydro projects more lucrative for private investment. In March the Indian cabinet declared that all large hydro (over 25 megawatt) will be considered renewable energy. This allows the hydropower sector to benefit from more competitive pricing and longer debt repayment. The policy changes also relieve projects of the ‘burden’ of financing the flood moderation and infrastructure building for roads and bridges.
The Central government’s policies on energy and the environment do not leave hope for reflexive decision making on hydropower projects in the Northeast or other parts of the Himalayas. There is hardly any developmental justification today to push these hydropower projects that are unpopular and outdated. Until more enlightened policies for managing the water resources of the Northeast are arrived at, the environment and development of Assam and Arunachal Pradesh are in jeopardy.

Endnotes

[1] https://scroll.in/article/718809/arunachals-unfinished-lower-subansiri-dam-could-be-tomb-for-indias-giant-hydropower-projects

[2] https://economictimes.indiatimes.com/industry/energy/power/hydelgate-why-arunachal-pradeshs-hydel-boom-is-going-bust/articleshow/19790466.cms

[3] https://link.springer.com/chapter/10.1007%2F978-94-007-2798-4_2

[4] https://core.ac.uk/display/27853584

[5] http://www.sanctuaryasia.com/magazines/conservation/5289-are-big-dams-leaving-india-high-and-dry-by-neeraj-vagholikar.html

[6] https://www.newsclick.in/why-assam-really-needs-worry-about-flood

[7] https://www.telegraphindia.com/states/north-east/green-tribunal-orders-study-on-dams/cid/1530338#.VWRFz9Kqqko

Courtesy: Counter View

The post Little developmental justification to push unpopular, outdated hydropower projects in North-East appeared first on SabrangIndia.

The bench comprising Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud accepted the suggestions for the interim arrangement submitted by the Central Administration Tribunal.

On June 1, 2017, the Department of Revenue, Finance Ministry, notified the Tribunals, Appellate Tribunals and other Authorities of the Qualifications, Experience and other Conditions of Service of Members Rules, 2017. Sabrangindia had analysed this move at length.

These rules under Section 184, Finance Act 2017 further empower the Central Government to make regulations for necessary qualifications, appointment, term of office, salary and allowances, resignation, removal and other terms and conditions of service for judges appointed to 19 tribunals functioning in India. The amendments pose an immediate threat to the already restricted independence of the tribunals.

The Supreme Court was hearing a batch of petitions that challenged the constitutional validity of the draft rules under the Finance Act, 2017, which were amended in March 2017. The amendment provides the Centre the power to govern appointments, removal and service conditions of the members. Since the amendment, there have been more delays in filling vacancies in tribunals such as the National Green Tribunal.

The bench said the appointment of the chairperson of the tribunal will be made by the chief justice or his nominee. A three-member panel comprising two government secretaries and the chairperson of the concerned tribunal will decide the appointment of other members of the tribunal, the court added.

The petitioners have claimed that the provisions violated the independence and powers of the judiciary and that the new rules will encroach upon the principle of separation of powers. After the Finance Act, 2017, was passed, the government merged eight tribunals, bringing the total number of such panels down to 19 from the earlier 26 tribunals, IANS reported.
 
 

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The National Green Tribunal Bench west zone Pune comprises of Justice U.D. Salvi and Dr. Ajay Deshpande appointed a three member Court Commission comprising of Director MoEF with Senior Scientist of NEERI and Director of Marine National Park and Sanctuary, Jamnagar to probe and ascertain the exact area being used by the Essar Bulk Terminal (Salaya) Ltd. This is seen as a jolt to the big corporate like Essar Bulk Terminal (Salaya) Ltd.
 
The order dated May 25, 2017 says that –
 
(1) A committee comprising of Director of MoEF, Senior Scientist, NEERI and Director of Marine National Park and Sanctuary, Jamnagar is constituted to carry out local investigation at the project site of Respondent No.1 Essar Bulk Terminal (Salary) Ltd; 2.
 
(2) The Committee shall ascertain the extent of constructions going on and carried out by Respondent No.1 Essar Bulk Terminal (Salary) Ltd, particularly, soil-bund referred to in the Application, navigation route as well as location of the constructions with reference to the area of Marine National Park and Marine Sanctuary and ESZ, referred to in the Notification dated 22nd August, 2013; tidal water current and destruction of Mangroves, if any, and tidal current in and around Salaya Creek.
 
(3) The committee shall furnish its report on or before the next date of hearing on July 26, 2017.
 
(4) Logistic arrangements of the Committee-Members for the work of commission shall be made by Respondent No.2- State of Gujarat through the Collector, Jamnagar.
 
(5) Copies of the Application and record shall be furnished by the Registry, NGT (WZB) Pune to the Committee.

The plea was made on behalf of the Salaya Fishermen’s Association an application for appointment of Court Commissioner/Commission to carry out local investigation in order to ascertain the facts concerning the alleged illegal construction, soil bunds carried out by the Essar Bulk Terminal (Salaya) Ltd. 

The petition before the NGT alleged that Essar Bulk Terminal has encroached upon protected Eco-Sensitive Zone (ESZ) of Salaya Marine National Park and Sanctuary resulting in the destruction of mangroves, obstruction to inter-tidal water in Salaya Creek which is harmful to environment and biodiversity. The Essar Bulk Terminal (Salaya) Ltd. In its reply had stated  that there has been no illegal construction made by the corporation.
 
On behalf of Salaya Fishermen’s Association,  advocate Asim Sarode submitted before the NGT that the Notification dated August 22, 2013 declared area admeasuring 326.26 sq.km. around the Salaya Marine National Park and Marine Sanctuary as ESZ of which area admeasuring 208.5818 sq.km towards landward side and 105.14 sq.km towards seaward and 12.5384 sq.km area covered by rivers; and therefore, the communication dated 28.8.2014 by CCF, Marine National Park, Jamnagar is not a complete disclosure of the facts, particularly, when Essar Bulk Terminal (Salaya) Ltd has not produced any lay-out or sanction-plan of the construction of the project and any details of the construction to be carried out in the project. He further submitted that a thorough,  on the spot, local investigation is necessary to answer clearly the questions raised by concerned fisherfolk.
 
The NGT,  after perusing the letter dated 28.04.2014 of CCF, Marine National Park realised that some directions were found as to the exact location of Essar Bulk Terminal (Salaya) Ltd. where the proposed Marine Facilities including conveyor corridor and Jetty of M/s. Essar Bulk Terminal (Salaya) Ltd. are being constructed. It is mentioned that the nearest point of Eco Sensitive Zone from the said Jetty is approximately 150 meters and the distance of 4.6 Hectare forest land diverted for this purpose is approximately 1.9 km. from the nearest point of the Marine National Park and Marine Sanctuary.
 
Given this background to the dispute raised by local fishermen's association,  the NGT  set up the Committee to get to the actual facts.

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On Thursday, June 1, the Department of Revenue, Finance Ministry, notified the Tribunals, Appellate Tribunals and other Authorities of the Qualifications, Experience and other Conditions of Service of Members Rules, 2017.
These rules under Section 184, Finance Act 2017 further empower the Central Government to make regulations for necessary qualifications, appointment, term of office, salary and allowances, resignation, removal and other terms and conditions of service for judges appointed to 19 tribunals functioning in India. The amendments pose an immediate threat to the already restricted independence of the tribunals.

One among these 19 tribunals is The National Green Tribunal (NGT). It is a statutory tribunal that was founded on October 18, 2010 under the National Green Tribunal Act, 2010. The Act defines the role of the NGT as, “to provide for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and to give relief and compensation for damages to persons and property.”

India first felt the need of a separate, environment tribunal in 1984 after the Bhopal Gas Tragedy. It was evident after this incident that there were insufficient checks and balances to protect the environment. The industrial enterprises were taking unfair advantage and exploiting the environment for their own selfish gains. Therefore, the National Green Tribunal was established in 2010. 

According to the Act, the NGT has been given the power to regulate its own procedure. It follows principles of natural justice. It has the same power as that of the civil courts in deciding the matters. The saving grace for the environment is that the NGT has a strong order enforcing mechanism. Failure to comply with the orders of NGT may result in imposition of punishment and fine.

The NGT, since its inception, seven years ago, has passed several landmark orders restricting a number of developmental projects which pose a threat to the environment. The question many raise today is, whether this role fulfilment by the NGT the cause of the antagonistic step taken by the State?

The NGT Act, 2010 has specified the procedure for appointment and removal of the Members of the NGT. It consists of a Chairperson who is to be appointed by the Central Government and Chief Justice of India. It also consists of Judicial Members and Expert Members who are to be appointed by the Central Government and the Selection Committee. It is imperative to note at this stage that the composition of the Selection committee has not been defined.

As against this, the Rules, 2017 as notified, clearly define the structure of the Search – cum – Selection Committee. It would include five Members, four of whom will be appointed by the Central Government and one, Chief Justice of India. Contrary to the procedure mentioned in the Act; as per the rules, all the members of the NGT, including the Chairperson are to be appointed by the Search – cum – Selection Committee which would include four representatives of the executive and one member of the judiciary (Chief Justice of India).

Not just the appointment, but the Central Government also governs the removal of the Members of the tribunals. As per the Act of 2010, the Central Government would run a preliminary inquiry in case of misbehaviour or incapacity of the member, as referred to the Supreme Court of India. As against this, the new rules of 2017, enumerate a procedure of setting up an authority of the Central Government without any say of the Chief Justice, for preliminary scrutiny. If the findings are substantial, the Central Government may appoint a committee for the removal of the Member. On the basis of the recommendation of the committee, the Central government shall take the final decision. To illustrate with an example, if somebody files a complaint against a judge of the National Green Tribunal, a preliminary scrutiny of the complaint will be conducted by the Ministry of Environment – a strange set-up, given that it is the job of the tribunal to hold the Ministry of Environment accountable at most times.

To summarise, the new rules passed by the Central Government will appoint as well as remove the members of the tribunals (which was also the case earlier). However the Government has now very subtly introduced certain changes that seem to be in favour of the capitalists. With this, there is a possibility of the Executive exercising influence over the decisions of the judges while passing an order. This, in essence, limits the independence and autonomy of the tribunal in delivering judgements. The orders of the tribunal might be compromised because of the excessive influence and power of the Central government in appointing and removing judges.

A forewarning of the indefensible power and influence of the Executive in the matters of the tribunals had already been given by the Supreme Court in 2010 in the case of Madras Bar Association v. Union of India. The SC had stated,
“…. The selection process has been left entirely to the Executive, though the functions of the Tribunal are judicial. This act is a direct affront to the basic structure, which is fundamental to the Constitution of India …
….In India, unfortunately Tribunals have not achieved full independence. The Secretary of the concerned ‘sponsoring department’ sits in the Selection Committee for appointment. When the Tribunals are formed, they are mostly dependant on their sponsoring department for funding, infrastructure and even space for functioning.”

Inspite of the prior indications, not much heed has been paid to the growing dominance of the Executive in the functioning of the tribunals. With the advent of selection committies being filled with bureaucrats and nominees of the parent ministry, it has become impossible for tribunals to function independently. The National Green Tribunal is politically sensitive as it deals with cases relating to environmental protection and conservation of natural resources. Recent cases referred to the NGT against development projects of private player and the Government are cited below.

On April 13, 2017, the NGT passed an order against 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 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.

A precursor to this was the case of Srinagar Bandh Aapda Sangharsh Samiti v. UOI & Alaknanda Hydro Power Co. Ltd, 19th August, 2016, the National Green Tribunal upheld its mandate of Environmental Protection. The NGT directed Alaknanda Hydro Power Co. to pay a compensation of 9.26 crore rupees to the Samiti.

With the repeated efforts of the Green Tribunal, the Alaknanda river is to be restored to its former condition. In order to see light at the end of the tunnel, the NGT has appointed a committee to oversee the process.
Recently after the World Culture Festival , India’s only environment court, the NGT, came down forcefully on the spiritual guru Sri Sri Ravi Shankar, stating, "You have no sense of responsibility. Do you think you have the liberty to say whatever you want?" Last year, in January 2016, Sri Ravi Shankar’s Art of Living Foundation fined Rs 5 crore for damaging Yamuna floodplains. A panel appointed by the National Green Tribunal found that the organisation had harmed the ecology around the banks of the river while making preparations for the World Culture Festival.

In the case of  Forward Foundation & Ors. Vs. State of Karnataka & Ors. dated May 7, 2016, the NGT increased the area of buffer zone around the lakes of Bangalore city, limiting presence of industries there. This initially faced an opposition from the Bruhat Bengaluru Mahanagara Palike (BBMP). However, the orders of the NGT prevailed and the BBMP withdrew its opposition.

On May 31, 2016, the NGT issued notices to Union ministry of environment, UP Government and 12 other departments in a fresh case alleging open burning of trash and poor municipal solid waste system in Agra, directing them to file their replies. NGT accepted the matter on the basis of a complaint filed by environmentalist D K Joshi, who also serves on a Supreme Court-appointed monitoring committee tasked with looking into Yamuna and water-related issues.

In yet another path breaking order dated April 7, 2015, in the case of Vardhaman Kaushik Vs. Union of India & Ors. And Sanjay Kulshrestha v. Union of India & Ors., stopped the wheels from rolling in Delhi in order to give new appendages of hope to the environment. The NGT banned diesel vehicles that were older than 10 years from plying on the roads in Delhi. Due to the increasing amount of pollution in the state the NGT was compelled to take such a harsh step. This order of NGT was upheld by the Supreme Court in an appeal. A bench of Chief Justice H L Dattu and Justice Arun Mishra said while dismissing a plea filed by a lawyer seeking to set aside of the decision of the green panel,
“Let us assist them (NGT) and not discourage them,”
The bench further said “The NGT was only repeating the orders passed by Constitutional courts (SC/HCs) in the past.”
This is a clear example of how the highest court and the NGT came together and took a step-in furtherance of protection of the environment. Taking this as a precedent, the Judiciary should continue to support the NGT and other tribunals in the changing scenario.
 
The NGT made a major impact on September 15, 2015 by ordering the closing of Khajod open dumping site. It was an open dumping site located in Surat which emitted huge amount of smoke and foul smell, heavily polluting the area within the radius of 10 kms from the site and causing health issues in the nearby areas. This was majorly due to the mismanagement of the project. The NGT rightly ordered it to be closed down, thereby protecting the environment from further pollution.

Similarly, the 2014 order of the National Green Tribunal regarding coal blocks in Chhattisgarh forests cancelled the clearance given by the then Union Environment and Forests Minister, Jairam Ramesh, to the Parsa East and Kante-Basan captive coal blocks in the Hasdeo-Arand forests of Chhattisgarh, overruling the statutory Forest Advisory Committee.

The abovementioned cases exhibit the autonomy and powers of the NGT, exercised in order to prevent destruction of the environment. However, this autonomy of the NGT will be curtailed to a great extent with the introduction of the new rules as the judges will not be able to freely exercise their jurisdiction in favour of the environment if the decision stands against the State.

The need of the hour is not to worry but to wake up to the alarming conflict of interest present within the parent ministries and their functioning. If the current trend is allowed to continue it will prevent the tribunals from performing their Statutory mandate of providing impartial and speedy justice. If certain steps are not taken at the earliest, there is a huge possibility that the Executive will adopt a much tougher stance and hand over the power of scrutinising complaints to the parent ministry which will inevitably lead to rampant exploitataion of the environment at the whims of the capitalists.
 

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