On March 25, 2022, the Supreme Court set aside an order by the National Green Tribunal (NGT) that had directed closure of some 15 manufacturing units which were permitted to operate without prior Environmental Clearance (EC) by the Haryana state government.

The SC held that the manufacturing units which are generating employment for about 8,000 people and contributing to the economy, and cannot be shut down because of technical irregularity of not obtaining an EC prior to commencing operations, if such manufacturing units comply with environmental norms.

It is well known that it is mandatory to obtain EC as per the law, but in the present case the state government appears to have erred in its assessment of the manufacturing units and contending that they did not require EC.

A brief history of how Environmental Clearance became mandatory

The Central Government issued an Environmental Impact Assessment (EIA) Notification dated January 27, 1994 directing that on and from the date of publication of the said notification in the Official Gazette, expansion or modernisation of any activity or a new project listed in Schedule I to the said notification shall not be undertaken in any part of India, unless it has been accorded EC by the Central Government in accordance with the procedures specified in the said notification.

Meanwhile Central Government has delegated powers to the respective State Pollution Control Boards/Committees to issue directions to any industry or any other authority to prevent violation of the Environment (Protection) Rules, 1986, vide notification dated April 10, 2001.

The Central Government again issued a notification dated September 14, 2006, being Notification S.O. 1533 (E) requiring prior environmental clearance from the Central Government or as the case may be, by the State-Level Environment Assessment Authority, duly constituted by the Central Government. According to this notification, the process of environmental clearance for new projects was to comprise of a maximum of four stages, all of which might not apply to particular cases. The stages were (1) Screening, (2) Scoping, (3) Public Consultation and (4) Appraisal.

The case of the 15 factories

The manufacturing units associated with the case, manufactures the basic organic chemicals, namely, Formaldehyde. The Haryana State Pollution Control Board (HSPCB) has given its Consent To Operate (CTO) to 15 such units without obtaining the mandatory EC. The HSPCB totally misinterpreted the categories of such units for which the EC is mandatory. Upon realising the fact that these units are required to have prior EC, it revoked the CTO issued earlier to these units.

Some of these units approached the Government with the chaotic situation created by the HSPCB. They asked the government for some time to obtain the mandatory EC from the competent authority, which will take six months to one year of time, and also sought permission to operate the units with all pollution control measures.

Upon considering the fact, the competent authority decided to allowed them to continue to operate for a period of six months without prejudice to any legal action taken against the violations committed by them, by the competent authorities. The condition of immediate application for the EC and also to provide the proof of the same within 60 days from issuance of this communication to Environment and Climate Change Department and to Haryana State Pollution Control Board was put forth.

The State of Haryana passed an Order dated November 10, 2020, which allows formaldehyde manufacturers [which requires prior Environmental Clearance (EC)] to operate without prior EC for six months, subject to making application for EC within 60 days.

State Government Order

The Department of Environment and Climate Change of the Government of Haryana issued an Order dated November 10, 2020, which is extracted below:

“Whereas the process of manufacturing of Formaldehyde is covered under the provisions of 5(f) of Schedule of Environment Impact Assessment Notification (EIA), 2006 of Government of India, and requires the prior Environmental Clearance (EC) from the competent authority State Environment Impact Assessment Authority (SEIAA)/Ministry of Environment, Forest and Climate Change, Government of India, before establishment and operation of such units, besides other mandatory clearance, as applicable;

Whereas, it has come to the notice of Government that around 15 such units have been permitted to establish/operate in the State of Haryana, without obtaining the necessary Prior Environmental Clearances, but with the Consent of the Haryana State Pollution Control Bureau (HSPCB), which misinterpreted the category of such units and on realising the requirement of EC in these cases, has revoked its consents issued earlier to these units recently;

Whereas, some of these units approached the Government explaining their hardship due to such sudden revocation of their consents and have sought time for obtaining the necessary EC from the competent authority as the process is likely to take a minimum of 6 months to one year period, and to allow them to operate with all pollution control measures, following the pollution control norms applicable, and,

Whereas, the Government has carefully considered their request and the competent authority has decided that these units shall be allowed to continue their operations for a period of six months, without prejudice to any legal action taken against the violations committed by them, by the competent authorities, with the conditions that they will immediately apply for Environmental Clearance from the competent authority and provide the proof of such application within 60 days from the issuance of this communication to Environment and Climate Change Department and to Haryana State Pollution Control Board.

Therefore, it is Ordered accordingly.”

Background of Case before National Green Tribunal

The Application was filed by Dastak NGO against Synochem Organics Pvt. Ltd. in the Court of National Green Tribunal (NGT) in December 03,2020 (Dastak N.G.O. V/s. Synochem Organics Pvt. Ltd. & Ors. – O.A. No. 287/2020).

The Application sought the Order dated November 10, 2020, of State of Haryana to be quashed. The Department of Environment and Climate Change of the Government of Haryana issued the above Order on November 10, 2020.

The Applicant submits to the Court that the requirement of prior EC is mandatory. The State has no jurisdiction to exempt the companies from the basic requirement of acquiring prior EC. Accordingly the State Pollution Control Board passed a closure order for the 15 units manufacturing units. But the State government of Haryana had passed the above Order allowing the 15 units to operate for six months with the required condition.

The Application before the National Green Tribunal was filed by Dastak NGO to quash the above Haryana State government Order. The application further states that the industries are using an approximate amount of six Lakhs litres per day without requisite permission of the Ground Water Authority.

It further states there is also non-compliance of Manufacture, Storage and Import of Hazardous Chemical rules, 1989. These units are dumping their untreated effluents into the ground water using reverse borewells which is leading to underground water damage further damaging the quality of soil and crops. No adequate compensation is granted for the dame caused by their wastage disposal. “The Department of Environment and Climate Change of the Government of Haryana issued an Order dated November 10, 2020,” the application stated.

The Application further went to add that the excess steam which is a result of the condensation process is discharged into the air using chimney which leads to air pollution. “There is no mechanism to check leaching of methanol from underground tanks. This is one of the causes of cancer,” stated the Application.

Order of National Green Tribunal

The State through its EIA notification dated September 14, 2006 cleared its stand on the requirement of prior EC for setting up and functioning of these units. Hence there is no justification to permit function of such units in violation of mandate of law.

According to provision 5(f) of the Environment Impact Assessment (EIA) Notification 2006, the Environmental Clearance is mandatory for the establishment and operation of manufacturing units of formaldehyde.

The 5- Judge Division Bench of the Tribunal gave its final Order on June 3, 2021. The Tribunal held that the units cannot be allowed to operate without prior EC and also the State acted ‘ultra vires’ (out of authority) to permit the units to operate without prior EC.

The Order quoted, “We thus hold that without prior EC the units cannot be allowed to operate. The State has no power to exempt the requirement of prior EC or to allow the units to function without EC on payment of compensation.”

On June 3, 2021, the Tribunal while concluding its Order disposed off the application and stated, “For past violations, the concerned authorities are free to take appropriate action in accordance with polluter pays principle, following due process.”

The NGT Order may be read here: 

Supreme Court Appeal

A Civil Appeal (M/S Pahwa Plastics Pvt. Ltd. & Anr. v/s. Dastak NGO & Ors. – Civil Appeal no. 4795/2021) against Dastak NGO along with some of the companies was filed on August 23, 2021 in Supreme Court of India.

The Civil Appeal came to be filed against the NGT Order dated June 03, 2021 which was listed for admission on September 30, 2021 along with an interim application which prays for the order permitting the Appellants to operate their units during the pendency of the Appeal.  

The question of law raised in this appeal was, whether an establishment employing about 8,000 workers, which has been set up pursuant to Consent to Establish (CTE) and Consent to Operate (CTO) from the concerned statutory authority and has applied for ex post facto EC can be closed down pending issuance of EC, even though it may not cause pollution and/or may be found to comply with the required pollution norms.

Judgment

Supreme Court presided by Single-Judge Justice Indira Banerjee pronounced its Judgment on March 25, 2022 regarding this Appeal challenging the NGT Order.

The Judgment stated that the manufacturing units which are generating employment of about 8,000 employees, providing them livelihood and also contributing a lot in the economy of the country cannot be shut down because of technical irregularity of not obtaining prior EC, if such manufacturing units comply with environmental norms.

The Judgment said, “The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.” It further said, “It is reiterated that the 1986 Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible.”

The court directed, “The Respondent shall take a decision on the applications of the Appellants for EC in accordance with law within one month from date. Pending decision, the operation of the Pahwa Yamuna Nagar Unit and the Apcolite Yamuna Nagar Unit, in respect of which consents have been granted and even public hearing held in connection with grant of EC, shall not be interfered with.”

The Judgment further states, “The Appellants will be allowed to operate the units. Electricity, if disconnected, shall be restored subject to payment of charges, if any. If the application for EC is rejected on the ground of any contravention on the part of the Appellants, it will be open to the Respondents to disconnect the supply of electricity.”

Concluding the Judgment, Justice Indira Banerjee gave three weeks to the concerned authority to take a decision on the application of the Appellants EC.

The Judgment may be read here:

Previous Judiciary Pronouncements

Samatha vs State Of Andhra Pradesh And Ors

Court: Supreme Court of India

Judgment dated: July 11, 1997

Bench: Justice K. Ramaswamy, Justice S. Saghir Ahmad and Justice G.B. Pattanaik

About the Case

In the late 1980s, the social advocacy organisation named ‘Samatha’ was established to work with impoverished Adivasi communities facing land alienation in the Eastern Ghats hill range of northeastern Andhra Pradesh.  In the early 1990s, villagers approached Samatha when a subsidiary of the Birla Group wanted to mine calcite in their village. As the mining plans were believed to violate the ‘Andhra Pradesh Scheduled Areas Land Transfer Regulation 1959,’ that bans the sale or transfer of land from a tribal to a non-tribal person. This case came to be known as ‘Samatha case’.

Judgment

The Supreme Court presided by Division Bench, delivered the judgment in the Samatha case in July 1997. The Bench stated, “The Constitutional scheme which is sought to be enforced through Regulations is that the property of the Scheduled Tribe or the immovable property situated in Agency Tracts may be protected and be not frittered away and further that they may retain their original character and may continue to belong to members of the Scheduled Tribe or their Co-operative Societies, or that if the property belongs to a non-tribal, it may not be transferred to a non-tribal and may be transferred to a tribal alone.” 

The Bench further said, “The Fifth Schedule including Para 5 thereof as also the Regulations made thereunder by the Governor of Andhra Pradesh clearly seek to implement the national policy that the custom, culture, life-style and properties of the Scheduled Tribes in the Agency Tracts and other immovable properties situate therein shall be protected. The Government being under a legal constraint to deal with the property situated in the Agency Tracts only in the manner indicated above, cannot itself act beyond the scope of the Regulations by saying that it is free to dispose of its own properties in any manner it likes. If the Government was allowed to transfer or dispose of its own land in favour of non-tribals, it would completely destroy the legal and constitutional fabric made to protect the Scheduled Tribes. The prohibition, so to say, disqualifies non-tribals as a class from acquiring or getting property on transfer.”

The Goa Foundation & Anr v/s. The Conservator Of Forests & Ors

Court: Bombay High Court

Judgment dated: October 16, 1998

Bench: Justice A Desai and Justice R Batta.

About the Case.

The Petitioners are a registered society and are working in the field of environment with the object to maintain ecological balance. The petitioners are public spirited body and for the purpose of preservation of environment have approached this Court by way of this petition. The petitioners challenge the developmental activity being carried out by respondent No. 9 Tata Housing Development Co. Ltd., in Survey No. 69/4 of village Penha de Franca of Bardez Taluka and seek to challenge various permissions granted for the said developmental activity which is contrary to the provisions of the Forest (Conservation) Act, 1980.

The case is about; the Survey No. 69/4 is ‘forest’ and non-forest activity therein is not permissible unless prior permission is taken from the Central Government under the F.C.A. 1980. The petitioners also challenge alteration of Survey No. 69/4 from A-1 (Agricultural and Orchard (Natural Reserve) Zone and A-2 (Agricultural and Natural Reserve Zone) to S-2 (Settlement Zone) for planning purpose in the Outline Development Plan prepared under the Goa, Daman and Diu Town & Country Planning Act, 1974, (hereinafter called the 1974 Act). The Bench passed the Judgement on October 16, 1998.

Judgment

The Bench noted that, “The Sarpanch, Village Panchayat, Penha de Franca, vide letter dated 21-11-96 informed Anand Bandiye, Power of Attorney Holder of Levin Da Costa, partner of respondent No. 11 of the said condition that natural cover/landscape formed by trees as seen from river Mandovi shall not be disturbed in any fashion while carrying out the development/construction.”

The Bench also noted that, “The Chief Town Planner vide letter dated 7-5-97 informed Sarpanch, Village Panchayat that the matter had been carefully examined and the building blocks located along the average line of 35-36 contours on the southernmost side of the property should be cancelled as well as the proposed access road from the existing Betim-Alto Porvorim road should be cancelled and access to the property should be taken from the northern side of the property. The development permission issued earlier for the two rows of building blocks of D/G and A and D/G and B are withdrawn as indicated in red in the enclosed layout plan and the area with green hatching should be treated as “no construction” Zone.”

The Bench further held, “It is not understood as to how the Conservator of Forests could grant permission for cutting of the trees vide order dated 9-1-97 which would have the effect of clearly violating the said additional condition, imposed wide letter dated 21-11-96 of the Village Panchayat. Rather than taking action for violation of the said additional condition by removal of natural cover/landscape formed by trees as seen from river Mandovi which was directed not to be disturbed in any fashion while carrying out the development/construction, the Chief Town Planner/Government chose to condone the same by adding special condition to put back the landscape.”

The Bench concluded by stating, “There has been thus violation of the said additional condition of the licence and the project which will come up after violating the said additional condition would be an eyesore in the green belt of the hillock towards river Mandovi. Moreover, Survey No. 69/4 being a forest land section 2(ii) of the Forest (Conservation) Act, 1980 requires prior approval of the Central Government for use of forest land or any portion thereof for non-forest purpose which approval has not been obtained. We further direct removal of all developmental work done in Survey No. 69/4 in the area of 11275 sq. meters which is subject matter of this petition and restore the hill to its original vegetation. Consequently, all further developments, constructions and any further activity shall be stopped forthwith.”

M.C. Mehta vs Union Of India & Ors on March 18, 2004

Court: Supreme Court of India

Judgment dated: March 18, 2004

Bench: Justice Y.K. Sabharwal and Justice H.K. Sema.

About the Case.

The Haryana Pollution Control Board (HPCB) was directed by orders of this Court dated November 20, 1995 to inspect and ascertain the impact of mining operation on the Badkal Lake and Surajkund – ecologically sensitive area falling within the State of Haryana. In the report that was submitted, it was stated that explosives are being used for rock blasting for the purpose of mining; unscientific mining operation was resulting in lying of overburden materials (topsoil and murum remain) haphazardly; and deep mining for extracting silica sand lumps is causing ecological disaster as these mines lie unreclaimed and abandoned.

It was, inter alia, recommended that the Environmental Management Plan (EMP) should be prepared by mine lease holders for their mines and actual mining operation made operative after obtaining approval from the State Departments of Environment or HPCB; the EMP should be implemented following a time bound action plan; land reclamation and afforestation programmes shall also be included in the EMP and must be implemented strictly by the implementing authorities. The report recommended stoppage of mining activities within a radius of 5 kms from Badkal Lake and Surajkund (tourist place).

The Application has been filed by the Delhi Ridge Management Board praying that the Government of Haryana be directed to stop all mining activities and pumping of ground water in and from area upto 5 kms from Delhi-Haryana border in the Haryana side of the Ridge, inter alia, stating that in the larger interest of maintaining the ecological balance of the environment and protecting the Asola Bhatti Wildlife Sanctuary and the ridge located in Delhi and adjoining Haryana, it is necessary to stop mining. In the application, it has been averred that the Asola Bhatti Wildlife Sanctuary is located on the southern ridge which is one of the oldest mountain ranges of the world and represents the biogeographical outer layer of the Aravalli mountain range which is one of the most protected areas in the country. 

Judgment

The Bench held that, “Our examination of the issues is confined to the effect on ecology of the mining activity carried on within an area of 5 Kms. of Delhi-Haryana Border on Haryana side in areas falling within the district of Faridabad and Gurgaon and in Aravalli Hills within Gurgaon District. The question is whether the mining activity deserves to be absolutely banned or permitted on compliance of stringent conditions and by monitoring it to prevent the environmental pollution.” The Bench noted that, “EPCA noticed mining sites very close to the roads and also very close to the ecologically sensitive area of Asola sanctuary near the Goodwill mine.”

It further noted, “On the impact on the groundwater reserves due to mining, the Board has found that its observation wells have shown an increase in groundwater levels in Anangpur, Mangar, after the mining has been stopped in May. Therefore, in spite of monsoon failure and continued abstraction of water, the observation wells have noted increased water levels within just 2 months of the mining being closed. The groundwater levels in a tube well monitored in Mewla Maharajpur during mid July and first week of August showed a rise of 0.18 metres, A higher rise – 0.71 to 0.78 metres was observed in the two tube wells near the Mangar mines and Pali mines in the two months since the mines were closed. This clearly points to the impact of mining on groundwater reserves.”

The Bench also noted, “Even the Haryana government’s affidavit in court accepts that pumping of ground water is taking place, though it attempts to soften the issue by arguing that it is only being done in a few cases. Under this condition, mining is not allowed in the water table area. EPCA saw deep and extensive pits of mines with vast water bodies. EPCA also saw evidence of pumps and pipes being used to drain out the ground water so that mining could continue. Therefore, the miners are mining for silica, but also in the process, mining and destroying the ground water reserves of the areas. In times of such water stress and desperation, this water mining is nothing less than a gross act of wastage of a key resource… Therefore, it is observed that dewatering of mines in Aravalli hills has affected ground water regime of the mine area as well as buffer zone resulting in depletion of ground water resources.”

The Court quoted in its Judgment that, “The mining operation is hazardous in nature. It impairs ecology and people’s right of natural resources. The entire process of setting up and functioning of mining operation require utmost good faith and honesty on the part of the intending entrepreneur. For carrying on any mining activity close to township which has tendency to degrade environment and are likely to effect air, water and soil and impair the quality of life of inhabitants of the area, there would be greater responsibility on the part of the entrepreneur. The fullest disclosures including the potential for increased burdens on the environment consequent upon possible increase in the quantum and degree of pollution, has to be made at the outset so that public and all those concerned including authorities may decide whether the permission can at all be granted for carrying on mining activity. The regulatory authorities have to act with utmost care in ensuring compliance of safeguards, norms and standards to be observed by such entrepreneurs.”

Environmental clearance – A scam?

The Union Minister of Environment, Forest and Climate Change (MoEFCC) had made a statement that it will rank the State Environment Impact Assessment (EIA) authorities on the basis of the speed at which the environmental approvals are given. It basically implies that all it cares is about the ‘clearance’ of projects and not the quality of the assessment or the ability of ensuring that the environmental impacts of development projects are mitigated.

Hindustan Times reported in December 2021, the statement of Union Environment Ministry: “The average time to grant environmental clearances in all sectors has reduced significantly from over 150 days in 2019 to less than 90 days in 2021. The clearance time is as low as 60 days in some sectors.”

But some experts say the reduction in clearance times was not benefitting conservation. “The environment regulation is being assessed through a perverse logic that considers rates and dates of approvals as measure of success. It is no longer about how much area has been protected from degradation or how much environmental damage has been remedied. Faster rates of clearance do not ensure financial viability or a project and neither does it ensure that proposals are ecologically wise and socially legitimate,” said Kanchi Kohli, legal researcher, Centre for Policy Research as reported by Hindustan Times.

In its report titled Odisha: Déjà Vu in Dhinkia as People Renew Protests Against Jindal’s Steel Project, The Wire reported how the villagers opposing the Jindal’s proposed project of integrated steel plant are harassed. Prashant Paikray, the spokesperson for the Jindal Pratirodh Bheetamati Suraksha Samiti, told the publication that the protests began in Dhinkia on December 4, when police arrived at night in the midst of a raging cyclone to arrest Debendra Swain, a Samiti leader. “They tried to break the front door of Swain’s house and damaged it. When they did not find Swain they arrested his uncle Ayodhya and his daughter Lili,” he said.  

The report mentioned how the Odisha Panchayati Raj department launched disciplinary action against Swain, a member of the Dhinkia panchayat, and issued a show-cause to him. Swain submitted he could not appear for a hearing and on December 8, 2021 he was informed that he was removed as a panchayat member.  

Since December 5, the people of Dhinkia blockaded the entrance to the village which has been bifurcated into three new revenue villages – Dhinkia, Mahala and Patana. Using tactics similar to the ones they used against POSCO, the communities affected by the JUSL project erected bamboo gates and refused to allow the police or government officials and JSW staff. 

EIA Draft Notification 2020

Before colonisation, natural resources such as land, forests and water had been utilised collectively in a controlled manner by the local communities, ensuring that the resources are used sustainably. The radical change in the resource utilisation was associated with colonisation, after which there was major conflicts over natural resources being used by non-local actors. Colonisation transferred these common vital resources into commodities for generating profits and revenues.

After the end of colonial period, and till today, politically weak and socially disorganised communities whose survival is primarily dependent on the products of nature outside the market system are some of the worst affected. Along with the exploitation of the natural resources in India, the fundamental rights of the Adivasi (tribal) people are being side-tracked when huge forest lands are been used under the name of mineral exploration.

Earlier the draft of Environment Impact Assessment Notification, 2020 was criticised for attempting to strike out public consultations in the process of approval for certain projects, for the sake of easing business. The draft notification seeks to dilute the concept of public consultations, which is the core of the EIA process, for a large number of projects. According to the activists, the rights of scheduled tribes and other traditional forest dwellers guaranteed under Forest Rights Act (FRA), 2006 and the Panchayats (Extension to the Scheduled Areas) Act (PESA), 1996 will be compromised if certain projects are exempted from public hearing.

The Forest Rights Act, 2006 has a provision under its section 5 which grants power to Gram Sabhas to regulate access to community forest resources and to stop any activity which adversely affects the wild animals, forest and biodiversity. The PESA act empowers Gram Sabhas to prevent alienation of land and to approve plans and projects. It is mandatory to consult with a Gram Sabha before acquiring land for development projects. 

The draft notification, if comes into effect, is in violation with the rights guaranteed to Gram Sabhas under Schedule 5 and Schedule 6 of the Constitution of India. In order to safeguard the rights of indigenous populations, certain areas in the country are enlisted under Schedule 5 and Schedule 6 where communities belonging to Schedule Tribes have autonomy in the administration and control of land, forests, and natural resources. In order to guarantee the rights conferred upon populations living in areas listed under these two schedules, the Parliament had enacted the PESA Act in 1996.

Industrialisation degrading the environment

The intention of industrialisation is economic development of that region by providing employment opportunities to the people of the locality. While industrial development invariably creates more job opportunities, it also increases the adverse effects on the environment.

The industrial clusters are not only hazardous but had also caused irreparable damage to our ecology and environment. The industrial wastes have been accumulated in large scale while its utilisation has been neglected since long time. Accumulation of industrial solid wastes leads to land pollution and emission of wastes into water sources, mostly chemical wastes from the manufacturing units leads to water pollution. Gaseous wastes of the industrial units are released into air without filtering resulting in air pollution.

It was reported by Hindustan Times in February 2017, “E-waste concentration in the Indian soil is twice the global average. Delhi alone generates 15,000 tonnes per year in addition to the e-waste imported for recycling. High levels of tetra and penta PCB congeners were observed in soil samples from East Delhi.”

These industrial wastes mostly contribute in the environment pollution degrading its quality, consequences of which can be seen in current harsh climate change and also health issues in human beings.

Industrial development affecting Tribal communities

Tribal regions are more affected in this process of development. A significant number of displaced tribals have historically been dependent on natural and common resources. According to The Wire report, Chhattisgarh, Jharkhand and Odisha, for example, account for 70% of India’s coal reserves, 80% of its high-grade iron ore, 60% of its bauxite and almost 100% of its chromite reserves.

The developmental projects have forced the tribal community to move out of area where they lived for generations. The serious consequences of the displacement for the tribal people are both agricultural and homestead along with the loss of traditional occupation. On many occasions, they have even deprived of compensation and rehabilitation benefits as per the Land acquisition amended Act, 1984. Many a times, they do not possess any legal documents to prove their ownership rights of the land which they have occupied and earned their livelihood for years. Moreover, the rights over the resources of their habitat on which they are dependent are customary rights and not legal. Hence, they become vulnerable to lose their habitat and livelihood.

“In Andhra Pradesh, and in the newly formed state of Telangana, private sector mining is still unable to encroach on Adivasi lands, yet these lands are in great demand for many government projects seen as operating in the public interest, including coal mines and irrigation dams. Since 2005, new attempts have been made to exploit the bauxite ore in this region, even though the Samatha judgment is an accepted part of the legislation. The relevant project instead relies on a weakness of the Samatha judgment by using an Andhra Pradesh Government company to carry out the mining while the private investor, Jindal South West (JSW), which is financing the entire project, locates its associated refinery just outside of the Scheduled Areas, where private land ownership is allowed. A confident state government with a strong role to play in national politics, and the support of one of India’s major business families, at the time looked certain to be able to implement the project in this new form of public–private partnership, which in large part appeared to have been designed to circumvent the Samatha judgment. In 2013, however, the company confirmed in a newspaper interview that it had cancelled its investment because of the slow pace of implementation and a lack of government support,” as reported by JSTOR.

As per the report of JSTOR, “Land continues to be the most important productive asset for rural communities in India, and ownership of land is linked to a reduced incidence of poverty. The Samatha judgment has strengthened tribal rights to this crucial asset by preventing the development of several proposed mining projects. Yet the contested nature of its implementation, as well as continued attempts to mine the mountains, make it doubtful whether local people have been able to utilise these stronger rights for economic improvement. This is especially the case since private landholdings are still frequently denied to tribal farmers in forests controlled by the government. Because tribals have no security of tenure and live under the constant threat of eviction, they cannot invest in improving their land. Their poverty prevents them from planting tree crops that have long gestation periods, and the illegality of their position precludes their receiving loans from the government to make their agriculture more productive.”

The JSTOR paper named ‘Mining Conflicts in Liberalising India’ may be read here:

As per a report in The Quint, “Currently, up to 25,000 hectares of forests – 250 sq km, or more than twice Chandigarh’s area – are handed over every year for “non-forestry activities”, including defence projects, dams, mining, power plants, industries and roads, the government recently told parliament. The rate of “diversion”, as the process is called, varies across states.”

                                Table 1: Dam and Displacement of the Tribal People

Tribal people’s life after Displacement

Due to the development projects, tribal communities are forced to move out from their traditional habitat, where they lived for generations, to an unfamiliar and potentially hostile environment. This involuntary displacement has led to increase their vulnerability towards exploitation and also pushing them to poverty, chronic malnourishment, starvation and ill health including psychological trauma.

Among the Tribals, community land and forests are not only their economic commodities but also the centre of their culture and identity. This system comes to an end and their life enters into total crisis when the resources are alienated from them without their consent leaving them with no other alternative.

Some of the reasons for the marginalisation of the Adivasis are land alienation, loss of access and control over forests, enforced displacement projects, lack of proper rehabilitation and indebtedness etc.

As the land was the only source of earning and feeding their families, after eviction they are forced to become migrant workers and work in abysmal conditions in urban and semi-urban areas from where they get stuck into vicious circle of poverty during which they often get exploited which is also known as “modern day slavery.”  

International Laws

Convention on Environmental Impact Assessment in a transboundary context

The Parties to the convention are aware of the inter-relationship between economic activities and their environmental consequences. There is a need to develop anticipatory policies and of preventing, mitigating and monitoring significant adverse environmental impact in general.

Being conscious of the need to give explicit consideration to environmental factors at an early stage in the decision-making process by applying Environmental Impact Assessment (EIA), at all appropriate administrative levels, as a necessary tool to improve the quality of information presented to the decision makers so that quality decisions can be made by taking into consideration – minimization of the adverse impact on environment.

International organisations can promote the use of EIA both at the national and international levels, and taking into account work on EIA.

ARTICLE 2:

1. The Parties shall, either individually or jointly, take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities.
2. Each Party shall take the necessary legal, administrative or other measures to implement the provisions of this Convention, including, with respect to proposed activities listed in Appendix I that are likely to cause significant adverse transboundary impact, the establishment of an environmental impact assessment procedure that permits public participation and preparation of the environmental impact assessment documentation described in Appendix II.
3. The Party of origin shall ensure that in accordance with the provisions of this Convention an environmental impact assessment is undertaken prior to a decision to authorize or undertake a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.
4. The Party of origin shall, consistent with the provisions of this Convention, ensure that affected Parties are notified of a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.
5. Concerned Parties shall, at the initiative of any such Party, enter into discussions on whether one or more proposed activities not listed in Appendix I is or are likely to cause a significant adverse transboundary impact and thus should be treated as if it or they were so listed. Where those Parties so agree, the activity or activities shall be thus treated. General guidance for identifying criteria to determine significant adverse impact is set forth in Appendix III.

The Convention may be read here:

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The post SC sets aside NGT order shutting down factories operating without Environmental Clearance appeared first on SabrangIndia.

The National Green Tribunal (NGT) has imposed an interim penalty of Rs. 25 crore on Oil India Limited (OIL) due to its failure in stopping the fire in Assam’s Baghjan 5 gas well that has adversely impacted the people and ecology in the area, Live Law reported.

In an order passed in two original applications – one moved by environmentalist Bonani Kakkar and the other by Assam-based NGO Wild Life & Environmental Conservation Organisation, a bench comprising Justices SP Wangdi and Siddhanta Das directed, “In view of the prima facie case made out against OIL on the extent of damage caused to the environment and biodiversity, damage to both human and wildlife, public health and, having regard to the financial worth of the Company and the extent of damage, we direct the OIL to deposit an initial amount of Rs 25 Crores with the District Magistrate, Tinsukia District, Assam and shall abide by further orders of the Tribunal.”

The applicants invoked the precautionary principle and the Polluters Pay Principle under Sections 20 of the NG Act, 2010 as well as the “Public Trust” doctrine, the order stated.

Apart from this, the bench constituted an eight-member committee to look into the matter and submit its preliminary report within 30 days. It has asked the committee to look at the cause of gas and oil leak, extent of loss and damage caused to human life, wildlife and environment, whether any contamination has been caused to the water, air and soil of the area, contamination of the water of the Dibru river, impact on the Dibru-Saikhowa National Park and Maguri-Motapung Wetland and assessment of compensation for the victims and cost of restitution among other aspects.

The complete order by NGT may be read below.

Last week, the Pollution Control Board, Assam issued a closure notice to OIL asking it to stop its production and drilling operations at the Baghjan oilfield, alleging that it hadn’t taken prior consent to operate. However, the notice was subsequently withdrawn in pursuance of the affidavit submitted by OIL under some conditions.

The BGN 5 oil well at the Baghjan oilfield in Assam saw a massive blowout on May 27 and on June 9, the well caught fire, increasingly compromising the safety of the people and flora and fauna in the vicinity. It was reported that OIL had subverted laws and extended its drilling and testing to seven new locations at the Dibru-Saikhowa National Park, bypassing the rule for public hearings to be undertaken for operations inside protected forests. It had instead asked the environment ministry to take into account the hearings that had taken place on July 8 and August 26, 2011, The Wire had reported.

In an exclusive for Sabrang India, Dr. Hiren Gohain through his article, The Price of Profit, OIL’s misadventure threatens Tinsukhia’s reserve forests & wild life sanctuaries highlighted the Government of India’s sinister ploy to use the lockdown for granting environmental clearances to OIL’s drilling in Assam which endangered human and natural life. The very next day, Sabrang India had also reported of Pradip Saikia, a retired scientist, telling TV Channel Asomiya Pratidin about how political executives ignored the red flags raised in the matter.

Meanwhile, OIL in its daily update on Twitter has said that it has suspended the day’s operations due to heavy floods in the state. It said that floodwater has entered the debris area and has inundated a large area. The Kill pump area is flooded too and the OIL CMT Water Pump area is submerged with flood water. The bioremediation and environment impact studies too have been put on hold due to the floods in the state.

Update on blowout in Gas Well of Oil India Limited at Baghjan, Tinsukia District, Assam (27.06.2020). pic.twitter.com/qTCKONYI5H

— Oil India Limited (@OilIndiaLimited) June 27, 2020

The company also denied claims of oil flowing into water bodies from the gas well saying that the claims were false as all hydrocarbon coming out of the well is completely burnt at the well head.

False video:There is a video clip in circulation in social media wherein it has been claimed that lot of oil is flowing into nearby water bodies/river frm Baghjan blowout well.
This is totally false since all hydrocarbon cming out of the well is completely burnt at the well head. pic.twitter.com/aX0FuaTJUB

— Oil India Limited (@OilIndiaLimited) June 26, 2020

Related:

Assam Pollution Control Board withdraws closure notice served to Oil India Limited
Pollution Control Board Assam issues closure notice to Oil India Limited over Baghjan fire
Baghjan oil well continues to spew fire; affected families yet to receive compensation
Assam: Fourteen days later massive fire breaks out at oil well in Baghjan oilfield
More on Assam’s Ecological Disaster, retd scientist Saikia speaks of Govt ignoring scientific advice against drilling at Tinsukhia
High-level probe into OIL’s Baghjan well tragedy: CM Sonowal

The post National Green Tribunal slaps Rs. 25 crore fine on Oil India Limited for gas well blowout appeared first on SabrangIndia.

The National Green Tribunal (NGT) on May 8, took suo moto cognizance of the styrene gas leak that occurred on May 7 in Vizag’s LG Polymers plant located in R.R. Venkatpuram village. The gas leak claimed more than 10 lives and affected over 1000 persons in the vicinity. The NGT bench headed by Chairperson Adarsh Kumar Goel with two other members, Justice SK Singh and Dr. Nagin Nanda, identified the damage this may have caused to the environment and habitat and imposed strict liability of the incident on LG Polymers.

The order dated May 8 of the Tribunal constituted a 6 member committee headed by Justice B. Seshasayana Reddy, former judge of Andhra Pradesh High Court and further comprising of V Rama Chandra Murthy, Former Vice Chancellor, Andhra University; Pulipati King, Head of Chemical Engineering Department, Andhra University; Member Secretary, Central Pollution Control Board (CPCB); Director, CSIR-Indian Institute of Chemical Technology and Head of National Environmental Engineering Research Institute (NEERI), Vizag.

The Committee’s findings are a sharp indictment on the management as also the statutory monitoring mechanisms. Specifically, the Committee recommends that Ministry of Environment, Forests & Climate Change (MoEF&CC) along with CPCB and states PCBs need to revamp monitoring mechanisms and need to prioritise the projects where potential environmental degradation is high on account of nature of activity as well as area being ecologically sensitive. Monitoring must be twice a year and not once in four-five years. Inadequate compliance mechanisms defeat environmental principle of sustainable development says the Committee in its findings.

The District magistrate, Vishakhapatnam, and Regional Office, Andhra Pradesh State Pollution Control Board (PCB) were directed to provide logistical support to the Committee to enable their fact-finding and reporting. The Committee was directed to specifically report on the following:

a. The sequence of events;

b. Causes of failure and persons and authorities responsible therefor;

c. Extent of damage to life, human and non-human; public health; and environment – including, water, soil, air;

d. Steps to be taken for compensation of victims and restitution of the damaged property and environment, and the cost involved;

e. Remedial measures to prevent recurrence

f. Any other incidental or allied issues found relevant.

The committee, filed an interim report on May 17 in which it opined that, “the Company did not take proper care of the storage tank resulting in auto polymerization of styrene releasing excess heat which escaped from the goose-neck and dip hatch in the form of vapour. It is also mentioned that the unit was operating without the requisite EC. The State Pollution Control Board (PCB) had no clarity in the matter while granting the statutory consents without EC.”

The Committee observed that there is rampant violation of Environmental Clearance (EC) conditions and that in absence of adequate mechanisms such violations are bound to continue defeating the environmental principle of precautionary and sustainable development. The Committee further noted the observations of Report of the Comptroller and Auditor General of India on Environmental Clearance and Post Clearance Monitoring 2016 in which reasons for shortfalls in monitoring of environmental parameters were attributed to inadequate staff, inadequate database, not assigning clear responsibility for post EC monitoring, absence of monitoring at regular intervals particularly for critically polluted areas.

Cause of incident

Further, the report stated that the Committee was of the view that the leakage was cause due to the following reasons:

1. Insufficient Tertiary Butyl Catechol (IBC, used as inhibitor to ureic/polymerization at lower temperatures) concentration in styrene tank due to unavailability of IBC in the plant.

2. There is no monitoring system for dissolved oxygen in the vapour space which might have fallen down below 6%.

3. The tank has no provision of monitoring temperatures at lop layers of the storage.

4. Refrigeration system was not being operated fir 24 hours.

5. Gross human failure and negligence of the Person in-charge of the plant and maintenance personnel of the storage tanks.

Cause of failures on part of LG Polymers

The report also narrates the shockingly irresponsible decision of the management of the industrial unit which, after being closed on March 24 due to the nationwide lockdown, decided to resume operations on May 7, without due precautions being taken (“Causes of failures and authorities responsible thereof”. The leakage started in early hours of May 7.

The Committee pointed out step by step, how the leakage was caused due to chemical reactions in the tank and established the liability of the industry, which is reflected in the following points, which are extracts from the report:

The leaked tank does not have any provision for measuring the vapour space temperature. Due to this, building-up of temperatures in top surface could not noticed by the industry. This reflects the clear cut case of negligence on Industry part.

The unit’s inability to access personnel protective equipment in a timely manner, safety response preparedness of the site had impact in the early stages of safety operations.

The public siren system also could not be activated as it was manual and in an area rendered inaccessible by the vapour cloud else people in surrounding areas could have been alerted quickly and lives saved.

Mitigation of the impact could have been more effective had the chillers servicing Tank M6 been running.

There was also no automated sprinkler arrangement for vapour loss as this had never been anticipated; the fire water sprinklers had to be manually activated.

With the experience world over of Styrene, it takes considerable amount of idle time to have polymerization inside tank if effective inhibition and chilling is maintained. The unit failed to assess this situation due lack in handling experience by trained man-power

The report concluded that the root cause of the leakage to be lack of experience of LG Polymers India and their Korean principal. LG Chem, in monitoring and maintaining full tanks of styrene that were idled for a long period of several weeks without operation.

Further, the Committee also pointed out the “accountability for lapses on part of the Industry (LG Polymers), which rest with Managing Director of the unit, Certified Safety Officer, Safety Department, and Production Department. The role of issuing necessary safety certificate to the industry, the periodic inspections is the primary responsibility of Department of Industries, Factories and Boilers.”

Recommendations

It is Statutory Bodies that need to follow due dillgence. Have they ? NEERI has been asked to conduct an inquiry to calculate the actual cost for environmental damage and restoration so the same may be recovered from the industry. Further the Committee also suggested that the government, apart from the Rs. 1 crore compensation announced for the families of the deceased, should also compensate victims on ventilator support with Rs. 10 lakhs, and victims hospitalized but not on life-support with Rs. 1 lakh each and this will be in addition to the entire expenses of their hospitalization, critical care and recovery, which will be borne by the government.

The report further gave a long comprehensive list of recommendations for remedial measures to avoid recurrence which included hazard identification and evaluation in the community, Preparation of Guiding Principles for Accident Prevention, Preparedness and Response for onsite and offsite emergency plans, detailed study of the risk assessment and disaster management studies and so on.

Further the Committee also conducted a public consultation meeting with NGOs and residents of affected villages and the some pertinent suggestions were also incorporated in the report. Some of these suggestions include:

• Compensation to be paid by both company and government
• Company to conduct local public awareness campaigns about Do’s/ Don’ts during emergency
• Material auditing, safety inspection reports shall be made online for public
• All the affected families should be given identity cards and Health cards by the Government and the expenditure on medical bills shall be borne by the unit.
• The L.G. Polymers company management should be prosecuted under relevant sections Cr.P.C.
• All companies should have Public Addressing system, so that the public can be warned during the Disaster
• All factories should have mitigation plans for gas leakage solvent fire and should have emergency ward with medical staff for treatment

Responsibility of Ministry and government agencies

The report also highlights how the Ministry of Environment, Forests & Climate Change (MoEF&CC) along with CPCB and states PCBs need to revamp monitoring mechanisms and need to prioritise the projects where potential environmental degradation is high on account of nature of activity as well as area being ecologically sensitive; whereby monitoring will have to be more intensive and at higher frequency. The Committee stated that the present scenario of monitoring once in 4.5 years and planned modification resulting in monitoring in 2.5 years is farce and does not meet the requirement   of law by any standards.

The Committee also stated in the report that MoEF&CC even failed tomention the percentage of compliance since there is no such data available with them. The Committee viewed these remedial actions as inalienable constitutional obligations. The report stressed upon, over and over against, on the importance of strong compliance mechanisms for EC which is a precautionary principle in tandem with right to life under Article 21 of the Indian Constitution. “We place on record our disapproval for the present sorry state-of-affairs and expect meaningful improvement,” said the report. The Committee recommended that all Category A projects be monitored at least twice a year and the rest be monitored at least once a year.

The observations of the Bench

On the hearing held on June 1, the bench took this report on record and observed that the company operated without Environmental Clearance (EC) and the State PCB on account of its ignorance of law or otherwise gave ‘Consent to Establish’ and ‘Consent to Operate’ in violation of law. It further observed that burden of proof is on the company to show that it has no liability, since overwhelming material point towards its liability.

While stressing on remedial measures, the bench took the view that there is need for rehabilitation plan utilizing the interim and further compensation and “regulatory framework needs to be reviewed and strengthened, apart from identifying steps to ensure compliance of laid down safety norms and laying down further norms and procedure to avoid recurrence of such failures in future”.

The bench gave further directions as follows:

• The amount of Rs. 50 crores deposited by the Company with the District Magistrate, Vishakhapatnam will stand appropriated towards part liability and interim compensation to be spent for restoration of the environment and compensation for victims in accordance with the restoration plan to be prepared.
• Restoration plan may be prepared by a Committee comprising two representatives each of MoEF&CC, CPCB and three representatives of State Government to be named by the Chief Secretary within two months from today
• Final compensation to be assessed by Committee comprising representatives of MoEF&CC, CPCB and NEERI, which shall be constituted within 2 weeks and it shall give its report within 2 months.
• The Chief Secretary, Andhra Pradesh may identify and take appropriate action against persons responsible for failure of law in permitting the Company to operate without statutory clearances within two months and give a report to this Tribunal
• If the Company decides to recommence operations, the same shall be brought to the notice of the Tribunal
• The MoEF&CC may also constitute an Expert Committee to suggest ways and means to revamp monitoring mechanism to check and prevent violation of environmental norms and preventing any such recurrence in future in any of the establishments dealing with hazardous chemicals; an Action Taken Report to be submitted in this regard within 3 months.

The next hearing in the case is now on November 3.

The complete order can be read here.

Related:

Vizag gas leak: High Powered Committee meets stakeholders, begins probe
LG Polymers India has Absolute Liability: NGT on Vizag Gas Leak
NGT imposes 25 crore interim penalty in Dahej chemical factory blast incident: Gujarat
The price of profit, OIL’s misadventure threatens Tinsukhia’s reserve forests & wild life sanctuaries: Assam

The post Management Irresponsibility plus weak monitoring by MoEF&CC: Committee, Vizag gas leak appeared first on SabrangIndia.

The National Green Tribunal (NGT) bench headed by Chairperson Justice Adarsh Kumar Goel has, on June 8, directed to make an interim deposit of Rs. 25 crore as penalty. Other members of the NGT presently include Justice SP Wangdi and Dr Satyawan Singh Garbyal (expert member)

On June 3, a mysterious explosion took place in Yashashvi Rasayan Private Ltd (YRPL) chemical factory at Dahej in Bharuch, Gujarat.  Reportedly, the blast was caused due to a reaction between two containers on account of some chemical process. The blast has led to deaths of 10 persons

The order is to deposit an amount minus the statutory compensation/ex gratia payments already made to the victims, if any, with the District Magistrate, Bharuch within 10 days from the date of order. The NGT has held the company strictly and absolutely liable for the loss caused due to the blast.The company has been asked to pay Rs 15 lakh to family members of each deceased, Rs 5 lakh each to those grievously injured, Rs 2.5 lakh each to the injured, and Rs 25,000 each to those displaced from their homes due to the incident.

The Tribunal has also constituted a 6 members committee headed by former High Court judge Justice BC Patel and the report is expected in a month.The panel will examine the sequence of events, causes of failure and those responsible for it; the extent of damage to human and non-human life and public health and environment; steps to be taken for compensation; and restoration of damaged property and remedial measures.

“The amount may be disbursed by the District Magistrate by making disbursement plan. Disbursement plan may consider safeguards to ensure that amount reaches the beneficiaries and is not misappropriated by any intermediary,” the bench said.

The order further reads, “If the company fails to make the deposit, the State will be at liberty to recover the same by coercive methods but the disbursement may in such case be made out of the State funds within one month with right of the State to recover the amount from the company.”

The bench also pointed out that since a similar incident took place in Vishakhapatnam, “it may be necessary to ensure that risk studies are duly undertaken by all industries in the country dealing with the hazardous chemicals and their on-site and off-site plans are operational and mock drills are carried out for testing the same. The State PCBs, concerned District Magistrates, CIFs of the Industries Departments may ensure the same and the nodal agency for the purpose will be the State PCBs, which may be monitored by the CPCB in an appropriate manner.”

The order was passed on a complaint filed by a Surat based NGO called Aryavrat Foundation which sought urgent hearing on June 5. In the complaint it was stated that the company had failed to follow requisite precautions and safety protocols.The matter has been transferred to the Principal bench of NGT, with the next date of hearing on November 3, 2020.

Background

The detailed Order of the NGT narrates the facts: “ On account of a fire in the storage tank of the factory, manufacturing several chemicals including Methanol and Xylene which find mention

in the Schedule to the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 (The 1989 Rules). On account of the saidincident, eight (08) workers were killed and atleast 50 injured. Bodies of some of the workers inside the factory were charred beyond recognition. We have seen some of the telling photographs during the hearing. About 4800 inhabitants of the nearby villages had to be moved to safer place1 on account of the incident. The company has revenue in the range of Rs. 100 crores for the year ending March 31, 2018. According to Mr. Panjwani, learned Senior Counsel appearing the applicant, the Company is owned by the Patel Group having large financial resources.”

The application before the NGT that was heard through Video Conferencing was filed by a NGO located at Surat mentioning the above facts based on newspaper reports (Indian Express, June 4). The applicant has also referred to another recent shocking incident of May 7, 2020 in the factory of L.G. Polymers India at Vishakhapatnam where 12 persons died and several others were injured.

The NGT Order relies upon the fact that, on May 8, 2020, the Central Pollution Control Board (CPCB)issued a circular requiring all the State PCBs to undertake safety audit of industries before they reopened after the COVID-19 situation. The industries dealing with hazardous chemicals were required to ensure that all safety protocols are followed and requisite equipment is operationalised and manpower is duly trained for handling such chemicals. On May 11, 2020, Maharashtra State PCB issued an identical circular specifically requiring the hazardous and chemical handling units to provide information with regard to onsite and offs it emergency plans, safety audit reports and action taken in pursuance of such report. It is stated that the company failed to follow requisite precautions and safety protocols. “The company is thus strictly and absolutely liable for the damage caused to the human lives, human health, property and the environment in violation of environmental norms, particularly the mandate of the1989 Rules, the Chemical Accidents (Emergency, Planning, Preparedness and Response) Rules, 1996(the 1996 Rules) and the circular issued by the CPCB,” held the NGT.

The NGT Order further held that it is undisputed during the hearing that the company is engaged in the manufacture of hazardous chemicals and is covered by the 1989Rules and the 1996 Rules. It has to prepare and follow onsite and off site emergency plan which is required to be duly audited and overseen by the statutory authorities including the Chief Inspector of Factories(CIFs), Department of Industries, the District Magistrate, the State PCB and the Petroleum and Explosives Safety Organization (PESO). The overall regulatory framework is under the Ministry of Environment,

Forest and Climate Change (MoEF&CC). Liability of the Company is strict and absolute for the loss caused by its activities. “Dependents/heirs of the deceased as well as the injured persons, the persons displaced on account of the incident have to be duly compensated. The company has also to bear the cost of restoration of the environment.”

Failure of Statutory Authorities

A significant aspect of the NGT Order is that it also looks at the failure of the concerned statutory authorities in taking necessary preventive and safety measures in general.

Specifically in the case of the Yashashvi Rasayan Private Ltd (YRPL) chemical factory at Dahej in Bharuch, Gujarat, the NGT has issued the following directions:

a) The Company may deposit an amount of Rs. 25 crores,minus the statutory compensation/ex gratia payments already made to the victims, if any, with the District Magistrate, Bharuch within 10 days from today.The amount may be disbursed by the District Magistrate by making disbursement plan in the manner already indicated above (Para 6). Disbursement plan may consider safeguards to ensure that amount reaches the beneficiaries and is not misappropriated by any intermediary.

b) The NGT constituted a 6-member Committee comprising:

(i) Justice B.C. Patel, former Chief Justice, Delhi High Court and former Judge of the Gujarat High Court presently stationed at Ahmedabad – Chairman

(ii) Representative of MoEF&CC – Member

(iii) Representative of CPCB – Member

(iv) Head of the Chemical Engineering Department of the IIT

Gandhinagar – Member

(v) Representative of NEERI – Member

(vi) Representative of National Institute of Disaster

Management, IIPA Campus, New Delhi – Member

The District Magistrate, Bharuch and GPCB will provide logistic support to the Committee to enable their fact-finding and reporting. The Committee will be at liberty to take assistance of such experts, individuals and institutions as may be considered necessary

c) The Committee may visit and inspect the site within 7 days and give its report within one month thereafter via emailjudicial-ngt@gov.in, (preferably in the form of searchable/OCR PDF and not image PDF).

The Committee may specifically report:

i. The sequence of events;

ii. Causes of failure and persons and authorities responsible therefor;

iii. Extent of damage to life, human and non-human; public health; and environment – including, water, soil, air;

iv. Steps to be taken for compensation of victims and restitution of the damaged property and environment, and the cost involved;

v. Remedial measures to prevent recurrence;

vi. Any other incidental or allied issues found relevant.

CPCB will be the nodal agency for coordination.

If any member is unable to visit physically, he may be associated online with the permission of the Chairman. The Committee may provide opportunity of being heard to the Company as well as any other member of the public.

A copy of the report may be uploaded on the website of the CPCB and also provided to the Company for its response.

d) It will be open to the concerned authorities to act on there commendations of the Committee to the extent the authorities find viable in exercise of their statutory powers pending further orders of this Tribunal.

e) The Committee may as far as possible make final quantification of compensation and also prepare a restoration plan in association with the District Magistrate, Bharuch. For the restoration plan, the nodal agency will be the representative of MoEF & CC.

f) The Chief Secretary, Gujarat may identify and take appropriate action against persons responsible for failure of law in permitting the Company to operate without statutory clearances within two months and give a report to this Tribunal.

g) In view of the stand of the State PCB that the order of closure has been passed, before re-commencing any operations, the Company may bring it to the notice of this Tribunal, so that it can be ensured that there is no violation of statutory provisions and safety measures.

The order is without prejudice to any criminal or other statutor proceedings in accordance with law.

Finally, the NGT has also held substantively that, since this tragedy follows so close on the heels of a similar one (in Vizag), “it may be necessary to ensure that risk studies are duly undertaken by all industries in the country dealing with the hazardous chemicals and their on-site and off-site plans are operational and mock drills are carried out for testing the same. The State PCBs, concerned District Magistrates, CIFs of the Industries Departments may ensure the same and the nodal agency for the purpose will be the State PCBs, which may be monitored by the CPC Bin an appropriate manner.

A direction (by the NGT in the same Order) “has already been issued to the MoEF &CC to constitute an Expert Committee on the subject of revamping the monitoring mechanism to check and prevent violation of environmental norms and occurrence of such incidents in future particularly in establishments dealing with hazardous chemicals anda special drive may be initiated, no separate direction is necessary but this incident may also be kept in mind by the Expert Committee constituted in pursuance of order dated June 1, 2020.

A copy of this order was ordered to be sent to Justice B.C. Patel, former Chief Justice, Delhi High Court and former Judge of the Gujarat High Court, MoEF&CC, CPCB, Head of the Chemical Engineering Department of the IIT Gandhinagar, NEERI, National Institute of Disaster Management, IIPA Campus, New Delhi, GPCB and District Magistrate, Bharuch by e-mail.

The NGT, in a suo moto case,has also recently held, in a similar incident of gas leak in Vishakhapatnam, that LG Polymers has absolute liability and had ordered interim penalty of Rs. 50 crore.

Meanwhile, a similar incident has also taken place in Assam where Oil India Limited (OIL) reported a blowout during workover operations at the Baghjan oil well leading to an uncontrolled release of natural gas which had not been controlled. The gas is leaking since May 27 and on June 9 it eventually led to an explosion engulfing nearby areas, burning houses and trees. OIL has said that it could be at least four more weeks till the fire and the blowout were brought under control. The NGT has not taken cognizance of this incident yet.

The complete order can be read here.

Related:

Assam: Fourteen days later massive fire breaks out at oil well in Baghjan oilfield
LG Polymers India has Absolute Liability: NGT on Vizag Gas Leak
Assam gas -well blowout: 11 days on, threat to humans and animals remains high

The post NGT imposes 25 crore interim penalty in Dahej chemical factory blast incident: Gujarat appeared first on SabrangIndia.

Subansiri Hydro Electrical Power plant

Barely a day after the signing of the draft Memorandum of Agreement (MoA) was signed between public sector National Hydro-electrical Power Corporation (NHPC) and Assam government on the 2000 MW Lower Subansiri Hydro Electrical Power plant (LSHEP) last Friday, August 23, widespread protests broke out in North Lakhimpur against the agreement.
 
Per a report in the Assam Tribune, the All Assam Students’ Union (AASU)’s Lakhimpur district union burnt the effigy of Assam chief minister Sarbananda Sonowal in North Lakhimpur on Saturday in protest against the MoU. In a press release, the Lakhimpur AASU led by its president Pulak Borah and secretary Dhanmani Dutta condemned the chief minister for his role in supporting the hydro-electrical dam over the Subansiri river. They termed Chief Minister Sonowal as a liar and betrayer for the cause of the safety and security of the people of Assam living on the downstream areas of the river. The Lakhimpur unit of the AASU expressed strong opposition to the MoA between NHPC and Assam government.
 
The AASU also expressed strong resentment over the issue of non-implementation of the report of the expert committee formed after the tri-lateral meeting among the students’ body, the NHPC and the Assam government. The expert committee was supposed to take the opinion of experts from Assam and the local people living on the downstream areas of the river, said the press statement. The AASU leaders said that the State government had signed the MoA by keeping the public in dark. The silence by Lakhimpur MP Pradan Baruah over the issue was also criticised by Lakhimpur AASU.

Meanwhile its not just the AASU who is protesting. Twenty other organisations held a meeting against the MoA in North Lakhimpur on Saturday. The meeting which was chaired by Bikul Goswami pledged to continue the anti-dam protests even by sacrificing lives. Leaders from various organisations like MASS, TMPK, AKRASU, ATASU etc., attended the meeting and expressed their opposition to the MoA. The meeting also formed a platform LSHEP Birodhi Sangram Okya Manch to launch an anti-dam fortnight protest programme in Lakhimpur district.
 
Declare Deepor Beel, Sanctuary Eco-Sensitive Zone: NGT
Even as the National Green Tribunal (NGT), New Delhi has ordered the Assam Government to declare Deepor Beel, including its adjacent sanctuary, an eco-sensitive zone. The Tribunal has stopped forthwith the ‘change in land utilization character from railway gate number 273 to the starting point of northern alignment of railway track and Azara railway crossing at Segunbari, Mikirpara and Matia elephant corridor’ in order to ensure that the elephant corridor is kept free for elephants’ access to the Deepor Beel and also to avoid man-elephant conflict.

On solid waste management, the Tribunal said that it would be appropriate for the State to plan a decentralized processing plant at a suitable location in the city as a support system for the proposed integrated solid waste management plant. The Tribunal has also told the State government to incorporate the old waste of the existing dumping ground at Boragaon in the proposed comprehensive solid waste management plant.
 

The post Environment Issues lead to political Protests against State, Centre: Assam appeared first on SabrangIndia.

 
Mumbai: Veteran Maharashtra politician Sharad Pawar lobbied Prime Minister Narendra Modi to defang the National Green Tribunal (NGT) after the tribunal-imposed damages of at least Rs 105 crore on Goel Ganga Developers (India) Pvt. Ltd, a Pune-based real estate company, Huffington Post in its exclusive story reported.
 
The damages were imposed for violating environmental laws, and to undo the environmental destruction caused when the company expanded the scope of a residential and commercial construction project beyond what was allowed in its environmental clearance, official documents accessed by HuffPost India reveal.
 
The documents show Pawar’s efforts began in October 2016, and the Prime Minister’s Office (PMO) took his lobbying efforts seriously.
 
The PMO told the Environment Ministry and the Finance Ministry to gather inputs and prepare comments within five days, the documents show. The environment ministry’s internal communication shows its officials treated the matter as a “priority.”
 
The following year, in March 2017, the Modi government gave itself wide-ranging powers to appoint and dismiss members of the NGT by making changes to the NGT Act. These legally questionable changes were subsequently stayed by the Supreme Court in mid-2018.
 
HuffPost India has previously reported how the PMO overturned a decade’s worth of environmental law to aid the real estate lobby and improve India’s rank on the World Bank’s Ease of Doing Business Index —only to be halted in its tracks by the NGT. One of the particular provisions detailed in this investigation was how the government sought to remove the real estate sector from the purview of the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974.
 
One of the suggested amendments to the NGT Act made in an attached document to Pawar’s letter was to remove the residential building construction projects from the need to get consent to operate and consent to establish —both provisions found in air and water pollution laws. A demand which CREDAI had lobbied for as well, HuffPost reported.
 
But it is not only the real estate sector. A closer look shows the pattern of dilution of legal safeguards for the environment is much more broad-based in terms of sectors. And as HuffPost India reported in March, Prime Minister Narendra Modi is personally overseeing this process. This may well be the reason why Maratha strongman Sharad Pawar felt confident enough to lobby against the NGT and in favour of a builder with the Prime Minister himself.  
 
Read the full article on HuffPost here.
 

The post How Sharad Pawar and PM Modi diluted green laws to benefit a builder appeared first on SabrangIndia.

The country's top environment court, the National Green Tribunal came down forcefully today on 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 120 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 a hearing yesterday, Sri Sri had callously said that if any damage has been caused to the environment by the huge three-day cultural festival he held on the banks of the River Yamuna in Delhi last year, it is the government and the court who should take the blame, because they allowed the event.
"If, at all, any fine has to be levied, it should be levied on the Central and state governments and the NGT itself, for giving the permission. If the Yamuna was so fragile and pure, they should have stopped the World Culture Festival," the 60-year-old, who has lakhs of followers around the world, said in a Facebook post.
 
A team of experts has testified to the National Green Tribunal that the event, which included a 7-acre stage for musicians and dancers and sprawled across 1,000 acres, had "completely destroyed" the riverbed. They said reversing the damage will take at least 10 years and about 42 crores. In January 2016, Sri Ravi Shankar’s Art of Living Foundation fined Rs 120 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.

 
Sri Sri and the Art of Living Foundation, which was founded by him, have denied all allegations of damaging the fragile ecosystem of the Yamuna.
 
Environmentalists last year asked for the "World Culture Festival" to be disallowed, but the National Green Tribunal said it was too late to call off the event and fined the organization five crores. Sri Sri at the time said he should be given an award for hosting a spectacular event that drew people from across the globe to the banks of one of the world's most polluted rivers.

Showing India and the world that he cared little for the mass destruction being caused to the Yamuna, the event had opened with Prime Minister Narendra Modi on stage next to Sri Sri. Modi, in one aspect of his public marketing image likes to show at least that he is committed to the movement against climate change !!

In March last year a further controversy was generated around the issue when a Gujarat based activist, Roshan Shah alleged that “Facebook Violating Article 19, "Filtering" Content Critical of Sri Sri's AOL”. This was on March 12, 2016. Roshan Shah, an  Ahmedabad-based activist had, in a communication with the Director General of Police, Gujarat and the ACP, Cyber Crime Cell asked for registration of a first information report against Facebook for “intercepting messages” and “filtering content.” .The complaint related to the controversy afoot over days in March last year relating to the World Culture Festival where Sri Sri Ravi Shankar who runs the Art of Living Foundation receiving a Rs. 2.5 cr as a government grant, using Indian army for the construction of a bridge, and chopping off trees.

Scroll.in had in an investigative report shown how “India’s spiritual gurus are the newbie gods of consumer goods” (April 2016)
 

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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.”
 
 
 
 

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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.
 
Read More:
NGT Explains the Precautionary Principle in Indian And International Law
 

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