Another anti-environment ruling at the NEAA

Can the environmental and socio-economic impacts of a project be assessed after the project has commenced, or even completed? Can project approvals rely on criteria other than those stipulated in law? Can an arbiter take one side's claim at face value, when it is disputed by the other side? The National Environment Appellate Authority (NEAA) appears to have erred on all these counts, when it recently ruled on an appeal against the grant of environment clearance to a project proponent.

The NEAA was set up in 1997 as the main authority in India where environment clearances for development and industrial projects can be challenged. Such environment clearance is a mandatory requirement under the Environment Impact Assessment (EIA) Notification, 2006. So when JSW Energy Limited (http://www.jswel.net/) wanted to set up a 1200 (4x 300) MW Thermal Power project in Ratnagiri district of Maharashtra, it first got into an Memorandum of Understanding (MoU) with the state government and then began the process of seeking requisite approvals. The Ministry of Environment and Forests (MoEF) gave its green stamp on 17 May 2007 for this Rs.4500 crores project.

Objections to the environment clearance

As with many other clearances by MoEF in recent years, there were problems with this project too. And Balchandra Bhikaji Nalwade, a resident farmer of the affected area, filed an appeal before the NEAA challenging the grant of environment clearance. The case was filed through Ritwick Dutta, Rahul Chaudhary and Priyabrat Sathapathy advocates forming part of the Legal Initiative for Forests and Environment (LIFE). There were several contentions that led to this challenge.

• The first was that the environment impact assessment (EIA) carried out by EQMS Pvt. Ltd., New Delhi was not available in a timely manner to the public as prescribed by law. The EIA notification provides for the draft EIA report of the project in question and its executive summary to be made available to the public 30 days before a mandatory public hearing is to be conducted. This has to be made available in a few designated places including the District Collectorate Office, the Pollution Control Board, with the Chief Executive Officers of the Zila Parishad/Municipal Council and so on. This, the applicant contended, was not done, and as a result, there was no proper opportunity for such public participation.

• A second issue was the accuracy of the EIA report itself. Some of the critical issues on this score were put together in a critique Dr. P R Arun, an independent scientist who has worked with the Salim Ali Centre for Ornithology and Natural History earlier, and has been on several committees of the Central Pollution Control Board. He pointed out that the project developers had given no reason why alternate sites for the project were less preferable, or even provided a list of alternate sites that were considered. Evidently, there was no effort made to look for alternate sites, as required in the clearance process.

• Third, the existence of mangroves within the vicinity of the proposed thermal power plant was either ignored or side-stepped. The EIA report says there are no mangroves within seven kilometres of the plant site, but a ground assessment by the applicant found that the the Jaigad Creek is within 10 kms of the project, and there are also some other mangroves within 4.5 kms of the proposed power plant. Infact the applicant also states in an additional submission to the NEAA that a report by the Centre for Earth Sciences, Thiruvananthapuram, Kerala - which the project proponents presented before the MoEF - also did not consider mangroves.

• Finally, one of the most important issues involved was the likely impact of the thermal power plant on mangifera indica (mango). The area around the plant is known for its production and export of the famous 'Alphonso' mangoes. As Arun points out, "studies of well respected Indian scientists have clearly shown that cultivation of the fruit of the tree Mangifera indica (mango) is extremely vulnerable to pollution from coal fired thermal power plants." One such study is the 1993 one by the Banaras Hindu University for the Singrauli area in Uttar Pradesh, which houses multiple thermal power plants. The critique states that there is a huge difference in the data presented by the project proponent in their application form and the EIA report which is deliberate concealment of factual data.

There is yet another aspect that is extremely interesting. The project proponents submitted a report of the Konkan Krishi Vidyapeeth (Agricultural University) with regards to the impacts on the project. This report is said to have concluded, based on the EIA studies of EQMS and the prediction levels of the Maharashtra Pollution Control Board and Central Pollution Control Board, New Delhi, that "it appears that the activities to be undertaken by JSWERL for power Generation at Jaigad are not likely to affect the horticultural plantation and mango plantation in particular as well as the marine life significantly provided JSWERL's strictly maintain its adherence to its commitment made for preventing environmental pollution from time to time in long run ..."

However, a series of Right to Information requests to the University elicited some other facts, evident from two letters from the Associate Dean of the University to the Vice President of JSW Energy in September 2006. In the first letter, there is a clear mention that the report submitted by them is preliminary and hypothetical, and there is no guarantee that the impact would be exactly same as predicted in the report. The second letter comments on the impacts of mangoes and states, and includes the following text: "This University has not generated any data on impact of Thermal Plant or emission of pollutant in the ambient air on mango or other vegetation. We do not have any expertise to undertake such type of studies ..."

Clearly, neither EQMS nor Konkan Krishi Vidyapeeth had conducted a comprehensive assessment of the critical impacts, and yet MoEF considered their submissions sufficient to recommend clearance for the project. Not surprisingly and rightfully in their interest, the project proponents and MoEF denied the allegations, in arguments and in writing.

The NEAA's strange order

At the appeal in the NEAA, it ought to have been a clear case of evidence and cross evidence. Either the allegations made by the petitioner were true and the environment clearance should have been struck down, or they were false and the clearance upheld. But a rather odd thing happened; in effect, the NEAA held that the allegations were quite valid, but the environment clearance should be upheld nonetheless! Some comments from the NEAA order are both intriguing and disturbing:

"The NEAA concludes that by virtue of the project proponents stating that this was the best site ... is adequate explanation for justifying the requirement for considering alternate sites." That is, although the questionnaire on the project requires the proponent to disclose the alternate sites considered or state that they had not done so, the NEAA felt this was not necessay. The mere claim by the promoters that the selected site is the best one was sufficient, the authority ruled.

Regarding the University's findings and minutes from its own earlier records, the NEAA decided, "the EIA report has largely covered all critical aspects of the environmental impact of the project on the local area." Nonetheless, it then picked up the suggestion of the Vidyapeeth and directed that a four year study be carried out to assess the impacts of the thermal plant on alphonso mangoes. This is simply contradictory; either the EIA report is comprehensive, or it is not and needs to be first carried out fully. But the NEAA has decided that a pre-clearance analysis on all counts is not required, asking instead for a report while the project is underway. If the findings of the 4-year study are adverse, will the project be closed down? This question is ignored.

The NEAA also ironically regards the gap between the energy demand and supply scenario in the state as an important criteria to determine its judgement on the environment clearance for the project.

In all these cases, the NEAA may be overstepping its authority and mandate. As an appellate authority, its role should be to determine whether the claims and counter-claims brought before it are factual, and provide verdicts thereupon. In this instance, the NEAA does not appear to have done that. Its order fails on three counts - it is an unexamined endorsement of some of the project developer's claims, it overlooks the lack of compliance with necessary provisions under the law, and relies upon extraneous criteria outside its mandate to deliver its verdict.

And so, another project sails through the Authority, continuing a distressing trend from recent years. And those who are deeply concerned about the environment as well as the livelihoods of project-affected persons, continue to wait for the day when the appellate authority will be a true guardian of these interests too.