COMMENTARY
The Nature of Green Justice
Kanchi Kohli, Manju Menon
which were pending before the NEAA were transferred to this new institution.
As envisaged by the MoEF, the NGT is to consist of expert members from the fields of environment and related sciences
The National Green Tribunal has taken over from the National Environment Appellate Authority though the changeover has not been smooth. The tribunal has significant powers and its rulings will affect the lives and livelihoods of communities as well as the future of ecologically fragile ecosystems. A look at the factors and issues it will have to consider while rendering environmental justice.
Kanchi Kohli (kanchikohli@gmail.com) works and writes on social and environmental issues and is based in New Delhi. Manju Menon (manjumenon1975@gmail.com) is a PhD candidate at the Centre for Studies in Science Policy, JNU, New Delhi.
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The transition from the NEAA to the NGT was not smooth. Though the NGT Act was formally announced in October 2010, the implementing rules were not in place until April 2011. It required several arguments and a sustained push through the Delhi High Court (in CM No 15895/2005 in Writ Petition Number 17682/2005) and subsequently the Supreme Court of India (Special Leave to Appeal (Civil) No(s)12065/2009) for the Ministry of Environment and Forests (MoEF) to operationalise the tribunal. The Supreme Court’s critical ruling of 12 May 2011 led to the first set of hearings by the NGT on 4 July 2011 in New Delhi. By then, the NEAA had ceased to exist leaving several matters pending and with no specialised forum before which to litigate on environment clearances.
As there were only routine responses and delayed assurances from the ministry in the same order, the SC was forced to clarify several pending issues on the functioning of the NGT. This included the status of the NGT, its various benches, appointments, and allowances of the judicial and expert members. Till such time that the regional benches of the NGT were established all matters would be heard in New Delhi. The 26 cases
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or administration who along with the judicial appointees have been empowered to issue directions for the compensation and restitution of damage caused from actions of environmental negligence. The NGT has the powers to decide on a range of laws relating to pollution, diversion of forestland for non-forest use as well as environmental clearances (under the Environment Impact Assessment (EIA) notification, 2006). The remedies that can be sought relate both to questioning the basis of the approvals as well as raising substantial issues regarding the environment in projects proposed or under operation. It is important to note that the design and implementation of the laws and regulatory frameworks covered by the NGT Act have a huge bearing on the lives and livelihoods of affected communities as well as the future of ecologically fragile ecosystems. It is through these that the necessary precautions, restrictions and safeguards need to be ensured towards environmental protection. In addition to this the NGT also has the authority to rule on grievances related to the access to and benefit sharing of biological material and traditional knowledge as envisaged in the Biological Diversity Act, 2002.
The NGT has its central bench in New Delhi and recently four regional benches have been established in Bhopal, Chennai, Kolkata and Pune. A whole range of administrative- and appointment-related issues are yet to be resolved before the NGT benches begin working with the full capacity of expert and judicial members. We put forward some thoughts on this institution’s functioning based on the existing experience of environmental regulation, particularly with respect to environmental clearances. Some of the cases presented below are signifi cant in terms of what they indicate in regard to the NGT’s future.
Tribunals as Regulators
Tribunals are considered to be different from courts and other judicial bodies. They are meant to play the role of the
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expert in an area where judicial remedy is being sought. It would, therefore, not be wrong to assume that this expert body “adds” to the knowledge on the environmental impact produced in the regulatory process after the project has gone through all the basic regulatory filters. However, recent cases seem to indicate that the NGT is performing the role of the regulator simply because the MoEF and other state-level regulatory bodies set up under the EIA notifi cation, 2006 refuse to take their roles seriously. It is through this regulation that environmental impact of industrial and infrastructure projects is to be determined and they need to be either accorded approval or rejected.
On 28 July 2011, the NGT passed an interim order in the case challenging the grant of environment clearance to the Renuka Dam Project in Sirmour district of Himachal Pradesh. The governments of Delhi and Himachal Pradesh had signed an agreement to supply water to the National Capital Region (NCR) in 1994. In its interim order, the NGT asked the project authority, Himachal Pradesh Power Corporation Limited (HPPCL) to stop construction activity related to the project and also prohibited compensation-related awards for the land that was acquired for it. One of the reasons for the order was that the facts in the EIA report, the environment clearance letter and submissions by the company showed different figures relating to land requirement and project-affected people.
Many other cases that the NGT has heard have also been about faulty EIAs. This is a diversion of the NGT’s time because its expert members end up merely pointing to the flaws in the basic documents used for decision-making and which should have actually been crosschecked by the MoEF's expert appraisal committees (EAC). If this is allowed to continue, the NGT will be burdened with similar cases as the problem of fraudulence in EIA data is rampant. The NGT will then be kept busy with such cases thereby delaying justice in general and also “delaying” projects. If the agencies responsible for clearance based on faulty data are not penalised, and the punishments are meted out only to industry either directly through penalties or indirectly through delays in the project deadlines, it will neither improve environmental decision-making nor allow for useful development. Both agendas of the MoEF fail due to its own oversight. The MoEF has set up a system of accreditation of consultants to ensure the quality of EIAs but who will ensure the quality of the ministry’s decision-making process? Should the NGT be playing the role of doing so systematically?
There are instances of developers choosing to start their EIA process again themselves, rather than face an adverse direction from the NGT. This might be for fear of their projects being delayed by litigation for fraudulence. In its early stages, the NGT had revoked the environment clearance for the 43 hectares Pirna Iron Ore Mines of Sesa Goa (a part of Vedanta Group) located in Pirna and
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Nadora Villages, in Bardez Taluk, north Goa. As part of the proceedings, Sesa Goa contended that it wanted to withdraw the environment clearance application in view of the defi ciencies pointed out in the EIA report. The NGT directed the MoEF to take a decision on this because the company had now admitted that its EIA report based on which approval was granted was inadequate and incomplete. Following this, in September 2011, the MoEF informed the NGT that the environment clearance for Sesa Goa's mine stood cancelled under clause 8 (vi) of the EIA notifi cation, which allows the rejection of a project on the grounds of deliberate concealment and/or submission of false or misleading information or data.
Rationale for EIA Notifi cation
One of the regulations covered by the NGT Act is the EIA notification. Since the very beginning, one of the issues that begged clarification with respect to the design of this notification was the basis for bringing some projects under its ambit and not others. The 1994 version of the notification used the total outlay of the project to determine if it required a clearance from the MoEF or not. Since the 2006 version came into being, it is a combination of the site, scale and techno logy that determines if a project requires clearance and if yes from which authority. However, there is still no welldefined connection between projects and clearance procedures based on potential environmental impact. To that extent, the accusation by developers that environment clearance procedures are mere bureaucratic exercises may have some merit. It is only expected, therefore, that the very premise of the EIA notification will be challenged by projects that feel “forced” to take regulatory permission. The fate of the notifi cation rests to a large extent on how the NGT responds to such challenges. The NGT is the first forum that has given project developers and those affected by projects an equal opportunity to question the procedures of environmental clearance and their outcomes.
The Maharashtra-based Lavasa Corporation has filed a case before the Pune bench of the NGT. As per the 17 February order, this highly controversial planned hill city project has appealed against the conditions laid out in the environment clearance granted to the project under the EIA notification, 2006. The matter has not progressed further at present because another case is pending before the Bombay High Court where the applicability of the EIA notifi cation for the Lavasa project is being contested. The NGT has not taken up this appeal as of now but it will have to do so soon.
The relationship between clearances and impact will also need to be spelt out clearly in the case of projects that were due to be heard by the NEAA but have continued construction during this period of transition from the NEAA to the NGT. One such case is the challenge to the environmental clearance granted to a 1,200 MW thermal power plant located in Jaigad in Ratnagiri district, Maharashtra to be constructed by JSW Energy (Ratnagiri) Ltd (JSWeRL)–www.jsw.in. The project received environmental clearance in May 2007. This clearance was challenged before the NEAA on the grounds of inadequate impact studies. The NEAA dismissed the case but ordered the Konkan Krishi Vidyapeeth Daboli (KKVD) to study the impact of the thermal power plant on the Alphonso mangoes even as it allowed the developer to take up construction and commissioning of the coal power plant. This decision of the Appellate was taken up before the Delhi High Court which took a fi rm stand and sent the project back to the desks of the EAC of the MoEF which had first cleared the project. The EAC stuck to its earlier decision which was conveyed to the NEAA and it fell upon the newly established NGT to give its verdict.
In a 13-page final judgment, the NGT specifies that the ministry and its expert committee have taken all precautionary measures by laying down stringent conditions including the addition of a flue gas desulphurisation (FGD) system, dense plantations and so on. The NGT order also states that if at any point an impact on the mangoes is noticed, the plant shall be shut down. The project is now under way with its fi rst phase commissioned and so is the study to investigate the effect of the power plant on the fruit.
A Wider Context
These cases are only a preview of what is to come up before the NGT in the future. Having made space for both the project affected and project developers the NGT is expected to use its stated expertise in law and science to adjudicate on complex matters of environmental and social justice. In this process it is likely to encounter three problem areas that could hamper democratic decision-making and justice delivery.
The fi rst stems from the shift out of a precautionary approach to an evidencebased model for environmental justice. As in the case of the Lavasa project and the thermal plant in Maharashtra, it will be immensely difficult to establish causality between a project and environmental impact in the vicinity. While physical effects such as submergence and land transformations may be quantified, to establish the qualitative effects of projects on the health of plants, animals and human beings, in both scale and time, is nearly impossible. To establish a
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system of justice on the evidence of project impact on the environment, especially when such evidence can never be conclusive, could amount to no justice at all. Owing to the complex nature of interrelatedness in human environmental systems, a precautionary app
roach that appeals to the limits of scientifi c knowing is essential for environmental justice.
If the limits of scientifi c knowing are accepted, then what should the NGT uphold as the basis for decision-making in the cases before it? The answer to this may lie in the multiple interpretations that are offered on development and environment at public hearings (PH), the only open space in the regulatory decision-making process. Instituted in 1997 following the EIA notifi cation, the PH has been reduced to a formatted set of pro- and anti-project statements in the decision-making process that now looks like an assembly line of environment clearances. A look at the video recordings of these hearings will provide the NGT an understanding of the plethora of concerns and doubts that exist in the local area about a proposed project. Not all of them are strictly environmental but then it is hard to draw a line between the environmental and the social in all human contexts. These hearings are a valuable source of the views of the public for a body like the NGT that will be called upon to stop high impact projects from being built as well as make project developers take responsibility for the impact that the project will have in time. The use of the material in these hearings by the NGT will not only make its orders more relevant to the public but could help bring back the PH process to the centre of regulatory decision-making.
Finally, the NGT benches have a complex system of clearances to deal with if one goes merely by the number of projects granted clearance each year and the multiplicity of clearances for each project. The recent case of the OPG Power Gujarat's 300MW thermal power plant in Mundra in Kutch district of Gujarat demonstrates this wherein the Coastal Regulation Zone (CRZ) clearance, the environmental clearance and the forest clearance, all implemented as separate procedures, intersected, in expected but unplanned ways during the hearing of the case. For long, project developers have taken advantage of the fact that different agencies are responsible for different clearances that have different timelines and pass through offi ces distantly connected to each other. In order to provide justice to those who bring grievances about projects to the NGT, it will now have to deal with the diverse cultures of impact assessment that exist in the different state-level and centrallevel expert committees, autho rities and ministries. These cultures of impact assessment, at the centre of which are very subjective notions of how to “balance environment and development”, will have to be understood and commented upon by the NGT. It will have to be done in such a way that environmental justice is not only the objective of the tribunal itself but is the purpose of all routine regulatory environmental decision-making.
