JUSTICE DELAYED : A crevasse in the regulatory environment

With the formation of the Green Tribunal, its predecessor, the NEAA has ceased to exist. But the NGT is not fully ready to hear cases, and this has put the regulatory environment off-course. Kanchi Kohli reports.

India Together (http://indiatogether.org/)28 November 2010 - On 19 October, the Ministry of Environment and Forests (MoEF) issued a press release officially notifying the National Green Tribunal (NGT), with the appointment of Lokeshwar Singh Panta as the Chairperson of the body. The NGT Bill had cleared the parliament decks in April this year, after signficant debate and questioning, some of which continues to be unresolved.

For the MoEF, the idea behind such an overarching change has been to create a principal body, with circuit benches across the country, to judge and deliver verdicts on all matters related to and arising out of environmental issues. With initial assurances were that the NGT would be located in Bhopal, the Tribunal has eventually found its berth, like nearly every other institution of the national government, in the capital city itself.

The NGT is to consist of expert members from the fields of environmental and related sciences who are along with the judicial appointees empowered to issue directions for the compensation and restitution of damage caused from actions of environmental negligence. It would decide on a plethora of laws including those governing pollution, diversion of forest land for non-forest use as well environmental clearances. These laws have a huge bearing on all our lives, regulating the quality of the envrionment around us, and also deciding which industrial projects would be detrimental to the environment and therefore not to be established, alteast without adequate safeguards.

In addition the NGT also has authority to rule on grievances raised when a researcher or industry gets access to local biological material like a herb, seed or associated knowledge with it, without sharing benefits with the original conservers of that material or knowledge. The NGT has been presented as a pioneering step to a create an institution along the lines of those in existence in Australia and New Zealand.

NGT replaces NEAA, but is not ready

The "officialisation" of the NGT in October had its first impact immediately. With its nascent NGT in place, another institution ceased to exist - the 13-year-old staggering National Environment Appellate Authority (NEAA). This has been affirmed in the legislation that created the Tribunal, as well as by the Minister of the Environment, Jairam Ramesh. Until now, under the Environment Impact Assessment Notification, 2006, the NEAA has been the only forum available to those aggrieved by the grant of environmental clearances to challenge the same. Even with its lone member and seemingly endless problems, the Authority was a forum that did exist in functional terms (see this earlier article). The current situation is much worse - the country ceases to have an NEAA, but the NGT is far from ready to take its place.

Even the Rules for the functioning of the Tribunal are yet to be finalised, the expert members still to be appointed and the promised regional benches are yet to be located. These processes can take three months or more, a source in the Ministry indicated. In practical terms, what this means is that all the cases that were pending before the NEAA and were to be transferred to the NGT, are now on hold. Hearings that were nearly complete in the NEAA, with verdicts about to be delivered, have to be held all over again by the Tribunal. Other pending cases have not been heard for almost two months.

Moreover, there is confusion over how and where to challenge recent environmental clearances - those granted in the last 90 days. The NGT, just like the NEAA, allows 30 days from the grant of clearance or approval to bring it to the attention of the redressal body. Another 60 days are given if the applicant can prove that they have "sufficient cause" for delay. But with the NGT itself likely to take months to be ready, it is not clear how citizens can challenge any project that recently obtained clearance within this window. MoEF has not clarified this so far.

Each new case that falls through this crevasse will also impact future cases, as it will take months for the new Tribunal to clear the backlog.

A free pass to projects?

On the ground, the implications of the likely delays are serious. Take the case of OPG Power Gujarat Private Limited, which in June 2010 obtained environmental clearance from the State Environment Impact Assessment Authority (SEIAA) to set up a 300 MW thermal power plant; there were 121 conditions attached to the permission. OPG's trajectory through the clearance process had not been smooth, dating back to the time when the mandatory public hearing for the project first took place in May 2009. The was mass protests against the plant and its likely impact on the ecologically fragile Randh Bander fishing region (see this link).

Armed with several contentions, the local fisherfolk approached the NEAA along with the Machimar Adhikar Sangharsh Sangathan (MASS), an organisation working on livelihood and environment related issue in the Kutch coastal region. In September 2010, there was one hearing and then the case fell victim to the looming end of the NEAA, with the NGT yet to take its place. The appeal had raised several critical issues that point to misleading and inadequate data at the time the Environment Impact Assessment (EIA) was prepared and shared with the public in May 2009 during the public hearing. But none of this could be fully argued when the future of the hearings hung between the half-closed and half-open corridors of the two authorities.

Meanwhile, another envrionment clearance that was sought by the company - for the intake channel of the thermal power plant - was rejected by the Expert Appraisal Committee for Building Construction, Coastal Regulation Zone, Infrastructure Development and Miscellaneous projects, due to the likely negative impacts on the coastal environment.

But, in brazen disregard of both the pending case as well as the rejection of the CRZ clearance, the project authorities initiated construction of the project (see picture), with land-filling and cutting of trees. They have also announced a Bhoomi Pujan to ritually inaugurate the construction of the project. The lack of a functioning tribunal, thus, is turning into a free pass for project promoters who knows that there is no forum in place where their plans can be challenged.

The irony - tragedy, actually - is that while company officials move ahead confidently, the local fisherfolk opposing all this are left with no clear agency to approach with their concerns, with the NEAA now formally dead, and the NGT yet to be meaninfully alive. Justice delayed, for petitioners like them, may turn into justice denied.
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Kanchi Kohli
29 Nov 2010

Kanchi Kohli is based in New Delhi and a member of the Kalpavriksh Environmental Action Group.

No CRZ nod, but work begins on OPG plant

The article below was published in the Indian Express, November 27, 2010.

Fishermen opposed to power plant in Kutch write to Jairam Ramesh, seeking urgent help

Adam Halliday, Nov, 27, 2010.

When OPG Power Gujarat Private Limited inaugurated its yet to be built 300 MW power plant at Bhadreshwar Village in Kutch District on Saturday, little did the company officials know that local fishermen had written Union Environment Minister Jairam Ramesh twice, pointing out that the company is breaking the law by beginning work before getting full clearance.

A company official said the "Bhoomi Pujan" (foundation laying ceremony) was held although they had not received all the clearances but added they have submitted fresh proposals that would eventually be accepted.

The clearance here refers to a CRZ (Coastal Regulation Zone) clearance that is yet to be obtained from the Union Ministry of Environment and Forests' Expert Appraisal Committee on Coastal Regulation Zone.

In July, the committee had rejected the OPG plans to build an open intake and outlet channel that would ferry seawater to cool the coal based power plant, saying it would adversely affect the marine ecosystem.

Although OPG later submitted proposals for a closed channel, minutes of the CRZ committee's meeting to date (the last one was held on November 9th) show that no go ahead has been given as yet, an anomaly that the fishermen pointed out to Jairam Ramesh's ministry in their first letter on November 21st.

They had also attached pictures of what they said were OPG's construction activities, such as tree felling, a cache of concrete presumably for future construction and square holes being dug, although the authenticity of these pictures could not be independently verified.

A company spokesperson based at Gandhidham in Kutch said, " We don’t have the CRZ clearance as yet, but we have submitted fresh proposals for a closed channel. We are sure that the CRZ committee would accept this. Besides, the channel would only be built two years from now, after the construction of the plant itself is finished,"

Interestingly, the Gujarat Pollution Control Board had cleared the 300 MW power plant on June 6th, 2010 laying down several conditions, one of which was that no construction should take place before all the requisite clearances were obtained.

"The project proponent shall not start any construction/project enabling activities unless and until environmental clearance as well as all requisite prior permissions/clearances are obtained. " the GPCB had said in its letter where it granted the company environment clearance.

But the fishermen's second letter to Ramesh, sent on November 25th, counters this argument, saying construction before clearance is illegal and that this could set a dangerous precedent if it is not stopped immediately.

"Unless the Ministry takes action on the OPG group for its blatant violation of environmental laws, the project proponent will be emboldened to continue with this mockery of environmental laws and this would be a precedent for other industries in the area to treat environment laws with a pinch of salt", the fishermen told Ramesh.

Where do we go? fishermen ask Jairam

In their letter, the fishermen have asked Jairam Ramesh as to which body they should appeal to now that the National Environment Appellate Authority has been disbanded and the National Green Tribunal has not yet begun operations.

The fishermen had approached the NEAA in August contesting the clearance the GPCB had given to OPG. The first hearing was held on September 24, in which the second hearing was scheduled for October 20th.

But on October 18th, two days before the hearing was supposed to have taken place, the NEAA was dissolved since the National Green Tribunal Bill 2010 was passed by parliament and would soon be setup.

Gathering Storm by the seaside

Of the several demonstrations against the OPG power plant, at least one turned violent in August 2009 and six men spent a month in jail. OPG officials, however, claim the opposition is confined to a small group of fishermen.

The locals, mainly fishermen and saltpan workers in the nearby villages who fear their fishing grounds and salt pans would be destroyed by the industrial activity, had taken out a procession at the public hearing for the plant in May last year as well.

But OPG officials claim at least 500 locals, including the company employees and employees of partner companies, had attended the Saturday inauguration ceremony where chhole batura, tea and coffee were served.

Local community seeks stay on activities of OPG power project in Bhadreshwar

Representatives of fishworkers, salt pan workers, farmers and residents of Bhadreshwar village of Mundra Taluk, Kutch district have sought the urgent intervention of the Environment Minister on the construction of the 300 MW OPG power plant.

They have complained that that the project authority has undertaken construction of the project without requisite permissions and also cut several trees despite rejection of clearance for the intake channel for the power plant by the CRZ committee in July 2010.

The leaders have pointed out the delay in justice due to the non-functionality of the NEAA (National Environment Appellate Authority) since 18^th October 2010. They have filed a case before the NEAA challenging the environmental clearance to the OPG project on clear issues of process an and irreparable impacts. The livelihoods of the local communities and ecological concerns are at stake as the project authority has initiated construction of the project despite the pendency of the case before the relevant authority.

What is ironic is that there is delay in justice being delivered because it is now a month since the NEAA has been discontinued and we don't have a functional National Green Tribunal (NGT) wherein this matter needed to be transferred for hearing. If the project authorities are allowed to construct the project despite lack of all clearances and no appellate authority or tribunal for redressal, it will be gross injustice to the local concerns and livelihoods of traditional fisherfolk of the area and fragile coastal ecosystem. Fishermen are concerned that a fait accompli situation might arise by the time their appeal is heard before the relevant authority.

Bhadreshwar Fisherfolk win another small victory; vow to fight to the finish

The Bhadreshwar fisherfolk welcome the decision by the central CRZ committee to reject the CRZ clearance for the intake channel for the proposed 300 MW OPG power plant in Bhadreshwar. In the 89th Meeting of the Expert Appraisal Committee for Building Construction, Coastal Regulation Zone, Infrastructure Development and Miscellaneous projects held on 21st - 23rd July, 2010 at New Delhi, the committee noted “Due to various environmental problems including the adverse impact on the marine life the present proposal is not acceptable.”

The committee has also expressed its concern that the intake channel will affect mangroves and sand dunes in the area. This comes as a relief for nearly 6000 fisherfolk who carry out fishing by traditional methods on the sand bar – Randh Bander on the Bhadreshwar coast.

The committee has suggested that the company must consider a pipeline instead of a open channel.

The battle for the local communities is far from over. Since May 2009, the local communities have been opposing the OPG power plant in Bhadreshwar as it will badly affect their livelihoods.

Community leaders feel that even though the State Government agencies came forward to assess public opinion, no one has thought it fit to provide feedback to the local communities on how the company has responded to their issues. Without any further intimation to the local communities, the environmental clearance was provided in a hush hush manner, which raises suspicions whether the State Government authorities have colluded with the company.

The fisherfolk, aggrieved by the arbitrary decision of the state expert committee to grant environment clearance for the power plant, have decided to approach the NEAA (National Environment Appellate Authority) to challenge the clearance. The hearing is scheduled on 24th September, 2010.