The National Green Tribunal quashed the environmental clearance dated 18-01-2010 granted by the Ministry of Environment and Forests to M/s Dheeru Powergen Pvt. Ltd for the setting up of a 3 x 350 MW coal-fired thermal power plant in Korba, Chhattisgarh in an appeal filed before it by Jeet Singh Kanwar and Vinod Kumar Pandey, residents of villages located near the proposed project site.
The bench comprised of Justice V.R. Kingaonkar, Justice U.D. Salvi, Dr P.C. Mishra, Mr P.S. Rao and Mr Bikram Singh Sajwan held that the environmental clearance had been granted by the MoEF hastily, without proper application of mind andwithout applying the principle of sustainable development and the precautionary principle since the power plant was proposed to be located in a critically polluted area as per the Comprehensive Environmental Pollution Index, where the MoEF itself had imposed a moratorium on further projects.The Tribunal also observed that the Expert Appraisal Committee had failed to provide reasons for its decision and had not properly considered the comments and grievances raised during the public hearing.
The Tribunal also raised serious questions about the Chhattisgarh Environment Conservation Board’s parameters for demarcating the critically polluted area where the moratorium was applicable and found no scientific data on record to show why only 15 kms from the epicenter of Korba town had been taken to be the critically polluted area. Based on the maps submitted in the course of hearing, the Tribunal found that the proposed location of the ash pond of the project in question was within the critically polluted area even if the radius of 15 Km from epicentre of Korba town was considered as the parameter for identification of critically polluted area and also that the project site falls within the critically polluted area being in the proximity of cluster of industrial projects like Vandana, Ash Pond of NTPC and several other industries in close vicinity to the proposed project.  The Tribunal noted that since the ash pond is an integral part of the project and the same fell within 15 kms of Korba town, the project was located in the critically polluted area where the moratorium was applicable and therefore the clearance could not have been granted.
The Tribunal observed that the MoEF’s hasty action in granting clearance smacked of non-application of mind: “There is clear internal contradiction between official acts of the MoEF in this context. The MoEF imposed moratorium on 13.01.2010 and without definitive ascertainment as to whether the proposed project in question falls within the critically polluted area or not, the EC was granted on 18.01.2010. This haste in granting of the EC is rather surprising.”
Significantly, the Tribunal also observed that the pollution levels in Korba remain at critical levels and pollution control mechanisms have been insufficient in this regard.
The Tribunal also spelled out the deficiencies in the EAC’s consideration of the project by noting the lack of discussion on issues raised during the public hearing. The EAC was cognizant of local concerns related to impact on environment due to operation of proposed project, location of ash pond; capacity for utilization of ash; development of green belt to arrest air pollution; measures for giving compensation to 22 families (homestead losers) and 212 land losers; water required from other sources having not been mentioned in EIA; impact due to land acquisition; acquisition of agriculture land; impact on ground water; providing civic amenities to villagers by project proponent; providing free tree/fruit saplings for cultivation; impact on agriculture land due to proposed ash pond etc and yet, it was unclear as to how the EAC was satisfied with responses of the Project Proponent and the cumulative effect of the issues raised in the course of public hearing. The EAC even observed that Resettlement and Rehabilitation details were very general in nature and no specific details such as particulars of homestead losers and compensation to be paid or alternative sources of livelihood, etc. had been spelt out and despite these glaring insufficiencies, it recommended the proposal.  In this regard, the Tribunal unequivocally stated the EAC’s duty, “…it was necessary for the EAC /MoEF to verify the R&R Plan, action plan for CSR activities, the responses of the Project Proponent to the issues raised in the public hearing and to examine the relevant materials before granting the EC. We find that such exercise is skirted by the MoEF.”The Tribunal also added that, “It appears that the EAC did not conduct “detailed scrutiny” nor gave adequate reasons as to how the objections raised by the members of public were addressed by the Project Proponent and that the stand of the Project Proponent was found acceptable. On this ground also, we are inclined to hold that the impugned order of EC is arbitrarily issued and therefore it is unsustainable.”
The Tribunal also noted that the MoEF had given a go-by to the precautionary principle by not taking all the above issues into account and observed that, “In our opinion, therefore, by applying precautionary principle, the EC should not have been granted by the MoEF. As stated before, the economic interest shall be put in the backseat when it is found that degradation of the environment would be long lasting and excessive. It need not be reiterated that the MoEF was aware of such environmental degradation and that is why the moratorium imposed earlier is still continuing. Ordinarily, nobody will take further risk of adding pollution load in the area which is already identified as critically polluted one. It appears that the MoEF did not seriously examine the relevant aspects prior to granting the EC in question.”
The Tribunal quashed the clearance with the following observations:
“29. The material points and aspects which are derivatives of the foregoing discussion may be summarized as follows:
(i) Before issuance of the TOR (Terms of Reference) on 25.04.2008, the  base line data was provided only for winter season of the year 2005- 2006, though, the final EIA Report was submitted in August, 2009 which included the latest data for the summer of 2009.
(ii) Admittedly, Korba town and surrounding areas are critically polluted  standing at 5th position in the list as per the MoEF notification.
(iii) Though, the MoEF imposed moratorium on grant of EC in Korba and  surrounding area, on 13.01.2010, yet granted impugned EC just after Page 24 of 25 five (5) days thereof i.e. on 18.01.2010. This is a material internal  contradiction between the two actions i.e. to impose the moratorium on  one hand and to breach the same on the other hand.
(iv) The EAC overlooked certain material issues which were highlighted  during the public hearing.
(v) The MoEF used vague and rather slippery terms viz. “minimal damage”  and implementation of R&R Plan, etc. in the impugned order of EC,  which was granted before submission of R and R plan and CSR action  plan.
(vi) The radial distance of 15 km from epicentre of Korba town is  considered for the purpose of environmental impact. However, there  is no particular yardstick shown as to how only 15 km is the area that  may be identified as critically polluted one. The focus only on Korba township is improper and impact on the surrounding area of the  proposed project ought to have been duly considered. The ash ponds of other projects like NTPC, Vandana, etc. are either at same distance or little away from the project site, even if radius of 15 km is deemed as  proper yardstick for determination of critically polluted area and that the  project in question is located in between such ash ponds. The ash ponds of other projects as well as the project in question are part and parcel of the same projects and cannot be segregated from the  Thermal Power Plants.
(vii) Though, the EAC observed that the R&R details were general in nature  yet even in the absence of such detailed R&R Plan the EC was Page 25 of 25 recommended to MoEF and MoEF granted EC. R&R cannot be  prescribed as post clearance condition.
(viii) The MoEF failed to anticipate probable ill impact of the project, in  conjunction with the pollution level caused due to the other projects  already existing in the surrounding area.
Complete Judgement – click here