ศาลเพิกถอนการก่อสร้างโรงไฟฟ้าถ่านหินขนาด 3600 เมกะวัตต์ในประเทศอินเดีย เนื่องจากรายงานผลกระทบฯ ไม่สมบูรณ์

ศาลตัดสินเพิกถอนการก่อสร้างโรงไฟฟ้าถ่านหิน ขนาด 600 เมกะวัตต์ 2 โรงและ 800 เมกะวัตต์ 3 โรงที่ใช้ถ่านหินนำเข้า ของบริษัท IL&FS ในประเทศอินเดีย เนื่องจากมีการทำประเมินผลกระทบที่ไม่สมบูรณ์ โดยโครงการดังกล่าวนำไปสู่การพัฒนาและเป็นส่วนหนึ่งของอุตสาหกรรมหนักจากปิโตรเคมี และพื้นที่แห่งนี้ อาจถูกเรียกได้ว่า “พื้นที่มลพิษ” ที่ตั้งอยู่ใกล้กับป่าชายเลย Pichavaram ซึ่งมีผลต่อระบบความสัมพันธ์ระหว่างสิ่งมีชีวิตและสิ่งแวดล้อมบอบบาง โครงการควรจะมีขอบเขตการประเมินผลกระทบที่ครอบคลุมและให้ความสำคัญกับระบบการดำรงอยู่ของสิ่งมีชีวิตและสิ่งแวดล้อม และให้ความสำคัญกับเรื่องสุขภาพ อีกทั้งการดำรงชีวิตของชุมชนท้องถิ่นด้วย

National Green Tribunal Quashes Environmental Clearance for 3600 MW IL&FS Thermal Power Plant, Tamil Nadu. Terms appraisal done by MoEF as ‘casual’ and without application of mind

Post by: Ritwick Dutta

In a significant decision, the National Green Tribunal (NGT) on 10-11-2014 quashed the Environment Clearance (EC) for the 3600 MW thermal power plant of IL&FS in Cuddalore, Tamil Nadu, on the ground that the project had not conducted a proper cumulative impact assessment of the project. The Court held that the cumulative impact assessment of the project, was conducted by the project proponent on the basis of incomplete information and “non-existent” standards, and the EC granted by the MoEF was without application of mind. The decision came as a result of the Appeal filed by local villagers around the project site.

The project was granted environment clearance on 31 May, 2010. The NGT, on 23 May, 2012, had stayed the EC and directed a cumulative impact assessment in. The entire exercise of cumulative impact assessment was completed by the project proponent within a period of 2 weeks without collecting any baseline data. Further, a large number of projects were not considered. “The project proponent considered the data available for eight industries only whereas … there are at least 45 industries in 25 km radius of the project and no reasons have been given as to why the same have not even found a mention in the study”, observed the Tribunal. Moreover, it was claimed that future projects are not even required to be considered to be part of the CIA. Ironically, the “Technical EIA guidance manual for thermal power plants” prepared for the Ministry of Environment and Forests, by the IL&FS Ecosmart Ltd, which is a sister concern of the project proponent, specifically mentions that all direct and indirect impacts of all reasonably foreseeable projects are required by be taken into account. Most shockingly, the standards used for the entire study were the “non-existent” National Ambient Air Quality Standard (NAAQS), 2005. The relevant standards are NAAQS 2009, which replaced the earlier NAAQS 1998. On the basis of these findings, the Tribunal categorically held that the Cumulative Environmental Impact Assessment was inadequate and erroneous.

The Tribunal was also severely critical of the “casual approach” of the EAC. The Expert appraisal committee, Chaired by V.P. Raja and constituting, inter alia, Prof C.R. Babu (Delhi University) and V.B. Mathur (Wildlife Institute of India) , approved the project without application of mind. So much so, they did not even notice the fact that the entire study was conducted on the basis of non-existent standards and several pollutants and industries were inexplicably omitted. Only certain cosmetic and irrelevant conditions were imposed and “the MoEF did nothing more than merely reiterating the conditions previously stipulated … in different language”.

Please find the link the final order:
http://greentribunal.gov.in/Writereaddata/Downloads/50-2012(PB-I)(APL)-10-11-2014.pdf

Detailed Note

T. Muruganandam v. Ministry of Environment and Forests (Appeal No. 50/2012) – Note by Preeti Dhar, Advocate, Legal Initiative for Forest and Environment, New Delhi

Background

The National Green Tribunal (NGT), in its judgment in T. Muruganandam v. Ministry of Environment & Ors dated 10/11/2014, quashed the Environment Clearance (EC) granted to the 2×600 MW and 3×800 MW imported coal based Thermal Power Plant by IL&FS in Cuddalore, Tamil Nadu. The project had been proposed to be a developed as a part of a Petroleum, Chemicals and Petrochemicals Region (PCPIR) with a port, several industries and associated development of infrastructure. Further, the area has a high Comprehensive Environmental Pollution Index (CEPI) index, and was, until recently, classified as a “critically polluted area”. It is also located close to the Pichavaram mangroves – an ecologically fragile ecosystem. The project would have a wide range of impacts on the stressed and fragile ecosystem, as well as the health and livelihood of local communities.

The EC for the Project was granted on 31 May, 2010, and challenged on the grounds, inter alia, that a cumulative impact assessment was not conducted for the project. On 23 May, 2012, the NGT, stayed the EC and directed the project proponent to conduct a cumulative impact assessment (CIA) study and directed the Ministry of Environment and Forests (MoEF) to review the EC on the basis of the CIA.

Pursuant to that, the project proponent conducted a “rapid cumulative impact assessment” (RCEIA) within 2 weeks – in a manner which was grossly inadequate. Despite that, the Expert Appraisal Committee (EAC) recommended the project to be approved and the MoEF issued a “Corrigendum to the Environmental Clearance” on 14 August, 2012, allowing the project.

This was challenged by the Appellants. The main contention of the Appellant was that the CIA was carried out hurriedly without adhering to accepted scientific parameters, rendering it to be mere “useless formality”. Further, the EAC and MoEF accepted the statements of the project proponent as the gospel truth and recommended the approval of the project without application of mind and with the addition of only some irrelevant and cosmetic additional conditions.

In this judgment, the Tribunal reviewed the nature and quality of the “rapid cumulative impact assessment” study of the project proponent, as well as the manner of review by the EAC and MoEF.

Issues

The decision examines broadly three issues –

1) what is cumulative impact assessment;
2) whether the project proponent has done an adequate cumulative impact study; and
3) whether the MoEF has adequately reviewed the project in light of the cumulative impact study
Each of these are briefly described:

1) What is “cumulative impact assessment”

The Tribunal observed:

Our effort in this case is to understand what Cumulative Impact Assessment Study is. An enquiring mind would start with the existing law as well as scientific literature and it might be found in persuasive precedents available in the domestic law/literature on closely related topics and at a time in persuasive foreign decision/literature which may show how other jurisdiction have resolved the problem. The value of foreign judgment depends upon the persuasive force of their reasoning. Principles of sustainable development and the precautionary principle as envisaged in the Section 20 of NGT Act, 2010 have been developed in international law but have been domesticated into national laws throughout the world and so in India. Thus the knowledge on the subject can be borrowed with rather a free disregard for political boundaries and jurisdictional boundaries i.e. from all sources Indian or Foreign for bettering our understanding.

The Tribunal also observed that the decisions of the Supreme Court were consistent with such an approach, and that the Tribunal itself had acknowledged the need for a cumulative impact assessment, especially where there is a dense concentration of projects (Sarpanch, Grampanchayat Tiroda vs. MoEF: Appeal No. 3 of 2011).

Further, the Tribunal makes it clear that the exercise needs to consider the cumulative impact of all reasonably foreseeable impacts, including indirect and induced impacts, of all the activity in the region. Ironically, as observed by the Tribunal, the scope of such an exhaustive CIA study is prescribed in the “Technical EIA guidance manual for thermal power plants prepared for the Ministry of Environment and Forests, Government of India by the IL&FS Ecosmart Ltd, a sister concern of the project proponent”.

Another interesting aspect is the term “Rapid Cumulative Impact Assessment”. The Tribunal made a categorical finding on the definition of a “Rapid Cumulative Impact Assessment” –

“as per the guidance manual of MoEF “The difference between Comprehensive EIA and Rapid EIA is in the time-scale of the data supplied. Rapid EIA is for speedier appraisal process. While both types of EIA require inclusion/ coverage of all significant environmental impacts and their mitigation, Rapid EIA achieves this through the collection of one season (other than monsoon) data only to reduce the time required. This is acceptable if it does not compromise on the quality of decision-making. The review of Rapid EIA submissions will show whether a comprehensive EIA is warranted or not”

2) Whether the project proponent has done an adequate cumulative impact study

The Tribunal made a detailed observation aout the nature and manner of cumulative impact assessment sudy done by the project proponent. The CIA study was done only as a mathematical exercise of including the data available from the EIA reports of certain projects in the region. In addition, several aspects were incomplete and misleading – both in the context of environmental impact and social impac. These were pointed out in the decision –

“The project proponent considered the data available for eight industries only whereas the appellant has revealed before us that there are at least 45 industries in 25 km radius of the project and no reasons have been given as to why the same have not even found a mention in the study. The information regarding the existing industries could have been obtained from the State Pollution Control Board … As regards the primary baseline data for 10 km radius, the report does not make a mention of the date of sampling and location of sampling which it would have been required to make in case of EIA reports. Interestingly, the parameters of Air quality (vide table 13), Ground water quality (vide table 14) and surface water quality (vide table 15) are observed to be exceeding the prescribed national standards and even then there is no explanation or discussion made with respect to such existing parameters.”

“Para 3.6 of the report reveals that project proponent did know that 17 out of 30 industrial unit in SIPCOT industrial complex were generating trade effluents and each of them had ETP. It further reveals that 9 out of 17 industries were discharging 38 treated effluent into the Bay of Bengal and 8 industries were having system to achieve zero discharge. Mere acknowledgment of these facts in Rapid Cumulative Impact Assessment Report/Study is not sufficient, there ought to have been collection of data in respect of treated effluent discharged in the sea and the study of its impact on the marine environment. Furthermore, no study on impact on Air quality as a result of emissions from each of such industry has been carried out.”

“In the instant case no modelling has been carried out for such future projects. RCEIA report under head ‘impacts predictions’ merely records that no significant impact is foreseen on land, water, noise, terrestrial ecology and socio-economic environment as the project activities are planned in a way that no adverse impact is likely to be caused and the existing industries were mandated to comply with the conditions of grant of EC/Consent. Academically, it appears to be a sound proposition but when one is expected to make studies regarding cumulative impacts of all the existing as well as proposed industries, it is expected to collect actual field data regarding each of the existing industry and together with information on proposed industry interprete its impacts on land, water, noise, terrestrial ecology and socio-economic environment. Nothing of such kind appears to have been done by the project proponent.
“Similarly, the report simply presents a fact that the mangroves in the coastal region of Tamil Nadu were seen in the study area only and in fact should have drawn attention to its significance.”

“The census data as regards socio-economic environment is presented, which is of very little significance to carry out socio-economic assessment of the existing and proposed projects in view of the fact that the industrialization bring in huge migrant work force”

“It was the duty of the Respondent No.3- project proponent to have actually collected baseline data in respect of ozone concentration. However, more so with the setting up of the petro-chemical industries it being PCPIR region, the concentration of VOC and NOX in ambient air is expected to rise and consequently, there should be incremental change in ozone levels… Thus, the RCEIA report suffers from material short coming (as indicated in para 45 onwards) and to that extent the Cumulative Impact Assessment Study remains flawed”

3) Whether the MoEF has adequately reviewed the project in light of the cumulative impact study

It is clear from the appriasal process that there was no independent scrutiny of the RCEIA study prepared by the project proponent. The facts presented by the project proponent are accepted at face value, and even glaring mistakes were not detected by “expert” appraisal bodies.

“On complete reading of the minutes, particularly, in reference to the rival submissions and the observations made there is no whisper of reasons which could have prompted the additional conditions for issuance of EC. How the EAC/MoEF was satisfied with the response of the Project proponent on technical issues raised by the appellants … is unclear from the record. Logic and technique which could have probably outweighed submissions of the appellants striking at the very root of Cumulative Impact Assessment Study in question is not apparent from the entire text of EAC minutes. Apparently, the EAC had acknowledged the impact of the industries in the region on the environment but had not perceived its extent and, therefore, expressed need for further monitoring of sea water and sediment quality in the impacted zone and left the mitigative measures, requisite for regulating its adverse impacts in the hands of the Project Proponent.”

“RCEIA Study is expected to give clear insight into the local conditions that would have been obtaining and would be obtained in the region as a result of cumulative effects/impacts of projects- past present and future on the environment. Normally, therefore, a good RCEIA study would have helped to understand the probable changes in the quality of water and temperature of the sea water due to such cumulative impacts and the temperature to be achieved in context with the local conditions and depending thereupon a suitable diffuser system to minimise the impact of turbidity, salinity and temperature could have been suggested as a condition by the EAC. This clearly demonstrates that the RCEIA Study in question was neither adequate and in fact was erroneous nor was the application of mind done by the EAC to such study.”

The exercise was therefore merely cursory. The most striking illustration of this is the fact that the entire RCEIA Report refers to the National Ambient Air Quality Standard (NAAQS), 2005 Standards, whereas in reality, such standards are non-existent. The relevant standards are those of 2009, and mentions several pollutants, which are not even mentioned or accounted for in the RCEIA. Therefore, it was clearly not merely a typographical error, as claimed by the project proponent in the course of the argument. The Tribunal observed,

“Perusal of the additional conditions imposed by EAC as referred to at para 24 of the minutes indicates a casual approach as these conditions are extremely general in nature and do not prescribe extent or level of work required to be carried out and in the absence of any specifics, such conditions shall remain on paper without being effectively monitored for implementing the conditions and the mitigative measures required. Such casual approach is … demonstrated from the fact EAC/MoEF remained unmindful of NAAQS 2009 in face of reference in RCEIA Report to non-existent NAAQS 2005”

“We are, therefore, of the considered opinion that the EAC failed to apply its mind to the material placed before it by the rival parties and proceeded to recommend the conditions purportedly for safeguarding the environment. Reading of the conditions stipulated in the corrigendum show that the MoEF did nothing more than merely reiterating the conditions previously stipulated in the corrigendum dated 14th August, 2012 in different language.”

Decision

The Tribunal, appreciating the shortcomings at every level of preparation and appraisal of the cumulative impact assessment study, quashed the EC (corrigendum EC dated 14-08-2012) issued by the MoEF to the project. It directed “a fresh review of the environmental Clearance on the basis of fresh cumulative impact assessment study as indicated above needs to be ordered. However, it is clarified that additional baseline data of each and every industry- existing as well proposed falling within 25 km radius of the project as indicated above needs to be gathered for the purposes of cumulative impact assessment study as the real changes are noticed in subsequent steps of impact prediction and modelling.”

=========

Ranjan Panda
Convenor, Combat Climate Change Network, India

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