M.P. Patil v. Union of India, Appeal No. 12/2012 (March 13, 2014)
National Green Tribunal
A local citizen challenged the environmental clearance granted by the Ministry of Environment and Forests approving a 3x800MW super thermal power plant in in Bijapur District, Karnataka.
Among the allegations raised by the appellant, he claimed that while seeking the clearance, the project proponent (NTPC) represented to the Ministry that the land where the power plant would be located was “barren and rocky.” Furthermore, the environmental impact assessment did not comply with the terms of reference and failed to disclose key information about the environmental and social impacts of the project. Lastly, a rehabilitation and resettlement (R&R) plan was not disclosed in advance of public hearings, which deprived the public of an opportunity to express their views on the plan. Para. 9.
With regard to the character of the land to be acquired for the project, the Tribunal found “willful suppression” of facts underlying the Ministry’s and power company’s assertion that the land was barren. Satellite imagery and other evidence indicated that the land supported diverse agricultural activities. Para. 32. “A perusal of the satellite imagery appended by the EIA Consultant to the EIA Report on record does not support the contention of the NTPC that the major part of the project area is barren. Further the revenue documents as well as the photographs of the area placed on record by the Appellant clearly indicate that the area under reference is mostly agricultural land. Hence the plea taken by the NTPC for seeking [environmental clearance] for the project, i.e., 'most of the area is barren' clearly indicates that the NTPC misled the EAC” Para. 38.
The Tribunal explained the importance of R&R plans, stating: "The concept of sustainable development is to drive a balance between environment on the one hand and development on the other. One of the essential facets of this balancing approach is to find out the impact of development upon civilization, particularly with reference to human beings. If as a result of establishment and operation of any project, a large chunk of land belonging to a large number of persons is expected to be acquired and they are likely to be displaced in one form or the other from their livelihood, R & R scheme would be one of the most pertinent aspects to be considered by the EAC.” Para. 42. The Tribunal found that an R&R plan had not been developed prior to the environmental clearance even though it was required in the terms of reference. Para. 58.
The Tribunal criticized the evaluation of potential air quality impacts in the EIA, noting that air monitoring stations had not been placed in proper locations (e.g., downwind of proposed project site).
The Tribunal included a discussion of sustainable development principles, as well. It stated, “While permitting industrial development, caution has to be taken that such development does not disturb the ecology and environment of the area in question. Furthermore, the infrastructural development must not adversely affect the economic and other livelihood activities of the affected community so as to hamper their livelihood and render them incapable of resettlement.” Para. 74. It also stated: “To an extent, there is a right to development. However, even this right is not free of limitations and regulations. It is not an unfettered right so as to completely give a go-by to the issues of environment. Development may be carried out to satisfy the need of a developing society but it has to be regulated so as to satisfy the requirement of preservation and nurturing of the natural resources, which are the real assets of the society.” Para 76.
Finally, the Tribunal found the public participation procedures to be lacking. It found “an appropriate R&R scheme was not available at the time of the public hearing. Also, the other objections raised at the public hearing were not properly answered during the public hearing.” Para. 86. The Ministry and power company attempted to deflect this criticism by claiming that concerned villagers had not submitted scientific information to substantiate their comments and concerns about the project. The Tribunal rejected this position: “Onus is not on the objectors to prove their objections by leading scientific evidence at that stage. It is the duty of the EAC to examine the worth of the objections raised and the consequences thereof. It was, in fact, for the [project proponent] to show that the various apprehensions of the objectors were not well-founded, and that the project is not likely to do any environmental damage or cause deprivation of the livelihood and income of the project-affected persons. The onus squarely lies upon the [project proponent] to bring the establishment and operation of the project within the ambit of balanced sustained development.” Para. 87.