T. Murugandam and Others Vs Ministry of Environment and Forest and Others | WWF India

T. Murugandam and Others Vs Ministry of Environment and Forest and Others

Posted on 23 May 2012
T. Murugandam
Ministry of Environment and Forests and Others
APPEAL No. 17 OF 2011(T)
NEAA NO. 20 OF 2010

JUDICIAL AND EXPERT MEMBERS: Justice A.S. Naidu and Dr. G.K. Pandey

Key words: Tamil Nadu Pollution Control Board, M/s IL&FS Tamil Nadu Power Company Ltd., Coal Based Thermal Power Plant, Environmental Clearance, Environment Impact Assessment

Application partly allowed

Date: 23rd May, 2012

The Appellants seek to assail the Environmental Clearance (for short EC) granted by the Ministry of Environment and Forests (for short MoEF) for the proposed Coal Based Thermal Power Plant ( 2 x 600 MW+ 3 x 800 MW) by M/s IL&FS Tamil Nadu Power Company Ltd., at Chidambaram Taluk, Cuddalore District, Tamil Nadu. According to the Appellants the project has been granted EC despite serious objections concerning environment raised during the public hearing. It is alleged that though the above issues and many others were raised during public hearing, they were not given due consideration by the Expert Appraisal Committee (for short EAC) and MoEF and assessment was done in spite of incomplete data and inadequate EIA report. Perusal of the records reveal that the project is located at a distance of about 8 kms from Pichavaram mangroves, as such location of site is in violation of MoEF’s Citing criteria for Thermal Power Plant. On the basis of above facts, and circumstances, the Appellants pray to quash the EC granted on 31st May, 2010 to the Project in question.

In short, according to the Appellants the following main issues were not properly considered by EAC and MoEF before granting EC to the Power Project and as such the order is liable to be quashed:

(a) Power Plant location is violating the citing criteria for Thermal Power Plants, being within 25km of the ecologically sensitive area e.g. Pichavaram Mangroves.
(b) Lack of cumulative impact assessment.
(c) Lack of consideration of the views and objections raised during public hearing by EAC and MoEF.
(d) Non-publication of all the materials, studies and reports, thirty days before public hearing.

In response the Learned Counsel for MoEF, that is Respondent No. 1, submitted that the proposed Thermal Power Project, Desalination plant and a Captive port at Cuddalore do not fall in any of the critically polluted areas. The project is located more than 13.5 km. away from SIPCOT industrial area. Further, the EAC had prescribed the Terms of Reference (for short TOR) after a site visit was made by a Sub-Committee of EAC. The Project Proponent submitted a final EIA report after the public hearing was held on 5th February, 2010 along with the proceedings of the public hearing. EAC considered the project based on the final EIA report and the proceedings of the public hearing during its 67th meeting held on 19-20th March, 2010. Ms. Neelam Rathore, Learned Counsel for Respondent No. 1 further submitted that the TORs given to Project Proponent (Respondent No. 3) included the cumulative impact on the environment (Air, Water, Noise, Soil, Socio- economic aspects etc.) inclusive of the impact of the existing units located within 10 kms radius on the recommendations of the EAC for the preparation of the EIA report and Environment Management Plan. It is submitted by Respondent No. 3 that there is no mandatory legal requirement under EIA Notification 2006 or other applicable Indian law for carrying out “cumulative impact assessment” of projects, MoEF while granting EC has applied its mind and took into account the concerns raised during the public hearing etc.
In course of hearing, it was submitted by the Learned Counsel for Respondent No. 3 that due to non-availability of adequate data in respect of the proposed / existing industrial activities, cumulative impact assessment could not be done. The learned judges, however, do not subscribe to the submission of Learned Counsel as it is quite possible to work out likely cumulative impacts based on the capacity of the Coal based Power Plant (2x660 MW), Nagarjuna Refinery etc., theoretically by applying mathematical models. The cumulative impact assessment exercise is considered necessary in this particular case, as Pichavaram Mangroves are located at a distance of 8 km from the Southern boundary of the proposed Power Plant, added to it the issues pertaining to the cumulative impacts were raised during the public hearing. As such, the learned judges strongly feel keeping in view the precautionary principle and sustainable development approach, cumulative impact assessment studies are required to be done in order to suggest adequate mitigative measures and environmental safeguards to avoid any adverse impacts on ecologically fragile eco-system of Pichavaram Mangroves and to the biological marine environment in the vicinity. The Tribunal, therefore, directs that cumulative impact assessment studies be carried out by the Project Proponent especially with regard to the proposed Coal Based Power Plant (2x660 MW) of Cuddalore Power Company Ltd. and the Nagarjuna Oil Refinery and other industrial activities within a radius of 25 km from the Power Project of M/s. IL&FS Tamil Nadu Power Co. Ltd. (3600 MW) and be submitted to MoEF for review of Environmental Clearance accorded on 31st May, 2010 in order to stipulate any additional environmental conditions and safeguards required for the protection and preservation of Pichavaram Mangroves and Marine environment.

It appears number of major projects have been proposed in the close proximity of Cuddalore Industrial Area (SIPCOT) and Pichavaram Mangroves, we direct MoEF to initiate a Carrying Capacity Study taking into account the assimilating and supportive capacity of the region.

The learned judges also feel that there is need to have more transparency in the EIA process and as such, whatever relevant information regarding the projects are used during the time of the appraisal of the project from environmental angle by the EAC and MoEF should also be made available in public domain including the executive summary of specific studies. Therefore, the court directs MoEF to make available the relevant information other than EIA report and report of the public hearing considered during the appraisal of the project through its website. Similarly, the concerned State Pollution Control Board (SPCB) should also make available in their website the pertinent information regarding the public hearing proceedings, “Consent to Establish” and “Consent to Operate”, compliance status etc. The MoEF should also upload from time to time the compliance status of the various stipulated conditions during the grant of EC to projects so as to bring compliance status in public domain in case of all the projects granted EC under EIA Notification, 2006. The project proponent must also upload the compliance status of EC conditions including the Executive Summary of the specific studies done in respect of the project and update the same periodically.
As the learned judges are convinced that EC to the proposed project was granted by and large in consonance with the EIA process as required under EIA Notification, 2006, they do not feel any necessity to quash the EC granted by MoEF. However, the Tribunal directs MoEF to review the EC based on the cumulative impact assessment study and stipulate any additional environmental conditions, if required. Updated EIA report may be shared with the Appellants and they may be invited in the EAC meeting and may be heard before a decision is taken by EAC/MoEF, till then the EC shall remain suspended.

The Appeal is partly allowed.
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