Earlier this month, the Supreme Court pronounced its judgement in a near-decade-old petition concerning a 3,600 MW thermal power plant of the IL&FS Tamil Nadu Power Company in Cuddalore, Tamil Nadu. The key contention in the IL&FS case was that the project developer carried out a rapid Cumulative Impact Assessment instead of a detailed one, which the National Green Tribunal (NGT) deemed illegal and grounds for canceling the project’s environmental clearance. The NGTs decision in 2014 was challenged by the company in the Supreme Court, where it was stayed, and while the decision of the court was pending the project was commissioned in 2015. The stay on the NGTs judgement resulted in a fait accompli situation wherein the project was allowed to proceed with procurement and construction despite the clear violations recorded by the NGT.
Unfortunately, Cuddalore/IL&FS is not an isolated experience. A few months ago, the NGT passed a crucial judgement on the 4000 MW super critical Yadadri Thermal Power Plant in the Nalgonada district of Telangana. Both the judgments are vital case studies in how the clearance granting ecosystem within the environmental decision-making process is predisposed to manipulation and arbitrariness, and in constant need of course correction.
The Yadadri case
The Yadadri case offers critical insights into the pervasive culture of environmental misgovernance, especially in an environment dominated by highly interpretive procedural laws. The improvement of environmental governance in India is a work in progress and the judiciary must play a critical role in channelling the process towards the desirable state of affairs. However, in both these cases, and more so in Yadadri, the judiciary’s attempt to between environmental protection and development has proven beneficial for the violator at great cost to the environment.
It is important to mention at the outset that the Yadadri project received executive and judicial sanction despite faulty studies, a plagiarised Environmental Impact Assessment (EIA) report and a flawed public hearing and site selection process.
The EIA report is the key scientific document that the Central/state agencies, experts and the impacted communities rely on to make an informed decision about the fate of the environment once the project is operational. Simply put, the EIA is a way to assess the possible impacts of a project and choose the least destructive path that a project should take and offer engineered solutions wherever the environmental impacts are unavoidable. It also forms the basis for the public hearing, another important stage in the clearance process.
In the case of Yadadri, the EIA consultant hired by the project developer, Telangana State Power Development Corporation (TSPDC), was found to have plagiarised large sections of the report and provided false and misleading information on crucial elements. Experts who reviewed the EIA even noted language like “Handling of heavy bags of the final products may lead to occupational Injuries like strains, sprains and cramps”, which bears no relevance to thermal power plant projects and is most likely borrowed from an EIA report on an airport.
More concerning from the community point of view was that the faulty EIA formed the basis for the public hearing – the sole opportunity for impacted citizens to voice their opinions. The Expert Appraisal Committee (EAC) appointed by the Ministry of Environment, Forest and Climate Change to review the project dutifully rejected the EIA report.
However, the arbitrary misinterpretation of the EIA Notification 2006 (the law that governs the EIA process) began at this point. The law is clear on cases where the EIA is found to be plagiarised, it even prescribes the cancellation of the process. However, the EAC, after acknowledging the plagiarism, instead of cancelling the project’s environmental clearance, proposed that the TSPDC just revise the EIA report using a new consultant. To make matters worse, the EAC also exempted the company from holding a fresh public hearing, as mandated in the EIA 2006. The public hearing was replaced with a three-week online consultation which received four comments, based on which the environmental clearance was granted. This decision was not backed by any legal rationales.
The tribunal chose to remain silent on this aspect and also included no directions in the operative part of the order to correct this violation or even penalise the project proponent.
Violation of site selection criteria
The site selection process was yet another area where the authorities and the EAC displayed their arbitrary application of the law.
The total land required for the project is 2,800 acres. Around 75% of the project site falls under the Veerapalem Reserved Forest area. Later, the site was also found to be less than 10 km from the Amrabad Tiger Reserve by a sub-committee of the EAC. In order to understand the nature of the violation, it is important to understand the criteria of site selection under the EIA process. As mentioned earlier, the key objective of an EIA is to choose a path of least impact.
Therefore, the selection of the site must be an objective exercise which involves consideration of all possible alternatives and choosing the one with the least social and environmental disruption. This precaution was thrown to the wind by the project developers and subsequently condoned by the EAC. The biggest violation was of the for thermal power plants, which clearly state that “No forest land shall be used for non-forest activity for the sustenance of the industry”.
A closer scrutiny of the project documents revealed the creative subversion of the law. The current site, according to the NGT judgment, was chosen . In fact, the process of seeking forest clearance started after the chief minister had already decided on the site. In fact, the site selection was a fait accompli and rejection on any grounds was politically unviable. To fulfil the EIA criteria, – one inside the Kinnarasani Wildlife Sanctuary where any industrial activity is statutorily prohibited and another under legal dispute where acquisition was stayed by the high court.
While noting these illegalities, the NGT chose to condone the forest diversion in this particular case citing “exceptional circumstances” but also using this opportunity to reprimand the environment ministry – “Though we are not happy with the manner in which the MoEF&CC, Government of India had granted the approval for grant of FC for the project and the State of Telangana had selected a reserved forest for this project, in future, we direct the MoEF&CC to desist from ordering conversion/diversion of forest land for non-forest purpose for industrial purposes especially those are having more potential for pollution being caused in the area and that is likely to have impact on forest.”
Change in coal source
While burning coal is the key ambition of a thermal power plant, the quantity and most importantly the nature of the coal being burnt is also critical. In fact, the nature of coal used in thermal power plants is the key determinant of how the plant will be designed and how the operators will control and capture the pollution. The project proponent initially planned to use imported and domestic coal in a 50:50 ratio. However, during the proceedings before the NGT, the proponent submitted that it would opt for 100% domestic coal, in view of the recent changes in domestic coal policy.
It is important to explain the difference between Indian coal and imported coal at this stage. Indian coal contains up to 50% mineral matters like metallic oxides and silicates resulting in vast quantities of fly ash generation, anywhere between 35-45%. The ash content in imported coal, however, varies from 10-20%. This huge differential determines all the engineering aspects of the project, from the design of the boilers, the sophistication of the pollution control components like electrostatic precipitators (meant to capture ash before it reaches the chimney), and the Flue Gas Desulperisation that captures excess sulphur dioxide to the land required for the disposal of the fly ash.
None of these considerations were noted by the EAC or the MoEF&CC before granting the clearance and the proponent was allowed to proceed with business. However, the NGT recorded this as a significant issue of concern and observed that a change in fuel source is only permissible if the project proponent applies for a fresh environmental clearance. The NGT’s observations on this issue sets a significant precedent.
Cumulative Impact Assessment
Another noticeable direction by the NGT is to conduct ambient air quality modelling studies and cumulative impact assessment (CIA) over a 25 km radius, and to suggest appropriate mitigation measures based on its findings. This was considering the fact that a number of cement plants were already operating in the vicinity of the proposed plant. This was in keeping with the earlier decision of the NGT which was also upheld by the Supreme Court:
“… the necessity for conducting the cumulative impact assessment study is a must for considering the question of allowing a new industry to come in an area which is already an industrial estate having a lot of polluting industries, and non-conducting of such a study and suppression of certain material facts by the project proponent will be a ground of setting aside the environment clearance or suspending the environment clearance…”
However, in the case of Yadadri, the benefits of a CIA are scuttled since this is being done post-facto. The purpose of such a study at this stage can only be academic and any mitigation interventions superficial.
Suspension of the environmental clearance
The critical test for the tribunal in this case was in how it would treat the legality of the clearance granted to the Yadadri project. There was a compelling case for the cancellation of the clearance based on the facts presented to the bench. This would be the logical conclusion but given the proverbial tightrope the tribunal had to walk, the bench only directed the suspension of the environmental clearance pending certain scientific studies. The project construction was also allowed to continue but the plant would not be commissioned pending the findings of these studies. The tribunal drew precedence for this approach from the Supreme Court judgement in the case of Uma Maheshwar Dahagama, wherein the NTPC was allowed to continue with the construction with an environmental clearance in abeyance. The justification behind such judgments is often a variation of economic loss, larger public good or sustainable development. In the case of Yadadri, the tribunal observed that:
“Telangana State being a new state formed, they may require power generation for their development process, for which, they will have to develop further power plants. So, the principle of “Sustainable Development” will have to be considered, as without economic growth, needs of the people cannot be considered.”
In most cases, much like this, construction activities are allowed to begin before the necessary clearances are granted, creating a fait accompli situation that courts find hard to undo. Such legal outcomes have become so predictable that project proponents have perhaps become deliberate in violating environmental laws.
The Yaradri case offers an interesting insight into the modus operandi of environmental crimes and the enabling environment created by the system. Needless to say, a systemic change is what is needed – but to achieve that, we need to transform our foundational belief that environmental conservation is an impediment to economic growth.
Dharmesh Shah is an environmental policy researcher based in Kerala.
Edited by Jahnavi Sen.