ON GUARD: A protest held earlier this month against Posco’s project in Odisha
Until recently, the National Green Tribunal (NGT), the autonomous body to redress environmental legal issues, was in the news for all the wrong reasons. The plight of the dysfunctional tribunal hit the headlines now and then ever since the law constituting the NGT received presidential assent in June 2010. It took about a year for the ministry of environment and forests (MoEF) to make it work, prodded by a series of legal petitions by activists. Troubled by a flurry of institutional hurdles, the NGT was finally able to hold its first hearing on May 25, 2011.
But in the last few months the tottering body seems to have come of age with some landmark verdicts. On March 30, the NGT suspended the clearance granted to South Korean steel giant Posco’s planned mega project in Odisha. The tribunal, comprising Justice C.V. Ramulu and Devendra Kumar Agarwal, pointed out that the memorandum of understanding between the Odisha government and Posco was for the production of 12 million tonnes of steel per annum (MTPA) while the environment impact assessment (EIA) report was prepared for only four MTPA (which would be produced in the first phase). The tribunal slammed the MoEF for the way the clearance was provided, far exceeding the initial capacity, and asked the ministry to review it.
“NGT’s verdict vindicates the concern people have expressed over the Posco project at the ground level,” says Prafulla Samantra, president of the non-government organisation, Lok Sakti Abhiyan, and a petitioner in the NGT against Posco. “NGT also showed how the environment ministry turns a blind eye to ecological protection in the name of development and overlooked the recommendations of its own committee to give clearance to Posco in 2011,” he added.
“The National Green Tribunal has asked the ministry of environment and forests to review afresh the clearance and we will ensure that we follow all directions to us,” a Posco official told PTI.
It is time the ministry started thinking about enforcing environment protection rather than becoming a project clearance office, says Vimal Bhai, who filed a petition with the NGT challenging the forest clearance given by the MoEF for the proposed Alaknanda Hydro Power project in Uttarakhand. On February 15, the NGT bench comprising acting chairperson Justice A. Suryanarayan Naidu and expert member G.K. Pandey stayed the destruction of forest land for the project planned in a biodiversity-rich site close to the famous Valley of Flowers in Uttarakhand. “Considering the institutional challenges faced by the NGT, this is indeed a significant judgment,” says Vimal Bhai.
“The tribunal remains headless since December, when the previous chairman resigned. It needs many more judicial and expert members along with a centrally located office,” he says. The tribunal is supposed to have at least 10 judicial members and an equal number of experts. There are now only two judicial members and three expert members. The tribunal is run from a guesthouse in Delhi, which is meant for forest officials, and another office a bit further away. The regional benches are not yet functional. The benches at Bhopal, Calcutta, Pune and Chennai have so far held only one hearing each. The Calcutta bench hears cases in a small room belonging to the Zoological Survey of India.
Nevertheless, the tribunal hears eight cases daily on an average, says Ritwick Datta, a lawyer at the NGT. “It’s been setting significant judicial precedence by allowing aggrieved citizens to challenge or appeal a green clearance by the MoEF,” he adds.
Many of the NGT verdicts have strongly criticised poor handling of green clearances in the ministry. In the 30 or so judgments it has handed down so far, the NGT has pointed out inadequacies in the environment impact assessments conducted by the MoEF prior to granting clearances. On many occasions, it has suggested reforms in the way the ministry gives green clearances.
Making a strong pitch for reforms in the process, Tisha Chatterjee, secretary, MoEF, says the clearance and monitoring system needed to be decentralised — regional committees and local experts need to be given more powers. “Currently, the regional offices of the ministry do this job, but this system is unable to assess the situation on the ground,” he says. He admits that there are deep flaws in the EIAs, often because of the project proponents themselves. “Independent agencies should do these things and the state (where the project comes up) may sponsor it.”
Adds Rajiv Gauba, joint secretary, MoEF (who is in charge of EIAs), “We are considered the fall guy — both by the environmentalist and the industrialist. Green activists accuse us of clearing too many projects too fast and industrialists (and even people from other ministries) allege we are the bottlenecks in the country’s development.” He lays the blame for much of this on the poor functioning of state pollution control boards and wants an overhaul of EIA procedures.
The pro-environment judgments by the NGT, however, augur ill for industry. The Associated Chambers of Commerce, the industry lobby group, warned, “The over six years of delay in giving various clearances for the $12 billion (Posco) project — which is the biggest foreign direct investment in the country — will have an adverse impact on the future investment climate.”
Says Nitesh Kumar, associate consultant, business advisory services, Ernst & Young, “Such strong judgments are going to demotivate foreign investors. Countries like Brazil and Australia also have a green tribunal, but things are much more systematic there.”
Predictably, environmental activists demur. Says Chandra Bhushan, deputy director, Centre for Science and Environment, the Delhi-based not-for-profit public interest research and advocacy organisation, “A detailed analysis of the clearances show that in the last five years, the country has seen more clearances than even those planned during the 11th and 12th Five Year Plans (2007-1207).” Adds Dutta, “The NGT doesn’t reject projects; all they do is suspend or ask for a review of EIAs. In most cases, industry comes back with the changes suggested and gets the project approved.”
Yet other activists believe that the green bench in the apex court can redress environmental issues better than a tribunal. “Tribunals are managed by retired judges and most of them do not have the required expertise to handle green cases. A PIL in a high court or the Supreme Court of India is a more effective tool,” says environmental activist Subhash Dutta. Replies Ritwick Dutta, “A fully functional tribunal can be a stronger court of justice than green benches. There’s a provision for 10 expert members to advise 10 judges in the NGT. The tribunal in full force will surely turn into the harbinger of environmental justice in the country.”
That, of course, remains to be seen.