Home » Case Note » National Green Tribunal cancels Environmental Clearance for gross manipulation of the Public Hearing Process

National Green Tribunal cancels Environmental Clearance for gross manipulation of the Public Hearing Process

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In a recent judgment, Adivasi Majdoor Kisan Ekta Sangthan & Others v. Ministry of Environment and Forests (judgement dated 20 April, 2012), the National Green Tribunal (NGT) has ordered the cancellation of the Environmental Clearance (“EC”) granted to  Jindal Steel and Power Limited (“JSPL”) for its Gare- IV/6 Coal Mining Project and Pithead Coal Washery, located at Raigarh District in Chhattisgarh. The NGT concluded that the EC was granted without a proper public hearing being conducted and as a result, the entire environmental impact assessment procedure had been vitiated.

Public Hearing and the Environmental Impact Assessment Process

The Environmental Impact Assessment (“EIA”) process is governed by the Ministry of Environmental and Forest’s (“MOEF’s”) notification dated 14 September, 2006 (the “EIA Notification”. The EIA Notification specifies that public consultation is required to be carried out as part of the EIA process, which is comprised of two components:

(a) a public hearing at the site or in its close proximity- district wise, to be carried out in the manner prescribed in Appendix IV, for ascertaining concerns of local affected persons; 

 (b) obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity.

Appendix IV lays down detailed guidelines in relation to the conduct of the public hearing. Clause 1.0 of the Appendix states:

The Public Hearing shall be arranged in a systematic, time bound and transparent manner ensuring widest possible public participation at the project site(s) or in its close proximity District -wise, by the concerned State Pollution Control Board (SPCB) or the Union Territory Pollution Control Committee (UTPCC).

In previous judgments, the Supreme Court has also emphasized the importance of public hearing in the EIA process.

The Objections to Public Hearing and the NGT’s Observations

 The applicants pointed out several defects in relation to the public hearing held on 5 January 2008, including:

  1. The hearing was not conducted in a systematic and transparent manner ensuring widest public participation.
  2.  The hearing was not conducted at the project site as in required by law and was instead held at a village which was far away from the project site and at a remote location, which made it difficult for the villagers to be present.
  3. The draft EIA report and synopsis was not made available for public inspection, nor was it translated into local language.

The bench, composed on  Hon’ble Shri Justice  C.V. Ramulu, (Judicial Member) and Professor R. Nagendran also reviewed the Video CD of the proceedings of the public hearing. Having viewed, the CD, the NGT expressed shock and held that the hearing was a “farce” and all the procedure in relation to public hearing was bypassed. The entire process was vitiated by disturbance, names and addresses of the various complainants were not noted, miscreants interrupted the proceedings by raising slogans and pelted stones etc. Ultimately, the police intervened and used force to clear people from the public hearing. Despite protests from the remaining people and the some members of the media, the public hearing was continued. Only supporters of the project came before the committee and declared their support or the project.

The NGT uses the strongest possible words to describe the public hearing process, holding that:

It was a mockery of the entire process of public hearing.  At the end, the Additional District Magistrate, declared that the public hearing was complete and there was no necessity for the project proponent to answer anything since there was nothing much has been spoken by the persons opposing the project. Further, no summary of the public hearing was prepared in the local language nor it was made known to the public.  The ADM abruptly declared that the proceedings are concluded.  The way in which the proceedings are conducted is nauseating and no reasonable person would accept that it was conducted fairly and much less properly.”  (Emphasis supplied)

The NGT also observed that the Environmental Assessment Committee (“EAC”) had recommended that the public hearing be re-held, but the MOEF did not consider the same while granting the EC. In fact, the MOEF, did not even comment on the EAC’s observations in relation to re-conducting the Public Hearing nor provide any reasons why they differed from that view.

The NGT’s conclusion was:

14. This is not a case where there are a few ignorable procedural lapses in conducting the public hearing.  This is a case of a mockery of public hearing, which is one of the essential parts of the decision making process, in the grant of Environmental Clearance.  This is a classic example of violation of the rules and the principles of natural justice to its brim.  Therefore, we consider it appropriate to declare that the public hearing conducted in this case is nullity in the eye of law and therefore is invalid.”

Analysis 

The NGT’s reasoning cannot be faulted, and is, indeed, welcome. A perusal of the facts makes it abundantly clear that no attention whatsoever was paid to the public hearing process. At best, the project proponent felt that conducting the hearing was ticking the box, at worst, it planned the disruptions deliberately so that genuine grievances against the project could not be recorded. In any, event, the facts recorded by the NGT shows that there was no public hearing of any validity at all and therefore, the entire EIA process was vitiated.

Pertinently, the NGT does note that:

Here we may have to note that even if there is any lapse in the public hearing it may not be proper on our part to declare the same as illegal or invalid, unless the objections raised by the people present in the public hearing are either not reflected in the proceedings recorded and some prejudice is caused and not otherwise. The validity or otherwise of a public hearing is always depends upon facts of each case and where there is gross violation of the procedure and the public hearing becomes a mockery, this Tribunal may not hesitate to declare the same as invalid.

The judgment once again highlights the growing importance of managing the environmental clearance process for large infrastructure projects and the care that needs to be put to ensure that the procedural requirements of the EIA are complied with, at the risk that the entire project may be jeopardized for failure to implement procedural requirements.

Deepto Roy

deepto.roy@pxvlaw.com

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