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By Rajiv Shah
The National Green Tribunal (NGT), responsible for settling disputes arising out of environmental clearances (EC) granted to various developmental projects, believes that there was a failure on the part of the Ministry Environment and Forests (MoEF) and the Expert Appraisal Committee (AEC), operating under it, to properly assess the impact of the expansion project of the Gujarat Pipavav Port Ltd (GPPL) on environment and livelihood of the people of the area, and hence the project should be reassessed. The GPPL had planned to invest Rs 1,100 crore to expand of the Pipavav Port, situated on Saurashtra coast in Amreli district, and based on the recommendations of the AEC, the MoEF granted environmental clearance (EC) to allow the project to go ahead. Two local non-government organization (NGOs), Gauchar Paryavaran Bachav Trust and Gau Raxa Hitraxak Manch approached the NGT and appealed against the EC. APM Terminals Mauritius Ltd is currently the largest shareholder of the GPPL.
The NGT’s judicial member, Justice VR Kindaonkar, and two expert members, Dr PC Mishra and PS Rao, in their order said, that it is necessary to keep the MoEF order granting EC to the project “in abeyance” for six months, during which period the MoEF and the EAC should reappraise the project and pass a fresh order. The NGT underlined, during the reassessment, the authorities should reconsider all necessary steps to ensure environmental compliance, even as “making comparison with the measures adopted by the other such ports located elsewhere in the country for avoiding the adverse impact on environment and the surrounding area.” It wanted the authorities to have an “objective appraisal of the project on the basis of the available material, and thereafter take decision on merits.”
NGOs’ argument: Appearing for the two NGOs, advocates Ritwick Dutta, Rahul Choudhary, and Parul Gupta and Srilekha Sridhar had argued before the NGT that the EC was granted to the expansion project – which would increase in the port’s bulk cargo handling capacity by three times and container capacity by eight times – setting aside several complaints against the GPPL regarding non-compliance of the conditions which were set-out while granting ECs in 1998, 2000, 2003 and 2006. The GPPL engaged Aquatech Enviro Engineers, Bangalore, for the environment impact assessment (EIA) of the expansion project, based on which a public hearing was held in May 12, 2011. “In spite of the fact that several issues were raised during course of the public hearing, no appropriate responses were given the GPPL”, the advocates said, adding, “The EAC held its meeting on March 5-7, 2012 and recommended EC for the proposed expansion-modernization” and the “MoEF accepted the recommendation”.
Arguing against the EC, the advocates insisted, “The proposed expansion and modernization is much in excess and will adversely affect the mangrove forest, migratory bird habitats, and various species of wild fauna”, alleging that the GPPL has “encroached on gauchar land (village grazing land)” which “will cause adverse impact on the livestock and livelihood of the villagers”. They also expressed the apprehension that the expansion project would lead to a situation where “groundwater available to the villagers will also be adversely impacted”, “salinity of the land in the villages around the port will increase”, and as a result “the crops will be adversely affected”, and the “coal dust generated due to movement of the carriage vehicles, which will be disproportionately increasing, will cause health hazard to the villagers residing in the surrounding areas.”
The argument said that in case the project is allowed, “it will curtail the right of the villagers for grazing their cattle on part of the gauchar land”, contending, “The EAC overlooked previous conduct of the GPPL and the MoEF blindly granted the EC violating the provisions of the law. The beneficial activities like provision for medical facilities, health care facilities and employment to the villagers had not been considered. The EIA report does not project a comprehensive picture of the adverse effects due to expansion of the project. The area should be free from unsustainable activities because the surrounding area of the project site is the habitat of endangered species like lions, leopards, etc.” At the NGT hearing, Ritwick Dutta particularly referred to the citing of lions in Rajula taluka near the project site, pointing towards how victims of attack by lions were granted compensation by the state government. Other issues overlooked while granting EC, he said, include adequacy of road capacity, connectivity of Shiyalbet (a small island village), and impact of excessive dredging.
MoEF justification: Arguing against the NGOs’ appeal, in its affidavit, the MoEF said that the order granting EC was issued “after due consideration of the relevant material, the expansion project does not involve any more land to be acquired, and public hearing was held in accordance with procedure laid down in the MoEF notification dated September 14, 2006” . It added, “The EAC recommended the project after the public hearing and, therefore, considering all the relevant material the EC was granted.” Of course, certain conditions were laid down for environment management like “(i) provide minimum 100 meter buffer from the mangroves, (ii) document with latest satellite map of the area of mangroves and submit the same to the MoEF for verification and compliance, (iii) grow and maintain green belt of not less than 33 per cent along with boundary of the port, and (iv) unload the dry cargo into hopper to transport the same through closed conveyor system to the storage yard.”
Narasimha, counsel for the project proponent, argued at the NGT that though the expansion was sought and executed on previous occasions in 2005 and 2006 “yet no grievance was made by any single member of the public in the surrounding area.” He said, “Mere movement of some stray animals at some other places in Rajula taluka cannot be an impediment in the expansion and modernization of the port. The Gir Wildlife Sanctuary, being the habitat of Asiatic lions, is approximately 100 km away from the port area”. He added, “The mangroves had been grown by the project proponent after the grant of the first EC and there was no mangrove forest in existence in the vicinity before the project was made operational in the first phase. Therefore, that there will be no destruction of mangrove forest. Moreover, the condition to maintain a buffer zone will take adequate care of the protection required for the mangrove reserve.”
NGT contention: Based on the arguments of the two opposing sides, the NGT judgment, while putting the project in abeyance for six months, singled out several questions raised at the public hearing, including several written representations, such as access to the residents of Shiyalbet village (Island) because they were being denied use of the road connected to the main highway, pollution caused by dredging activity during expansion, agriculturists’ concern on coal dusting due to handling of the cargos in the port, without taking proper care, causing damage to the crops and the trees in the nearby area, and so on.
While many of these questions had been answered by the project proponents, still, a few others were not. “For example, Mayabhai Vallabhai raised question regarding coal dust generated due to handling/transportation from the port. No response appears to have been given by the project proponent to the said query. So also, Gondalia Vipul Bansidas raised question regarding proper amenities for Shiyalbet. The response to such question is also vague. Moreover, queries raised by Babubhai Vallabhai about road access remained unanswered”, the NGT judgment said, adding, appraisal of the project by the AEC should have been done “in a transparent manner.” In fact, the NGT argued, “Appraisal is not a mere formality. It does require the detailed scrutiny by the EAC of the application as well as documents filed such as the final EIA report, outcome of the public consultation, including public hearing proceedings, etc.”
It further said, the EAC “has to make categorical recommendations to the regulatory authority concerned either for grant of prior environmental clearance on stipulated terms and conditions, or rejection of the application for prior EC, together with reasons for the same”, adding, “It is part of the principle of Natural Justice that objectivity of such decision should be reflected in the order itself. In case of absence of objectivity, the application of mind by the concerned authority cannot be gathered on basis of available circumstances. In other words, what was passing through the mind of members of EAC when the recommendation of the project was made is necessarily required to be stated in the minutes of the meeting and/or in the order of EC dated June 5, 2012.”
Yet, the MoEF’s order granting EC merely reproduced “a part of the letter of recommendation of the EAC, as it is.” The order “does not show independent evaluation undertaken by the MoEF.” Then, “the EAC did not evaluate the correctness of responses given by the project proponent to the written representations made by the members of the public during course of the public hearing. The EAC did not take into account the problem of the inhabitants of Shiyalbet (Island). The EAC also did not consider the earlier inspection reports which indicate certain violations of the conditions by the project proponent. For example, inspection report about the visit of the authorities of the Gujarat Pollution Control Board (GPCB) on June 26, 2008 shows that while unloading of the goods was going on, on berth no. 1, DG set was not in operation, stock of used oil and used batteries was nil. It shows that the DG set was not being used for a long time but was being kept at the place unused.”
Based on all this, the order said, “Perusal of the EC order shows that there was no independent application of mind by the MoEF to the material placed before it and report of the EAC. The order shows that the EAC had sought additional clarifications from the project proponent. Obviously, it was clear that the EAC was not satisfied at the initial stage after the public hearing was held and as such decided to call for further information by issuance of modified terms of reference (ToR). It was necessary, therefore, to examine as to whether the additional ToR was duly responded to by the project proponent and such responses were of satisfactory nature. From the impugned order, it is difficult to say that such exercise was undertaken by the MoEF.”
Pointing out that nobody would deny about the need for development, modernization and expansion of a port project, necessary for the purpose of export and import of goods, the order cites the example of how ports at Chennai, Vishakapatnam, Bombay Dockyard, Jawaharlal Nehru Port, etc. had tried to overcome environmental issues. Based on these, the NGT asked the MoEF to “examine whether the expansion can be granted after laying down certain stringent conditions to take care of the environmental impact due to the expansion and modernization of the port. For example, the Chennai Port is being run with modern techniques.”
It says, “As a part of pollution control measures, the port has installed wind curtains made of ultraviolet resistant fabric along the harbour’s beach front for over 1.5 km to the east of the coal terminal to prevent wind carrying coal dust into the city. The Chennai Port has also installed a semi-mechanized closed coal conveyor system comprising two streams with a capacity of 15 million metric tons/annum and a handling rate capacity of 1,500 metric tons/hour/stream and running a length of 5 km at two berths, namely, Jawahar Dock IV and VI. The conveyor belt runs at an elevation of 10-13 m and has provision for longitudinal movement along the road to the plots and transverse movement for stacking coal at individual plots. The coal discharged into the hoppers located at the two docks is conveyed to coal plots through conveyors or tripper cars and is equipped with belt weigher.”
The NGT’s judicial member, Justice VR Kindaonkar, and two expert members, Dr PC Mishra and PS Rao, in their order said, that it is necessary to keep the MoEF order granting EC to the project “in abeyance” for six months, during which period the MoEF and the EAC should reappraise the project and pass a fresh order. The NGT underlined, during the reassessment, the authorities should reconsider all necessary steps to ensure environmental compliance, even as “making comparison with the measures adopted by the other such ports located elsewhere in the country for avoiding the adverse impact on environment and the surrounding area.” It wanted the authorities to have an “objective appraisal of the project on the basis of the available material, and thereafter take decision on merits.”
NGOs’ argument: Appearing for the two NGOs, advocates Ritwick Dutta, Rahul Choudhary, and Parul Gupta and Srilekha Sridhar had argued before the NGT that the EC was granted to the expansion project – which would increase in the port’s bulk cargo handling capacity by three times and container capacity by eight times – setting aside several complaints against the GPPL regarding non-compliance of the conditions which were set-out while granting ECs in 1998, 2000, 2003 and 2006. The GPPL engaged Aquatech Enviro Engineers, Bangalore, for the environment impact assessment (EIA) of the expansion project, based on which a public hearing was held in May 12, 2011. “In spite of the fact that several issues were raised during course of the public hearing, no appropriate responses were given the GPPL”, the advocates said, adding, “The EAC held its meeting on March 5-7, 2012 and recommended EC for the proposed expansion-modernization” and the “MoEF accepted the recommendation”.
Arguing against the EC, the advocates insisted, “The proposed expansion and modernization is much in excess and will adversely affect the mangrove forest, migratory bird habitats, and various species of wild fauna”, alleging that the GPPL has “encroached on gauchar land (village grazing land)” which “will cause adverse impact on the livestock and livelihood of the villagers”. They also expressed the apprehension that the expansion project would lead to a situation where “groundwater available to the villagers will also be adversely impacted”, “salinity of the land in the villages around the port will increase”, and as a result “the crops will be adversely affected”, and the “coal dust generated due to movement of the carriage vehicles, which will be disproportionately increasing, will cause health hazard to the villagers residing in the surrounding areas.”
The argument said that in case the project is allowed, “it will curtail the right of the villagers for grazing their cattle on part of the gauchar land”, contending, “The EAC overlooked previous conduct of the GPPL and the MoEF blindly granted the EC violating the provisions of the law. The beneficial activities like provision for medical facilities, health care facilities and employment to the villagers had not been considered. The EIA report does not project a comprehensive picture of the adverse effects due to expansion of the project. The area should be free from unsustainable activities because the surrounding area of the project site is the habitat of endangered species like lions, leopards, etc.” At the NGT hearing, Ritwick Dutta particularly referred to the citing of lions in Rajula taluka near the project site, pointing towards how victims of attack by lions were granted compensation by the state government. Other issues overlooked while granting EC, he said, include adequacy of road capacity, connectivity of Shiyalbet (a small island village), and impact of excessive dredging.
MoEF justification: Arguing against the NGOs’ appeal, in its affidavit, the MoEF said that the order granting EC was issued “after due consideration of the relevant material, the expansion project does not involve any more land to be acquired, and public hearing was held in accordance with procedure laid down in the MoEF notification dated September 14, 2006” . It added, “The EAC recommended the project after the public hearing and, therefore, considering all the relevant material the EC was granted.” Of course, certain conditions were laid down for environment management like “(i) provide minimum 100 meter buffer from the mangroves, (ii) document with latest satellite map of the area of mangroves and submit the same to the MoEF for verification and compliance, (iii) grow and maintain green belt of not less than 33 per cent along with boundary of the port, and (iv) unload the dry cargo into hopper to transport the same through closed conveyor system to the storage yard.”
Narasimha, counsel for the project proponent, argued at the NGT that though the expansion was sought and executed on previous occasions in 2005 and 2006 “yet no grievance was made by any single member of the public in the surrounding area.” He said, “Mere movement of some stray animals at some other places in Rajula taluka cannot be an impediment in the expansion and modernization of the port. The Gir Wildlife Sanctuary, being the habitat of Asiatic lions, is approximately 100 km away from the port area”. He added, “The mangroves had been grown by the project proponent after the grant of the first EC and there was no mangrove forest in existence in the vicinity before the project was made operational in the first phase. Therefore, that there will be no destruction of mangrove forest. Moreover, the condition to maintain a buffer zone will take adequate care of the protection required for the mangrove reserve.”
NGT contention: Based on the arguments of the two opposing sides, the NGT judgment, while putting the project in abeyance for six months, singled out several questions raised at the public hearing, including several written representations, such as access to the residents of Shiyalbet village (Island) because they were being denied use of the road connected to the main highway, pollution caused by dredging activity during expansion, agriculturists’ concern on coal dusting due to handling of the cargos in the port, without taking proper care, causing damage to the crops and the trees in the nearby area, and so on.
While many of these questions had been answered by the project proponents, still, a few others were not. “For example, Mayabhai Vallabhai raised question regarding coal dust generated due to handling/transportation from the port. No response appears to have been given by the project proponent to the said query. So also, Gondalia Vipul Bansidas raised question regarding proper amenities for Shiyalbet. The response to such question is also vague. Moreover, queries raised by Babubhai Vallabhai about road access remained unanswered”, the NGT judgment said, adding, appraisal of the project by the AEC should have been done “in a transparent manner.” In fact, the NGT argued, “Appraisal is not a mere formality. It does require the detailed scrutiny by the EAC of the application as well as documents filed such as the final EIA report, outcome of the public consultation, including public hearing proceedings, etc.”
It further said, the EAC “has to make categorical recommendations to the regulatory authority concerned either for grant of prior environmental clearance on stipulated terms and conditions, or rejection of the application for prior EC, together with reasons for the same”, adding, “It is part of the principle of Natural Justice that objectivity of such decision should be reflected in the order itself. In case of absence of objectivity, the application of mind by the concerned authority cannot be gathered on basis of available circumstances. In other words, what was passing through the mind of members of EAC when the recommendation of the project was made is necessarily required to be stated in the minutes of the meeting and/or in the order of EC dated June 5, 2012.”
Yet, the MoEF’s order granting EC merely reproduced “a part of the letter of recommendation of the EAC, as it is.” The order “does not show independent evaluation undertaken by the MoEF.” Then, “the EAC did not evaluate the correctness of responses given by the project proponent to the written representations made by the members of the public during course of the public hearing. The EAC did not take into account the problem of the inhabitants of Shiyalbet (Island). The EAC also did not consider the earlier inspection reports which indicate certain violations of the conditions by the project proponent. For example, inspection report about the visit of the authorities of the Gujarat Pollution Control Board (GPCB) on June 26, 2008 shows that while unloading of the goods was going on, on berth no. 1, DG set was not in operation, stock of used oil and used batteries was nil. It shows that the DG set was not being used for a long time but was being kept at the place unused.”
Based on all this, the order said, “Perusal of the EC order shows that there was no independent application of mind by the MoEF to the material placed before it and report of the EAC. The order shows that the EAC had sought additional clarifications from the project proponent. Obviously, it was clear that the EAC was not satisfied at the initial stage after the public hearing was held and as such decided to call for further information by issuance of modified terms of reference (ToR). It was necessary, therefore, to examine as to whether the additional ToR was duly responded to by the project proponent and such responses were of satisfactory nature. From the impugned order, it is difficult to say that such exercise was undertaken by the MoEF.”
Pointing out that nobody would deny about the need for development, modernization and expansion of a port project, necessary for the purpose of export and import of goods, the order cites the example of how ports at Chennai, Vishakapatnam, Bombay Dockyard, Jawaharlal Nehru Port, etc. had tried to overcome environmental issues. Based on these, the NGT asked the MoEF to “examine whether the expansion can be granted after laying down certain stringent conditions to take care of the environmental impact due to the expansion and modernization of the port. For example, the Chennai Port is being run with modern techniques.”
It says, “As a part of pollution control measures, the port has installed wind curtains made of ultraviolet resistant fabric along the harbour’s beach front for over 1.5 km to the east of the coal terminal to prevent wind carrying coal dust into the city. The Chennai Port has also installed a semi-mechanized closed coal conveyor system comprising two streams with a capacity of 15 million metric tons/annum and a handling rate capacity of 1,500 metric tons/hour/stream and running a length of 5 km at two berths, namely, Jawahar Dock IV and VI. The conveyor belt runs at an elevation of 10-13 m and has provision for longitudinal movement along the road to the plots and transverse movement for stacking coal at individual plots. The coal discharged into the hoppers located at the two docks is conveyed to coal plots through conveyors or tripper cars and is equipped with belt weigher.”
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