The tribunal is coming... justice can wait!

In 2007, the ministry of environment and forests (MoEF), stated before the high court of Delhi, its reasons for the delay in the setting up a fully constituted National Environment Appellate Authority (NEAA) where the the grant of faulty environment clearances is litigated upon. They said that the setting up a National Environment Tribunal was being worked upon. This tribunal was to replace the NEAA and several other authorities set up using Section 3 (3) of the Environment Protection Act. Two years have passed since, and the MoEF has finally introduced a National Green Tribunal Bill in the Lok Sabha. While the new minister and his ministry accept accolades for pushing through this bill, many suffer the consequences of the dysfunctional appellate criticised by the Delhi High Court.

The NEAA was set up through a legislation enacted in 1997 and envisaged as a specialised authority where environment clearances issued under the Environment Impact Assessment (EIA) notification  can be challenged by aggrieved persons. The authority was to comprise of a chairman at the level of a retired Supreme Court judge or a high court chief justice, a vice chairman and three members qualified to deal with technical matters related to the environment. However, till 2005 the NEAA was a one-man authority, heard only 16 cases and dismissed or disallowed most of them on the grounds that the petitions were filed too late or that the applicants have no locus standi.

Executive apathy

Two such dismissals by the vice chairman, Vishwanath Anand, (ex secretary MoEF) before he retired in July 2005, related to the Loharinag Pala Hydroelectric Project (Uttarakhand) and Middle Siang Hydroelectric project (Arunachal Pradesh) were challenged before the high court of Delhi in 2005 and in September that year an order was passed asking the MoEF to set up a fully functional NEAA. After a series of strong orders issued between 2005 and2008 repeatedly asking the MoEF to comply with the court’s directions, the final judgement lashing out at the ‘executive apathy’ was pronounced  by Justice Murlidhar of the Delhi High Court in February 2009.

Through these years, all that the MoEF had done was to appoint three technical members on the NEAA, even as the number of cases being filed before the authority continued to increase. Two of these members were officers from the Indian Forest Service (IFS) and one from the Indian Administrative Service (IAS). The continuation of dismissal of petitions by them, brought the qualifications and workings of the appellate authority under question. Rather than investigating petitions on their merit and arguments, the issues of locus standi of the petitioner dogged most of the proceedings.

Clean hands

One case was  dismissed on the grounds that the petitioner could not prove that the environmental organisation in Raigarh district of Chhatisgarh, of which he was a part is an ‘association of persons’ entitled to file an application. The organisation did not have a membership structure, letterheads and other such official documentation to prove its credibility. That the organisation had been in correspondence with the MoEF and state pollution control boards was considered irrelevant. On the contrary, the intentions of the applicant were suspected and the judgement stated that the applicant had not approached the authority with ‘clean hands’. This became the substitute for the judgement on whether a project should have been granted a clean chit on environmental grounds.

In May 2009, one of trio of the NEAA retired, another one bows out August end. So we are back to the pavilion, as they say. In 2005, there was one chairman disposing appeals and in 2009, five years later and post many orders and media coverage, there will be one member dismissing challenges to environment clearances, until the new bill is passed.

It may take at least another 6-8 months (if not more) till it is debated in both houses of parliament and receives presidential consent. Until then, the average 100 projects granted clearance every month by the MoEF, will have to be challenged before this one-man-authority. It appears that justice can be delayed until the tribunal bill arrives.

(The authors are members of Kalpavriksh Environmental Action Group)