Failed by NGT, saved by SC

“There can be no gambles with the environment: a ‘heads I win, tails you lose’ approach is simply unacceptable; unacceptable if we are to preserve environmental governance and the rule of law”.

With this and many other strong expressions, the Supreme Court in Hanuman Laxman Aroskar versus Union of India on March 29 suspended the environmental clearance granted by the Centre to the proposed international airport in Goa in Mopa Plateau. The court directed the Expert Appraisal Committee (EAC) of the environment ministry to revisit its recommendation for the grant of environmental clearance.

In effect, it overturned the decision of not just the ministry but also of the National Green Tribunal, which gave a green signal to the project. Without doubt, the judgement authored by Justice D Y Chandrachud is the first significant judgement of the Supreme Court on the Environment Impact Assessment (EIA) process, which has been in the statute book since 1994 but has been observed more in its breach.

The judgement is significant because in clear and unequivocal terms, it states what is faulty in the manner in which projects are approved by both the state and central governments. The manner in which the airport was approved is symptomatic of the manner in which environmental decisions are taken. Most importantly, reading through the judgement, it is clear that the issue before the court was not one of having an airport or not, but rather whether the rule of law should be preserved and whether violators of law, even if it is the State, should be allowed a free run.

NGT’s failure

The judgement brings into focus the role of the National Green Tribunal as an expert adjudicatory body for environment. The NGT has power to hear appeals against the grant of environment and forest clearances. Though environmental clearance for a project is granted by the environment ministry, it is based on the recommendation of an Expert Appraisal Committee (EAC). The EAC is required to examine the EIA reports, the minutes of the public hearing and other relevant information. The appeals are in the nature of merit review where, unlike judicial review, the tribunal is concerned not just with the decision-making process but with the merits of the decision. Thus, in addition to examining the legality of the decision, the tribunal has to also examine its correctness.

The court observed: “The mix of judicial and technical members envisaged by the statute is for the reason that the tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment.”

In the case of Mopa Airport, two appeals were filed before the NGT in 2015 against the grant of environmental clearance. The tribunal took nearly three years to decide the appeals (though the NGT Act stipulates that an appeal should be decided within six months of filing) and dismissed the same in 2018 in effectively one paragraph.

The Supreme Court concluded: “The NGT dealt with the submissions which were urged before it in essentially one paragraph. It failed to comprehend the true nature of its role and power...In failing to carry out a merits review, the NGT has not discharged an adjudicatory function which properly belongs to it.”

The NGT, despite nearly three years of adjudication, failed to consider any of the substantial issues related to livelihoods, flora and fauna, eco-sensitive zones, the Western Ghats. This is not the first instance where the NGT’s role has been questioned by the Supreme Court. In the last two months itself, the Supreme Court overruled the NGT’s order directing reopening of the Sterlite Copper smelter plant in Tamil Nadu on the ground that it exceeded its jurisdiction and set aside the NGT’s decision in the case of Subansari Hydro Project in Arunachal Pradesh on the ground that it was not supported by any reasoning.

Green rule of law

The judgement of the Supreme Court should serve as a wake-up call for those concerned not only about the environment but also about the rule of law. As is evident, all actors in the EIA process, including the NGT, have abdicated their roles under the statute and acted contrary to public interest. The judgement clearly concludes that Engineers India Ltd., as the EIA consultant had provided false information and did not undertake the required study. The EAC, headed by a former union Power secretary, did not act like an expert body and the state of Goa as the project proponent submitted false information.

At the end of the day, one must remember, a wrong and illegal decision is not just an issue of rule of law, but has the potential to destroy a natural entity which is a creation of millions of years of evolution. This can never be compensated, either punitively or monetarily.

(Ritwick Dutta is an environmental lawyer and practices before the National Green Tribunal)