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TMI Blog2019 (3) TMI 2072X X X X Extracts X X X X X X X X Extracts X X X X ..... n and the Guidance manual for Airports C.1 EIA process C.2 Guidance manual for airports D Forests E Ecologically Sensitive Zones (ESZs) F Sampling Points F.1 Air Quality F.2 Water Quality F.3 Noise Quality F.4 Flora and Fauna F. 5 Felling of Trees G Public Consultation H Appraisal by the EAC I The appellate jurisdiction of the NGT: the requirement of a merits review J Environmental Rule of Law K Directions A Introduction 1 An appeal was filed before the Principal Bench of the National Green Tribunal [NGT] at New Delhi challenging the grant of an Environmental Clearance [EC] for the development of a greenfield international airport at Mopa in Goa. The NGT, by its judgment dated 21 August 2018 came to the conclusion that the present case "is not a case where the project compromises with the environment". While affirming the EC, the NGT came to the conclusion that "further safeguards for environmental protection need to be incorporated". The NGT, accordingly, proceeded to formulate additional conditions, while affirming the grant of the EC. 2 Village Mopa is situated in North Goa, in close proximity to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elopment of the project was pegged at 4,500 acres. During the pendency of project appraisals, the area required for the proposed airport stood reduced to 2,271 acres. 5 On 14 September 2006, the Government of India in the Ministry of Environment and Forests [MoEF, later renamed as MoEFCC in 2014] issued a notification [S.O. 1533 ('2006 notification')] mandating a prior EC for Category 'A' projects (specified in the Schedule) by the Union Government and for Category 'B' projects at the state level by the State Level Environment Impact Assessment Authority [SEIAA]. Following the 2006 notification, the MoEF placed an EIA Guidance Manual for Airports [Guidance manual] in the public domain in February 2010. The stages of scoping, public consultation and appraisal, leading up to the grant of the EC for the proposed airport are governed by the express terms of the 2006 notification. 6 In March 2011, the State of Goa, as the project proponent submitted Form 1 as stipulated in the 2006 notification to the MoEF. On 8 March 2011, the State of Goa applied for Terms of Reference [ToR] to the MoEF. The ToR were finalized on 11 and 12 May 2011 by the Expert Appraisal Committee [EAC] constituted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... project proponent submitted its reply to the representation. The EAC, at its 152nd meeting on 20 October 2015, sought a further clarification from the project proponent on the reply submitted by the Federation of Rainbow Warriors. At that meeting, the EAC recommended the grant of an EC for the project. 9 On 28 October 2015, the MoEFCC, as the regulatory authority under the 2006 notification for Category 'A' projects, communicated its approval for the grant of an EC. Following the grant of the EC, the tender process which had been initiated on 3 October 2014 was concluded on 26 August 2016. Consequent to the opening of the final bids, a technical scrutiny, evaluation coupled with pre-bid meetings, deliberations on the draft concession agreement and other required steps, GMR Goa International Airport Limited [GGIAL] was awarded the contract on a revenue sharing of 36.99 percent to the State of Goa. On 8 November 2016, the concession agreement was executed between the Government of Goa and GGIAL for the development and operation of the airport with the concession period of 40 years. Upon financial closure, the three-year period for the construction of the airport commenced on 4 Septe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Goa before the NGT on 2 July 2018 seeking permission for the felling of trees. By its judgment dated 21 August 2018, the NGT disposed of both the appeals and the Miscellaneous Application filed by the State of Goa, upholding the EC and imposing additional conditions to safeguard the environment. This Court has been informed that the felling of trees was initiated on 3 September 2018 and completed on 14 January 2019. Assailing the judgment of the NGT, two appeals have been filed before this Court: one by Hanuman Laxman Aroskar [Civil Appeal No. 12251 of 2018] and the other by the Federation of Rainbow Warriors [Civil Appeal No. 1053 of 2019]. 13 On 18 January 2019, notice was issued in the appeals and an order of status quo was passed by this Court. The appeals were admitted for hearing and final disposal. B Submissions 14 We have heard Ms Anitha Shenoy, learned counsel appearing on behalf of the appellants. Mr K K Venugopal, learned Attorney General [AG] for India appeared on behalf of the State of Goa. Mr Atmaram S Nadkarni, learned Additional Solicitor General[ASG] of India appeared on behalf of the MoEFCC. Mr Parag P Tripathi, learned Senior Counsel and Ms Aastha Mehta, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nent is duty bound to make a proper disclosure and the highest level of transparency is required. Accompanying Form 1 is a declaration of the project proponent that the EC will be liable to be rejected in the event of a suppression or mis-statement of material facts. The State of Goa filed a Miscellaneous Application before the NGT seeking permission to fell around 55,000 trees. This is a clear indicator that the original statement by the project proponent in Form 1 as well as in clause 2.1.5 of the EIA report that only a few trees were required to be felled is factually incorrect; (ii) There was a concealment of Ecologically Sensitive Zones[ESZ] in the State of Maharashtra. In terms of the Guidance manual, primary data through measures and full surveys; and secondary data from secondary sources have to be collected. Primary data includes the study area within 10 kilometres radius from the Aerodrome Reference Point[ARP] and covers one season other than the monsoon. Secondary data includes data collected within an aerial distance of 15 kilometres for the parameters which are specifically mentioned in column 9 (III) of Form 1 of the 2006 notification and covers one full year. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of the EIA report was not only to make an assessment of the project site but also of an area surrounding the project site within an aerial distance of 15 kilometres. The HLWG recognized that there were ESZs. In the present case, several villages are situated at a bare distance of 1.5 kilometres from the project site in Maharashtra. Yet, there was no disclosure of this fact and the EIA report merely recorded that Pernem taluka is not included in an ESZ; (iv) The State of Maharashtra comprises nearly 40 per cent of the study area. Yet, there was no sampling of soil, air and water in Maharashtra. Sampling was carried out in 2011 and 2014-15 in Goa but no sampling site is situated in Maharashtra. In the absence of baseline data generated with regard to environmental parameters in the State of Maharashtra surrounding the project site, the EIA report suffers from a gross deficiency; and (v) The EIA report is grossly deficient in failing to notice wildlife in the surrounding forests. On the contrary, the appellants have relied on a rapid survey conducted to assess the presence of various mammals in the study area. Moreover, no avi-faunal study was done. 16 Apart from the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 20, the NGT is under a mandate to apply the principles of sustainable development, the precautionary principle and the polluter pays principle while passing any order, decision or making the award. An appeal lies before this Court under Section 22 from an order, decision or award of the Tribunal on a substantial question of law as specified in Section 100 of the Code of Civil Procedure, 1908. The NGT, by virtue of its adjudicatory authority under Section 16(h), is entrusted with a duty to conduct a merits review. The failure to consider materials on a vital issue constitutes a substantial question of law as does the failure to consider vital issues in the proceedings before it. In the present case, the Tribunal has merely relied on the process conducted by the EAC and its recommendations, abdicating its own jurisdiction to conduct a merits review. 19 Mr ANS Nadkarni, learned ASG appearing on behalf of the MoEFCC urged that the EIA report, besides dealing with environmental concerns, addresses the impact of the project during both the phases of construction and operation. The EAC is sourced from experts from outside the government. The airport project was concei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is gathered in terms of the Guidance manual and the distance specified in paragraph 4.1; and (vi) The EIA report records that the surrounding land use of the airport site is predominantly forest land. Land use and land cover specifically for a 10 kilometre radius from the airport site in Maharashtra is also set out in Chapter II of the EIA report, which indicates a reference to the forest area. Annexure IX of the EIA report incorporates land use with land cover maps, both for Goa and Maharashtra in the 10 kilometre radius, which includes forested areas within the State of Maharashtra; Annexure X of the EIA report elucidates surface water bodies both in Maharashtra and in Goa in the radius of 10 kilometres while Annexure XI provides a hydro-geo-morphological map of Goa and Maharashtra. In other words, it was urged that: (i) a legally designated forest under the Indian Forest Act 1927 requires a notification under Section 20; however, at the same time, (i?i) the EIA report contains a clear disclosure of the presence of forest areas in both the States of Goa and Maharashtra within a radius of 10 kilometres including areas of dense forest. 21 As regards the lack of sampling points ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in an ESZ, the prohibition imposed by the 2013 notification had no application. 24 The learned ASG has also urged that the report of the HLWG on Western Ghats, submitted on 15 April 2013, stipulates certain development restrictions in ESZs which are as follows: (i) A complete ban on mining, quarrying and sand mining; (ii) A complete ban on thermal power projects while hydro power projects may be permitted subjected to conditions; (iii) A strict prohibition on 'red category' industries; (iv) A prohibition on building and construction projects of 20,000 square metres; (v) All other infrastructure and development projects/schemes would be subject to the grant of an EC as Category 'A' projects under the 2006 notification; and (vi) All development projects within 10 kilometres of the Western Ghats ESZ and requiring ECs shall be regulated in accordance with the 2006 notification. Based on the above recommendation of the HLWG, it was submitted that the proposed airport project, which falls under Category 'A' projects as delineated by the 2006 notification, is regulated by it and does not attract a blanket prohibition. 25 The submission that the EAC had failed to apprise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been urged, is a major source of revenue for the state, with the banning of mining activities. A balance must be drawn between development and the environment. A distinction needs to be drawn between overwhelming environmental objections which are not reversible and incapable of amelioration, and cases such as the present where the environmental consequences of project are capable of being countered by suitable measures; and (iv) Objections primarily based on a defect in procedure should not be sufficient to quash a project conceived in public interest with vast benefits for the development of the state and for the members of the travelling public. It was urged that there was no major environmental objection and the challenge to the EIA report is not substantial enough to overcome the interests of three million passengers. The expected inflow is anticipated to reach 30 million in 2030. 27 On the aspect of the felling of trees, the learned AG submitted that following the order of the Bombay High Court, the Principal Chief Conservator of Forests passed an order on 2 April 2018 providing for: (i) enumeration of all trees covered by the project site; (ii) issuance of tree fellin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire, it has been urged, is committed to the completion of the project which accords with all the approvals that have been received. 30 The rival submissions now fall for our consideration. C Scheme of the 2006 notification and the Guidance manual for Airports C. 1 EIA Process 31 The objective of the EIA process is to ensure that environmental and developmental concerns are appropriately balanced on the basis of the most accurate information available. 32 The Constitution (Forty-second Amendment) Act 1976, which came into force with effect from 3 January 1977, inserted Article 48A to the Constitution which mandates that the State shall endeavor to protect and improve the environment and safeguard the forests and wildlife of the country. Article 51A(g) of the Constitution places a corresponding duty on every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Following the decisions taken at the United Nations Conference on the Human Environment held at Stockholm [Stockholm Conference] in June 1972 in which India participated, Parliament enacted the Environment Protection Act 1986 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification directed thus: "...on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central Government under sub-section (3) of section 3 of the said Act, in accordance with the procedure specified hereinafter in this notification." 39 There are significant differences between the 1994 notification and the 2006 notification. They are: (i) The 2006 notification categorically states that an EC must be granted by the regulatory authority prior to the commencement of any construction work or preparation of land; (ii) The 2006 notification divides all projects into Category 'A' and Category 'B' projects. The MoEFCC continues to regulate projects of a large scale (Category 'A'), while the SEIAA regulate comparatively smaller projects (Category ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions based on the potential environmental impact of projects unless prior EC has been granted by the concerned authority. The EC is required before any construction work, or preparation of land (except for securing the land) is started on the project or activity listed in the Schedule to the notification. The process stipulated under the 2006 notification is illustrated by the following flow-chart: 41 Based on the spatial extent of the potential impact and the potential impacts on human health and natural and man-made resources, the 2006 notification categorizes all projects into Category 'A' and Category 'B' projects. The MoEFCC in the Central Government and the SEIAA at the state level constitute the regulatory authorities for the purposes of the notification. Category 'A' projects require prior environmental clearance from the MoEFCC, based on the recommendation of the EAC constituted by the Central Government for this purpose. Category 'B' projects will require prior environmental clearance from the SEIAA, based on the recommendations of the SEAC. Where no SEIAA or SEAC has been constituted, Category 'B' projects are treated as Category 'A' projects. 42 Once a prospective si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Prior to this stage, a Summary EIA is prepared in the format given in Appendix IIIA on the basis of the ToR furnished to the applicant. This stage involves the process "by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view of taking into account all the material concerns in the project or activity design as appropriate." The detailed procedure is stipulated in Appendix IV. Subject to the exceptions provided in the 2006 notification, all Category 'A' and Category 'B1' projects shall undertake the public consultation process. This stage comprises two components: (i) A public hearing at the site or in its close proximity - district-wise to be carried out in the manner prescribed in Appendix IV; and (ii) Procurement of written responses from concerned persons having a plausible stake in the environmental aspects surrounding the project. 47 The State Pollution Control Board [SPCB] or the Union Territory Pollution Control Committee [UTPCC] is charged with conducting the public hearing in the manner stipulated in Appendix IV and forwarding the proceedings to the regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority must examine the documents "strictly with reference to the ToR" and communicate any inadequacy to the EAC or the SEAC, as the case may be, within 30 days of receipt of the documents. Within sixty days of the receipt of all the documents, the EAC or the SEAC, as the case may be, shall complete the appraisal process as prescribed in Appendix V. Within the next fifteen days, the EAC or the SEAC shall make categorical recommendations to the concerned regulatory authority to either grant the EC on the stipulated terms and conditions or reject the application, together with reasons. The appraisal of projects which are not required to undergo the public consultation process or the submission of an EIA is to be carried out on the basis of the prescribed application Form 1 or Form 1A, as applicable. 52 The MoEFCC or the SEIAA shall thereafter consider the recommendations of the EAC or the SEAC and convey its decision to the applicant within 45 days of receipt of the recommendations. The regulatory authorities shall normally accept the recommendations of the EAC or the SEAC, as the case may be. Where there is a disagreement, the regulatory authority shall ask for a reconsideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f relevant experience in the field or an advanced degree (PhD) with 10 years of relevant experience. Where experts are not available, professionals may be appointed to the EAC. 56 The EAC and the SEAC are charged with evaluating the information submitted by the applicant in Form 1/Form 1A and preparing comprehensive ToR which guide the preparation of the EIA reports. Given that these bodies comprise experts in the field of environmental law, the recommendation of the EAC or the SEAC to grant EC to an applicant or reject the application is normally accepted by the regulatory authority. 57 The regulatory authority at the state level (SEIAA) which is charged with the approval or rejection of an application for EC comprises three members who possess the qualifications in the field as prescribed in Appendix VI. Significantly, sub clause (7) of paragraph 3 of the 2006 notification stipulates that all decisions of the SEIAA shall be unanimous and taken in a meeting. Given the environmental consequences of a proposed project, no difference of opinion is provided for in the grant of an EC at the state level. It is further mandated that the project management submit half-yearly compliance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impact of the proposed project on the environment; (ii) At the appraisal stage, the regulatory authority examines the documents submitted by the applicant "strictly with reference to the ToR" and communicates any inadequacy to the EAC or the SEAC; (iii) Category B2 projects, which do not require scoping, are evaluated by the SEAC on the basis of the information furnished by the applicant in Form 1 alone; (iv) The appraisal of all projects or activities which are not required to undergo public consultation, or submit an EIA report, shall be carried out on the basis of the prescribed application Form 1 and Form 1A as applicable; and (v) An application for extension of the validity of the EC for certain projects is to be made by submitting a revised Form 1 within the validity period. 60 The information provided in Form 1 serves as a base upon which the process stipulated under the 2006 notification rests. An applicant is required to provide all material information stipulated in the form to enable the authorities to formulate comprehensive ToR and enable concerned persons to provide comments and representations at the public consultation stage. The depth of information sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned at column 9 (III) of Form I of EIA Notification, 2006. Details of secondary data, the method of collection of secondary data, should be furnished. Similarly, the proposed locations of monitoring stations of water, air, soil and noise etc should be shown on the study area map." 62 Baseline data of environmental parameters which may be affected by airport activities is collected through primary monitoring in the study area and through secondary sources. The baseline data facilitates the evaluation of the predicted impact on environmental attributes in the study area by using scientific analysis and EIA methodologies. The object is to also aid in the preparation of an EMP that would outline measures for improving environmental quality as well as retain the scope for future expansions in a sustainable manner. The Guidance manual specifically requires collection of baseline data on the following: (i) land environment; (ii) water environment; (iii) air environment; (iv) noise environment; (v) biological environment; (iv) socio-economic environment and (vii) solid waste. The importance of collecting data on land environment is emphasised in the following extract: "The terrain and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il. The pollutants from dredged spoil are likely to enter into the ground water. This is likely to increase sedimentation of pollutants in airport area, which may migrate in time to the neighbouring ground water. Also runoff from solid waste if any, may percolate into the ground and may contaminate the ground water. Hence, they need to be studied through primary surveys and secondary sources. Monitoring locations are to be finalized as per CPCB norms which can represent the baseline conditions." On the aspect of air environment, the Guidance manual emphasises that: "Aircraft engines produce emissions that are similar to other emissions resulting from any oil-based fuel combustion. These, like any exhaust emissions, can affect local air quality at ground level. It is emissions from aircraft below 1,000ft, above the ground (typically around 3km from departure or, for arrivals, around 6km from touchdown) that are chiefly involved in influencing local air quality. These emissions disperse with the wind and blend with emissions from other sources such as emissions from domestic sources, emissions from industries and from surface transport." Local emissions attributed to aircraft ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drop of the 2006 notification and the Guidance manual that it becomes necessary to assess the process that was adopted in the present case and its outcome. D Forests 65 The essence of the challenge to the EC is two-fold: (i) Form 1, which was filed by the project proponent, did not contain any disclosure of the name or identity of forests within an aerial distance of 15 kilometres. Item 2 under the heading of 'Environmental Sensitivity' requires a clear disclosure of "areas which are important or sensitive for ecological reasons - wet lands, water sources or other water bodies, coastal zone, biospheres, mountains and forests"; and (ii) Table 2.1 of Chapter II of the EIA report delineates ESZs within an aerial distance 15 kilometres from the project boundary. For the State of Goa, the table indicates the presence of forests but not of protected forests. For the State of Maharashtra, Table 2.1 indicates that there were neither reserved nor protected forests within 15 kilometres from the project boundary. 66 The learned ASG made an earnest effort to support this by urging that a reserved forest is one which is notified under Section 20 of the Indian Forest Act 1927. The issuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required was of reserved forests comprehended within a notification under sub-section (2) of Section 20 of the Indian Forest Act 1927. Form 1 requires a disclosure of areas which are important or sensitive for ecological reasons, among them, being "forests". The expression "forests" is used without reference to a statutory or artificial definition and must hence incorporate a meaning which bears upon the ordinary description of the term. The expression "forests", means a forest as commonly understood, without reference to a notification under the Indian Forest Act 1927 or any other statutory enactment. Such an interpretation will subserve the purpose of an EIA. The purpose is to ensure that all relevant facets of the environment are noticed, that base-lines are documented, and that the potential impact of a project or activity on the environment is assessed. Forests are forests without reference to recognition in a statutory form devised for a specific purpose. 70 The need to construe the expression 'forests' in a broad and generic sense was emphasized in the decision of this Court in Godavarman (supra). This Court held: "4. The Forest (Conservation) Act, 1980 was enacted with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EIA report acknowledges that territories in Maharashtra fall within one kilometre from the proposed greenfield airport. Villages falling in Goa and Maharashtra within the 10 kilometre radius were considered for assessment. Para 2.3.1 of Chapter II deals with land use. Land use/land cover statistics for a 10 kilometre radius from the Mopa airport in the State of Maharashtra have been tabulated. Among them is the following: Sr.No. Description Area (Sq.M.) Area (Ha) 5 Forest-Tree Clad Area- Dense 66341913.84 6634.19 Similarly para 4.4 in Chapter IV, which is titled 'description of environment statistically', provides thus: "Surrounding land use of the airport site is predominantly forest land. The northern and eastern side of site is reserve forest areas, whereas western side is barren and village cultivated land. The existing land use plan is attached as Annexure IX." 74 The presence of a "diverse system set as dense and open forest, cultivated lands, sand dune vegetation, wet lands and human habitation" is noticed in para 4.6 dealing with the biological environment. Annexure IX to the EIA report provides land use/land cover maps for both Goa and Maharashtra in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... salient objective which underlies the 2006 notification. The 2006 notification represents an independent code with the avowed objective of balancing the development agenda with the protection of the environment. An applicant cannot claim an EC, under the 2006 notification, based on substantial or proportionate compliance with the terms stipulated in the notification. The terms of the notification lay down strict standards that must be complied with by an applicant seeking an EC for a proposed project. The burden of establishing environmental compliance rests on a project proponent who intends to bring about a change in the existing state of the environment. Whereas, in the present case, there has thus been a patent failure on part of the project proponent to make mandatory disclosures stipulated in Form 1 under the 2006 notification, that must have consequences in law. 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 under the rule of law. E Ecologically Sensitive Zones (ESZs) 78 The substratum of the case of the appellants is based on the following extract c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat, Maharashtra, Goa, Karnataka, Kerala and Tamil Nadu; AND WHEREAS, Western Ghats is a global biodiversity hotspot and a treasure trove of biological diversity and it harbours many endemic species of flowering plants, endemic fishes, amphibians, reptiles, birds, mammals and invertebrates and it is also an important center of evolution of economically important domesticated plant species such as pepper, cardamom, cinnamom, mango and jackfruit; AND WHEREAS, Western Ghats has many unique habitats which are home to a variety of endemic species of flora and fauna such as Myristica swamps, the flat-topped lateritic plateaus, the Sholas and wetland and riverine Eco-systems; AND WHEREAS, UNESCO has included certain identified parts of Western Ghats in the UNESCO World Natural Heritage List because Western Ghats is a Centre of origin of many species as also home for rich endemic biodiversity and hence a cradle for biological evolution;" 79 Ms Shenoy has emphasised that sixteen villages in the Taluka of Sawantwadi of the district of Sindhudurg which fall within the study area have been mapped as an ESZ in the annexure to the draft notification dated 3 October 2018. They are: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ECs under Category 'A' projects of the 2006 notification. 83 The Union Government issued a notification on 13 November 2013 in pursuance of Section 5 of the Environment (Protection) Act 1986 to the effect that from the date of the issuance of those directions, no pending case or fresh case shall be considered by the EACs/MOEF or SEACs/SEIAAs covering the following industries: (a) Mining, quarrying and sand mining; (b) Thermal power plants; (c) Building and construction projects of 20,000 square metres area and above; (d) Township and area development projects with an area of 50 hectares and above and/or with a built-up area of 1,50,000 square metres and above; and (e) 'Red category' industries. 84 The submission of the ASG is that there is no prohibition on setting up a Category 'A' project in an ESZ. An infrastructure project such as an airport does not fall within the range of prohibited activities. What is necessary is that the project must be assessed in terms of the 2006 notification. 85 The glaring deficiency which emerges from the EIA report is its failure to notice the existence of ESZs within a buffer distance of 10 kilometres of the project site. On one han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udy area. Consequently, no primary data collection was done despite the carrying out of two samples in 2011 and 2014 respectively. In response to this submission, it has been urged that all sampling points were based on para 4.1 of the Guidance manual. As a result, it was submitted that areas within Goa and Maharashtra were studied along with impact studies. In order to assess the submission, it is necessary to refer to relevant aspects of the EIA report: F.1 Air quality 88 In order to study the ambient air quality in terms of Suspended Particulate Matter, Respirable Particulate Matter, SO2, NOX, CO and HC, Ambient Air Quality monitoring stations were set up at six locations. They are at Sinechaadvin, Katwal, Mopa village, Pernem, Nagzor and Patradevi. All are in Goa. The location at Patradevi was on the border shared by Goa with Maharashtra. The study area extended to a radial distance of 10 kilometres from the ARP. We accept the submission of the ASG that they would hence cover areas falling within both Goa and Maharashtra. Para 4.1.2 of Chapter IV of the EIA report sets out the baseline data collected at the monitoring stations. Since the entire study area within a radius of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also is to be collected from Zoological Survey of India (ZSI), Botanical Survey of India (BSI), Wildlife Institute of India (WII) and Ministry of Earth Sciences. Wildlife symbolizes the functioning efficiency of the entire eco system. Just as wild flora needs special treatment for preservation and growth, wild fauna as well deserves specific conservatory pursuits for posterity". 93 The grievance is that no data has been collected from the State of Maharashtra and all secondary data collected by the project proponent related only to the State of Goa. There is substance in the submission which has been urged on behalf of the appellant. A reading of the counter affidavit filed by the State of Goa would seem to support the appellant's submission. It is stated: "I say that several recognised publications and research papers were referred to in order to verify and assess the data collected, to name a few of the publications: i. Birds of Goa by Heinz Lainer & Rahul Alvares; ii. The Goan Jungle Book by Nirmal Kulkarni; iii. A photographic guide to Butterflies of Goa by Parag Ragnekar; iv. Flora of Goa, Diu, Daman, Dadra and Nagarhaveli (Vol.1) by RS Rao; v. Flora of Goa, Diu, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, foraging, nesting, resting, over wintering or migration". The above column was left blank by the project proponent in Form 1. According to the Guidance manual, secondary data has to be collected within an aerial distance of 15 kilometres for the parameters specifically specified in column 9(III) of Form 1 of the 2006 notification. This was evidently not done. A careful avi-faunal study was necessary, having due regard to the fact that the proposed project is an airport site. Bearing in mind the profile of airport operations, foraging or nesting by bird species in and around the airport must not be discarded. It must be accepted that in a project involving the setting up of an airport, the EIA report must deal with the impact of the airport on birds and likewise the impact of birds on aircraft operations. F.5 Felling of Trees 95 Para 2.1.5 of the executive summary to the EIA report deals with the biological environment. Para 2.1.5 stipulates thus: "The area required for proposed airport has only few trees, mainly bushes. These will be cleared during site preparation." (Emphasis supplied) Similarly, Chapter II which deals with project description specifies in para 2.3.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Miscellaneous Application was moved before the NGT. While disposing of the main appeal, the NGT also disposed of the Miscellaneous Application and under the head of 'Biological Environment', the following directions have been issued: "E. Biological Environment 1. Efforts be made to transplant the trees to other locations in the same vicinity by using appropriate mechanical devices which are available these days. 2. Efforts be made to plant indigenous species which are tall in size rather than small saplings. 3. Concerns have been raised by appellants with regard to plant species 'Dipcadi concanense' which has been claimed to be a threatened plant. This claim of the appellants have been negated by the respondent by producing a documentation of Botanical Survey of India, Western Regional Centre, Pune, Maharashtra titled as "A Note on Occurrence and Distribution of Dipcadi concanense". By invoking Precautionary Principle, we direct the Project Proponent to draw up a Conservancy by Plan/Scheme for 'Dipcadi concanense' in collaboration with Forest Department, State of Goa and Botanical Survey of India and ensure its implementation." 97 We express our serious displeasure with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'trees'. The point, however, is simple: there was a glaring omission of the factual existence of as many as 54,676 trees in the EIA report. For project proponents, the environment may not possess a human voice. But the purpose of prescribing an EIA report is precisely to undertake a baseline study on all aspects of the environment and to anticipate the impact of a projected activity on the environment. Ignoring any component of the environment amounts to a serious dereliction of duty which detracts from the rule of law in matters of environmental governance. 99 The order of the Principal Chief Conservator of Forests mandating transplantation, where possible, and the plantation of ten trees for every tree felled provides a measure of rectification. But there is a reason why issues pertaining to vegetational cover must be taken seriously in the EIA process. The formula of planting a set number of trees for every existing tree felled must be alive to the fact that the survival of new plantations is replete with uncertainty. The survival of transplanted trees is equally a matter of uncertainty. Though the development of infrastructure may necessitate the felling of trees, the process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble stake" in the environmental aspects of the project or the activity; (iii) The duty of the SPCB to conduct hearings and to forward the proceedings to the regulatory authority within the stipulated time; (iv) Placing on the website of the Pollution Control Board a summary of the EIA report in the prescribed format and the making available of the draft EIA report by the regulatory authority on a written request by any person concerned, for inspection; (v) The duty of the applicant to address all material concerns expressed during the process of public consultation; (vi) The making of appropriate changes in the draft EIA and EMP; and (vii) The submission of the final EIA report by the applicant to the regulatory authority for appraisal. Each of these features is crucial to the success of a public consultation process. Public consultation cannot be reduced to a mere incantation or a procedural formality which has to be completed to move on to the next stage. Underlying public consultation is the important constitutional value that decisions which affect the lives of individuals must, in a system of democratic governance, factor in their concerns which have been expressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt; (xi) Forest clearance had not been obtained; (xii) The sacred groves of the area have not been described, including the Barazan which will be lost; (xiii) The slopes sustain cashew plantations with nearly forty lakh cashew trees resulting in an annual income of Rs Fifty crores; and (xiv) No study has been carried out in the 10 kilometre radius falling in Maharashtra. 105 These concerns are at the forefront of the debate in the present case. What is significant, is the manner in which they were projected before the EAC at its 149th meeting on 26 June 2015 where the project proponent made a presentation. The Minutes of the meeting recorded the following observations of the project proponent: "x. Public Hearing was conducted on 01.02.2015 at Simechen Adven, Mopa, Goa. The major issues raised during public hearing and responses sought from the project proponent related to employment opportunities." (Emphasis supplied) On the basis of a factual analysis, Ms Shenoy has submitted that only seven out of the 68 objections dealt with the issue of employment. Evidently, the project proponent failed to address the other significant concerns in the manner which is required by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of appraisal in "a transparent manner". On the conclusion of these proceedings, the EAC has to make "categorical recommendations" to the regulatory authority either for: (i) the grant of a prior environmental clearance on stipulated terms and conditions; or (ii) the rejection of the application. The recommendations made by the EAC to the regulatory authority must be based on "reasons". 109 The EAC, at its 149th meeting held on 26 June 2015, considered the EIA report and sought a clarification from the project proponent on the following six aspects: "i. There is a need to superimpose the layout plan showing the drainage pattern including natural drainage, construction in the area on superimposed map showing clear topography of the region; ii. 10 year data regarding rain fall in the area; iii. Justification on sustainability of existing traffic and transportation arrangements especially at inter-section points of the approach road to the airport needs to be submitted; iv. A traffic circulation plan needs to be evolved for smooth running of traffic in the area; v. Measures taken to comply with the CPCB guidelines formulated for noise pollution control in airport areas to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , recommended the project for grant of EC subject to the above and the following:- * The project proponent shall ensure availability of adequate land at the junction of the Mopa Airport road and Mumbai/Goa NH 17 for traffic circulation/ management and to provide for all the traffic interchanges and proposed clover. * The approach and exit roads to the airport would be approved from the NHAI and should be according to IRC norms. * A perusal of the Topo sheet superimposed on the runway area indicates that the extreme end of the runway is covering the drainage area partly. The drainage area which is under the runway needs to be channelized. The area between the parallel taxi way and run way needs to be handled carefully to drain the water from the area in the outfall." 111 The above explanation must be assessed with reference to the norm that the EAC is required to submit reasons for its recommendation. The above extract indicates that the EAC has adverted to the following circumstances: (i) The "peculiar circumstances" of the case; (ii) The difficulties in land acquisition which led to a delay in the preparation of the EIA report; (iii) The "larger public interest" invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e EIA report. The EAC has failed to answer to the call to its expertise. 113 Clause (vi) of para 8 of the 2006 notification stipulates thus: "(vi) Deliberate concealment and/or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection, and cancellation of prior environmental clearance granted on that basis. Rejection of an application or cancellation of a prior environmental clearance already granted, on such ground, shall be decided by the regulatory authority, after giving a personal hearing to the applicant, and following the principles of natural justice." Deliberate concealment or the submission of false or misleading information or data material for screening, scoping, appraisal or decision on the application makes it liable for rejection. That the project proponent must submit all information and data without concealing relevant features is a basic hypothesis and expectation of the 2006 notification. The EAC has, in the brief reasons which are contained in para 3.1.2, not applied its mind at all to the environmental concerns raised in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done. As the Minutes indicate, the non-application of mind by the EAC is evident with reference to the presence of 15 ESZs in the study area. The EAC notes that the project is outside the ESZ delineated by the Kasturirangan Committee. In the absence of a critical analysis, the EAC failed in discharging its duties under the 2006 notification. The recommendations of the EAC furnish a guide for the MoEFCC. Indeed, the 2006 notification stipulates that the recommendations of the EAC would normally be accepted. Consequently, a failure of due process before the EAC, as in the present case, must lead to the invalidation of the EC. I The appellate jurisdiction of the NGT: the requirement of a merits review 117 The NGT is entrusted with appellate jurisdiction under Section 16 of the NGT Act 2010. Section 16(h) provides thus: "16 Tribunal to have appellate jurisdiction. - Any person aggrieved by,- ... (h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the Tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment. In order to be eligible for appointment as an expert member, a person must fulfill the following qualifications prescribed in Section 5(2): "(2) A person shall not be qualified for appointment as an Expert Member, unless he, (a) has a degree in Master of Science (in physical sciences or life sciences) with a Doctorate degree or Master of Engineering or Master of Technology and has an experience of fifteen years in the relevant field including five years practical experience in the field of environment and forests (including pollution control, hazardous substance management, environment impact assessment, climate change management, biological diversity management and forest conservation) in a reputed National level institution; or (b) has administrative experience of fifteen years including experience of five years in dealing with environmental matters in the Central or a State Government or in a reputed National or State level institution." The NGT is an expert adjudicatory body on the environment. 120 In two of its previou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of environmental issues. ...Thus, the EAC has not conducted itself as mandated by the EIA Notification, 2006 since it has not made proper appraisal by considering the available materials and objections in order to make proper evaluation of the project before making a recommendation for grant of EC. 187...the Tribunal is of the considered opinion that there is no option but to scrap the impugned EC granted by the MoEF to the 3rd respondent/project proponent for setting up the Aranmula airport" 121 The failure to consider materials on a vital issue and indeed the nonconsideration of vital issues raises a substantial question of law leading to the invoking of the jurisdiction of this Court under Section 22 of the NGT Act 2010. The failure of process in the present case has been compounded by the absence of a merits review by the NGT. 122 The learned ASG has placed reliance on the decision of this Court in Lafarge Umiam Mining Private Limited v Union of India [(2011) 7 SCC 338] ("Lafarge") to contend that the failure to disclose the presence of trees should not lead to the invalidation of the EC. In that case, an application was made under the 1994 notification for the grant of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age. On the facts of this case, we are satisfied with the due diligence exercise undertaken by MoEF in the matter of forest diversion. Thus, our order herein is confined to the facts of this case." (Emphasis supplied) 124 The decision of this Court in Lafarge (supra), was based on the facts summarized above. Significantly, the standard of judicial review which must be applied in cases relating to the environment has been formulated by the three judge Bench in Lafarge (supra). Chief Justice S H Kapadia noted that the doctrine of proportionality must be applied to matters concerning the environment as part of judicial review. The principles of judicial review in environmental matters have been enunciated thus: "In the circumstances, barring exceptions, decisions relating to utilisation of natural resources have to be tested on the anvil of the well-recognised principles of judicial review. Have all the relevant factors been taken into account? Have any extraneous factors influenced the decision? Is the decision strictly in accordance with the legislative policy underlying the law (if any) that governs the field? Is the decision consistent with the principles of sustainable devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely deferring to the decision to recommend and grant an EC. The parameters in regard to the existence of substantial questions of law have hence been established in the classical or conventional sense of that expression. J Environmental Rule of Law 126 Fundamental to the outcome of this case is a quest for environmental governance within a rule of law paradigm. Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our eco system. 127 Since the Stockholm Conference, there has been a dramatic expansion in environmental laws and institutions across the globe. In many instances, these laws and institutions have helped to slow down or reverse environmental degradation. However, this progress is also accompanied, by a growing understanding that there is a considerable implementation gap between the requirements of environmental laws and their implementation and enforcement - both in developed and developing countries alike[3]. The environmental rule of law seeks to address this gap. 128 The environmental rule of law provides an essential platform underpinning the four pillars of sustainable de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the "development and implementation of environmental rule of law with attention at all levels to mutually supporting governance features, including information disclosure, public participation, implementable and enforceable laws, and implementation and accountability mechanisms including coordination of roles as well as environmental auditing and criminal, civil and administrative enforcement with timely, impartial and independent dispute resolution." Similarly, the first United Nations Environment Assembly in 2014 adopted resolution 1/13, which calls upon countries "to work for the strengthening of environmental rule of law at the international, regional and national levels." 131 In 2016, the First World Environmental Law Congress, cosponsored by the International Union for Conservation of Nature and UN Environment, adopted the IUCN World Declaration on the Environmental Rule of Law[7] which outlines 13 principles for developing and implementing solutions for ecologically sustainable development: (i) Obligation to Protect Nature (ii) Right to Nature and Rights of Nature (iii) Right to Environment. (iv) Ecological Sustainability and Resilience (v) In Dubio Pro Natura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stments in physical infrastructure and institutional and regulatory arrangements for water access and disaster preparedness. 135 SDG 13 emphasises the urgent action required to combat climate change and its impacts. This is based on the recognition that extreme weather events such as heat waves, droughts, floods and tropical cyclones have aggravated the need for water management, pose a threat to food security, increase health risks, damage critical infrastructure and interrupt the provision of basic civil services. 136 The statistics on climate change indicate that: (i) Between 1880 and 2012, average global temperatures have increased by 0.85 degrees Celsius; (ii) Between 1901 and 2010, as ocean expanded, the global average sea level has risen by 19 centimeters; (iii) Since 1990, global emissions of CO2 increased by almost 50 per cent; and (iv) Between 2000 and 2010, emissions grew at a more rapid rate than each of the three decades preceding it. 137 In this backdrop, SDG 16 emphasises the need to protect, restore and promote sustainable use and management of terrestrial eco systems and forests, combat desertification of river lands, prevent land degradation and halt th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with their implementation, compliance and enforcement. In this view, a systemic and integrated policy action [Global Environment Outlook 6, UNEP, 4 March 2019] would ensure that a "healthy environment is a prerequisite and foundation for economic prosperity, human health and well-being" [Ibid] 140 The rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive, participatory and representative decision making are key ingredients to the rule of law. Public access to information is, in similar terms, fundamental to the preservation of the rule of law. In a domestic context, environmental governance that is founded on the rule of law emerges from the values of our Constitution. The health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution. Proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. 141 The 2006 notification must hence be construed as a significant link in India's quest to pursue the SDGs. Many of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s power and failed to notice facets of the environment that were crucial to its decision making. The 2006 notification postulates that normally, the MoEFCC would accept the recommendation of the EAC. This makes the role of the EAC even more significant. The NGT is an adjudicatory body which is vested with appellate jurisdiction over the grant of an EC. 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 under Section 16(h) and Section 20 of the NGT Act 2010. In failing to carry out a merits review, the NGT has not discharged an adjudicatory function which properly belongs to it. 145 In this view of the matter, neither the process of decision making nor the decision itself can pass legal muster. Equally, as an area requiring balance between development of infrastructure and the environment, we are of the view that appropriate directions should be issued by this Court, which would ensure that while the need for a public project as significant as an international airport is duly factored into the decision making calculus, such development proceeds on a considered view of the importan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise as directed above, the EC granted by the MoEFCC on 28 October 2015 shall remain suspended; (iv) Upon reconsidering the matter in terms of the present directions, the EAC, if it allows the construction to proceed will impose such additional conditions which in its expert view will adequately protect the concerns about the terrestrial eco systems noticed in this judgment. The EAC would be at liberty to lay down appropriate conditions concerning air, water, noise, land, biological and socioeconomic environment; (v) The EAC shall have due regard to the assurance furnished by the concessionaire to this Court that it is willing to adopt and implement necessary safeguards bearing in mind international best practices governing greenfield airports; (vi) We grant liberty to the State of Goa as the project proponent and the MoEFCC, as the case may be, to file the report of the EAC before this Court in the form of a Miscellaneous Application so as to facilitate the passing of appropriate orders in the proceedings; and (vii) No other Court or Tribunal shall entertain any challenge to the report that is to be submitted before this Court by the EAC in compliance with the present ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of environmental clearance.
[2] See for instance para 2.0 of the executive summary and para 2.3.1 of Chapter I
[3] United Nations Environment Programme, First Environmental Rule of Law Report. Available at https://wedocs.unep.org/bitstream/handle/20.500.11822/27279/Environmental_rule_of_law.pdf?sequence=1&isAllowed=y
[4] UN Environment, Environmental Rule of Law. Available at https://www.unenvironment.org/exploretopics/environmental-rights-and-governance/what-we-do/promoting-environmental-rule-law-0
[5] Bruntdland definition of Sustainable Development
[6] Amartya Sen, Sustainable Development and our responsibilities. Available at http://www.comitatoscientifico.org/temi%20SD/documents/SEN%20Responsibility&SD%2010.pdf
[7] IUCN, Environmental Rule of Law. Available at ://www.iucn.org/commissions/world-commission-environmentallaw/wcel-resources/environmental-rule-law
[8] Dhvani Mehta, The Environmental Rule of Law in India, University of Oxford, 2017. Available at https://ora.ox.ac.uk/objects/uuid:730202ce-f2c4-4d2f-9575-938a728fe82a
[9] India's Intended Nationally Determined Contribution: Working Towards Climate Justice at P. 29, submitted to the UNFCCC secretariat X X X X Extracts X X X X X X X X Extracts X X X X
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