This report is about the interventions by various judicial bodies in India in the hydro power projects related issues in 2020. This also covers judicial decisions either delaying the justice or facilitating the projects thus unhelpful for the public interest cause and paving way for financially unviable and environmentally destructive projects. The account first looks at judicial interventions at the National level and then in states in North, North East and South Zones.
Constitution of EAC for River Valley Projects Challenged The Karnataka High Court on Dec. 10 took up the petition challenging the constitution of the EAC on River Valley and Hydropower projects. Notices were issued to MoEF and also all the members of EAC on a petition filed by the United Conservation Movement Charitable Welfare Trust. https://sandrp.in/2020/12/14/drp-nb-14-dec-2020-constitution-of-eac-for-river-valley-projects-challenged-in-high-court/ (14 Dec. 2020)
Questioning the notification dated July 13, 2020 issued by the Union government to constitute the committee, the petitioner, contended that the notification was ultra vires as it created a new category of Member known as ‘non-official’ member.
Advocate Prince Isaac, representing the petitioner, argued that the chairman and the committee members do not meet the prescribed statutory qualifications. Further, he argued that, as there would be a flurry of applications from various sectors for prior environment clearance for the construction of new projects or expansion or modernisation of existing ones, a direction be issued to the ministry to constitute the committee properly and select qualified members by issuing a public notice in the media. https://www.newindianexpress.com/states/karnataka/2020/dec/11/notice-to-centre-over-panel-on-river-hydel-projects-2234709.html (11 Dec. 2020)
The petition said that bodies such as EAC, constituted under Section 3 (3) of the Environment (Protection) Act, are the first line of defence for the protection and improvement of the environment. “It is of utmost importance that those selected to be part of these bodies are experts and are free from any conflict of interest and are unbiased and independent,” the petition said. The petition also prayed for directions to set guidelines for making the selection to the screening, scoping and appraisal committees, both at the central and state level, under the EIA notification. https://www.deccanherald.com/city/bengaluru-infrastructure/river-valley-and-hydroelectric-projects-plea-challenges-appointment-of-expert-panel-925956.html (11 Dec 2020)
NGT Every HEP under obligation to release e-flows downstream The National Green Tribunal (NGT) has directed state pollution control boards to ensure the release of minimum water downstream by hydroelectric projects, saying business or commercial interests cannot override the requirement of maintaining riverine ecology. A bench headed by NGT Chairperson Justice Adarsh Kumar Goel said every hydroelectric project (HEP) irrespective of the date of its commission is under an obligation to release minimum water downstream. “This is a mandate of ‘Sustainable Development’ which is part of the right to life. Accordingly, the tribunal directed compliance by all the HEPs, including in States of Uttarakhand, Sikkim, Arunachal Pradesh, W Bengal (North Region), Assam ^ Jammu & Kashmir,” the bench said.
– The tribunal junked the submission of the National Hydroelectric Power Corporation (NHPC) seeking exemption from releasing water to maintain 15 per cent e-flow (the quantity and timing of water that is essential for the river to perform its ecological functions) during the lean period.
– The green panel noted that the Ministry of Jal Shakti (MoJS) has not filed any report even though a period of nine months has passed since its direction. The tribunal was hearing a plea filed by Himachal Pradesh resident Vijay Kumar seeking enforcement of requirement of releasing minimum water downstream by the HEPs. https://timesofindia.indiatimes.com/city/shimla/ensure-minimum-flow-of-water-downstream/articleshow/78250138.cms (22 Sept. 2020) https://www.tribuneindia.com/news/himachal/every-hydroelectric-project-under-obligation-to-release-minimum-water-downstream-ngt-196968 (11 Jan. 2021)
However, the moot point is that there is no assessment of the water required by different rivers at different locations in different months/ seasons. One size fits all 15% of the minimum historical observed flow is neither scientific nor sufficient for any river. Secondly, this is as per the ad hoc norm that was set up over 15 years ago in Himachal Pradesh. There has been a lot of progress in e-flows related assessments and norms since then and in that sense it is a retrograde step. Thirdly, such judicial orders are useful only when it is backed by a confidence inspiring implementation mechanism and consequences whenever there are violations. That is not the case in this case.
SC clears diversion of forest land for 138 big projects The Supreme Court (SC) on Feb.15 gave clearance to 138 projects, including several hydro and one hybrid electric projects, involving diversion of 614 ha that had been hanging fire for several years.
A three-judge Green Bench headed by CJI SA Bobde gave the green signal for 289 other projects involving diversion of 122 ha forest land subject to certain conditions. Under an earlier verdict of the top court, permission of the Green Bench is needed for diversion of forest land for any other purpose. https://www.tribuneindia.com/news/himachal/sc-okays-diversion-of-forest-land-for-138-big-projects-in-himachal-212984 (16 Feb. 2021)
In Counter View, Gurinder Kaur writes that the CM had discussed this issue with PM Modi and Home Minister Amit Shah. The state government also filed 5 petitions in SC, 1 in 2019 and 4 in 2020, seeking these projects’ commissioning. Disclosing the details of these projects, the CM said that the 138 projects under Forest Conservation Act (FCA) 1980 included 20 hydropower projects and 88 roads among others. Out of the total projects, 465 got clearance from Forest Rights Act (FRA) 2006 by the SC. https://www.counterview.net/2021/03/apex-courts-forestland-ruling-will.html (04 March 2021)
Uttarakhand NTPC fined Rs 57.96L for irresponsible muck dumping NGT on Feb 23, 2021 rejected a plea by NTPC seeking review of an order passed by the Uttarakhand Environment Protection & Pollution Control Board and slapped a fine of Rs 57.9 lakh on the power major for damaging the environment. The company was found to have violated muck disposal site maintenance norms at its Tapovan-Vishnugad hydropower project in Chamoli, which resulted in damage to the environment.
– A bench headed by NGT Chairperson Justice Adarsh Kumar Goel noted that “slope of the muck dumped at the hydropower project was dangerously double the standards with potential for erosion” and dismissed NTPC’s plea against the state pollution control board’s order. “Erosion was seen in terms of gully formation in downstream of the muck dumps. It is clear that the operative muck disposal sites were not being maintained as per the norms laid down by the ministry of environment and forests,” it said. “There is no merit in the appeal as ‘polluter pays’ principle has been rightly invoked for damage to the environment. The appeal is dismissed. The amount of compensation which may be recovered by state pollution control board may be utilised for restoration of environment,” the tribunal said. https://timesofindia.indiatimes.com/india/ngt-directs-ntpc-to-pay-rs-58l-for-ruining-environment/articleshow/81182140.cms; https://www.livelaw.in/environment/ngt-pay-compensation-polluter-pays-principle-pollution-control-board-ntpc-170293 (24 Feb. 2021)
Keep muck disposal off the rivers Before this NGT had directed NTPC to take necessary action in the matter of muck disposal reaching the river system of Alaknanda and Dhauliganga. While hearing a petition filed by Gram Pradhan & Residents of Tapoban, the court observed that there is a clear possibility of muck reaching the river system, which needs to be prevented by levying adequate protective measures.
– The applicants also filed photographs for all the muck disposal sites that are nearly 300 to 600 meters away from the River. The concerned muck disposal sites are, Near TBM Adit, Dhak near ITI, Barrage site at Tapovan, Near BVC/ Pressure Shaft and Power House site at Animath and most of these muck disposal sites has completed their dumping 2-5 years back.
– The bench in its order further directed the constitution of an Expert Committee consisting of Himalayan Forest Research Institute, Shimla, Central Soil and Water Conservation Research and Training Institute, Dehradun and the State Pollution Control Board, and the report is to be furnished by 31.01.2020. Compliance report is to be submitted by SPCB by 31.03.2020. https://www.indialegallive.com/constitutional-law-news/courts-news/ngt-ntpc-keep-muck-disposal-off-rivers-83422 (16 Jan. 2020)
Singoli-Bhatwari HEP: HC asks govt to reply The PIL alleges that environment clearance, which was issued for ten years and then extended by another three, expired on August 24, 2020, and as such, any construction beyond that was a violation of the norms. “Also, the project had to start its commercial operation in March 2020 but that also didn’t happen. The fish ladders which allow movement of fish were not constructed despite the same being part of the agreement with Uttarakhand government,” Veer Pundir, counsel of the petitioner said.
-The PIL said that the hydroelectric project is “being constructed without an environment clearance”, adding, “change in scope (design parameters of the project due to 2013 floods) beyond the approved environment clearance and techno-economic concurrence issued earlier (in 2008 by CEA) with respect to old project which has not been implemented… and now in the garb of earlier environment clearance and techno-economic concurrence, respondents are continuing with the changed project which is not permissible as per law.” https://www.hindustantimes.com/dehradun/rudraprayag-hydel-project-pil-uttarakhand-hc-issues-notices-to-moef-jal-shakti-state-govt/story-9ndgqPxdIJxUa9i2lUEjfI.html (13 Oct 2020)
Can hydel projects be shifted to non eco fragile zones: SC “It should be considered for all projects across the country and not only for Uttarakhand. Pure commercial consideration cannot be the sole criterion. We agree there is need for power. But protecting environment and lives of people are more important. Power projects can be relocated. They need not be in ecologically fragile areas,” a bench of Chief Justice S A Bobde and Justices B R Gavai and Surya Kant said. “Our anxiety, in addition to environment, is to protect the lives of people. For project proponents, it is profit. We are suggesting the government to relocate as we have larger interests to guard. Thermal power plants should be stopped. Have you been to Chandrapur (where a super thermal power plant is located)? You cannot breathe in that city,” CJI Bobde said.
– The advocate for GMR opposed this. The advocate for the petitioner said that SC had asked all three ministries (MoEF, MoWR and MoP) to submit a combined affidavit, which has not yet been filed. The SC adjourned hearing for four weeks while asking the MoEF to file a consolidated affidavit. https://energy.economictimes.indiatimes.com/news/renewable/sc-can-uttarakhand-hydel-projects-be-shifted-to-non-eco-fragile-zones/74410261 (29 Feb. 2020)
Jammu & Kashmir Kishanganga HEP: SC dismisses HCC plea against NHPC invoking bank guarantee SC dismissed Hindustan Construction Company’s (HCC’s) appeal seeking to restrain public sector undertaking NHPC from invoking/ encashing its bank guarantees (BGs) worth Rs 214.36 crore. The BGs were furnished as part of its contractual obligation during setting up of the Rs 1925.84-crore Kishanganga hydro-electric power project.
-While rejecting HCC’s appeal, a Bench led by Justice R Nariman said, “the contract speaks of final completion” and the company is yet to finish the project.
-The Delhi High Court while rejecting HCC’s plea had noted that the balance works still remained incomplete, despite the fact that the Defect Liability Period will expire only in June 2021. The HC had also held that NHPC was justified in invoking the BGs as it might have to get work completed by some other agency as the project was yet to be completed. HCC had bagged NHPC’s contract to set up the 330-MW hydro-electric power plant in March 2009 and the project was to be completed in 84 months. https://www.financialexpress.com/industry/kishanganga-hydro-electric-project-sc-dismisses-hcc-plea-against-nhpc-invoking-bank-guarantee/2095391/ (01 Oct. 2020)
Sikkim SC allows tenders for Teesta HEP In a surprising move, the SC allowed NHPC and its subsidiary Lanco Teesta Hydro Power Ltd to process bids to for the stalled for years 500 MW Teesta-VI Hydroelectric Project. Partially setting aside Dec 11 Sikkim High Court order which had asked all parties to maintain status quo, the top court asked NHPC and Lanco to proceed with the tender but finalise it only with the court’s nod.
-The CJI led bench asked Sikkim High Court to decide the case on its merits in a month’s time, after Lanco and NHPC argued that the Rs. 5748 crore project of national importance was stalled since the status quo order prohibited any fresh tendering. Leading a 3-judge bench, CJI Bobde observed this project of national importance is of commercial importance to NHPC.
It is not clear what makes this project a national project. This is an economically unviable project with huge adverse impacts on the river, people and environment. If it was such an important project, why was it allowed to remain stalled for years? https://www.timesnownews.com/business-economy/companies/article/nhpc-can-process-tenders-for-teesta-river-hydroelectric-project-supreme-court/702867 (04 Jan. 2021)
Karnataka Sharavathi HEP: HC issues notice to govt High Court on Sept. 8, 2020 issued notices to the state government and other agencies while hearing the PIL filed against the ongoing survey and geotechnical investigation for the Sharavathi Valley hydropower project in Shivamogga district. The petitioner, Edward Santosh Martin, opposed the project stating that the project should not be allowed to proceed as it violates multiple environmental laws and poses an imminent threat to the endangered Lion-tailed Macaque.
-The petitioner submitted that the establishment of the hydro-electric project is a prohibited activity in the Eco-Sensitive Zone of any National Park and Wildlife Sanctuary under the Environment (Protection) Act, 1986 and that such a project is not allowed inside a Wildlife Sanctuary mentioned under section 29 of the Wildlife (Protection) Act, 1972.
– Further objections were raised with the timing of the ongoing survey in monsoon. Incidentally, one of the conditions for the survey process laid down by the Forest Department is that the drilling had to be halted during the south-west monsoon. Ecologists consider the monsoon period as the rejuvenation time for the swamps and the drilling work, especially at this time, could upset the ecological balance of the forest area. https://www.thenewsminute.com/article/sharavathi-hydel-power-plant-karnataka-hc-issues-notice-state-govt-132760 (10 Sept. 2020)
Kerala HC orders timely completion of HEPs Should High Court prescribe deadlines for project implementation?
-As per the report filed before the court, 84.08 per cent of 60 MW Pallivasal extension scheme has been completed. Thottiyar HEP, a 40 MW project, is at 50 per cent now and can be completed by March 2021. Wanchiyam SHEP, which was allotted to private developer, has been transferred to KSIDC for implementation through private participation. Poringalkuthy SHEP (24MW) has reached 90.63% completion and is expected to finish by March 2021. Bhoothathankettu SHEP (24MW) will be completed by May 2021, with present progress at 92 per cent. Sengulam augmentation scheme (85MU) is 70.57 per cent complete and will be ready by March 2022. Upper Kallar SHEP (2MW) is 75 per cent complete, the report revealed.
– The Kerala High Court division bench directed that projects other than Wanchiyam should be completed in accordance with the time period prescribed in the report filed to the court. Regarding Wanchiyam project, the court directed KSIDC to consider the feasibility of the project and take a decision within six months. https://energy.economictimes.indiatimes.com/news/power/hydroelectric-projects-in-kerala-hc-orders-timely-completion/77604068 (18 Aug. 2020)
Rehabilitating adivasis for hydro project: Take action if land alienated: HC State govt should take action if land allotted to adivasis displaced to build lower Periyar hydro-electric power plant have been alienated. Justice Alexander Thomas also ordered the govt to use its machinery to ascertain the identity of 12 adivasis or their legal heirs who could not prove their identity as required by law to claim the one Ha govt land to each issued as per an order of 1992. https://energy.economictimes.indiatimes.com/news/power/rehabilitating-adivasis-for-hydro-project-take-action-if-land-alienated-says-kerala-hc/79540085 (03 Dec. 2020)
Summary NGT asking pollution control boards to ensure minimum flow downstream hydro projects across country may superficially sound good but deep down its quite alarming that rivers are being deprived of the flows essential to maintain ecological health. Equally disturbing is the fact that the decision is negotiating for release of only 15 per cent of historical minimum observed flow as environmental flows which is totally unscientific, insufficient from all perspectives.
No doubt, the pollution control boards are in shambles, resource staved as well as incompetent to get the order implemented. Then the govt agencies like NHPC are not agreeing to this. In Ganga e-flows matter[i] there is a legally enforceable notification of Oct 2018 and power projects including Tehri are violating them, but the NGT or other judicial bodies are doing nothing. Worse is that MoJS is not even replying to NGT for more than nine months. This foretells the fate of the intervention.
In Uttarakhand, the apex court talking of relocating hydro projects to ecologically safe zones seems to not understand that hydro projects are site specific and cannot be relocated. It appears more of a balancing act or paying lip service. If the SC had then asked for scrapping of projects like Rishi Ganga and Tapovan Vishnugad, since they violated the Ravi Chopra Committee recommendations, they would have done some real service. The Courts clearly are ignoring the ground situation, studies revealing entire Himalayan zone is vulnerable to earthquakes, GLOFs, flash floods, landslides and human induced climatic threats.
In Himachal, the same apex court has approved forest land diversion for various developmental projects including hydro power projects. This shows absurdity in court rulings.
Again in Uttarakhand in the face of telling evidence the NGT has failed to deliver timely justice to irresponsible muck dumping by NTPC in Tapovan Vishnugad HEP[ii] which would have lessened the destruction during Feb. 7, Chamoli Disaster. Indeed, the violations of norms in hydro projects is elephant in the room deliberately being ignored by developers, governments and courts. The under construction Vyasi HEP[iii] on Yamuna in Dehradun is obvious example of this.
The case of Rishiganga HEP[iv] another project proving graveyard for innocent human lives is also languishing in Nainital High Court. So is the matter of hydro projects on Ganga rivers and in para glacial zone still pending before the SC. The SC needs to investigate how the Justice Radhakrishnan order of Aug 13, 2013 was derailed and why it is allowing violations also in Char Dham High Project or the Ganga E flows.
While the courts are ignoring these ground realities, the construction of Singoli-Bhatwari is going on despite having no valid environmental clearance.
The respective courts in these cases are more or less paying lip service by forming committees of very agencies who are responsible for ensuring compliance and have failed and the court not even holding them accountable for the failures. Clearly, the judiciary has its major share of blame for the destruction in Chamoli disaster, such disasters are likely to increase in numbers and intensities.
The Kishanganga HEP case of J&K reveals that the project has become a financial burden. SC overruling Sikkim High Court order in Teesta IV hydro project case raises a lot of questions.
In Kerala the High Court seems setting deadline for hydro projects which is actually not even its mandate. The case of Periyar hydro project signifies the poor track record of rehabilitation of displaced people.
The only ray of hope has come from Karnataka High Court which has taken up the petition challenging constitution of EAC of River Valley and Hydro Projects. Such a scrutiny of the appointment of the EAC was long overdue and urgently required.
One hopes the High Court will take the matter to its logical conclusion and ensure that MoEF has a credible, transparent process of appointment of these committees as without such a process, the MoEF gets away with appointing only yes people on the committee who are happy to tow the government line. That nullifies the whole purpose of the constitution of the committee, the EIAs, the public consultations, the appraisals, the clearances and even credible monitoring and compliance.
It shows the complete failure of environment governance and laws and MoEF gets away with appointment of people with clear conflict of interest and who are not independent. MoEF has no credible process of selection of the chair and members of these committees. Hoping for the best for the case to correct all this.
Compiled by Bhim Singh Rawat (firstname.lastname@example.org)