Environmental litigation in India
Feb 15, 2012

The following article by Shibani Ghosh on environmental litigation in India appeared in the Hindu Business Line (a national daily) on 31 January 2012.

Although litigation on environmental issues has flourished for more than three decades, 2011 is distinctive for the establishment of the National Green Tribunal (NGT) by the Ministry of Environment and Forests (MoEF). The MoEF was galvanised by the Supreme Court in this direction. Created to focus on environmental issues, the law constituting the NGT received presidential assent in June 2010, but was only enforced by October 18 that year, through a Central Government notification. On that date, Justice L. S. Panta, a former judge of the Supreme Court of India, was appointed as the NGT’s first Chairperson, though none of the other members had yet been appointed.

REPEAL OF LAWS

The coming into force of the NGT Act implied an automatic repeal of two existing laws: the National Environment Tribunal Act 1995, and the National Environment Appellate Authority Act, 1997, and, therefore, the closure of the National Environment Appellate Authority (NEAA) — a quasi-judicial body empowered to hear appeals against the environmental approvals granted (or not) to projects. All the cases pending before the NEAA were to be heard by the NGT. Its closure created a judicial vacuum, as there was no forum for new cases, and the pending cases were left in limbo.

Without the appointment of at least one other member besides the Chairperson, the NGT couldn’t function. While the MoEF continued to grant regulatory approvals, there was no judicial redressal mechanism to challenge it. This situation might have continued indefinitely if it hadn’t been for the Supreme Court’s direction that the MoEF regularly report on the progress made in establishing the new tribunal. As a result, three judicial members and four expert members were appointed on May 5, 2011, and the NGT held its first hearing on May 25, 2011.

The NGT’s mandate is much wider than that of its predecessor, the NEAA. It can entertain cases raising “substantial questions relating to the environment” which arise from the implementation of seven laws, including those on air pollution, water pollution, environment protection, and bio-diversity. It isn’t just an appellate body, but also has original jurisdiction to decide certain categories of cases. It can award compensation and direct restitution of damaged ecology and property.

MAJOR CHALLENGES

Today, regular hearings take place, but the NGT is still faced with major institutional challenges. The NGT functions from two different premises. Of the minimum ten judicial and ten expert members, only two judicial members and four expert members have been appointed, and the Chairperson has since resigned.The circuit benches at Pune, Kolkata, and Chennai are yet to hold hearings, although an “inaugural” hearing was held at the Bhopal bench last November. During the past nine months, around 80 cases have been filed in the NGT. These issues range from cases challenging environmental approvals granted to power projects, to those questioning governmental permission to use forest land, to issues of air and noise pollution. Unlike the NEAA, where the parties approaching the Authority were mostly project-affected persons or community-based organisations, the NGT attracts a wider spectrum of applicants ranging from small and medium-sized enterprise-owners, who are affected by decisions of pollution control boards, to big companies seeking to challenge regulatory conditions.

FLEXIBLE APPROACH

Since its establishment, the NGT has pronounced some major judgments. On the issue of delay in bringing matters to the notice of the tribunal, the NGT has adopted a liberal position, thereby keeping the doors of the NGT open longer for justice seekers. The law provides that anyone who wants to challenge a decision of the government must approach the NGT within 30 days from the date on which the decision was made. An additional period of 60 days could be granted to approach the NGT; however, this delay would need to be explained to the Tribunal, which may or may not find “sufficient cause” for the delay. After a lapse of 90 days, no recourse lies in the NGT.

In a case challenging the diversion of forest land for the construction of a hydro power project in Himachal Pradesh, the appellant approached the NGT on the ninetieth day from the date on which the decision was taken. The NGT condoned the delay, maintaining that there was no “strait-jacket formula” to accept or reject an explanation for delay, and relied on the decisions of the Supreme Court, advocating a liberal approach when delay on the part of the litigant is bonafide.

A second important decision of the NGT was on the issue of who could approach the Tribunal (i.e. who has legal standing). The NGT held that any person can approach the Tribunal to agitate a grievance relating to the protection and improvement of the natural environment as long as it isn’t a frivolous petition. This decision is significant as it opens up the arena for environmental litigation to a much wider group of stakeholders. Any person who has reason to believe that a decision will have an adverse impact on the natural environment can approach the Tribunal.

PROGRESSIVE MOVE

In one of its first judgments on merits, concerning a mining operation, the NGT, while identifying lapses in the environment impact assessment (EIA) for the project, commented on the inadequacies of the EIA system: first, the absence of cumulative impact assessment of other projects within a 10 km radius (which wasn’t done in this case); second, as EIA is done by consultants who are paid by the project proponent, a conflict of interest arises and there is a possibility that “intrinsic information which may go against the proponent” isn’t revealed; and third, the consultant, whose EIA report is the basis for the decision-making, isn’t accountable to anyone. The NGT finally decided that the approval would be kept on hold until its environmental impact was reassessed by the MoEF.

There are, however, some NGT orders that have taken a cautious approach. For instance, the NGT has refused to stop work at project sites during the pendency of cases, maintaining that companies cannot claim equity at a later stage, or in other words, take the defence of fait accompli. However, that is of little comfort for the affected communities, as the environment once destroyed is hard to restore. While it is perhaps too soon to evaluate the NGT, its very existence brings a much-required degree of prominence to environmental legal issues in India.

(The author is Research Associate at Centre for Policy Research, New Delhi, and is associated with Legal Initiative for Forest and Environment.)

(This article is by special arrangement with the Centre for the Advanced Study of India, University of Pennsylvania.)

The article is available at: http://www.thehindubusinessline.com/opinion/article2848051.e... and http://casi.ssc.upenn.edu/iit/ghosh

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