How Welspun Misled EAC to Revive the ‘Quashed’ Environmental Clearance of its Mirzapur Thermal Power Plant in Uttar Pradesh? Read Full Story
The Environmental Clearance (EC) of the project was quashed by National Green Tribunal on 21st December 2016.
No lessons learned from its experiences, the company M/s Welspun Energy (U.P.) Pvt. Ltd has perhaps chosen to continue its old tactics of fooling around the authorities and making a mockery of the law. On 24th July 2017, the Expert Appraisal Committee (EAC) of MoEFCC considered the proposal for ‘amendment of Environmental Clearance dated 21st August 2014’ which was rendered illegal by National Green Tribunal on 21 December 2016. The relevant portion of the minutes of the meeting is available here.
Para 61: Cumulatively, therefore, the entire process of consideration and appraisal of the proposal to grant EC is found tainted so as to render it less credit worthy than the one expected by law and as such makes it even more difficult to suggest the safeguards in order to render the project sustainable one. We, therefore, answer the question raised herein above negatively. In our opinion, it is advisable to go through the entire process of EC afresh before green signal is given to the project.
We, therefore, allow this Appeal and pass the following directions:
1. The Appeal is allowed and EC dated 21-08-2014 is set aside.
2. Respondent no. 4 shall not carry out any developmental work at the project site.
3. The respondent no. 4 shall restore the area to its original condition.
4. Work of restoration is stayed for a period of two months.
~ Excerpt from the judgment dated 21/12/2016 by National Green Tribunal (Read the full judgment dated 21/12/2016)
Unhappy with the said judgment the company Welspun Energy, State of U.P. and MoEFCC moved Review Application to the court praying that the EC may be kept suspended until rectification of defects. The respondents even made stand ASG Tushar Mehta as a counsel for State & Centre while Advocate Pinaki Misra, Member of Parliament (BJD) from Odisha appeared for the company to argue the Review Application. The Review also came to be dismissed by NGT on 1st May 2017 stating the following:
2. We have heard the learned Counsel appearing for the respective parties, including the non-applicant, at length. After hearing the parties and perusing the records before us, we are of the considered view that the grounds raised in the present applications for review have no merit and fall within the Appellate Jurisdiction in contradistinction to Review Jurisdiction.
3. However, for proper implementation of the judgement, a clarification needs to be issued which we do hereby issue, that the project proponent is at liberty to approach the MoEF&CC or any other competent authority for processing of the applications for grant of EC upon making up for/rectifying the defects and deficiencies pointed out in the judgment. However, the authorities concerned are at liberty to process the same in accordance with law while strictly adhering to the content of the judgment.
It is very clear that the court has decided against modification of the original judgment dated 21/12/2016 which runs into 49 pages highlighting serious violations in the conduct of the EIA process and appraisal by the Expert Appraisal Committee while granting the EC. The court has nowhere allowed them or given any direction to modify the Environment Clearance. The para 3 of the Review judgment further makes it very clear that the authorities concerned are at liberty to process the same in accordance with law while strictly adhering to the content of the judgment. A simple meaning of the judgment is that Welspun Energy may submit a new application (Form –I) and Pre-Feasibility Report treating it as a fresh project proposal and is required to undergo all the necessary stages under EIA Notification, 2006 which would require identification of alternative site, determination of TOR’s by EAC based on its own merits. Thus, unless the cancellation of EC is set aside or made operational or valid, no amendment of the EC which has been rendered illegal and invalid could be sought. However, the EAC-Thermal still considered the project for 'amending the old EC' which is till date quashed as per law.
The company Welspun Energy not only wrongly interpreted the judgment but it is misleading the EAC by presenting facts which were already considered and decided by the NGT against the project proponent. The following points highlighted in yellow were already considered and held wrong and illegal by NGT.
Advocate Parul Gupta, who argued the original matter before the NGT on behalf of Vindhya Bachao members has sent a written representation on 6th September, 2017 to all the Expert Members and other key government officers stating that the EAC cannot entertain the application for the amendment of the quashed EC made by the project proponent since the same would be contrary to the judgments passed. The representation can be downloaded here and also embedded below: