POSCO and/or the government can appeal the Green Tribunal’s decision in the Supreme Court, but no work can begin till the review process is completed
On March 30, 2012, the National Green Tribunal (NGT) held, in Prafulla Samantra and Anr Vs Union of India and Ors, that the January 31, 2011 final order of the environment ministry, permitting the POSCO project to go ahead with certain conditions, should be suspended until a full review of the project can be undertaken. The review should be undertaken by specialists with fresh terms of reference. The NGT Bench consisted of Justice C V Ramulu, judicial member, and Dr Devendra Kumar Agarwal, expert member.
“A close scrutiny of the entire scheme … reveals that a project of this magnitude, particularly in partnership with a foreign country, has been dealt with casually, without there being any comprehensive scientific data regarding the possible environmental impacts,” the tribunal held. “No meticulous scientific study was made on each and every aspect of the matter, leaving lingering and threatening environmental and ecological doubts unanswered” (para 7, page 22).
The Green Tribunal has also seriously questioned the appointment of Meena Gupta as the chairperson of the review committee which was set up by the MoEF in 2010. The judgment states that Gupta's appointment was "definitely hit by personal / official / departmental bias, in other words, she supported the decision made by her earlier. This is in gross violation of principles of natural justice" (para 6.9 page 22).
Key directions of the Green Tribunal
The tribunal has directed a "fresh review of the Project" (para 8.1) that should look at the problems noted in this judgment as well as the majority and minority reports of the earlier inquiry committee (see list of dates) etc. In particular it should look at:
Land and infrastructure: The clearance was given for a 4 million tonnes per annum (MTPA) steel plant, but resources such as land and water were allocated for a 12 MTPA project (which has been POSCO's stated plan). The judgment directs MoEF to "consider optimising the total land requirement for 4 MTPA steel plant proportionately"(para 8.5). Moreover, the impact of other infrastructure for the plant has not been assessed at all, even though they were planned for a 12 MTPA plant.
Issues that should have been addressed now, but which MoEF left for future studies: On several points highlighted by the review committee, the MoEF has only said that future studies should be done and then ignored the issue. The tribunal finds this deeply unsatisfactory, and notes the following, among other issues:
- The tribunal said that "we are all aware that ... drinking water is becoming
- (a) scarce commodity and at every level precaution needs to be taken for protecting the drinking water supply to human habitation and preventing from utilising such water for industrial use ...Alternative water source for the present project, like creating/ constructing a small barrage or augmenting any other existing source at the cost of project proponent to avoid utilising the water meant for Cuttack city... could be examined." (para 7.4, page 29)
- The plant's discharge was also left for future study by MoEF. The tribunal says this is a "serious environmental concern" (para 7.4, page 30)
C)Impact on surrounding wetlands and mangroves, as well as cyclone risk:
- This too was left for vague future studies without any timeframe or modus operandi.
In addition, the tribunal has asked the ministry to frame a policy to ensure that large projects are assessed in full for a single clearance (rather than being allowed to get piecemeal clearances for each component, as in this case) and for their full capacity at the start (paras 8.7,8.9). The ministry must also do a strategic assessment of the ports in Orissa. (para 8.8) POSCO and the government sought to argue that the case cannot be filed as the original clearances were given in 2007 (and, incidentally, will expire in May/July this year). The Tribunal held that the 2011 order can still be looked at even if the 2007 ones cannot be; it therefore directed review and suspension of the 2011 order.
POSCO and/or the government can appeal this decision in the Supreme Court. Meanwhile, MoEF is required to constitute a review committee of subject specialists (para 8.3), define timelines for compliance with conditions (para 8.4), and establish a committee for monitoring compliance with these conditions (para 8.4). No work can begin on the project until the review process is over.
The case was argued by Sr Adv Raj Panjwani, Adv Ritwick Dutta and Adv Rahul Choudhary for the petitioners.
June 2005: POSCO and Orissa government sign MoU for a 12 million tonne steel plant, private port and captive iron ore mines. Protests begin in steel plant area and area is cordoned off by peaceful protesters.
May 2007: Environmental clearance for port granted by environment ministry, then under A Raja.
July 2007: Environmental clearance for plant granted by environment ministry, then under PM. Secretary is Meena Gupta. Protests continue in the face of violent attacks and numerous arrests.
December 2009: Forest clearance granted for taking over forest land by environment ministry, then under Jairam Ramesh.
August 2010: Forest clearance suspended following complaints of violations of law, and inquiry committee constituted under Meena Gupta.
October 2010: Three-member majority of inquiry committee gives report saying environmental and forest clearances illegal. Meena Gupta dissents, holds clearances legal but recommends additional study and time to ensure compliance.
January 31, 2011: Environment ministry disregards both majority and minority reports, upholds environment and forest clearances, while prescribing some additional conditions (mostly consisting of additional studies to be done in future).
June 2011: Prafulla Samantray challenges final order in National Green Tribunal.
March 31, 2012: Green Tribunal judgment.
For further information:
Prafulla Samantray, activist and petitioner in this case, 09437259005
Prashant Paikray, POSCO Pratirodh Sangram Samiti, 09437571547
Shankar Gopalakrishnan, Campaign for Survival and Dignity, 9873657844,