POSCO Judgement of National Green Tribunal – Briefing Note
On March 30, 2012, the National Green Tribunal held in Prafulla Samantra and Anr. vs Union of India and Ors. that the 31.1.2011 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 (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.
The tribunal has observed that, “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. No meticulous scientific study was made on each and every aspect of the matter leaving lingering and threatening environmental and ecological doubts un-answered.” (para 7, page 22)
It has also seriously questioned the appointment of Ms. Meena Gupta as the chairperson of the review committee which was set up by the MoEF in 2010. The judgement states that Ms. 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 has to look at the problems noted in this judgment as well as the majority and minority reports of the earlier Enquiry Committee (see list of dates), etc. In particular it has to look at:
Land and infrastructure: The clearance was given for a 4 million tonnes per annum (MTPA) steel plant, but the land, water etc. were allocated for a 12 MTPA project (which has been POSCO’s stated plan). The judgment directs MoEF to “consider optimizing the total land requirement for 4 MTPA steel plant proportionately.”(para 8.5) Moreover, the impacts of other infrastructure for the plant have not been assessed at all, even though they were planned for a 12 MTPA plant.
Issues that should have been done now, but which MoEF left for future studies: On several points highlighted by the review committee, the MoEF just said future studies should be done and ignored the issue. The Tribunal finds this deeply unsatisfactory, and notes the following among other issues:
Water: The Tribunal said that “We are all aware that … the drinking water is becoming scarce commodity and at every level precaution needs to be taken for protecting the drinking water supply to human habitation and preventing from utilizing 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 the utilizing the water meant for Cuttack city… could be examined.” (para 7.4, page 29)
Pollution: 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)
Impact on surrounding wetlands and mangroves, as well as cyclone risk: This was left for vague future studies without any time frame or modus operandi. In addition, the Ministry has to frame a policy to ensure 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). It also has to 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 has to constitute a review committee of subject specialists (para 8.3), define timelines for compliance with conditions (para 8.4), establish a committee for monitoring compliance with these conditions (para 8.4). No work can start on the project until the review process is over.
The case was argued by Sr. Adv. Raj Punjwani, Adv. Ritwick Dutta and Adv. Rahul Choudhary for the petitioners.
June 2005: POSCO, Orissa government sign MoU for 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 Enquiry Committee constituted under Meena Gupta.
October 2010: Three member majority of enquiry 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
Kanchi Kohli, activist, 9811903112, email@example.com
Shankar Gopalakrishnan, Campaign for Survival and Dignity, 9873657844, firstname.lastname@example.org