In clearing Great Nicobar project, NGT continues its streak of failed merit review

On February 16, the National Green Tribunal (NGT) dismissed coastal zone regulations-related challenges to the Rs 80,000 crore mega project in Great Nicobar island. The project comprises an international airport, a transshipment terminal, gas and solar power plants, a township and tourism facilities. 

In its decision, the tribunal relied on studies conducted by bodies like the Zoological Survey of India (ZSI) and the National Centre for Sustainable Coastal Management (NCSCM), both of which function under the Union environment ministry that granted environment clearances to the project. The tribunal noted that "adequate safeguards" were provided in the conditions mandated under environmental clearances for the project and directed the relevant authorities to ensure “full and strict compliance” of such conditions. It also noted the “strategic importance” of the mega project. 

“Are the environmental clearance conditions strong enough to prevent ecological damage in a project of this scale?” asked Debi Goenka of Conservation Action Trust. Goenka had earlier challenged the forest clearance granted to the Great Nicobar mega project in the NGT which too was dismissed. “Environment clearance conditions for all projects remain on paper and are never fully implemented in letter and spirit. Given the fact that access to these islands is extremely expensive and restrictive, it is obvious that it will never be possible to independently monitor compliance with the environment clearance conditions,” he added. 

Some of the conditions attached to the environment clearance are also unscientific and vague. For instance, one says “No trees will be cut at one go. These will be done in [a] phased manner and depending on the progress of the work on an annual basis.” Another reads “Trees with nesting holes of endemic owls to be identified and geo-tagged with the help from SACON [Salim Ali Centre for Ornithology and Natural History]. Such trees shall be safeguarded, as far as possible.”

The tribunal, relying on a report by NCSCM, also said that no part of the project falls under ‘CRZ-IA’ area which is the most ecologically sensitive area within the Coastal Regulation Zone (CRZ) framework. This is despite the fact that the transshipment terminal is proposed to be built in Galathea Bay which is a Giant Leatherback turtle nesting ground, the site of corals and mangroves and where the endangered Nicobar megapodes live and nest. The NGT also accepted ZSI’s suggestion that the ‘scattered corals’ present in the area can be translocated. 

“Over the last few years, the NGT has been reluctant to set aside clearances granted to projects,” said Ritwick Dutta, an environmental lawyer. “The tribunal has the power to stand in the shoes of the original decision maker, apply its mind independently and be an expert body over experts. But in this case, all that the NGT said is that the Union environment ministry has considered the issues and the relevant conditions are a part of the environment clearance granted to the project,” he added. 

One of the most important functions of the NGT is merit review. 

The NGT operates under two jurisdictions: original and appellate. Original jurisdiction under Section 14 of NGT Act, 2010 allows the NGT to hear substantial environmental questions like on tree-felling and air and water pollution while the appellate jurisdiction under Section 16 empowers it to review decisions by environmental regulatory authorities like the grant of environment and forest clearances. 

Therefore, unlike other courts in the country, the NGT is empowered to review not just whether laws and procedures have been followed but also whether decisions have been taken based on the merit of arguments and with technical expertise. 

In this case, it means the NGT had the power to decide whether the mega project should go ahead or not, what environmental impacts could arise if the project goes ahead and even questions like the scientific basis of conditions attached to the environment clearance granted to the project, whether major coral reefs exist in Galathea Bay and whether translocation of such reefs is at all possible. But in its order, the NGT repeatedly references that issues raised by the petitioner have already been considered by other bodies and relies on their reports. In other words, the NGT failed to undertake a merit review. 

As for judicial review, here too the NGT has failed to consider legality of actions like whether coastal zone regulations permit a transshipment terminal to be constructed in Galathea Bay.  

“The orders we see in news media regularly where NGT expresses dismay over tree-felling or pollution are all under section 14. But in the last few years, the NGT has not exercised its powers on harder questions under section 16 that allow it to set aside environment and forest clearances granted to projects. Except maybe in a few cases like in NGT benches in the South,” Dutta explained. 

Earlier, the NGT had put a stop to projects where it found violations like the steel plant by POSCO, mining by Vedanta and hydropower projects in the Northeast like Nyamjang Chhu in Arunachal Pradesh. Some experts attribute strong appellate powers of the NGT earlier to the presence of independent members like from academia as opposed to the present situation with an overwhelming presence of retired persons from the Indian Forest Service or the Union environment ministry.  

In the present case, the NGT constituted an ad hoc bench to hear the Great Nicobar case comprising members from Benches like the Principal Bench and the Western Bench and not the Eastern Bench which the order was posted. The NGT also has vacancies at present and some members are continuing beyond their retirement term. 

With inputs from Bhuvan Malik.

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