Order of the National Green Tribunal regarding reconstitution of the Committee constituted by MoEF&CC for SLHEP, 31/07/2019
Order of the National Green Tribunal in the matter of Aabhijeet Sharma Vs Union of India & Others dated 31/07/2019. The applications seek reconstitution of the Committee constituted by the Ministry of Environment, Forest and Climate Change (MoEF&CC) in pursuance of order of the Tribunal dated 16.10.2017 for Subansiri Lower Hydro Electric Project (SLHEP).
Background of the Case:
The SLHEP set up by the National Hydroelectric Power Corporation Limited (NHPC) over the river Subansiri at Assam, Arunachal Pradesh border was to generate 2000 MW of power. Environment Clearance (EC) for the project was given by the MoEF&CC in the year 2003. The EC was subject to certain conditions, including the ecological flow downstream of the river Subansiri. The reports submitted on the project were challenged in the Supreme Court (SC).
Keeping in mind the sensitive location and the precautionary and the sustainable development principles, the Tribunal directed the MoEF&CC to constitute a Committee of three Expert Members to give their opinion with regard to the Terms of Reference (ToR) for which Project Oversight Committee was constituted on 13.01.2015. The MoEF&CC would then refer to the report submitted by the Committee for Stage – IV Appraisal by the Expert Appraisal Committee (EAC) under the EIA Notification, 2006. Accordingly, in compliance of the above directions, an Expert Committee was constituted by the MoEF&CC on 27.11.2017. The Terms of Reference (ToR) of the Committee included review of safety aspect of the dam and the downstream impact.
Application was filed seeking reconstitution of the Committee, with the MoEF&CC saying that the names of the Experts were finalized by the Ministry in consultation with Ministry of Earth Sciences, Central Water Commission and Central Electricity Authority. The experts were from fields of seismology, geology and hydrology and do not suffer from any bias and were experts in the field. NHPC supporting MoEF&CC stand, stated that the members of the Expert Committee were highly qualified and there was no basis for attributing any bias to them. Further, the cost of the project which was assessed in December, 2002 was Rs. 6285.33 Crores. Due to delay, the cost has already gone to Rs. 18,000/- Crores and 50% of the work has been completed till December, 2011. Each delay was causing a loss of Rs. 10 crores.
The case came up before the SC, where the Apex Court on 11.03.2019 said that it would be advisable that NGT address the objections.
The MoEF&CC filed a reply to the Tribunal that the experts had been associated with the government institutions which were associated with the project and "there can be no plea of conflict of interest as alleged by the applicants". Role of the Committee is purely recommendatory. The EAC had to conduct Stage – IV Appraisal. EAC comprises 15 Members, with different domain expertise for project appraisal. Affidavity filed by the MoEF&CC informed the Tribunal that the report of the Committee dated 23.03.2019 was placed before the EAC which was approved and recommendation was made for grant of EC. NHPC was intimated of laying down the conditions to be observed in the course of the project. The location of Lower Subansiri HEP was accepted and the foundation grade rock at the dam site consists of relatively low strength sandstone of Subansiri Formation, which is free from any active tectonic discontinuity, the court was informed.
"The project is to advance public interest. We have not found any material on record justifying the plea of bias. The EAC has conducted the appraisal. The Competent Authority has agreed with the same. Mere association of organizations with the project in professional capacity is not enough to hold that any Expert who worked in such association will have an institutional bias,' the order of NGT read and dismissed the applications.