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A New Era for Environmental Litigation in India

Shibani Ghosh
January 30, 2012

2011 was a landmark year for environmental litigation in India, a country with a rich history of environmental movements, grass-roots activism and a responsive higher judiciary. Although litigation on environmental issues has flourished for more than three decades, 2011 is distinctive for the establishment of the National Green Tribunal (NGT) by the Ministry of Environment and Forests (MoEF). It is not just the fact that it was set up, as earlier on, there was a similar tribunal, albeit a less powerful one. It is the manner in which the MoEF was galvanized by the Supreme Court in this direction, the first tentative “steps” of the NGT, and its continuing struggle to fully establish itself. Created to focus on environmental issues, the law constituting the NGT received presidential assent in June 2010 but was only enforced by October 18th of that year through a Notification of the Central Government. On that date, Justice L. S. Panta, a former judge of the Supreme Court of India, was appointed as the NGT's first Chairperson, though none of the other members had yet been appointed, nor was there much infrastructure or staff.

The coming into force of the NGT Act implied an automatic repeal of two existing laws: the National Environment Tribunal Act 1995 and the National Environment Appellate Authority Act 1997, and therefore the closure of the National Environment Appellate Authority (NEAA) - a quasi-judicial body empowered to hear appeals against the environmental approvals granted (or not) to projects. All the cases pending before the NEAA were to be heard by the NGT. Its closure created a judicial vacuum as there was no forum for new cases, and the pending cases were left in limbo. Without the appointment of at least one other member besides the Chairperson, the NGT could not function. While the MoEF continued to grant regulatory approvals, there was no judicial redressal mechanism to challenge the same. This situation might have continued indefinitely had it not been for the Supreme Court's direction that the MoEF regularly report on the progress made in establishing the new tribunal. As a result, three judicial members and four expert members were appointed on May 5, 2011 and the NGT held its first hearing on May 25, 2011.

The NGT’s mandate is much wider than that of its predecessor, the NEAA. It can entertain cases raising “substantial questions relating to the environment” which arise from the implementation of seven laws including those on air pollution, water pollution, environment protection, and biodiversity. It is not just an appellate body, but also has original jurisdiction to decide certain categories of cases. It can award compensation and direct restitution of damaged ecology and property.

Today, regular hearings take place but the NGT is still faced with major institutional challenges. The NGT functions from two different premises as the building it is supposed to be seated in is yet to be vacated by the current occupant, the National Human Rights Commission. Of the minimum ten judicial and ten expert members, only two judicial members and four expert members have been appointed, and the Chairperson has since resigned. The government appears unable to provide appropriate accommodation to the members.  The circuit benches at Pune, Kolkata, and Chennai are yet to hold hearings, although an “inaugural” hearing was held at the Bhopal bench this past November. Interestingly, when the NGT Act was initially introduced in Parliament, the then-Minister of State for Environment and Forests was keen to locate the principal bench of the NGT at Bhopal as a symbolic response to the Bhopal Gas tragedy of 1984. However, the idea was dropped before the Act was passed.

Over the past nine months, around eighty cases have been filed in the NGT. Given the NGT's broad mandate, a variety of issues have been raised. These issues range from cases challenging environmental approvals granted to power projects, to those questioning governmental permission to use forest land, to issues of air and noise pollution. Unlike the NEAA, where the parties approaching the Authority were mostly project-affected persons or community-based organizations, the NGT attracts a wider spectrum of applicants ranging from small and medium-sized enterprise owners who are affected by decisions of pollution control boards, to big companies seeking to challenge regulatory conditions on which they have been imposed.

Since its establishment, the NGT has pronounced some significant judgments. On the issue of delay in bringing matters to the notice of the tribunal, the NGT has adopted a liberal position, thereby keeping the doors of the NGT open longer for justice seekers. The law provides that anyone who wants to challenge a decision of the government must approach the NGT within thirty days from the date on which the decision was made. An additional period of sixty days could be granted to approach the NGT, however this delay would need to be explained to the Tribunal, which may or may not find “sufficient cause” for the delay. After a lapse of ninety days, no recourse lies in the NGT. In a case challenging the diversion of forest land for the construction of a hydro power project in Himachal Pradesh, the appellant approached the NGT on the ninetieth day from the date on which the decision was taken. The NGT condoned the delay, maintaining that there was no “strait jacket formula” to accept or reject an explanation for delay, and relied on decisions of the Supreme Court advocating a liberal approach when there is no negligence and the delay on the part of the litigant is bona fide.

A second important decision of the NGT was on the issue of who could approach the Tribunal (i.e. who has legal standing). The NGT held that any person can approach the Tribunal to agitate a grievance relating to the protection and improvement of the natural environment as long as it is not a frivolous petition. This decision is extremely significant as it opens up the arena for environmental litigation to a much wider group of stakeholders. Persons need not be directly affected or injured by a particular decision of the government (such as giving approval to a thermal power plant or a dam) to approach the NGT. Any person who has reason to believe that a decision will have an adverse impact on the natural environment can approach the Tribunal.

In one of its first judgments on merits, concerning a mining operation, the NGT, while identifying lapses in the environment impact assessment (EIA) for the project, commented on the inadequacies of the EIA system in India: first, the lack of cumulative impact assessment of other projects within a 10 km radius (which was not done in this case); second, as EIA is done by consultants who are paid by the project proponent, a conflict of interest arises and there is a possibility that “intrinsic information which may go against the proponent” is not revealed; and third, the consultant, whose EIA report is the basis for the decision making, is not accountable to anyone for the information it provides. These issues have been raised time and again by environmentalists, with no policy or legislative response from the Government. The NGT finally decided that the approval would be kept in abeyance until the project and its environmental impact was reassessed by the MoEF.

While these examples have been hailed by environmental lawyers as “progressive,” there are, at the same time, NGT orders that have taken a more cautious approach. For instance, the NGT has refused to stop work at project sites during the pendency of cases, maintaining that companies cannot claim equity at a later stage, or in other words, take the defense of fait accompli. However, that is of little solace for the affected communities, as the environment once destroyed is hard to restore to its natural state.

The NGT has been formed for an “effective and expeditious disposal of cases” relating to environmental protection and conservation of forests and other natural resources. While it is perhaps too soon to evaluate the NGT, the very existence of this specialized tribunal, with such wide powers and jurisdiction, brings a timely and much required degree of prominence to environmental legal issues in India.

Shibani Ghosh is a Research Associate at the Centre for Policy Research, New Delhi, and is associated with the Legal Initiative for Forest and Environment, a public interest environmental law firm based in New Delhi. Email: shibanighosh83@gmail.com


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