Supreme Court: Appeal Maintainable Before NGT Against Corrigendum Imposing New Environmental Clearance Conditions

Supreme Court: Appeal Maintainable Before NGT Against Corrigendum Imposing New Environmental Clearance Conditions

The bench was deliberating on pleas challenging the orders of the green tribunal

The Supreme Court has permitted IL&FS Tamil Nadu Power Company Limited to continue with its two power plants in the state. However, it is subject to full compliance with the conditions mentioned in the National Green Tribunal’s environmental clearance and its corrigendum.

A bench comprising Justice MR Shah and Justice CT Ravikumar ruled in pleas challenging NGT’s two orders.

First, upholding the validity of the environmental clearance granted to the company with direction to review and add additional conditions. Second, quashing the corrigendum of adding conditions to the original clearance issued to the company.

While permitting the company to continue with the power plants, the bench noted that Tamil Nadu is an energy deficit state and closing the power plants that supply power to over 40 lakh households would not be in the public interest.

IL&FS Tamil Nadu Power Company Limited (now under the Government. of India), was incorporated in 2006 for establishing an imported coal-based thermal power plant in Tamil Nadu. In 2008, the company submitted the form to obtain terms of reference for EIA study.

The expert appraisal committee (EAC) considered the project and recommended it for environment clearance, subject to the stipulation of specific conditions. These included keeping space for providing fa lue gas desulfurization system with all five units of the power plant to enable the system to be installed whenever required. Accordingly, it was granted clearance.

But the fishermen and persons acting for the welfare of the fishermen challenged the grant before the National Environment Appellate Authority. Once NGT was established, the petition was transferred to the green tribunal.

NGT upheld the validity of the clearance, but directed the Ministry of Environment and Forests (MoEF) to review the clearance based on a cumulative impact assessment study and, if required, stipulate additional conditions. In the interim, it suspended the environmental clearance.

Thereafter, instead of a cumulative impact assessment study, the company conducted a raid cumulative impact assessment. The EAC recommended certain additional conditions for the clearance. These included the requirement of installing an FGD system as part of the power plant.

Based on the recommendation, the MoEF issued a corrigendum to the clearance, imposing additional conditions.

The original petitioners challenged the issuance of the corrigendum once again. In its November 2014 order, NGT quashed the corrigendum. But, by an interim order, the apex court stayed the order due to which the company commenced two power plants, which since 2015, have been in operation.

The Supreme Court noted that post the interim stay order, the company had commenced with two power plants and was supplying power to approximately 40 lakh households. Still, the company had to abide by the conditions imposed by the corrigendum.

The bench ruled that there was substantial compliance with the conditions imposed on the company. Though there were no fundamental breaches, some conditions were still partially complied with. It permitted the company to continue with the two power plants subject to compliance with all the conditions. It also directed the company to comply with the conditions which were partly complied with, within the stipulated time.

Justice Shah and Justice Ravikumar also addressed the issue of ‘whether against the corrigendum to the environmental clearance, along with additional conditions, an appeal before the NGT would be maintainable’.

The judges held that an aggrieved person could always challenge the corrigendum imposing additional conditions to the environmental clearance. But the appeal would be restricted to the corrigendum if the original clearance was not under challenge and/or it was confirmed by the NGT earlier on certain conditions which were not challenged.