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JUDGMENT S. Rajendra Babu, J.
1. In the year 1991 the Government of India decided to liberalise the policy for the development of power Sector in India. Electricity (Supply) Act. 1948 was amended by the Electricity Laws (Amendment) Act of 1991 to enable private parties to establish, operate and maintain generating stations. A scheme was formulated by Government of India on 22nd October, 1991 to encourage the private enterprises to take part in power generation, supply and distribution which was published in the Gazette of India, The said scheme provided that the Generating company can enter into a contract for the sale of electricity generated by it with the State Electricity Board in any State where it owns/operates generating station/stations or in any other State it is carrying on its activities or with any ether person with the consent of the competent Government concerned. The procedure for fixing the tariff for the sale of electricity was also provided in the scheme. Government of India constituted, on the same date, a High level Board for considering promotion of investment by private units in the Electricity sector. On 31st March, 1992, Government of India issued a notification setting out the factors in accordance with which the tariff should be determined. In April, 1992 the Government of India published a brochure detailing the new policy for encouraging private sector participation for power generation and supply. The said brochure mentioned various clearance required for taking up the project. In May, 1992 a High Level Delegation of the Government of India visited U.K. and U.S.A. to invite foreign enterprises to set up power projects in India. These policies and the steps taken were widely circulated through the media, in the seminars and meetings and were also sent to every major company in the world. Lot of publicity was also given to the visits by the high level delegation and discussions held with prospective private enterprises. The delegation made highly publicised presentations to audiences of investors, project developers, financial institutions, independent power generators and US-based companies.
2. The Government of Karnataka in order to augment its generating capacity decided to invite foreign investors in the field of Electricity inasmuch as the State owned Karnataka Power Corporation Ltd., (KPCL) did not have enough financial resources to set up such a project on its own. The State Cabinet approved this policy and also the Memorandum of Understanding on 15th July, 1992 for generation of power with the following companies:
1. M/s North East Energy Services, USA
- Chamalpur
2. M/s Westing House Electric Corprn. USA - Hospet
3. M/s North East Energy Services, USA
- Raichur Unit 5 & 6;
4. M/s Cogentrix Inc. USA - Mangalore & Bangalore;
5. M/s Condotte, Italy - Shivasamudram
3. A team led by the then Chief Minister accompanied by Secretary, Energy Department, Principal Secretary to the Chief Minister, Director of Industries and Commerce and the Resident Commissioner, Karnataka, visited U.S.A. U.K. and Italy. The team widely publicised the purpose of its visit and distributed brochures outlining the policy of the State Government to encourage private sector participation. During the said visit, for the thermal power project to be located at Mangalore, Memorandum of Understanding (MOU) was entered into with M/s Cogentrix Energy Inc., U.S.A. The project site at Mangalore was selected on the basis of a report made by Dr.M.P Chokkalingam Committee. At that time, the project was allotted to National Thermal Power Corporation (NTPC) to set up 2420 M.W super-thermal project in collaboration with the Soviet Union. However, NTPC was not able to put up this project owing to disintegration of the Soviet Union. Thus the matter was finalised to allow M/s Cogentrix Energy Inc., to set up its project at Nandikur, Mangalore.
4. In the year 1986-87 KPCL obtained the expert advise of M/s Tata Consulting Engineers to generate power through a thermal power plant with its location in Dakshina Kannada After evaluation of several factors and several alternative sites, a report was submitted by TCE that the site nearby Nandikur village was optimally suited for the local of thermal power project. The proposal then was to establish a power plant having a capacity of 2X210 MW. The suitability of the area at Nandikur village for setting up of the thermal power project was also supported by the report of Dr. Chokkalingam, Annamalai University, who was requested to carry out environmental impact study. In the meanwhile, NTPC also evinced interest in establishing a super-thermal power plant at the said site. NTPC proposed to establish 2420 MW super thermal power project by using indigenous coal and 2400 acres of land was sought to be acquired for the purpose.
5. The proposal of the NTPC was called in question in this court by one of the petitioners before us in JANA JAGRUTHI SAMITHI v. UNION OF INDIA AND ORS., 1991(2) Kar.L.J. 524, The challenge to the location of the proposed project was considered by this Court in the said decision and this Court rejected all those contentions to the contrary. When the matter was carried in appeal to the Supreme Court, the same was rejected by an order dated 18.12.1991 observing that the only objection raised was that the said thermal power plant has not been cleared by the Ministry of Environment and Forests (MOE&F) and the Cabinet Committee on Economic Affairs and recorded the undertaking of the State Government and NTPC that the thermal power plant would not be constructed until necessary MOE&F clearances of the Government of India and the Cabinet Committee were obtained. NTPC power plant was accorded clearance in 1992 for its I Phase of establishment with a configuration of 2X210 MWs. For the reasons already set out, that project could not be pushed through.
6. M/s Cogentrix Energy Inc., USA (Cogentrix) was invited to explore the possibility of setting up a thermal power plant in the State of Karnataka. After a series of discussions with officials at different levels, a Memorandum of Understanding was signed on 30th July, 1992 between M/s Cogentrix Energy Inc., USA and the Government of Karnataka for setting up of a thermal power project near Mangalore, Dakshina Kannada District. The Cabinet Committee on Foreign Investment, Government of India, gave its approval to the power project by an order made on 11.5.1993. M/s Cogentrix which signed the Memorandum of Understanding with the Government of Karnataka, now seeks to implement the project through Mangalore Power Company (MPC) which is a joint venture between Cogentirx and 'China Light & Power Company Limited of Hong Kong. Power purchase agreements' also have been signed with the Karnataka Electricity Board (KEB) on 30th September, 1994. A revised power purchase agreement has been initialed on 18.1.1996.
7. In order to set up a thermal power plant, several clearances have to be obtained from the Karnataka State Pollution Control Board (KSPCB) under the provisions of the Water (Prevention and Control of Pollution) Act and the Air (Prevention and Control of Pollution) Act and from the MOEF under the provisions of the Environment Protection Act, 1976 and the Rules framed thereunder; requirements of Section 29 of the Electricity (Supply) Act, 1948 has to be complied with and clearance from the Central Electricity Authority constituted under the Electricity (Supply) Act, 1948 has to be obtained, At this stage, it would be advantageous to refer to the Environment (Protection) Act, 1986 and the background in which the same came to be enacted. A conference was held under the auspices of the United Nations on Human Environment held at Stockholm in June, 1972 in which India also participated. In order to implement the decisions take there and to provide protection and improvement of environment and prevention of hazards, to human beings, living creatures, plants and property, the said law has been enacted. The Act came into force on 19th November, 1986. Environment is defined to include water, air and land and the interrelationship which exists among and between water, air and land, and human beings, other living creatures, micro-organism and property. Section 3 mandates the Central Government to take measures to protect and improve the quality of the environment and the Central Government is given power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. This general power conferred upon the Central Government is particularised under Sub-section (2) thereof. Sub-section (3) of Section 3 enables the Central Government to constitute an authority/authorities for the purpose of exercising and performing such of the powers and functions including the power to issue directions under Section 5 of the Act and for taking measures with respect to matters referred to in Sub-section (2). Subject to the supervision and control of the Central Government, such authority may exercise the powers or perform the functions or take measures so mentioned in the order as if such authority had been empowered by the Act to exercise those powers and perform functions or take such measures. Central Government can also appoint under Section 4 of the Act such officers to exercise such powers and functions as it may deem fit. Section 5 gives power to the Central Government to issue directions to any person, officer or authority who shall be bound by such directions. Explanation thereto makes it clear that such directions may include - (a) the closure, prohibition or regulation of any industry, operation or process; or (b) stoppage of regulation of the supply of electricity or water or any other service. Under Section 6 of the Act, the Central Government is empowered to make rules in respect of matters referred in Section 3. Rules have been framed under the Act known as the Environment (Protection) Rules, 1986. For the purpose of protecting and improving the quality of the environment and preventing and abating environmental pollution, the standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in different notifications. We are concerned in this case with two such Notifications.
8. The MOEF, under Section 3(1) and Section 3(2)(v) of the Environment (Protection) Act, 1986 read with Rule 5(3)(d) of the Environment (Protection) Rules, 1986 has declared Coastal Stretches as Coastal Regulation Zone (CRZ) and regulating activities in the CRZ. In the said notification declaration of Coastal Zones as Coastal Regulation Zone has been made imposing restrictions on industries, operations and processes in CRZ. A declaration has been made that the Coastal Stretches, of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal action (in the landward side) upto 500 meters from the High Tide Line (HTL) and the land between the Low Tide Line (LTD) and the HTL as Coastal Regulation Zone. It further imposes the restrictions set out therein on the setting up of and expansion of industries, operations or processes etc., in the CRZ. HTL is defined as the line upto which the highest tide reaches at spring tides. The distance from the HTL to which proposed regulations will apply in case of rivers, creeks and backwaters may be modified on a case by case basis for reasons to be recorded while preparing the Coastal Zone Management Plans. However, this distance will not be less than 100 meters or the width of the creek, river or backwater whichever is less. Thereafter, the Notification enumerates the activities which are declared as prohibited within CRZ such as setting up of new industries and expansion of existing industries, except those directly related to water front or directly needing foreshore facilities. In para 3, activities ether than those enumerated in para 2 would be regulated as thereunder. It is made clear therein that the clearance shall be given for any activity within CRZ only if it requires water front and foreshore facilities. Sub-para (2) thereof makes it compulsory the requirement of environmental clearance from the MOEF, Government of India and refers to in Clause (iii) thereof - Thermal power plants (only foreshore facilities for transport of raw material facilities for in-take of cooling water and outfall for discharge of treated waste water/cooling water).
9. The next notification which is of relevance is the Environment Impact Assessment Notification, 1994. Under Section 3 of the Environment (Protection) Act r/w Rule 5(3)(d) of the Environment (Protection) Rules, the Central Government directed that on and from the date of publication of the notification, expansion or modernization of any activity (if pollution load is to exceed the existing one) or a new project listed in Schedule I to the notification shall not be undertaken, unless it has been accorded environmental clearance by the Central Government in accordance with the procedure specified thereto. Para 2 provides for requirements and procedure for seeking environmental clearance of projects. As regards any new project or the expansion or modernisation of any existing industry or project listed in Schedule I, certain procedure is prescribed and an application made in the performa prescribed should be accompanied by a project Report, which shall, inter alia, include an Environmental Impact Assessment Report/Environmental Management Plan prepared in accordance with the guidelines issued by the Central Government from time to time. Sub-para (II) thereof provides that in case of site specific projects, the project authorities will intimate the location of the project site to the Central Government in the MOEF while initiating any investigation and surveys and they pertain to : (a) mining; (b) pit-head thermal power stations; (c) hydro-power, major irrigation projects and/or their combination including flood control; (d) ports and harbours (excluding minor ports); and (e) prospecting and exploration of major minerals in areas above 500 hectares. Sub-para (III) provides that the report submitted with the application shall be evaluated and assessed by the impact Assessment Agency, and if deemed necessary, it may consult a Committee of Experts, having a composition as provided in Schedule-III to the notification. Schedule III provides for composition of the Expert committee for environmental impact assessment and the membership of the Committee is limited to 15 consisting of the experts in the following disciplines:
(i) Eco-system Management (ii) Air/Water Pollution control (iii) Water Resource Management (iv) Flora/Fauna Conservation and Management (v) Land the Planning (vi) Social Sciences/Rehabilitation (vii) Project Appraisal (viii) Ecology (ix) Environmental Health (x) Subject Area Specialists (xi) Representatives of NGOS/persons concerned with environmental issues 2. The Chairman will be an outstanding and experienced ecologist or environmentalist or technical professional with wide managerial experience 3. The representative of IAA will act as Member Secretary 4. Chairman and members will serve in their individual capacities except those specifically nominated as representatives 5. The membership of a Committee shall not exceed 15.
The Impact Assessment Agency (IAA) is the Union Agency of MOEF. The said Committee can enter and visit the site, or as the case may be, factory premises at any time prior to, during or after the commencement of the operations of the project. The IAA shall prepare a set of recommendations based on technical assessment of documents and data furnished by the project authorities, supplemented by data collected during visits to sites or factories, if undertaken, and interaction with affected population and environmental groups, if necessary. Summary of the reports, the recommendation and the conditions, subject to which environmental clearance is given, shall be made available subject to the public interest to the concerned parties or environmental groups on request. Comments of the public may be solicited, if so decided by IAA, within thirty days of receipt of proposal, in public hearings arranged for the purpose after giving thirty days notice of such hearings in at least two newspapers. Public shall be provided access, subject to the public interest, to the summary of the reports/Environmental Management Plans at the Headquarters of the Impact Assessment Agency. The assessment is required to be completed within a period of ninety days from receipt of the requisite documents and data from the project authorities and decision conveyed within thirty days thereafter. Clearance granted will be valid for a period of five years for commencement of the construction or operation. No construction work, preliminary or otherwise, relating to the setting up of the project could be undertaken till the environmental and/or site clearance is obtained. Reports have to be submitted by the project authorities half-yearly to the IAA, to effectively monitor the implementation of the recommendations and conditions subject to which clearance is given. Subject to public interest, the IAA shall make compliance reports publicly available. If no comments from the IAA are received within the time limit, the project would be deemed to have been approved as proposed by the project authorities. Misleading and wrong information such as false information, false data, Engineered reports, concealing of factual data, false recommendations or decisions etc., would lead to the project being rejected or any approval is granted on the basis of such data, the same may be revoked. In Schedule I to the said notification, list of projects requiring environment clearance is provided and thermal power plant is one such project. An explanatory note is added to the Impact Assessment notification on 27th January, 1994. In the said note, it is stated that a project proponent is required to seek environmental clearance for a proposed expansion/modernisation activity if the resultant pollution load is to exceed the existing levels. "Pollution Load" in the context would cover emissions, liquid effluents and solid or semi-solid wastes generated. A project proponent may approach the State Pollution Control Beard concerned for certifying whether the proposed activity is likely to exceed the existing pollution load or not. The project proponent will have to submit an executive summary incorporating in brief the essence of project details and findings of environmental impact assessment study which could be made available to concerned parties or environmental groups on request. The concerned parties or environmental groups will be bonafide residents located at or around the project site or site of displacement or site of alleged adverse environmental impact. Public hearings are required in the case of projects involving large displacement or having severe enviromental ramifications. To obtain site clearance the project proponent will have to furnish required information according to the environmental appraisal questionnaires for site clearance, as may be prescribed by the IAA from time to time. Additional information whenever required by the IAA should be communicated immediately to the project proponents who will then be required to furnish the same within the time specified. To obtain project clearance in addition to the application from mentioned in Schedule II to the Notification, project proponents are required to furnish the following information for environmental appraisal:
(i) EIA/EMP report (20 copies)
(ii) Risk Analysis report (20 copies); however, such reports is normally not required for a particular category or project, project proponents can state so accordingly, but the IAA's decision in this regard will be final;
(iii) NOC from the State Pollution Control Board;
(iv) Commitment regarding availability of water and electricity from the competent authority;
(v) Summary of Project report/feasibility report (one copy)
(vi) Filled in questionnaire (as prescribed by the IAA from time to time) for environmental appraisal of the project
(vii) Comprehensive rehabilitation plan, if more than 1000 people are likely to be displaced, otherwise as summary plan would be adequate.
10. The requirement of EIA can be dispensed with by the IAA, in case of project which are unlikely to cause significant impacts on the environment. In such cases, project proponents will have to furnish full justification for exemption for submission of EIA. Where such exemption is granted project proponent may be asked to furnish such additional information as may be necessary.
11. Under Environment(Protection) Rules, in Schedule I, which is prescribed in terms of Rule 3, standards for emission or discharge of environmental pollutants have been set out. Item No. 5 in Schedule I refers to Thermal power plants and we may usefully refer to the same:
___________________________________________________________________________________
Sl. Industry Parameter Standards
No.
___________________________________________________________________________________
5 Thermal Power Plants Maximum limiting
concentration,
milligramme per
litre (except for
PH and temperature)
Condenser cooling PH 6.5 - 8.5
waters (once through temperature Not more than 5°C
cooling system) higher than the
intake water
temprature
Free available 0.5
chlorine
Boiler blowdowns Suspended solids 100
Oil and Grease 20
Copper (total) 1.0
Iron (total) 1.0
Cooling tower Free available 0.5
blockdown chlorine
Zinc 1.0
Chromium (total) 0.2
Phosphate 5.0
Other corrosion Limit to be
inhibiting established on
material case by casebasis
by Centre Board in
case of Union
territories and
State Board in
case of States
Ash Pond effluent PH 6.5 - 8.5
Suspended solids 100
Oil and grease 20
___________________________________________________________________________________
Again, there is reference to Thermal Power Plants at Item 33 and that part also may be set out for the purpose of convenience:
___________________________________________________________________________________
1 2 3 4
___________________________________________________________________________________
xx
33. Thermal Power Plants Stack Height/ limits
Power generation
capacity :
-500MW & above 275
-200 MW/210 MW and
above to less than
500 MW 220
- less than 200 0.8
MW/210 MW H-14 (Q) where Q
is emission rate of
SO2 in Kg/h, and
HIStack height in
meters.
Steam generation 1/2 times the
capacity: neighbouring
building height
- Less than 2 ton/ or 9 meters
hr. (whichever is
more)
- More than 2 ton/hr 12
to 5 ton/hr
- More than 5 ton/hr
to 10 ton/hr 15
- More than 10 ton/hr 18
- More than 15 ton/hr
to 20 ton/hr 15
- More than 20 ton/hr
to 25 ton/hr 24
- More than 25 ton/hr
to 30 ton/hr 27
- More than 30 ton/hr 30 or using
formula H
=14(Q) 0.3
(whichever is
more) Q is
emission rate
of SO2 in Kg/
and Hi-Sack
height in met.
___________________________________________________________________________________
12. There are two sets of writ petitions before us. One in Writ Petition No. 28651/1996 and the other in Writ Petition NO. 790/1997. It is necessary to refer to the proceedings in Writ Petition No. 790/ 1997, A Writ Petition had been presented in the Supreme Court of India in W.R(Civil) No. 664 of 1993 by the Indian Council for Enviro-Legal Action, in which an application was filed by Smt. Maneka Gandhi in I.A No. 21 stating that she is a Member of Parliament; that the Supreme Court had given certain directions on 18th April, 1996 to the Ministry of Environment & Forest, Government of India, regarding implementation of Coastal Regulations zone Notification dated February, 19, 1991 and to prepare Coastal Management plans; that inspite of the directions issued by the Court, it is stated, that the authorities concerned are allowing deterioration of the fragile eco-system of the coastal areas putting marine resources, wetlands, mangroves/rain forest, hot spots of rich bio-diversity to see its peril; that MOEF as well as the State Pollution Control Boards have been giving conditional clearances regardless of the mandate of CRZ Notification without formulating appropriate coastal management plans and contrary to the directions issued by the Supreme Court: that the State Government has allowed to set up a 1000 MW Cogentrix thermal power plant in the eco-fragile coastal area of Karnataka at Nandikur and other neighbouring villages without formulation/approval 'of the coastal management plan and without carrying out the environmental carrying capacity study of the region; that the environmental clearance given on the basis of a Rapid Environmental Impact Assessment (REIA) carried out by the project authorities themselves without taking into consideration the carrying capacity of the region and the impact of the proposed 2.0 million tons capacity steel plants with a captive coal based power station by Nagarjuna Fertilisers which is within 10-12 kms.: that Dakshina Kannada district is ecologically sensitive area having 177 km long strip of territory out of which 135 kms is the coastline; that there are 22 west flowing rivers originating in the western ghats, flow through this district and fall into the Arabian Sea-Nethravathi, Gurpur, Gangolli, Sitanadi and Swarnanadi are the Principal rivers and number of estuaries are formed by these rivers, out of which six estuaries are of immense significance; that the district is unique because evergreen and semideciduous forest exist having different species of large mammals, lower vertebrates and are also rich in amphibian fauna; that there are five main types of forests with the highest diversity of plant and aminal species is one of the highest in the western ghats; that the western ghats have been identified as being among the 18 biodiversity hot spots in the world that needs to be preserved; that the. average courage of the ghats was well over 60% for hill areas about four decades ago which has now dropped to 38%; that the flora of the proposed site for the cogentrix thermal power plant consists of right plant diversity belonging to food, shelter, timber, medicinal and several types of cash crops including paddy, sugarcane, pulser, coconut, cashew, jasmine and a variety of fruits; that the estuarine area which is more than 100 acres supports luxuriant growth of mangroves and rich fishery zone.
13. The applicant further refers to Environmental Master plan Study for Dakshina Kannada District by the Department of Ecology and Environment, Karnataka in collaboration with DANIDA, Denmark, to which we will advert to later. Reliance is placed on the same to point out adverse impacts resulting from increased industrial and urban growth. Reference is made to the growth of urban areas thereby reducing the water availability by reason of which there will be reduction in water available to the cities; that the present river flow in the Nethravathi river is close to nil during three months of the year and increased abstraction will result in - further negative impact on the river ecosystem, and will only be possible if dam constructions are made. About 2000 Hectares of picturesque rural land in Mangalore taluk extending from the estuarine part of the Gurpur river to uplands near the airport will be transformed into an industrial belt. Increased population emissions to the air are estimated to go up by a factor of 9 by 2002. This magnitude of air emissions could have an adverse impact on the biodiversity and ecology of the Western ghats through acid rain. Waste water discharges from industries may increase to around 14 million tonnes per year. These wastes would consist mostly of fly ash and oily and toxic sludge. Water quality and ecosystems in rivers and costal waters could be degraded if waste water, run-off or leachate from industrial operations are not managed adequately. Leaching of heavy metals and toxic materials into groundwater, river systems and coastal waters will further threaten public health as well as the fisheries.
14. The direct effect of industrialization on rural areas results in loss of good agricultural land, common and grazing lands, and the displacement of houses in addition to reserve forest. It would also affect the marine life in shallow coastal waters, the quality and quantity of Gurpur river. For ecosystems, the Western ghats are expected to be under high pressure in the ecosystems neighbouring the Nethravathi, Gurpur, Swarna, Sita and Kodi Hole rivers; that there is already serious air and water pollution in the area as a result of oil spill from MRPL; that there is already an incident of heavy oil spillage alongwith rain water from the water sump because of incessant heavy rains which has damaged prime agricultural lands and the ecology of the area; that without obtaining any comprehensive EIA statement, the MOEF has given the environmental clearance to the Cogentrix Project; that while giving clearance, the MOEF has not considered-
(i) the daily emission upto 77 tons of SO2 plus NOX and various other highly poisonous gasses along with minute metal particulates, will concentrate over the western ghats only to flow down in the form of acid rain during monsoon. There is no condition for the installation of FGD in the environmental clearance given by the MOEF. The mega project with heavy emission of gases in inversion conditions of Dakshina Kannada will have serious impact on forests, flora, fauna and human health;
(ii) that the proposed project will burn 9,300 tons of coal daily to generate 1000 MW power and in the process will produce 1,450 M.Tons of ash per day which will be disposed in about 500 acres of land. Since the lands in the Dakshina Kannada are laterite type, thermal ash mixed with sea water being highly corrosive, will easily percolate through the laterite soil bed and will contaminate ground water resources and the agricultural lands in the surrounding area;
(iii) that the proposed project utilises fresh water from the dam to be built at Nitte across the Mulki river for disposal of ash and the construction of dam at Nitte will dry up the three existing weirs downstream at Rola, Mundkum and Palmar which cater to over 12,000 acres of agricultural lands. The proposed dam will also sink reserve forest at Pilarkhana;
(iv) Cooling water intake from the coastal river Mulki and the discharge of toxic effluents violate CRZ notification 1991 and are a serious threat to the fish in the only coastal area of the State;
(v) that the proposed project will continuously dredge this area to pump 19,14,000 gallons per hour. Out of this 4,40,000 gallons per hour will be evaporated into the atmosphere and balance 3,53,76,000 gallons of contaminated, water with over 70 d.c of temperature will be discharged into the seashore. While evaporation of such huge quantities of water in the atmosphere will affect the climate change, discharge of such huge quantities of polluted water into the sea will pose a serious threat to the marine life in the area and is in violation of the CRZ notification, 1991. The MOEF has not asked the project proponents to install cooling towers and water purification units to reuse and recycle the water which are compulsorily required like in similar plants with more than 25 MW capacity;
(vi) that the transmission fines of over 200 kms. to Hassan, Shimoga and Mericara will result in destruction of over 6000 acres of rain forest in the western ghats, which is in violation of the Forest Conservation Act, 1980 and the Forest Conservation Policy of the Government;
(vii) that there are more than two dozen historical and cultural sites located in Nandikur, Palimar and Padubidri areas where the proposed project as well as Nagarjuna thermal power plant is located. Palimar math is more than 1000 years old and one of the ancient seat of learning of Hindu philosophy and Udupi Ashta maths. There are more than two dozen Nagavanas located in the area which the local people worship and never cut the trees in this area;
(viii) that the Mangalore Urban Development Authority formulated a comprehensive Development Plan in July, 1992 and the thermal power station site is located within 5 to 7 Kms from the boundaries of the greater Mangalore area;
(ix) that the MOEF failed to take into account that the Nagarjuna Thermal power plan of 1000 MW capacity is also set up in close proximity of the Cogentrix plant. The cumulative pollution load of the two thermal power plants in this coastal area plus the pollution from various highly polluting mega industries like the MRPL will destroy the fragile coastal ecology and seriously affect the health and life of the people of that area;
15. Similarly, it is stated that the conditional clearance given by the KSPCB is improper and based on incorrect and inadequate material. While giving clearance, the Government of Karnataka on December 29, 1995 as a result of the local people and fishermen's agitation against the discharge of effluents by the MRPL into the sea which contained number of recommendations, a significant recommendation was made to carry out a study on the carrying capacity of the Environment in the region before clearing new projects in the district. However, no such study has been made and the Karnataka Government has conveniently ignored its own order. It is further stated that the authorities have ignored the fact that the resistance offered by the local residents in setting up the thermal power plant inasmuch as their right of life as enshrined in Article 21 of the Constitution of India is being threatened as the right to clean and healthy environment and ecology is by-passed, Article 48A of the Constitution requires the State to protect and improve the environments. But this principle is forgotten by the MOEF and all the environmental laws have been ignored such as Environment (Protection) Act and the Rules framed thereunder, guidelines for development of Beaches, Water Pollution Control Act, Air Pollution Control Act, CRZ Notification, 1991, EIA Notification, 1994 and guidelines and policies for the abatement for pollution and protection of environment while granting clearance to hazardous projects.
16. Serious objection is raised for not following the 'Siting' criteria provided in the Environmental Guidelines for Thermal Power Plants and reference is made to the 'siting' criteria mentioned thereunder. In particular, it was pointed out that in order to protect coastal areas above 500 m of HTL, a buffer zone of 5 Kms. should be kept free of any TPS. The site chimney should not fall within the approach funnel of the runway of the nearest airport; that to minimise the ill effects of fly ash generated by Thermal power plants, the safeguards indicated in Circular No. 5/34/85-US(CT) dated 11th July, 1990 that coal based Thermal power plants should include specific proposals for full utilization of Fly ash generated by the thermal power plant. It is alleged that in the name of development the MOEF and various State Governments are allowing major projects along the coastline and in other parts of the country, in utter violation of all National and International Environmental laws, conventions, covenants and principles. The ministry concerned has not applied its mind to the collosal environmental damage, damage to the prime forest area, agricultural lands, rivers, lakes, estuaries, mangroves, marine life, human rights, right to livelihood. A novel technique is adopted in granting conditional environmental clearances on the basis of preliminary reports, rapid environment impact assessments and cursory site inspections and absence of any follow up action and transparency in the decision making. The natural resources are public properties entrusted to the Government for their safe and judicious use, and the Government as a Public trustee, should protect the same. Any action which leads to their improper use and damage would amount to violation of public trust, fn the light of this doctrine, it is submitted that the environmental clearance given by the Governmental authorities without comprehensive environment impact assessments, is illegal. That being so, the tests given by the Supreme Court in VELLORE CITIZENS WELFARE ASSOCIATION v. UNION OF INDIA AND ORS., W.P. (Civil) No. 914/1991 DD: 28.8.1996 - in so far as precautionary principle is concerned, are forgotten.
17. On these pleadings, various Prayers were made in the course of the application including a direction to the MOEF not to grant any further environmental clearances to start major projects and to set up a National Environmental Impact Assessment Authority, after considering comprehensive Impact Assessment and providing sufficient opportunity of hearing to aggrieved/concerned citizens/NGOs. To direct the MOEF and the State Governments to revoke permissions granted to the power projects which have been cleared without prior appraisal of environmental carrying capacity of the regions, without formulation of Coastal Management Plans and in violation of various environment protection laws, rules and notifications including violation of CRZ Notification of February, 19, 1991.
18. In reply to the said pleadings, on behalf of the Impact Assessment Division, Ministry of Environment & Forest, Government of India, an affidavit has been filed in the Supreme Court. In the course of the Affidavit, reference is made to the provisions of Environment (Protection) Act, 1986 and the Notification issued thereunder in relation to CRZ. It is stated therein that the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters which are influenced by tidal actions in the landward side upto 500 meters from the HTL and the land between LTL and HTL as Coastal Regulation Zones. That notification has given detailed provisions for prohibiting and also regulating developmental activities; that EIA undertakes the task of environmental assessment. The preliminary scrutiny of the project is done by the respective technical wing of the Division and the over all appraisal of the project is undertaken by a specially constituted Expert Committee. Expert Committees are advisory in nature and final decision is taken in each case by the Ministry. In addition to the aforesaid Committees, special groups or committees are also constituted as and when needed for expert inputs on major projects referred to the Ministry. To ascertain the views of the general public, NGO representatives are also excluded in the Expert Committees. The concept of sustainable development as enunciated under Precautionary Principles provide the basis for environmental appraisal and clearance on developmental projects. The proposal on 1000 MW thermal power plant to be located in Dakshina Kannada district was referred by M/s MPC in June, 1995. The project documents submitted by the proponents included filled in questionaire for power projects, Rapid EIA/EMP, Application Form as per Schedule-II of the Notification, NOC from the Karnataka State Pollution Control Board was issued in September, 1995. Clarifications were sought on fly ash utilisation, use of seawater, installation of FGD and certain other allied matters. After consideration of the relevant data and the documents, the project was given environmental clearance in June, 1996. Specific conditions have been laid down for - (a) installation of FGD for stringent control of sulphur emissions to avoid any impact on Western ghat, (b) use of sea water through desalination to prevent sweet water withdrawal from Mulki River, (c) lining of ash pond to prevent leaching, (d) adequate rehabilitation of project evictees. The treated effluent will be discharged at 830m offshore to maintain a maximum of 5°C temperature differential with a view to avoid any impact on acquatic life. There is a categorical Submission made that the power plant site is well outside the CRZ area. The MPC thermal project was considered on the basis of rapid EIA in accordance with the EIA Notification, 1994. The Environmental Management plans and other related project documents, had been taken note of and several conditions also have been imposed. The various environmental safeguard measures proposed in the conditions are as follows:
(i) Imported coal with maximum 17% ash content and 0.82% sulphur will be used as main fuel. Two Bi-fule stacks of height 275m each with continuous on-line monitoring device will be provided. Electrostatic precipitator (ESP) with 99.8% efficiency will also be provided to arrest dust emission from the stack; (ii) Installation of Fuel Gas Desulphurisation (FGD) plant for control of Sulphur-di-oxide emissions; (iii) Desalination plant has been provided to avoid withdrawal of sweet water from the Mulki river. No impact on water quality and acquatic life in Mulki river is envisaged as effluents will not be discharged into the river. (iv) impervious lining of ash pond to prevent leaching and impact on ground water quality. Concept of zero discharge will be adopted. (v) A plan has been drawn for 100% utilisation of fly ash by the 9th year from commissioning of the plant. A green belt will also be created around ash pond area to control fugitive dust. (vi) Discharge of cooling water of 820m offshore into the sea to have least impact on marine acquatic life. (vii) Projects affected families will be provided with adequate cash compensation, sites for resettlement, free water and electricity, scholarship for children etc., in consultation with State Government. "Citizens" Advisory Committee" will also be constituted with representatives of local people; (viii) Atleast one-third of the total project area will be utilised for raising green belt.
19. It is stated that the environmental protection measures taken will adequately safeguard the ecology and the project is likely to have least impact on the natural resources base of the region. With regard to the application of CRZ regulations, it is contended that the project site is located well outside the CRZ, area and no violation has been made in that regard. It is pointed out that the project is located approximately 40 Kms. from the western ghats. Ministry of Ecology and Environment has also written to Government of Karnataka to conduct carrying capacity study of Dakshina Kannada District as early as possible to assess future industrial growth in the region.
20. On account of incessant heavy rains, large quantities of rain water flowed into the sump and heavy oil along with rain water escaped from the Mangalore Refinery premises which was noticed on 17.7.1996 and immediately remedial actions were taken and oil spill was contained immediately. Effective steps were also taken to avoid recurrences in future. No permanent damage had been noticed to the agricultural lands as contended for by the petitioner. Whatever damage was done to the agricultural fields was temporary and has been cleared now and the fields are free from the effects thereafter.
21. The KSPCB has accorded No Objection Certificate after considering the environmental data and management plans including the State of the art technology adopted for the production of power in the plant in question. In regard to SPM facility, two options were considered by the Ministry for unloading of imported coal - (1) use of the existing Mangalore Port and, (ii) construction of SPM in high sea. In case of option (ii) if EIA studies reveal adverse environmental implications, project authorities have to fail back on option (i) and use the New Mangalore Port facilities. As SPM proposal is a separate facility, condition (xvi) was incorporated in environmental clearance. All conditions imposed by the KSPCB require to be implemented which inter alia includes the condition for installation of FGD. Coal storage and ash management areas are required to be suitably lined with impervious liners. Further, monitoring wells will have to be provided around the ash pond area in the direction of water flow gradient for ascertaining the changes, if any, in water quality. No water will be drawn from the Mulki river and Mulki river will not be used for intake or discharge of any water. The sweet water requirement will be met through desalination of sea water.
22. The project design provides for installation of Cooling towers. Adequate safeguards have been built in to minimise thermal impact on marine ecology. Project will fully comply with the prescribed norms that the temperature of water released into the Arabian Sea at 820 m offshore, will not exceed 5°C of the ambient temperature of the Sea water. Computer modelling studies confirm that within just 5 meters of the discharge point, the cooling water will achieve the ambient temperature. The Project proponents will have to obtain separate clearance for diversion of forest land, if any, under the Forest (Conservation) Act, 1980 for the laying of the transmission lines. The project site is 30 kms away from the outer limits of Mangalore City Corporation. Representations from local people have been received and duly considered regarding the impact of the project on fisheries, western ghats, water quality in Mulki river etc.,
23. Fly ash utilisation forms an integral part of the environmental management plan drawn for the thermal power plants and appropriate conditions are imposed while approving the projects for fly ash utilisation in a time bound manner.
24. Environmental protection and conservation of natural resources having emerged as one of the key National priorities in India in the wake of the 1972 Stockholm Conference on Human Environment, the Government have evolved and streamlined procedures for environmental impact assessment before approving developmental projects. A beginning in this direction was made with the assessment of river valley projects in 1978-79. Thereafter the scope was extended to other developmental sectors such as thermal power projects, mining projects etc. In the initial stages, though no elaborate environmental safeguard measures were provided, with the passage of time, refinement of EIA methodology and technological advances in all spheres of development have taken place. Legislative and institutional initiatives have also been strengthened. There are an improved appraisal procedures with the incorporation of detailed environmental safeguards to be monitored at the Union and State level agencies. Even after obtaining environmental clearance from the Ministry, the project proponent has to obtain consent to operate from the respective State Boards after ensuring compliance with the considitions. There are checks and counter-checks at various levels of project execution under the provisions of existing legislations.
25. Schedule III of the EIA Notification, provides for composition of the Expert Committees for EIA and there are six committees in various developmental sectors with the Chairmen having wide managerial experience in relevant sectors of development. The Committee is multi-disciplinary in nature with expense drawn from fields of air and water pollution, land use planning, social sciences etc., N.G.Os or persons concerned with environmental and socio-economic issues are also represented in the Expert Committees. The inputs required for the appraisal of the project and decision making are collectively available.
26. EIA has been recognised as an important management tool for ensuring optimal use of natural resources for sustainable development, rather than a mere academic exercise. The Ministry has evolved guidelines for collection of environmental data and preparation of environmental management plans. Project proponents are invited for an indepth interaction with the expert committees during environmental appraisal. EIA as a tool establishes the changes in the physical, ecological and socio-economic component of the environment before, during and after a proposed developmental project so that the undesirable effects could be mitigated or nullified or overcome the same. A network of scientific and research institution of academic excellence in the filed of ecological and social sciences are already functioning. Further, the Ministry has also set up six centers of Excellence with a view to strengthening awareness, research and training in priority areas of environmental science and management. Twenty-one Environmental information System centres have been set up by the Ministry with the objective of complication and dissemination of information in the field of environment and ecology. In addition, the Ministry has constituted high powered panels of multi-disciplinary experts for the main sectors of activities under the aegis of the Ministry. Steps are being taken to constitute a State Coastal Management Authority and also National Coastal Management Authority in conformity with the directions issued by the Supreme Court.
27. In examining the environmental viability of the project, REIA is the most important basis. However, before according clearance, the concerned. Ministry examines many other project related documents including (i) recommendations of State Government (ii) NOC from the State Pollution control Boards from the angle of pollution control as governed by the Water Act, 1974 and Air Act, 1991 and (iii) recommendations of the sectorial Expert Committees. Wherever, specific issues on the ecological and socio economical aspects are involved, specific reports are insisted upon the site inspection for on the spot assessment are taken up. If the REIA is not sufficient in the opinion of the Ministry, it can certainly seek comprehensive EIA after initial examination. The EIA Notification, 1994 deals with 29 category of diverse developmental activities under industry, mining, thermal power, river valley and infrastructural sectors. The magnitude and intensity of the impacts associated with each project is a function of various parameters including physicochemical, geographical, environmental and ecological base line data as well as socio-economic conditions. Central Pollution Control Board also advises on all matters concerning prevention and control of air, water and noise pollution and provides technical services to the Ministry in project appraisal.
28. When these exercises are done, it is submitted that there is no basis for terming the conditional clearance given by the Ministry as illegal. The policy of the Government is set out in the Affidavit by stating that - "the objectives of the Government of India are as reflected in the planning process and have consistently emphasised the necessity of promoting policies which ensure sustainable development with economic growth and social welfare. The overall objective is to ensure equitable and sustainable development in the background of precautionary principles." The projects have been given environmental clearance after detailed assessment and adequate safeguard measures and the precautionary principles are integrated in project appraisal and subsequent implementation of the same. It is therefore submitted that the contentions raised by the petitioners are untenable.
29. The Government of Karnataka has filed the Statement of Objections. It is submitted that the apprehension expressed in the course of the application is premature and without any basis as the same anticipates post-implementation problems at the pre-implementation stage of the project. The State of Karnataka has submitted that it has honoured the CRZ Notification dated 19.2.1981 issued by the MOEF and has already submitted its report in Coastal Zone Management Plan. A Site selection study was commissioned by KPCL in 1986 for installation of a thermal power station using coal and residual oil for fuel. Totally twelve sites were investigated covering coastal sites in Mangalore and Karwar, and inland sites at Hospet, Wadi, Narayanpet Road, Mysore and Kanakapura. Thereafter, they were shortlisted to five sites at Kunjabailu (Mangalore), Madhevada(Karwar), Vyasanakere(Hospet), Kundapur (Narayanpet Road) and Krishnarajasagar (Mysore). A detailed evaluation of these five sites established that the site at Kunjatbailu in Mangalore was the optimal location on both technical and economic considerations. However, on a review by the Department of Ecology and Environment in the Karnataka Government, the site did not receive environmental clearance due to expected impacts on agriculture, its proximity to Mangalore and existing industry in the port area, displacement of people from the proposed site, and its proximity to the approach for the new Mangalore Airport runway. Since the site at Karwar offered no superior features in relation to Mangalore and since the inland sites were excluded due to fuel transportation, it was decided to further review and identify the suitability of site in Mangalore in respect to technical, economic and environmental considerations. Thereafter the four sites at Kunjatbailu, Tannirbavi, Suratkal, and Nandikur were considered. The TATA consultants took into consideration that following factors in evaluating prospective sites in Mangalore:
(a) Availability of adequate land for locating the power station;
(b) Suitability of land from topography and geological aspects;
(c) Location with respect to the port and mode of transport of coal to site; (d) Availability of adequate supply of water to meet condenser cooling water and fresh water requirements; (e) Facilities for ash disposal; (f) Facility for transportation of power station equipment and construction materials to site; (g) Proximity to major load centers in the power system; (h) Environmental aspects.
30. The consultants concluded that the site at Nandikur was optimally suited for the proposed thermal power plant. For various reasons, other sites are rejected. Consequently, Nandikur was identified as overall optimal location for the proposed power plant. The site was found to be compatible with all environmental considerations, in particular, its distance from existing urbanized and industrial areas, thereby complying with the standards set out in the Government of India Notification as well as requiring minimal resettlement and minimal use of cultivated land. It is pointed out that Nandikur is well connected by road rail and sea and is close to major load centers in the State. Earlier, the State Government had approved the establishment of thermal power plant of 2420 MW by the NTPC in the villages of Nandikur, Thenka, Palimar, Padibettu and Yellaru. The site selected is approximately 4 Kms. away from the Seashore and is well outside the CRZ stipulation which calls for minimum 500 Mts. distance from the HTL for any industrial activity. The REIA gives the profile of the site, the various emission coming out of the plant (Air, Liquid, Solid), its control measures and rehabilitation package along with the Disaster Management Plan. The REIA has taken into consideration the effect of the existing plants and other proposed plants coming up within the radius of 10 KMs. of the plant under study beyond which the pollution contribution of other plants becomes negligible. Because of the large distance between Nagarjuna Steel Plant and Power Plant, which is nearly 25 Kms. away from each other and therefore, emissions of steel plant do not get accumulated to power plant emissions. Moreover, the wind direction is predominantly towards the west while the power plant is on the north side of the steel plant. Thus the possibility of any emissions being carried to such large distances is almost nil. The KSPCB has given the clearance for setting up two thermal power plants - MPC and Nagarjuna Fertilizers & Chemicals Ltd., at Nandikur in Dakshina Kannada District. Only after through examination of REIA and imposing stringent conditions and control measures to protect the water and air quality. The MPC, Nagarjuna Fertilizers & Chemicals Ltd., and Nagarjuna Power Plant do not fall under the CRZ Notification. The State Government, in the absence of the carrying capacity studies data, has made it obligatory for the industrial projects to conduct the REIA and also wants to have the studies in the carrying capacity carried out. The distance between the two plants is not 10-12 kilometers as alleged in the application. There is no proposal for establishing power plant at the steel plant site. However, a small capacity captive power unit using the waste gases from the steel plant is being proposed.
31. The description of the flora and fauna of Dakshina Kannada District in para 14 though correct, has no bearing on the matter. It is submitted that the areas on which the power plants are coming up are slopy, marshy, uncultivable and uninhabitable. Further, the State of Karnataka will not leave any stone unturned to conserve the environmental homeostasis by insisting the use of State of the art technology, plant and equipments and in this regard the conditions imposed are:
1) Control of Suspended Particulate Matter (SPM) by use of high efficiency (99.99%) electron static precipitators and tall chimneys (275 Mts); 2) Control of Sulphur Dioxide(SO2) by use of fuelgas desulphurization unit (FGD); and tall chimneys; (275 Mts); 3) Control of Oxides of Nitrogen by use of Low Nox Burners(LMB), Scientifical disposal of ash and utilisation of the same from 1st year onwards progressively upto 100%; utilization within ten to twelve years of commissioning of the plant.
The report submitted by the DANIDA has not been accepted by the Government as the Environmental Master Plan study made by them is deficient in several aspects. The Government has to take an integral view of the matter and balance the interest of industry and environment leading to sustainable development. It is submitted that Nethravathi river has a tremendous potential being a perennial river with catchment area of 3357 Sq.Km. and having Basis Annual Rainfall of 4306 mm/year and 15747 mcm/year and average river flow of 12434 mcm/year. Thus 90% of the water is thrown into the sea without any use and only 10% is extracted for drinking water purpose and industrial use.
32. The averments made by the applicant in paras 16(iii) & (iv) on the basis of DANIDA report are characterised as figments of imagination. It is submitted that the clearances are given to the industries strictly in accordance with the Central Pollution Control Board norms in case of both industrial and rural areas and while giving clearances both individual and collective load emissions are taken into consideration and kept within the permissible limits. All industries have to necessarily provide for water treatment plants where all the effluents are treated and water is reused within the area. No toxic waste is allowed to be disposed of or left unattended. Prevention for leaching of soil is done by putting layers of LDPE/HDPE films wherever solid disposal is made. These steps will ensure the protection of flora, fauna, public health, pisciculture and conservation of bio-diversity of the area. Industrialisation is avoided in thickly inhabites areas and agricultural lands. A study of the Dakshina Kannada District indicate that the percentage of the area under agriculture and forest is expected to increase from 2,86,000 hectares to 3,50,000 hectares and from 3,09,000 hectares to 3,10,000 hectares respectively during the period 1992 to 2002. This statistics would reveal that there has been consistent improvement in the quality of life of the people without any adverse impact on their natural resources. It is submitted that the allegation that there are large number of industries in the area is misleading and that there are only two large scale functioning industries, namely, Kuduremukh Pelletisation Plant and MRPL. The stand of the State is that further industrialisation and sustainable development mean more prosperity and not environmental hazards. In fact the small scale industries have not been flourishing in Dakshina Kannada District because there are no big industries to sustain and support them by placing purchase order, job work, etc. The fear over the accidental release of toxic and hazardous materials, it is submitted, is unfounded. Mangalore, taluk is classified as Zone-III of the ISI-Geological Mapping of the country indicating the possibility of Earthquakes occurring in Dakshina Kannada District is Nil or zero. So far, no earthquake or hurricane has occurred in and around Mangalore and in any place in the Deccan Plateau. There is no likelihood of hurricane and earthquakes in Dakshina Kannada District and as such, the discharging of spills to the surface water or wells are simply the Applicant's imaginary fears. The oil spillage in Mangalore Refinery and Petrochemicals Ltd., has no bearing on the present issue and is misleading. The averments made in this regard are identical to those made by the Union Government. The standard practice of the MOEF is to give site and establishment clearance for taking up the construction of the plant based on REIA report, prepared on the basis of the season data collected at site. The project proponents have to collect one year data consisting of all the four seasons based on which CEIA report is prepared and the same is appraised by MOEF. The project relating to SPM is a separate project and is not covered under the power plant facility and therefore, the allegations raised in this regard by the applicant are not well-founded. The condition imposed by the MOEF that if this mooring is not found environmentally suitable, the project authority will be using New Mangalore Port facility for unloading of coal is only for the reason that the project does not fall within the power plant facility and hence a separate report needs to the prepared and suitably evaluated by MOEF.
33. The contention regarding emission of Sulphur Dioxide, Oxides of Nitrogen and Suspended pariculate matter would concentrate over Western Ghats resulting in acid rain is again denied. While according clearance to power projects, the. KSPCB has instead that FGD be put in the Power Plant though it is very expensive. In fact, it would be the second thermal power plant in India to provide this facility and worldwide only 10% of the Thermal Power plants have provided this facility in their plants and it is emitted at a height of 275 M chimney, so that the concentration at ground level is very low and oxides of Nitrogen are controlled by using Low Nox Burners. Similar submissions as are made by the Central Government are reiterated in regard to ash disposal, non-utilisation of the water through the Mulki river and release of water into the Sea which will not exceed 5°C of the ambient temperature of the sea water. The contention that over 200 Kms of transmission line will consume 6000 acres of rain forest is denied. It is stated that for 200 Kms of power line from Hassan, only 45 Kms from Project site to Hassan will pass through the forest area and their assumption that it will lead to destruction of 6000 acres of rain forest is absolutely without any basis. The contention that the historical and archeological sites are located near the power plant is denied and it is stated that no historical or archaeological sites are located within 10 Kms of the project sites. The project promoters have ensured that no religious places, schools, historical places are disturbed from their present location and all steps have been taken to ensure to create minimum disturbance to the people staying near the project site and also to maintain the religions sanctity of existing places of worship. The State also joins issue in the distance between Mangalore City and the setting up of the power project. It is stated that the proposed power plant is approximately 35-40 Kms away from Mangalore City and is located based on the guidelines issued for setting up of industries/power project. In granting clearance, location of Nagarjuna Thermal Power Plant of 1000 MW is also taken into consideration. The MPC has considered the pollution load of similar 1000 MW power plant in close proximity and the cumulative pollution load of both the projects have been considered while preparing their Air dispersion model studies. It is found that even with another 1000 MW power plant in the vicinity of the MPC, the combined effect of emissions are within the parameters of Central Power Control Board norms for such areas. It is therefore stated that it is located approximately 25 Kms south of the power plant site. Certain technical details have been set forth in the matter of consideration of REIA. It is stated that various computer model programs were conducted using USEPA Model and it has been found that at a distance of more than 10 Kms from the source of emissions and the impact of emissions becomes negligible and cannot be measured. As both the Steel plant and MRPL expansion projects are nearly 25 Kms from the power plant site, it is found that it will not have any impact on power project emissions. It is stated that the model was based on the Gaussian Plume Equation, which is stated to be the most commonly used model all over the world, and the results are within the CPCB norms.
34. The State Government is in the process of constituting a committee to study the carrying capacity of the environment in the region before clearing any new projects in the District and that the Government is in touch with the expert agencies in the country to have the carrying capacity study carried out for the benefit of future industries to come up in the vicinity. The State also joins issue on the allegation made on the basis of Article 21 of the Constitution of India and as regards the impact on the quality of life. By and large the local residents have been welcoming the proposed thermal power project. Power, which is required in every walk of life, the basic input for industrialisation, agriculture, education, technology and an index of country's development, needs to be given the right philip for the progress of the country. Establishing power plants today is major concern of the Governments considering the acute power shortage being encountered all over the country and especially in Karnataka. The various conditions imposed by the KSPCB has already been adverted to while referring to the statement of objections filed by the Central Government and those conditions are reiterated. On the basis of these averments, it was contended that the application was liable to be rejected.
35. As background material to the pleadings raised on behalf of the MPCL, reference is made to the power scenario in the, State. It is pointed out that the installed generating capacity as on March 31, 1995 in Karnataka is 3360.90 MWs which is the lowest in the region when compared to Andhra Pradesh, Tamilnadu and Maharashtra. It is pointed out that Karnataka is also lacking behind in the growth of per capita consumption of electricity. A comparison of the growth per capita consumption of electricity in Karnataka and in the neighbouring States is set out. But for the purpose of convenience, we may State that in the year 1993-94 it was at 323 KWH. For over two decades in the State of Karnataka there have been power cuts every year on different classes of consumers in various degrees. The demand for power in the State is continuing to grow - in a rapid way outstripping its availability. This has resulted in continued shortage of power, forcing the imposition of restrictions both on demand and energy requirements and also adoption of other regulatory measures. The serious adverse impact that such restrictions have had on the overall growth and reputation of the State is adverted to. The projected requirement of energy as per the information available with the Karnataka Electricity Board (KEB) with regard to the actual requirement, availability and deficit over the past several years in the State is set out. On analysis of the material covered by the KEB, it is pleaded - (i) from the quantitative point of view, in the field of power generation, the State of Karnataka is an under developed State, (ii) per capita consumption of power used as an index of economic prosperity and development, indicates that Karnataka is less than progressive, (iii) there is a growing demand for power in the State of Karnataka due to increased population, increased industrial activity and agricultural operations, (iv) as against increased demand, the generation of power is near stagnant (v) the demand is outstripping and over a period of time the gap between demand and supply has continuously widened and, (vi) the only two major viable sources of power in the State of Karnataka enabling the generation of power to meet the every growing demand are: (a) hydel, and (b) thermal projects, A review of the power situation in the State of Karnataka would indicate that there is real famine and in dire need for setting up of additional generating capacity. The affidavit thereafter refers to the history of attempts of the Karnataka Power Corporation to install a generating station at Dakshina Kannada after obtaining expertise from M/s Tata Consulting Engineers as to how the site located was handed over to the NTPC, which was again based on Dr. Chokkalingam report and the circumstances in which NTPC could not put throughout its project. But these details need not be adverted to again since we have set out in great detail while considering the affidavits filed by the Union of India and State Government.
36. Again reference is made to the economic liberalization policy of the Government of India to attract private sector capital for power development and as to how various steps were taken which culminated in the Memorandum of Understanding (MOU) between the respondent and the State Government, Reference is made to the previous legal proceedings in JANA JAGRUTI SAMITHI v. UNION OF INDIA AND ORS., K.V. RAMACHANDRA RAO AND ORS. v. STATE OF KARNATAKA, W.R Nos. 23620-34/1990, KRISHNA BHAT AND ORS. v. GOVT. OF KARNATAKA, W.P No. 9360/1995.
37. It is submitted that the MPC has thereafter adopted stringent environmental principles in the planning, design and environmental licensing of the proposed project that will play a continuing role in the Power Plant's implementation and operation. MPC recognises the need for responsible social and community outreach as a critical element of the Power Plant's development. As such, it is committed to the development and implementation of a responsive resettlement and rehabilitation package based on the principle of social responsibility for the families of the 239 families to be affected by the project must be treated with absolute dignity and respect by providing just compensation to minimise any interruption in 'livelihood that may be caused by the project. The KEB had recommended to the Central Electricity Authority which includes the cost of rehabilitating the displaced families, be approved 'at actual' cost.
38. By operation of the power plant, the effluents generated by the operation of a power plant are either air borne or water borne. The air borne effluents comprise of gases - So2 and NOx and other gases and Particulates. The water borne effluent is comprised of sea water at a slightly increased concentration and temperature, which will effectively be controled by the added precaution of installation of salt water cooling towers to pre-cool the condenser cooling water before release to the sea. Apart from the aforesaid effluents, no other effluent which is toxic or otherwise untreated would emanate from the Power plant.
39. On the allegation of violation of CRZ notification, it is seriously contended that the site of the said power plant is not located within the CRZ and it is located more than one Km from the CRZ. Further, CRZ notification specifically provides for the type of activities falling within the Coastal Regulation zone contemplated by the power plant; namely, use of a dedicated jetty for import of raw materials (fuel) and intake and release of condenser cooling water and other essential facilities. Therefore, the power plant facilities and their environmental clearance are not disallowed by the CRZ notification, even assuming for a moment that it falls within the CRZ. It is further submitted that the activity of setting up a Thermal Power plant is not prohibited under the notification but is a permissible activity, which is subject to certain regulations. The regulation contemplated in CRZ notification is only with regard to foreshore facilities for transport of raw-materials, facilities for intake of cooling water and outfall for discharge of treated waste water or cooling water. With regard to each of these facilities, the MOEF has considered the relevant factors and has provided adequate safeguards. It is therefore, submitted that the grievance relating to and arising out of the CRZ notification is devoid of merit.
40. As regards the objection to the environmental carrying capacity and cumulative effects, it is submitted that the air quality monitoring studies performed as part of the REIA included all existing sources, the proposed Power Plant, plus other planned sources in the area. The analysis showed that the ambient standards established to protect the public health and environmental welfare to the region are being maintained. This work in fact represents an environmental carrying capacity study of the region and MPC has provided for ongoing monitoring programme and financial support to ensure that the cumulative study of the environmental impact of this Power Plant and future industries would continue.
41. With regard to environmental carrying capacity of the region, it is submitted that the power plant provides for a continuous emission monitoring system. Further Condition No. 8 of The KSPCB site clearance prescribes that the cumulative effect on marine environment in the matter of disposal of treated effluent in the sea must be taken into account in addition to the impacts of pollutants likely to be generated by the project on air quality in the region has been the subject matter of an indepth study by TATA consulting Engineers and other expert scientists who have prepared the REIA study report. The TCE studied by developing a precise computer model of the type proposed by MPC taking into consideration existing and proposed industries and the ultimate cumulative effects of these industries and have stated that - "Annual and 24 hour predicted concentration were in compliance with the industrial and rural ambient air quality standards."
42. The KSPCB clearance further requires that the detailed EIA should consider of take into account both the steel and captive Power Plant of M/s Nagarjuna Fertilisers and the proposed expanded capacity of MRPL from 3 million tonnes per annum to 9 million tonnes per annum. REIA was approved both by the MOEF and KSPCB. It took into account the impact from the Power Plant and surrounding industries. The air quality modelling strides have specifically included all existing sources plus large planned sources in the area. Condition No. 8 of the KSPCB Site clearance requires that the area and location of the disposal of treated effluent into the sea shall be identified in consultation with National Institute of Oceanography, Goa and Department of Fisheries, Government of Karnataka. NIO, Goa is required to consider the cumulative effect on marine environment due to the discharge of effluents from major industries in existence and those likely to come up in the area.
43. Regarding adverse effect on ecology by power plant due to emission of oxides or sulphur and Nitrogen and other poisonous gases, it is submitted that the MOEF and KSPCB have imposed stringent conditions. In KSPCB site clearance, a specific condition has been imposed that, in addition to providing two Chimneys of 275 Meters and Electrostatic Precipitators, the industry is also required to provide a de-sulphurisation system for fuel gas emission and control emission of SO2 and other air pollutants. The MOEF clearance specifically stipulates that all conditions stipulated by the KSPCB Site clearance shall be implemented effectively and there cannot be any doubt as to FGD will be installed or not.
44. The proposed project is designed to burn high quality/low sulphur imported coal as a main fuel. Special provision has been made to limit oxides of Nitrogen by implementing low NOx burners, Electrostatic Precipitators of extremely high efficiency to minimise emission of particulates, including fly ash, and keep such emissions well within permissible limits. As a result of such precautions, emissions from the stack will be in the form of a "smokeless Plume". As a further precaution, a continuous emission monitoring system is provided as part of the power plant to monitor emissions of each unit. Reference is made to Condition Nos. 2, 4 and 5 of the MOEF clearance and Condition Nos. 9, 10, 15 and 18 of the KSPCB site Clearance. It is contended that the proposed power plant is designed to use superior quality, high calorific value coal imported from Australia and South Africa, thereby reducing the emission of Nitrogen and Sulphur Oxides and the finding of the TCE is that the concentration is below the industrial and Rural Ambient Air Quality Standards. Condition No. 2 of MOEF clearance prescribes the limit of sulphur content in the imported coal. The studies reveal that the coal imported from these regions of the world has a high calorific value. By reason of installation of FGD with utilisation of superior quality imported coal, the MPC power plant will be one of the cleanest thermal power plants operating anywhere in the world.
45. As regards ash disposal, it is submitted that the proposed power plant will burn 9,300 tons of coal daily to generate 1000 MW power and in the process, will produce 1,450 Million tons of ash which will be disposed in about 500 acres of land. The apprehension of the applicant is that since the lands in Dakshina Kannada are laterite type, any ash mixed with sea water will easily percolate through the laterite soil bed and will contaminate ground water resources and the agricultural lands in the surrounding area. It is pointed out that sea water will not be utilised to sluice ash, nor the sea water will be mixed with ash, thereby preventing the possibility of ash leaching through the laterite soil and contaminating ground water. Only fresh water will be used in the ash management process. Further the MOEF clearance Condition Nos. 2, 3, 4, 5, 6, 7, 10, 11, 13 and 14 provide extensive safeguards on this aspect of the matter and the ash management areas will be suitably lined with impervious liners to avoid any leaching into ground water. Moreover, the water that will be utilised for suppression of dust will be treated as sweet water and not sea water. The MPC had envisaged a plan for utilisation of ash by its manufacture into useful byproducts through the services of M/s ReUse Technology, a subsidiary of Cogentrix Energy, Inc. The products include road aggregates, blocks, building materials, fill materials etc., The applicant contends that the project will pose an environmental or cultural hazard by drawing water from the Mulki river, and this apprehension, it is submitted, is misconceived in asmuch as the proposed power plant intends to utilise fresh water from Mulki river for disposal of ash and on that basis, adverse effect of construction of such a dam is apprehended. It is submitted that there is no basis for this apprehension. Mulki river water will not be utilised by the plant. MPC has taken all precautions to maintain the quality of the groundwater, river, estuary and coastal water resources of Dakshina Kannada. These significant steps are enforced by stringent conditions, stipulated in the MOEF clearance and the KSPCB Site clearance to protect and conserve existing water resources. Only sea water will be used in the plant. Sweet water requirement will be met through desalination of sea water and no water would be drawn from the Mulki river as is clear from Condition No. 8. Condition No. 9 makes it clear that Mulki river will not be used for intake or discharge of any water. In compliance with the conditions imposed therein, it is submitted that a desalination plant is made part of the power plant and water will be drawn from the Arabian Sea through deep water intake from 825 meters offshore. A portion of the desalinated water in the form of brine will be released back into the sea as part of the desalination process. Such releases will never exceed 5 degrees Celsius above the ambient sea water temperature, which is the effluent standard set by the Government of India. The same ambient conditions of the Arabian Sea will be achieved within 20 meters from the release point which will take place 825 meters off shore, thereby protecting the marine ecology of the region.
46. The applicant contends that 200 Km of transmission line is required to be erected for evacuating power from the Project and the same would result in destruction of over 6000 acres of rain forest in the Western Ghats in, violation of the Forest Conservation Act, 1980. As stated earlier while dealing with this contention with reference to the Affidavit filed on behalf of the State Government, out of 500 Kms of power line covering a distance of 250 Kms. only 45 Kms of the transmission line, from Mangalore to Hassan will pass over forest area. According to the estimate prepared by the KEB on the basis of the survey conducted by the Power Grid Corporation of India Ltd., only about 24.59 hectares of reserved forest would be affected, which could be made up by other aforestation. The Board is conscious of the importance of preserving the forest and environment. The MPC joins issue on the adverse effect on any historical site in the region. It is stated that, relying upon Dr. Chokkalingam Report, there is no endangered species in the proposed area, no animal or plant of rare species, no place of cultural, historic and other tourist interest.
47. On the question of non preparation of EIA report and grant of MOEF clearance on the basis of REIA, it is submitted that the procedure adopted is proper, in the present case, on examination of the said report, a comprehensive EIA report is called upon. It is submitted with reference to the proposed dedicated jetty location within one year, that it is underway and its EIA will be submitted to the relevant authorities in compliance with the permits. It is submitted that review of all the aforesaid facts would indicate that the power plant will minimise adverse effects on the environment, if any, and will be a model power plant.
48. When the matter was before the Supreme Court, certain submissions were made before it that the Environmentalists do not object to the execution of the projects which are for the betterment of the country but the execution of the projects must be in conformity with the environmental law of the land and the projects cannot go on in violation of the Notification issued by the Government dated February 19, 1991, in respect of which certain orders had been made by the Supreme Court. It was submitted that there must be sustainable development and not development at the cost of ecology. The Supreme Court appointed 'National Environmental Engineering Research Institute' (NEERI) to make a report on the environmental viability and sustainability of the project. That report was submitted on December 6, 1996. Thereafter, the matters were directed to be transferred to this Court as there was already a petition pending before this Court. This Court is directed to treat this matter as petition under Article 226 of the Constitution of India and deal with the same in accordance with law and it was made clear that the concerned High Court shall only deal with the projects within their jurisdiction.
49. In the other petition - Writ Petition No. 28651 of 1996, the petitioner is a Society registered under the Societies Registration Act. The members of the Society are residents of Nandikur, Palimar, Yellur and other neighbouring villages in the district of Dakshina Kannada. The topography, geography, demography, water resources, flora and fauna, importance of the western ghats as a tropical land forest region, life pattern of the people/residents of the area and the crop pattern adopted are all set out in great detail in the course of the petition to the importance of which, we have already adverted to while dealing with other writ petition. It is submitted that Dakshina Kannada is ecologically sensitive coastal district and it has become a major centre of industrial investment. About three to four thousand investment coming into the State is to materialise in the district and the industries such as Thermal Power projects, oil refineries, Textile, painting, chemicals, steel and tourism and highly polluting activities. The MRPL has caused adverse impact on the environment due to callous discharge of both gaseous and liquid effluents. The local residents have perceived a large scale of industrialisation and urbanisation as a major threat to the environment, economy, lifestyle and culture of the region and have been fighting and have taken a firm stand to save Dakshina Kannada from imminent destruction by mobilising themselves as one of the strongest environmental movements in recent times. Reference is made to the Environmental Master Plan study for the integrated management of natural, human and economic resources in Dakshina Kannada District by year 2002, which was done by the DANIDA elucidating in great detail the most appropriate methods suited for the sustainable development of the district. In particular, the Environment Master Plant Study envisages 21 interlinked interventions for the integrated management of natural, human and economic resources in Dakshina Kannada by the year 2002. The State Government spent about Rs. 13 crores on the study. But the Government is only doing lip service to the study and is acting contrary to the interventions suggested by the said report. There are already MRPL and tannery dispersions manufacturing unit of BASF of Germany, a 2 million tonne per annum steel plant and a 1000 MW coal based thermal plant by the Nagarjuna Group, a coal based thermal power plant of MPC Ltd., a port-based integrated steel plant by the Usha Ispat group, a textile manufacturing unit of Grasim and four barge - mounted power generating stations off the coast of Mangalore, Malpe and Mulki and several more medium scale and small scale industries, MRPL and BASF plants are already functioning causing grave damage to the environment and the ecological carrying capacity of the region. After painting a gory picture of the emerging situation, the petitioner set out the direct impacts on the environment of the District due to siting of the MPC- that the EIA process for siting industries in the District are lacking in several fundamental areas of technical verification; that the process of assessment is highly deficient in the absence of defined guidelines and the EIA report is not usually presented in a manner that is easily understandable by a decision-maker; that EIA reports are not totally objective since the EIA studies are usually performed by organisations that report directly to the companies.
50. Air pollution emissions from industrial processes, industrial boilers and captive power facilities in industrial process and vehicles may overload the air dispersion capability and subsequently accumulate beyond the ambient air quality standards and carrying capacity of the region. It is submitted that the air pollution load in the District is approximately 19.1 tonnes/day of suspended particulate matter, 19.2 tonnes/day of Sulphur di-oxide and 89 tonnes/day of nitrogen oxide with the major contributor being large scale industry and these pollutants will have significant ecological consequences because of their possible conversion to acid rain. The population growth rate in urban areas in Dakshina Kannada District is estimated to increase because of the large-scale industrial development in Dakshina Kannada. The population density for Mangalore Urban Area was 2,993 per Sq.Km. and it is expected that the density will increase to 4,074 per Sq.Km by 2002 and from the 1991 population size of 440,000 people to 599,000. Such an increase would severely overload the existing urban infrastructure resulting in pressure of urban infrastructure. It is apprehended that there will be disturbances in the prime agricultural land. Agricultural holdings are decreasing in size with 85% of the holdings by less than 2 hectares and over half of them being less than 0.5 hectare and as the number of farm holdings increases, more wells will be bored and more houses constructed leading to collection of fuelwood and green leaf manure.
51. The area under forest cover in the District is estimated at 309,000 hectares or about 37% of the entire area of the district. A sufficient quantity of forest is needed to protect erosion-prone areas, regulate flooring, promote ground water recharge and maintain biodiversity. The National Forest Policy, 1988 recommended 52% of the District's area to be under forest cover, The western ghats themselves have an enormous range of flora and fauna which are not found any where else in the world and is identified as one among the 18 biodiversity hot spots in the world that needs to be preserved. The hybrid varieties of cultivable plants or for its pharmaceutical potential the Ghats are a goldmine waiting to be tapped only if the green cover remains. But the ghats have an extremely fragile ecology, once the trees are chopped or the highly sensitive forest canopy destroyed by acid rain, the rains best down on the soil and the thin layer of topsoil rapidly washes away exposing the laterite rock beneath on which nothing grows. About 2000 hectares of picturesque rural land in Mangalore taluk, extending from the estuarine part of the Gurpur river to uplands near the airport, has already been transformed into an industrial belt. Atleast an equivalent amount of such land will be destroyed by the process of industrialisation and urbanisation, resulting in green-belt, agricultural land and open areas may be inappropriately diverted for industrial use. This will certainly result in loss in foodgrains production and variation in life-system of the locality. That due to land use violations leading to rampant and unsustainable urbanisation and industrialiation, the hillocks, agricultural lands and low lying wet lands are lost. Examination has to be made as to whether these lands should be left to remain underdeveloped in order to protect the watershed and ecosystems of the Rivers and estuaries.
52. There is total lack of District-wide Development policy. There are violations of Comprehensive Development Plan of greater Mangalore Area. There is no proper monitoring by the KSPCB. There is water shortage and adverse impact on Riverine and Estuarine ecosystems. Establishment of the industries will result in hazardous waste discharge. There would be impact on Mangrove Forests. It is stated that mangroves are the salt tolerant forest ecosystems found mainly in tropical and sub-tropical regions of the world, and their role is in stabilisation of shore line and prevention of shore erosion. Apart from acting as mechanical bearing against the tidal waves, mangroves held in feeding and providing breeding and nursery ground for the juveniles of many commercially important shrimps and fishes. In Dakshina Kannada it is estimated that 75% of the mangrove area has been lost due to agriculture and reclamation of land for urbanisation and industrialisation. The petitioner implores upon restoration and improvement of the mangrove habitation by artificial regeneration. For formation of such mangrove forest factors such as - (a) flow of fresh water; (b) flow of tidal water; (c) water salinity; (d) land topography (e) land characteristics; (f) sea currents and (g) local features, are relevant. It is also pointed that establishment of the project will destroy religious, education and cultural centres as it would displace two Moola Mutts of Udupi Sri Krishna Temple that is, Adamar Mutt and Palimar Mutt, 29 famous temples, 55 historical Boothastanas 10 Mosques, 3 churches, 163 religious Nagabana's. Bhajan Mandalis and Madarasa's. It is stated that 19 schools will have to be displaced and established elsewhere. It is urged that the industrialisation would also result in shortage of housing. It would also result in reduction of traditional occupations and small scale industries.
53. Thereafter, the petitioner sets out the events leading to the entry of MPC. They question the credentials of M/s. Cogentix Inc., to take up an establishment of power plant of the magnitude of production of 1000 MW. On 20th January 1995, without considering the siting criteria, the Karnataka Industrial Area Development Board (KIADB) decided to set up 4 X 250 MW coal based thermal power station proposed by MPC, a subsidiary of Cogentrix Inc. of USA by a Notification published under Section 28(1) of the KIADB Act, 1966 and proceeded to acquire the lands measuring about 2,024.01 acres in Yellur, Nandikur, Thenka, Palimar and Padabettu Villages of Udupi taluk, Dakshina Kannada District, for the said purpose. On 22nd July 1995, a show of public hearing was made and none of the project affected people, local environmentalists or citizens groups were invited. However, the Minister thereafter promised to hold a public meeting at the project site within a month, in spite of assurance, such public hearing has not been held. There was a public agitation and lot of opposition to the project. However, the KSPCB granted conditional clearance to the project on the basis of cursory environmental study based essentially on secondary data conducted over 2-3 months which the MPC claim to be their REIA. The conditional clearance granted by KSPCB was in violation of the process of granting statutory clearances.
54. On 25th July, 1995, respondent-4 granted the site clearance subject to 26 conditions. This clearance is attacked on the ground that there was no public hearing and proceeded upon assumptions based on the conditional NOC given five years ago to the NTPC project which was only for setting up a 2 X 250 MW thermal power plant and not 2400 MW as is now sought to be claimed. The clearance had been given without noting the details of the extent of land, the exact location, survey numbers and survey map of the proposed site. It is stated that the KSPCB is ignorant of the technical details involved, exact nature and toxicity of the effluents and ensuring that the best precautions be exercised. The Union of India has also mechanically granted its clearance without consideration of the relevant factors. They point out several infirmities in the clearance order granted by R.1 as to the construction of coal unloading jetty. They point out the burden on the Mangalore Port or even with the construction of a new jetty, it would not be possible to unload large vessels into smaller ones in the high seas as this would result in accidents and coal spillage into sea. Respondent No. 1 has failed to consider the loss of forest lands for the transmission lines. There is no mention of requiring installation of cooling tower and water purification units.
55. Several contentions are raised as to the project details to which we have adverted to earlier either in the course of referring to the pleadings raised in this petition or in the other petition. Similar objections that are raised in the other case as to the pollution, water requirement, impact on marine environment are set out in this petition also. They also join issue on the land requirement. On the basis of these pleadings, it is contended that Article 48A of the Constitution enjoins upon the State to make every endeavour to protect and improve the environment. Article 21 guarantees right to life which means a quality of life free from the hazards of pollution. As the authorities have granted clearances without carrying out the Comprehensive EIA or the carrying capacity study so as to assess the environmental feasibility of the project, such right is affected. It is contended that in granting clearance, relevant factors have been ignored and irrelevant factors have been taken out of. The 1st respondent, it is stated, has not considered the objections filed by the petitioner in this case nor it had been given any personal hearing. The NOC granted by Respondent-4 is in violation of law. Public hearing should have been provided before granting clearance and no such opportunity has been given. The statement that R.1, R.2 and R.4 had cleared the project of NTPC in the locality for a capacity of 2420 MW in 1988, is incorrect. Respondent-4 had issued clearance without identifying the coal unloading point. Approval for expansion of the capacity of NMPT has been rejected by surface transport ministry and Single Point Mooring proposed requires separate impact assessment study, which may indicate violation of CRZ regulations. No provision has been made for installation on FGD for neutralising the emission of Sulphur-di-oxide. The circular issued by Union of India on 11.7.1990 requires that all thermal power projects should make 100% ash utilisation, but R.1 has given a 9 years moratorium to R.7 to achieve the same. There is no application of mind on this aspect of the matter at all. The clearance given by R.1 has not noticed that there is no provision in the DPR submitting by R.7 for FGD through it requires that all conditions insisted by R.4 should be followed. R.1 has failed to notice that para 10 of the NOC granted by R.4 requires the comprehensive EIA shall be conducted including the effects of Nagarjuna Steel plant and Thermal and MRPL with its proposed expansion. It has proceeded to grant environmental clearance even before such a study is made. Thus, there is total lack of responsibility thrust upon the respondents. There is no provision under the Environment (Protection) Act to grant conditional clearance. It is contended that Mangalore city is a major settlement and therefore large scale industries cannot be set up anywhere within an area of 50 kms from the outer limits of Mangalore city which is now upto Bappanad near Mulki. Nandikur is hardly at a distance of 7 kms from the outer limits of Mangalore City. It is contended that R.2 should not have permitted R.7 to proceed on the project especially when its trading partner is a company based on Hong Kong which is going to be part of China. The project site is close to Seabird Naval base and R.1 has not even called for a competitive bidding while accepting the offer of R.7. The respondents have totally ignored the fact that the entire area consists of prima agricultural land and even if the adverse environmental impacts are to be kept to the minimum, the lands will be rendered sterile and unfit for agriculture. The techno-economic clearance granted by the Central Electricity Authority (R.3) is in violation of the Electricity (Supply) Act, 1948. The necessary construction of transmission lines through the terrain of the Western Ghats is not suitable for the region. Apart from the heavy cost in construction, it would consume vast areas of rain forest. R.3 has failed to consider whether the location for the plant at Nandikur is best suited for the region taking into consideration the optimum utilisation of fuel resources, distance of load centre, transportation facilities, water availability and environmental conditions. The actual land requirement for the project should not exceed 175 acres, whereas over 2000 acres of land is being acquired.
56. The petitioners have raised various grounds on the basis of these pleadings to attack the clearances given by the KSPCB & MOEF. It is contended that in terms of Article 21 of the Constitution of India, the quality of life enshrined is free from the hazards of pollution. Therefore, they pray that the clearances should be quashed and respondents are to be restrained from establishing any large scale industry or mega-industry in Dakshina Kannada without a study being conducted by the team of experts in the field on the carrying capacity of the environment in the region and for certain other incidental reliefs.
57. The Union of India has filed the statement of objections to this petition through its Additional Director in the Ministry of Environment and Forests. It is submitted that identical contentions as to the location of power project had been raised in an earlier writ petitions before this Court in W.P.Nos. 1112/1991 and 24197/1990 which were dismissed by this Court on 6.8.1991. When the matter was carried to Supreme Court an order was made on 18.12.1991 observing that only objection of the petitioner was that, the Thermal power project had not been cleared by the MOEF and Cabinet Committee of Economic affairs. An undertaking filed by the counsel for the State Government and NTPC was recorded that the thermal power project will not be constructed until necessary clearances were contained. Therefore, it is submitted that this petition is liable to be dismissed in limine as barred by the principles of res judicata. It is submitted that the present petition raised identical grounds as are raised in earlier petitions. Several averments made while traversing the allegations made in W.P.No. 790/1997 are reiterated in the statement of objections. It is pointed out that the project was given environmental clearance after close scrutiny of the documents such as REIA, Application form as per schedule II of the Notification, EIA and the questionnaire for projects with reference to the clearance given by the KSPCB, It is noted that the project uses imported coal with 17% ash content and an average of 82% sulphur content as main fuel. Electro-static precipitator with 99.8% efficiency would be installed. Additional clarifications were sought on use of fly ash utilisation, use of sea water, installation of FGD plan. Subject to the following conditions, the project was given environmental clearance:
a) Installation of FGD plant for stringent control of sulphur-di-oxide emissions to avoid any impact on western ghat: b) Use of sea water through desalination plant to prevent sweet water withdrawal from Mulki river. c) Lining of ash pond to prevent leaching and contamination of ground water. d) Adequate rehabilitation of project affected evictees. e) To avoid impact on marine ecology, the treated effluents will be discharged at 820 m off shore and maintain a maximum of 5°c temperature differential;
It is made clear that the power project does not fall within the area of CRZ. Due care is also taken to ensure that the impact on western ghat which are 40 Kms from the project site will be minimum. Adverting to the study conducted by the Department of Ecology and Environment, Government of Karnataka and DANIDA, Denmark, reflected the need for integrated management of natural, human and economic resources in the Dakshina Kannada District. Keeping this in view, the Ministry of Environment and Forest has also written to the Government of Karnataka in September, 1996 to conduct carrying capacity studies of the Dakshina Kannada District as early as possible to assess potential for future industrial growth. The various apprehensions expressed by the petitioner as to the environmental issues, project siting, land requirement, land acquisition, techno-economic issued, security threat and capability of Cogentrix are denied. It is stated that efforts are required to be made to avoid diversion of prime agricultural land for industrial purposes, In Dakshina Kannada increase in industrial trend is due to the availability of adequate resource base and proximity to infrastructural facilities. A comprehensive land use planning with appropriate zoning is therefore required for ensuring sustainable development. In this background, the Central Government had already requested the State Government to undertake the carrying capacity study of the district for planning future development in the region. Keeping in view the scarcity or water resource in Dakshina Kannada district, through there are number of west flowing rivers traversing in the district, and limited water is available in the region, the proposed project was asked to set up a desalination project using sea water and no water should be drawn and discharged into Mulki river. Therefore, use of water from sea will have no impact on the availability of the sweet water in the region or the marine life.
58. The apprehension expressed in para 18 of the Writ Petition is met by stating that the same will have to be identified based on various hydrological studies to be conducted by NIO, Goa and on the basis of the information available now, the project will not have any impact on bio-diversity or food chain of the region. The contentions raised based on the Mangroves Eco System have no direct bearing on the establishment of the project as such. Requisite environmental safeguard measures were taken before issuing NOC and additional safeguards were incorporated by the MOEF and therefore, it is contended that there is no basis for the grounds raised by the petitioner in this case. The environmental guidelines have no statutory force and they are taken note of and a buffer zone of 5 kms should be kept free from any thermal power plant station. The Notification issued in February 1991 on the CRZ is a statutory notification and has statutory force and has indicated in detail the kind of activities permissible and the necessary safeguards to be observed for protecting the CRZ and the marine ecology. Several other safeguards adverted to while traversing Writ Petition No. 790/1997 are reiterated. On that basis, it is submitted that the proposal for setting up of the power project was examined from environmental angle and clearance was accorded stipulating number of safeguard measures. Implementation on this mitigative measures would ensure minimum impact on the environment.
59. Respondent No. 4 in its statement of objections contends that the Board has not violated any of the provisions of the Air or Water (Prevention & Control of Pollution) Act. The KSPCB had participated in the public meeting held on 22.7.1995 and there were views expressed both for and against the proposed project and there was a request from the gathering for one more discussion and the same was tentatively fixed on 12.8.1995. Subsequently the MPC in its Memorandum dated 2.8.1995 had requested for its postponement to any other date to enable it to disseminate information in the local media as to the environmental impact for the benefit of the citizens of the locality. The matter was therefore postponed. The issues raised in the first public meeting was taken care of by stipulating the conditions in the NOC issued by the KSPCB. Subsequently a Seminar on Monitoring of Environment of Coastal area with respect to industrial activity on 13.12.1995, the issues of MPC plant were discussed. During the course of the discussions, no new issues other than those addressed in the NOC issued by the Board were raised.
60. In the case of any Mega project, before it is cleared, the project proponent furnishes the proposed tentative location for examination by the Board and the NOC from Water, air and solid waste management point of view will be issued with a condition to furnish the exact location, survey number, survey map. In the instant case also the same procedure is followed and it is not correct to state that NOC had been issued without reference to the place of location. As regards the characteristics and treatment of the effluent from a thermal power plant, the Board has practical experience in respect of TPP, as already one thermal power plant is working in the State. Considering these aspects, the Board has stipulated various conditions to see that the environment around the plant and at the sensitive area in the western ghats is appropriately maintained. In India, for a thermal power plant to control the emission of particulate matter standard not to exceed 150 MG/NM is stipulated and to achieve this, appropriate air pollution control equipment such as electrostatic precipitator must be used. With respect of So2 no standards have been prescribed in the Environmental (Protection) Act and the only criteria is dispersion by providing high rise chimney depending on type of fuel used and sulphur content in fuel. To avoid further impact, the Board has stipulated FOD unit which will control the emission level of SO2.
61. For off-loading coal imported, two options were proposed either to utilise the facilities at the new Mangalore Port Trust or to have a separate dedicated jetty or warf facility. The Board has cleared the project considering this aspect. The MOEF CLEARANCE INDICATED, if a separate facility is planned then an EIA for the Single Point Mooring is called for. Industry has submitted the EIA for the Jetty and Warf to MOEF and to this respondent and the same is being examined. Coal handling in the coast is not a prohibited activity, but is subject to regulation. The safeguards are provided by way of a tunnel through which the coal is carried so that there may not be any impact on the environment. Identical contentions as set forth by the MOEF is detailed in regard to the disposal of fly ash. On the contention that environmental guidelines for setting of industry was violated. It is submitted that the plant is approximately 35 Kms. away from the Mangalore city and the location is based on the guidelines. The Notification issued under the Karnataka Municipal Corporations Act was published on 14.11.1995 after the issue of NOC by the KSPCB. The Government Order dated 29.12.1995 suggested for 'carrying capacity' study with regard to industries which are to be cleared in future by the Government of Karnataka and not in respect of industries which are already cleared. It is therefore, submitted that there will be minimum hazard and due care and caution has been taken to mitigate the same.
62. While adopting the stand of the KSPCB, the Government of Karnataka has filed affidavits stating that the circumstances in which it entered into MOU with Respondent Number 7 to which we have adverted to while dealing with the contentions relating to Writ Petition No. 790 of 1997.
63. Having set out the pleadings let us now have a glean into law on the matter, Article 48A occurring in Part IV of the Constitution provides that State shall endeavour to protect and improve the environment and to safeguard the forest and wild life of the country. Similarly, Article 51A(g) occurring in Part IV A of the Constitution providing for fundamental duties enjoins upon every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Reading these two Articles with Article 14 and 21 of the Constitution, it may be stated that it is the constitutional duty not only of the State but also of every citizen to protect and improve the environment and natural resources of the country. Neither Article 48A nor Article 51A of the Constitution is judicially enforceable. But in cases of failure of the duties ingrained in these Articles, it becomes enforceable through the expanding interpretation of Article 21 of the Constitution. Even a public interest litigation brought by an individual or institution in the locality or any social action group or even by a letter, the Courts have not hesitated to entertain petitions under Article 226 of the Constitution, Realising the importance attached to the environment the world over. Bearing in mind the decline in environmental quality, by increasing pollution, loss of vegetative cover and biological diversity, excessive concentration of harmful chemicals in the ambient atmosphere and in the food chain, growing risks of environment accidents and threat to life supporting systems, the world community resolved to protect and enhance environmental quality in the decisions taken at the United Nations Conference on the human environment held in Stockholm in 1972. The Government of India participated in the Conference and strongly voiced the environmental concerns. There were already enactments to control air and water pollution and there are certain other laws indirectly dealing with environmental matters. It was necessary to have a general legislation for environmental protection. In the existing laws, the focus was on specific types of pollution or on specific categories of hazardous substances while several major areas as environmentally hazardous were not covered. The control mechanisms to guard against slow insidious build up of hazardous substances being weak and multiplicity of regulatory agencies could not enforce the laws effectively, there is need for an authority which could assume the lead role of stating, planning and implementing long term requirements of environmental safety, to give direction and to give regenerative system for speedy and adequate response to emergency situation threatening the environment. Thus, a Bill was presented to meet the urgent need for enactment of general legislation on environmental protection which among other things, would enable co-ordination of activities of various regulatory agencies, creation of an authority or authorities with adequate powers for environmental protection, regulation of discharge of pollutants, handling of hazardous substances, speedy response in the event of accidents threatening environment and deterrent punishment to those who endanger human life, safety and health and that was how the Environmental Protection Act, 1986 is brought into existence. Section 3 of the Act grants powers for Central Government to take measures to protect and improve environment and that is the power coupled with duty. Indeed the effect of the provision is that Central Government shall take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of environment and to achieve the same, will have necessary powers thereto. Viewed from that angle, the Act provides for enough powers to deal with necessary situations either in the matter of co-ordination of actions of the Government, planning and execution of a nationwide programme, laying down appropriate standards for maintaining the quality of the environment, restrictions as to setting up of industries operations and processes except on condition of certain safeguards and so on. To achieve this objective, under Section 5 of the Act, Central Government can issue directions to any person, office or any authority and such person, officer or authority shall be bound to comply with such directions. In explanation is added thereto make it clear that power to issue directions would include the power to close, prohibit or regulate any industry, operation or process or stop or regulate the supply of electricity or water or any other service. In exercise of the powers, Environmental (Protection) Rules, 1986 have been framed and the Schedules thereto or the Notification issued thereunder set out the standards, parameters with reference to particular industries and in relation to thermal power plant, specific provisions have been made to which we have adverted. Similarly, in exercise of powers available under Rule 5(3) (d) of the Rules, Government has declared the coastal stretches of the seas, bays, estauaries, creeks, rivers and backwaters which are influenced by tidal action upto 500 mtrs from the high tide line and the land between the low tide line and the high tide line as coastal regulations and imposes several restrictions on the setting up and expansion of industries operations or processes in the said zone, In exercise of the powers under Section 3(2)(5) and (1) read with Rule 5(3)(d) of the Environment (Protection) Rules, the Central Government has notified the Environment Impact Assessment Notification on 4.5.1994 supplemented by another notification on 27.1.1994.
64. Under the enactments referred to above and the constitutional powers, the notifications issued therein clearly indicate the Government is conscious of the fact of the need to protect environment, the extreme fragility of the coastal regions. In the decision in RURAL LITIGATION AND ENTITLEMENT KENDRA v. STATE OF UTTAR PRADESH, (1987) 1 SCR 637 and SACHIDANANDA PANDE v. STATE OF WEST BENGAL, 1982(2) SCC 295 it has been stated that it is primarily for the Government concerned to consider the importance of public projects for the betterment of the conditions of living of the people on the one hand and the necessity for preservation of social and ecological balance, avoidance of deforestation and maintenance of purity of the atmosphere and water free from pollution in the light of various factual, technical and other aspects that may be brought to its notice by various bodies of laymen, experts and social activists and strike a just balance between these two conflicting objectives. The courts role is restricted to examine whether the Government has taken into account all relevant aspects and has neither ignored or overlooked any material consideration nor influenced by any extraneous or immaterial consideration in arriving at its final decision. We are fortified in this view by the decision of the Supreme Court in DAHANU TALUKA ENVIRONMENT PROTECTION GROUP AND ANR. v. BOMBAY SUBURBAN ELECTRICITY SUPPLY COMPANY LTD. AND ORS., In considering whether an Impact Assessment Agency had acted arbitrarily or capriciously in issuing clearance, the court reviewing such decision must consider whether it is based on consideration of the relevant factor and whether there has been a clear error of judgment; though the courts enquiry must be searching or careful; the ultimate standard of review is a narrow one; where - specialists have expressed conflicting views on the matter or even during the pendency of the decision making process, the Agency must have discretion to rely upon reasonable opinions of its own qualified experts even if, as an original matter the court may find contrary views more pursuasive. Such a view has been taken by the American Supreme Court in JOHN O MARSH, Jr. SECRETARY OF THE ARMY v. OREGON NATURAL RESOURCES COUNCIL, 490 US 360 = 104 L Ed 2d 377. Whenever questions relating to environment and development are raised, we must bear in mind how perceptions of environment have envolved with the development process. Environmentalism is a elusive concept which has formed complex and different social movements. Much of the environmentalists message is concerned with finding new forms of co-existence with the nature. Environment fundamentalism argues that means of appropriation of nature needs careful justification : To the environmentalists, uncertainties about the precise effects dictate a stance of caution towards intervening with nature. But the position of some environmentalists goes beyond a concern for the possible negative effects upon people of altering the natural environment. Their fundamental premise is that nature should be left unaltered unless and until it can be shown that interference is truly necessary. The view that nature exists for man is uncompromisingly challenged. Nature needs to be protected for its own sake, not merely to preserve its potential for man. This concern with the stewardship of the natural environment has been linked to the idea that human respect for nature is lost in the pursuit of material gain. Materialism, the production of goods from nature, represents an abdication of human responsibility for the natural world. The ethical commitment in the environmentalism has been buttressed by a number of important changes in the natural world which technology has precipitated. The first of these is the threat which is posed to the 'carrying capacity' of ecosystems by the increase in human population and the non-renewability of resource development. Human beings have broken out of the circle of life, driven not by biological need, but by the social organisation which they have devised to conquer nature which is a means of gaining wealth which conflict with those which govern nature. A lack of respect for the environment has lost man his margin of freedom to proceed by trial and error. Although technology has enabled man to increase carrying capacity in ways that were previously unimaginable, ultimate limits still remain. Unless we can respect these ultimate limits our very survival is at stake. Environmental accountability is still an unclear science. Most of the problems lie in standardising the quantitative methods for describing environment impacts, especially social. Basically, starting point is to look at environmental impact on economic development. This is a conflict area. On one side are economists who tend to look at the world in 20 year "windows' and use quantitative measurements typical to human activity, such as GDP/per capita income, purchasing power and so on. On the other, ecologists who look at the world in the long term, typical 100 years, and use their measures such a quality of life, or human development index and so on. One maximises economic growth, the other environmental benefits. We must attempt to synchronise these two outlooks by borrowing equations derivable from economists to describe environmental impacts to make a conscious effort to balance conservation with economic growth. The law on the matter was stated by the Supreme Court in VELLORE CITIZENS WELFARE FORUM v. UNION OF INDIA. The constitutional and statutory provisions protect the persons right to fresh air, clean water and pollution free environment. But the source of the right is inalienable in law. Our legal system having been founded on the British Common Law, the right of a person to pollution free environment is a part of the basic jurisprudence of the law.
65. The traditional concept that development and ecology are opposed to each other is no longer acceptable. 'Sustainable development' has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life living within the carrying capacity of the supporting systems. Sustainable development is sought to be defined as "development that meets the needs of the person without compromising the ability of the future generations to meet their own needs." (Brundtland Report). Sustainable development as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features are yet to be finalised by the international law jurists. The essential features of Sustainable development are -
a. pre-cautionary principle - the pollutant base should be the precautionary principle in the context of the municipal law - means :
1. Environmental measures - Study and the statutory authorities - must anticipate, prevent and attack the causes of environment degradation.
2. Where there are threats on sources and irreversible damages, lack of scientific certainity should not be used as a reason for postponing measures to prevent environment degradation.
3. Onus of proof is on the actor of the developer/industrialist to show that his action is environmentally being.
Polluter based principle means that the absolute liability for harm to the environment extends not only to compensate the victims but also goes to restoring the environmental degradation. Remediation of the damaged environment is part of the process of sustainable development and as such, the pollutor is liable to pay the cost to the individual sufferers as well as the act of reversing the damaged ecology. In the present case, the proponents of the industry filed along with their application a report known as "Rapid Environmental Impact Assessment Study" (REIA).
66. In an exhaustive study made by David Reed on Structural Adjustment, the Environment, and sustainable Development, at page 32 under the heading 'An operational Approach to Sustainable Development', the definition of sustainable development is attempted. In general terms, the definition is based on the frame work set forth in Caring for the Earth, a joint publication of the International Union for conservation of Nature and natural resources, United Nations Environment Programme, World Wide Fund for nature - International. Sustainable development is people centered in that its, aim is to improve the quality of human life and it is conservation based in that it is conditioned by the need to respect nature's capacity to provide resources and life supporting services. In this perspective, sustainable development means improving the quality of human life while living within the carrying capacity of supporting eco systems. This definition of sustainable development is a normative concept that embodies standards of judgment and behaviour, to be respected as the human community seeks to satisfy its needs of survival and well being. The definition embraces the three basic components -the economic, the social and the environmental - that constitute the foundations of sustainable development. These components are intimately interdependent and consequently require that efforts to promote development support all three of them. The economic component of sustainability requires that societies pursue economic growth path that generate an increase in true income, not short term policies that lead to long term impoverishment, 'it further requires that societies generate an optimal flow of income while maintaining their basic stock of capital. Capital in this context, "includes man-made capital, human capital and natural capital. To avoid unrealistic and even self defeating growth strategies, sustainable economics requires identifying where man-made capital, human capital and natural capital are substitutable and where they remain complementary. Sustainable economics requires a differentiated approach to growth in that many developing areas of the world urgently need to increase their productive capacity and at the same time and with equal urgency, the industrialized societies need to reduce their consumption of natural resources and use those resources more efficiently. Economic sustainability also requires internalizing all costs, including the societal and environmental costs associated with the production and disposition of goods, thereby implementing the full cost principle.
67. The social dimension of sustainable development is built on the premise that equity and an understanding of the human community's interdependence are basic requirements of an acceptable quality of life, which is, ultimately the aim of development. For a development path to be sustainable over a long period, wealth, resources, and opportunity must be shared in such a manner that all citizens have access to minimum standards of security, human rights and social benefits such as food, health, education, shelter and opportunities for self development. Social equity means ensuring that all people have access to education and the opportunity to make productive, justly remunerated contributions to society. Interdependence of the human community implies an understanding that stark social inequities threaten the stability and long term viability of the human enterprise. Interdependence also implies recognition that the human community's standard of living if ultimately related to the size of the human population to be sustained by the planet's environmental resources and infrastructure. Moreover, the social dimension of sustainable development demands the active political participation of all social sectors and the accountability of governments to the broader public in making basic social policy regarding, among other issues, social equity and population size. It requires drawing on local populations' knowledge and experience and strengthening social groups' capacity to shape and manage their own lives.
68. Environmental dimension of sustainable development is predicated on maintaining the long term integrity and therefore productivity of the planets life support systems and environmental infrastructure. Meeting this standard requires investing in the biosphere's infrastructure to ensure the continuity and quality of environmental goods and services on which all life depends. Environmental sustainability requires the use of environmental goods in such a way as not to diminish the productivity of nature or the overall contribution of environmental goods and services to human well being. Application of the precautionary principle should become an integral feature of all development programs to ensure that these activities do not result in either human harm or ecological irreversibilities.
69. These three components of sustainable development should converge in such a way as to generate a steady stream of income, ensure social equity, pursue socially agreed upon population levels, maintain man made and natural capital stocks and protect the life-giving services of environment. Principally the development strategies had to be formulated and implemented and in that context basic choice will have to be made regarding human welfare and natural resources management. It is also on the national level that correcting unsustainable policies and practices is most urgently needed. The three elements of sustainability i.e., economic, social and environmental dimensions constitute some of the more important requisites for shifting to national sustainability strategies in the context of the rapidly changing world order. In particular, we may advert to the environmental component:
1. Sustainable resource use : limiting consumption of renewable natural resources to regenerative rates; ensuring non-renewable resource consumption rates that do not exceed the provision of substitutes;
2. Sink functions: decreasing the discharge of atmospheric contaminants, water pollutants, and toxic wastes to ensure emissions that do not exceed the environment's absorptive capacity;
3. Natural capital : establishing regulatory and market based mechanisms to ensure that the total stock of natural capital is constant over time; establishing national policy and implementation plants to increase the quantity and quality of natural capital;
4. Precautionary principle: refraining from pursuing activities whose negative, potentially irreversible impacts are not fully known owing to limited current knowledge;
5. Institutional framework : establishing clear enforceable legal and regulatory standards for the private sector in order to protect and help manage the country's environmental patrimony.
70. A site was selected for locating the project and the same was cleared for 2 x 250 MW of the total 2420 MW project with the exception of Ellore area. The proposed project is planned with an ultimate capacity of 1000 MW using imported coal. The project site will be located at Nandikur, Mangalore on NH 17. The NTPC of India having earlier planned a 2420 MW power station using indigenous coal at the same time, the site was environmentally cleared for 2 x 250 MW. The proposed MPC is less than half the NTPC capacity with a smaller total area requirement both for plant and ash disposal due to lower ash content and higher calorific content in coal and does not include the Ellore area. The project selected the site which was the site shortlisted by NTPC after an extensive site selection study by the KPCL considering the fact that it had advantage of being well connected to Mangalore Port and Arabian sea apart from the fact that it had adequate land. It was reported that Nandikur site is thinly populated compared to other sites. It is reported that the project made strategic decisions regarding location, environment impacts of the NTPC plant incorporating certain views for building the power plant at Nandikur to which we have adverted to earlier and in addition, it was stated that the higher calorific value of the imported coal results in equivalent sulphurdioxide emissions to Indian coal even with higher sulphur content. Uses of fresh water cooling system with cooling tower to prevent the impact of salt water seepage into the soil and also to conserve fresh water cooling tower use, separate plant for ash utilisation, sea water used only for making fresh water during dry season using desalination plant, no water will be discharged to Mulki river estuary or any water will be drawn therefrom. The baseline data was provided and the baseline data on ecology was collected from Blue Cross Consultancy and socio-economic aspects with the studies of displaced persons was collected from Tata Institute of Social Sciences, data on noise was collected from Engineering and other data on hydrology, geology and soil was collected based on secondary data. The latest available one hour meteorological data was collected from the Indian Meterological Department. The baseline survey at Nandikur site is stated as follows : The demographic profile of the affected village indicates that the majority of the affected people are workers in local industries, agricultural land and field cultivators. Fishing in the site area is only a marginal occupation.
71. Ecological baseline indicated that pre-dominant shrubs with a few tree species, social forestry and few sacred groves in the plant site. Surrounding land upto 10 kms distance from the site consists of hilly terrain on the eastern side intercepted by fertile agricultural land; streams and rivers, estuarine complex mangrove vegetation and sandy shore. Scenery of the site are pockets of low land, general fauna consists of evergreen deciduous trees with rich plant diversity. The general fauna of the area is diverse and rich with significant lower group and higher animals. A good variety of insects, butterflies, amphibians, reptiles, birds and mammals are found around the site. The site itself supports only some common fauna, butterflies, common birds like cuckoo, woodpecker, squirrel and porcupine. The paddy fields support only lower animals like amphibians. The Mulki river mouth is a rich estuary and supports growth of mangroves communities. Fringe type of mangroves are seen along the Mulki river. Fin fish, shell fish, shrimps, prawns, juveniles use estuary as feeding and nursery ground. While major phytoplankton genera and zooplanktons are found in all the three reaches in the study region. Microbenthos were more in lower reaches of the river. The Padubidri coast represents a typical sandy shore. A large number of benthic and pelagic organisms inhabit the same. The near shore waters have rich species for shoaling. The bottom of underwater is muddy or silty. The near coast has moderate microbenthos of which none are endemic or endangered. The sanctuaries and" national parks are beyond 40 km of the plant site. The baseline noise data was collected at the site which was found to be 43.7 dBA which is the highest average noise level of the plant site. Socioeconomic impact was separately considered. About 536 families are expected to be rehabilitated and resettled as a result of site acquisition. The KIADB has covered most of the rehabilitation aspects in the recommendation made by it. The project proponents propose to work with the KIADB to develop a resettlement and rehabilitation plant than that had been suggested. The environmental impact were categorised under water, noise, air and ecology. Various suggestions have been made to maintain the area and water quality and the ecology. The proposals suggested are as follows :
a. Utilizing low ash, high calorific content imported coal. b. No plant makeup water will be taken from the Mulki river estuary. c. Provision of space for flue gas desulfurization units. d. High efficiency dry dust collectors. e. Ash utilization plant with proposal of selling ash products, f. An integrated effluent treatment plant with waste disposal into Arabian Sea and not the Mulki river. g. A 275 m high common chimney for each 2 x 250 MW facility. i. State of the art continues monitoring system for air emission and ambient air quality proposed. j. Yellur area land requirement has been deleted from the project. k. Providing R&R package jointly with KIADB. I. A disaster Management plant proposed. m. Environmental Management plan for construction and operation plan drawn up. n. Plantation of trees and vegetation around the thermal power plant particularly at sites which are receptors of stack emission and coal/ash disposal area. 72. As to the applicability of the principle of carrying capacity suggested by NEERI, the same was seriously disputed by the parties. The concept was enunciated by NEERI in their Doon Valley Carrying Capacity study. The concept was defined as follows : "For human society, carrying capacity can be defined as the maximum rate of resource consumption and waste discharge that can be sustained indefinitely in a defined planning region without progressively impairing the bioproductivity and ecological integrity. Ecosystem carrying capacity provides the physical limits to economic development governing the maximum rate of resource consumption and waste discharges. While recognising societal dependence on many ecological resources and functions for its survival and well being, carrying capacity is ultimately determined by the single vital resource or function in least supply. Working within the limits of carrying capacity does not, however, preclude some unavoidable environmental damage in the course of development.
The concept of carrying capacity implies that improvement in the quality of life is possible only when the pattern and levels of production - consumption activities are compatible with the capacities of natural environment as well as societal preferences. The carrying capacity based planning process thus involves the integration of societal expectations and ecological capabilities by minimizing differentials between realised and desired supply/demand patterns, infrastructure/congestion patterns, resource availability/resource use patterns and assimilative capacity/residual patterns.
Given certain flow of resources, the carrying capacity based planning process uses various modelling and analytical techniques to estimate changes in carrying capacity indicators; and makes trade-offs like changes in technology and pricing pattern, changes in environmental system structures, changes in socially acceptable capacity levels, and control of exogenous forcing functions."
Attacking this principle, it was submitted that reference was made to the article on bioscience, October, 1995. A suggestion was made that nature surround us with life sustaining systems, much as the sea supports a ship - a ship that is likely to sink if it carries too much cargo. Environmentalists therefore urge us to 'keep the weight, the absolute; scale, of the economy from sinking our biospheric ark'. Strong reliance was placed on similar article given out by the National Academy of Science, Netherlands and ah article retrieved from the Internet on Bioscience on November 1992 dealing with population, sustainability and earth's carrying capacity. Firstly, they deal with the framework for estimating population sizes and lifestyles that could be sustained without undermining future generations. They describe the current demographic situation, then examine various biophysical and social dimensions of carrying capacity. Uncertainty about the exact dimensions of future carrying capacity should not constitute an excuse to postpone action. Human population is now so large and growing so rapidly the possibility of a demographic winter is not ruled out. Despite the tremendous uncertainty inherent in any population projections, it is clear that in the next century Earth will be faced with having to support atleast twice its current human population whether the life-support systems of the planet can sustain the impact, of so many people is not at all certain. Dealing with environmental impact, it is stated that the impact of the global population is the fraction of the terrestrial net primary productivity and directly consumed, co-opted, or eliminated by human activity. Impact is represented by I of any population can be expressed as a product of three characteristics; population size P, its affluence or per-capita consumption A and environmental damage T : PAT. These factors are not independent. T varies as a nonlinear function of P, A and rates of change in both of these. This dependence is evident in the influence of population density and economic activity on the choice of local and regional energy supply technologies and on land management practices. Per-capita impact is generally higher in very poor as well as in affluent societies. The concept of carrying capacity is explained thus : Ecologists define carrying capacity as the maximal population size of a given species that an area can support without reducing its ability to support the same species in the future. Specifically, it is "a measure of the amount of renewable resources in the environment in units of the number of organisms these resources can support'. Therefore, carrying capacity is a function of characteristics of both the area and the organism. A larger or richer area will have a higher carrying capacity. Similarly, the given area will be able to support a larger population of a species with relatively low energetic requirements. The carrying capacity of an area with constant size and richness would be expected to change only as fast as organisms evolve different resource requirements. Though the concept is clear, carrying capacity is usually difficult to estimate. For human beings, the matter is complicated by two factors; substantial individual differences in types and quantities of resources consumed and rapid cultural/technological evolution of the types and quantities of resources supplying each unit of consumption. Thus, carrying capacity varies markedly with culture and level of economic development. The usual consequence for an animal population that exceeds its local biophysical carrying capacity is a population decline, brought about by a combination of increased mortality, reduced fecundity and emigration where possible. Two general assertions could support a claim that today's overshoot of social carrying capacity is temporary. The first is that people will alter their lifestyles and thereby reduce their impact. Planning a world for highly cooperate, antimaterialistic, ecologically sensitive vegetarians would be of little value in correcting today's situation. In short, it seems prudent to evaluate the problem of sustainability for selfish, myophic people who are poorly organized politically, socially and economically. Technological advances will sufficiently lower per-capita impacts through reductions T that no major changes in lifestyle will be necessary. Technical progress will undoubtedly lead to efficiency improvements, resource substitutions lead to efficiency improvements, resource substitutions and other innovations that are currently unimaginable. Different estimates of future rates of technical progress are the crux of much of the disagreement between ecologists and economists regarding the state of the world. Sustainable process is one that can be maintained without interruption, weakening or loss of valued qualities. Sustainability is a necessary and sufficient condition for a population to be at or below arty carrying capacity. Sustainable development has thus been compromising the ability of future generations to meet their own needs. Implicit in the desire for sustainability is the moral conviction that the current generation should pass on its inheritance of natural wealth not unchanged, but undiminished in potential to support future generations. Paul Samson in article on 'Concept of sustainable development' states that Sustainable development is currently a 'catch-word', and as such, is often used and abused. The expression 'carrying capacity' therefore, is elusive and no definite inference can be drawn based upon a principle which is variable, depending upon the situational requirements. Therefore, it is submitted that principle should not be adopted at all in assessing or evaluating an impact assessment.
73. On behalf of the petitioners, strong reliance was placed on the report made by NEERI on the examination of the environment and sustainability of select projects including the 1000 MW coal based thermal power plant of Mangalore Power Company at Nandikur in Karnataka. At para 3.2.1.2 it is stated as follows :
"The site proposed for the plant by the Mangalore Power Company was approved by the Government of Karnataka and the Ministry of Environment and Forests, Government of India to establish a 420 MW coal based thermal power station by the NTPC in 1992. The site was selected in 1987, by the Karnataka Power Corporation based on the availability of the New Mangalore Port for import of coal and availability of cooling water from the planned Mulki dam. The proposed site near Nandikur is about 35 km from the Mangalore Corporation limits. The site is 3 km to the east of the Arabian sea, and is violative of the Environmental Guidelines for Thermal Power Plants, 1987. The distance of nearest plant boundary from the backwaters of Mulki estuary is 300m."
The respondents attacked this conclusion as not taking note of decision of the. Supreme Court in DAHANU's case wherein scope of the environmental guidelines for thermal power plant 1987 was dealt with nor does it take note of the CRZ Notification. In DAHANU's case, the contention put forth before the Court was that, relying upon the environment guidelines for thermal power plants 1987 that thermal power plant should not be located within 25 kms of outer peripheries of metropolitan cities, national, parks and wild life sanctuaries and ecologically sensitive areas like tropical forests and (2) in order to protect coastal areas, a distance of 500 meters from the high tide line and a further buffer zone of 5 km. from the seashore should be kept free of any thermal power station. In the report it was noticed that site is 3 kms to the east of the Arabian sea and is violative of Environmental Guidelines for Thermal Power Plants, 1987. It was submitted that the Guidelines are of general nature applicable to proposals for thermal power stations all over the country but in locating a thermal power plant in a particular region, the special features of that regional could be taken into account. The distance mentioned in the guidelines are only intended as a safeguard against possible pollutional effects which cannot be treated as rigid and inflexible irrespective of local conditions. The threat is of increasing acidity of the soil which may affect the regeneration of the forests in the region and also ground water contamination. It is stated that pollution problems in the acquatic ecosystems could occur if the planned and projected heavy industrialisation of the region is not properly planned and managed in respect of ecological protection and pollution prevention and abatement measures. There are certain objections raised such as -
1. That NOC was issued by KSPCB subject to public hearing scheduled on August 12, 1995 and that hearing has not taken place.
2. The proposed mode of coal storage at plant site and impact of flue gas emissions, and
3. Resettlement and rehabilitation plant for displaced population, and
4. Fly ash disposal.
It is stated, the environment impacts were not assessed and also the proposed coal stocking arrangement and estimates and the amount of coal to be stored in view of four months monsoon conditions have not been delineated. In the case of use of water from Mulki dam, the competing demands for water, have not been estimated. But that aspect is highlighted without giving due importance to the MOEF clearance which included a condition that only sea water would be used in the plant and sweet water requirement will be met through desalination of sea water and that no water will be drawn from the Mulki river. A township was proposed to be developed for accommodating 5000 persons without appropriate plans. So2 concentration will exceed the stipulated standard of CPCB for sensitive areas in the Western Ghats. So2 and NOx concentration will thus exceed the stipulated standards of CPCB for residential/rural areas considering the existing and proposed major industrial point sources. The aquatic resources in the Mulki estuary and the impacted coastal regions will be impaired by the proposed jetty/wharf operations. Dry and west deposition rates in the region are high due to meteorological conditions particularly because of high humidity and precipitation. The proposed project, even with the installation of Flue Gas Desulphurisation unit with 70% SO2 removal efficiency, is environmentally unviable. The coal and ash storages have high potential of contamination of ground water. The rich horticultural resources will be impaired due to gaseous emissions and potential surface run-offs from the coal and ash storage areas. In conclusion, it is stated that in the absence of information on definite plan on coal transportation, power evacuation and intake of water and disposal of waste water and fly ash, it would have been difficult for the MoEF to clear the proposed project and MoEF should not have considered the project for appraisal without comprehensive information on the project. The planning and management of envisaged industrial growth in the region endowed with rich acquatic and terrestrial based resource potential, need be based on the premises of Carrying Capacity. The KSPCB had invited NEERI to make a study and such study should have been carried out before giving approval.
74. In the same manner, a report made by Mr. Sagardhara is adverted to by the petitioners to state that he had carried out a study of the environmental impact and he was a member of the team from Tata Consultancy and he was aware of the problems involved therein. It is stated that the sensitive district like Dakshina Kannada cannot tolerate a coal based project. He feared that the affluents will concentrate in the area and spoil and serene atmosphere of the coastal district causing heart and lung related disorders. He stated that there will be considerable decrease in the underground water level as the project needed huge water for power generation and disposal of effluents. If the project uses back waters of Mulki river as a source of water and install recycling units, the fish of the Mulki estuary will be destroyed due to effluents. The project would also change the traditional fishing activity in the District, Installation of barge mounted power project would also be hazardous to environment. Strong reliance was placed on this report by other petitioners also just as in the same manner they have placed reliance upon the DANIDA study to which we have already adverted.
75. Respondent 7 has also filed objections to the NEERI report. They question the credentials and doubt the bonafides of NEERI in making the report it has done. In the objections filed by the State of Karnataka that it is on the panel of so many industries on retainership as a Consultancy. The two NEERI teams visited five project sites in founds different States in just six days to examine all the necessary aspects relating to environmental clearance grant. It was humanly impossible to make an indepth objective study on five big projects spread over four States in six days time. It is pointed out that the NEERI observation that it involves restructuring of the economy on ecological principles may sound well but is devoid of ground realities. In a country like India where majority of Indians live in utter poverty and degradation, no effort could be spared by the State to provide them with basic needs like, food, clothing and shelter and environment is meant for man and man is not meant for environment and therefore, ecological balance has to be viewed as a means to the end and not an end in itself and by itself. It is contended that NTPC was given clearance to establish 2420 MW thermal power station and not 420 MW thermal power plant. The reasons for site selection are set out which are adverted to by us earlier. It is contended that the distance of the plant boundary is 300 mts from Mulki estuary is based on a lack of understanding and a proper reading of the CRZ notification of 1994. The approval letter dated 27.9.1996 of the Coastal Zone Master Plan of Karnataka wherein it has been clearly stated that the creeks of river and backwaters will be 100 mts. where the width of Creek, river or backwater is less than 350 mts and will be 150 mts where the width of the river, creek or back water is 350 mts or more. It is significant that the maximum distance that a CRZ adjacent to a river, creek or backwater can extend to 150 mts and therefore, the statement in the report is not valid and has been casually made without application of mind to the fact. In regard to the statement about the distance from the creek as 300 mts is also not correct and the map of Mangalore, Taluk clearly indicates the distance of the periphery of the crest boundary as 400 mts and not 300 mts. On the point as to increasing acidity of the soil affecting regeneration of the forest region, it is stated that if it, vague statement without any basis. It is pointed out that the Western Ghats are about 40 kms from the project site. Dakshina Kannada District is a vast area with a length of 177 kms and width of 80 kms. Wild life sanctuaries referred to in the report are no whore near the project site and that they are at the other end of the District territory. It is contended that the geology of the region is dominated by granitic genesis and KSPCB has insisted upon MPC to provide with impervious liners in the ash and coal storage area so as to prevent leaching and seeping of water so as to avoid ground water contamination There is no proper application of mind by the NEERI to the 26 conditions imposed by the Government of Karnataka to provide adequate safeguards during the implementation of the project arid during its operations. The factors referred to in the NEERI report regarding ecological sensitivity of the region would be applicable to any place along the coastline and nothing has been emerged from the report to indicate any special features of the project site nor any scientific data or information is set out to highlight the ecological sensitivity of the project site. KSPCB has made an indepth study of the matter before according conditional clearance to the project on 1.6.1996 on an elaborate spot inspection and appraisal by the Technical Advisory Committee consisting of eminent personalities in the environment field and allied fields participated to grant clearance which consisted of Prof. Hallappa Gowda, Head of the Department of Civil & Environmental Engineering, Mysore University, Prof. A.K. Lahari, Metallurgist of International repute and Prof. Kasturi of Indian Institute of Science. As to lack of public hearing, it is pointed out that the wishes and apprehensions of the people were noted and consequently very stringent pollution control measures have been stipulated. For a thermal power plant of 1000 MW insistence upon providing FGD is first of its kind in the country and that condition was imposed in spite of the exhorbitant cost implications that the project has to bear. The Government has acceded to the suggestion to constitute the village level advisory committee consisting of Panchayat leaders, local people and representatives in the Government and the project. These committees are engaged in several exercises at alleviating the fear of the local residents as to the rehabilitation and also providing appropriate environmental safeguards. It is pointed out that the NEERI report is misleading in its appraisal of the REIA inasmuch as it is only in respect of the main plant facilities of ancilliary stages as transportation of the coal, construction of letty are separate activities in themselves and they need to be appraised on their own. MPC has proposed to bring coal from existing New Mangalore Port which has all clearance for the movement of coal and is also considering the option of constructing a captive port near their plant at Nandikur provided it is techno-economical and environmentally feasible. That project calls for a separate EIA study and the same will be appropriately studied and decided at an appropriate time. NEERI's views on stocking coal for monsoons suffers from the basic knowledge of local conditions that no marine and freight activities takes place during the four months of the monsoon and shipping activities go on uninterrupted throughout the year including the monsoon. The Western Ghats are 40 kms away from the project site and air quality modelling exercise has been carried by MPC to ascertain ground level concentration due to the power proposed project shows that the ambient air concentration of Sulphurdioxide and NOx are well below the prescribed standards for rural and mixed land area. In addition, establishment of FGD plant will also ensure that air pollution is much below the prescribed standards. The conclusion in the NERI report that SO2 and NOx concentration will exceed the stipulated standard of CBPC for residential and rural areas considering the existing and proposed major industrial plants in Mangalore is totally unfounded and without any basis. The industries coming up in Mangalore are nearly 30 kms away from the power station. The report is more prophetic in nature than conclusions based on scientific data. It is also pointed out that the Jetty or Wharp has to be constructed in the sea and not on the Mulki estuary again the NEERI report proceeds on wrong premises and as a jetty or wharp operation will not affect fishery potential and the apprehension expressed therein are totally unfounded. Government of Karnataka has prepared resettlement and rehabilitation package in consultation with the local leaders, representatives of displaced families, social workers and district officials. NEERI is allegedly engaged in some kind of political rhetoric and therefore sovereign rights are spoken of. It is made clear that all consequences of the pollution of the Dakshina Kannada District including those of environment, social and others are taken into confidence. As regards the carrying capacity study it is now proposed by KSPCB that instead of leaving the data collection by proposed industries, they will develop their own data base on a continuous basis so that they can cross check the authenticity of data given by industries. In addition to this, over a period of time proper compilation of data can be made which can be used by them for getting a better understanding of the cumulative and individual emissions of a particular area or plant. The carrying capacity study would be a long term one and they will be useful for the optimum utilisation of the natural resources besides for sustainable development. But pending such study and report, project cannot be kept pending or put off for consideration and such study would be relevant for areas which are heavily industrialised. It is pointed out that NEERI is a consultant to a oil refinery which has come up in Mangalore and in relation to the said oil refinery - MRPL, NEERI had been content with preparing a REIA report for this project without any mention of the issue brought out by it in the case of MPC. NEERI has made presentations to KSPCB and MoEF justifying that MRPL be granted NOC from environmental angle only for the increase of their refinery plant capacity from 3 MTPA to 9 MTPA and now the same NEERI is now sitting as a judge in regard to the location of MPCL project by pointing out several lacunae. It is submitted that the NEERI report on NOC given to MPCL by KSPCB and MoEF is biased and motivated as it is appearing as a consultant for various industries in respect of whom they have to defend and obtain NOC for their projects.
76. KSPCB has adverted to the order made by the Supreme Court on 7.11.1996 directing NEERI through its director Dr. P. Khanna to appoint necessary teams of scientists, who may visit the projects, on the spot and after examining all the necessary aspects, including the conformity of the projects with the principle of sustainable development and various notifications issued by the Government of India regarding CRZ and give its opinion and recommendations to the States concerned. Two teams of 13 scientists under the leadership of Dr. P. Rambabu and Dr. R. Sarin were appointed. These teams visited the project site between November 12 to 18, 1996, interacted with the State Government officials, representatives of the project proponents, representatives of the residents of the area and furnished a report to the Court and that matter was heard in Court on 17.12.1996 and the matters were remitted to this Court. They point out the issue on the question that they have not followed the guidelines set out in CRZ Notification. While the CRZ Notification prohibits the activities such as setting up of thermal power projects within the CRZ, it also recommends the need for providing foreshore facilities for such plants for transport of raw materials facilities for make up of cooling water and outfall for discharge of treated waste water/cooling water and such guidelines are not expected to be followed in a rigid manner. They reiterate the contentions raised on behalf of the State of Karnataka on several aspects raised in the NEERI report. As to the public meeting held on 22.7.95, it is pointed out that the meeting on 12.8.1995 could not be held, the issues raised in the first public meeting is taken care of while stipulating conditions in the NOC issued by the KSPCB. In a seminar on Monitoring of Environment of Coastal Area with respect to industrial activity, the issue on Mangalore Power Plant was discussed and no new issues were raised. They refer to various methods by which the emissions in the area could be measured and controlled. They have made studies using ISC2 model as well as FLUIDYN-PANACHE model. It is stated that, it has also insisted on setting up of FGD and the safeguard indicates the values will be less than 30.56 Microgram/m3 which will be within the stipulated NAAQS for sensitive area. The Transoft International has also run the model using FLUIDYN-PANACHE model. The results are all set out and the values indicated were far less than the standards prescribed in regard to the emissions in the area. It is stated that the emissions from proposed Nagarjuna Thermal Power Plant has also been considered but they have not set up FGD. The Board now has stipulated the said project should also provide for FGD since the project is based on the state of art technology such as flue gas desulphurisation plant, desalination plant, lining of ash ponds etc for pollution control to ensure compliance with the stipulated standards with respect to water quality and air quality in the region which involves sizeable investment on pollution control technologies and there is no basis for any apprehension on any adverse impact on environment. On the question of carrying capacity studies being made, the submission made by the KSPCB are well worth considering. It is stated as follows:
"The concept of carrying capacity study is of recent origin. In fact, the Government of Karnataka and Karnataka State Pollution Control board have made query with NEERI and other agencies to submit proposals and NEERI has submitted a proposal for Rs. 200 lakhs and according to NEERI such a study needs 2 years and it is surprising to note that, in the instant case NEERI has come to a conclusion within a few days that this thermal power plant is not environmentally viable without conducting any scientific analysis of all environmental issues involved.
Further, it is to be pointed out that NEERI is the consultant for MRPL, Mangalore, for preparation of EIA for its expansion from 3 MTPA to 9 MTPA.
As a consultant to MRPL, NEERI was content in submitting only a REIA report for such a mega project and did not make a mention about the need for carrying capacity study before clearance. While carrying capacity concept is a step towards sustainable development, impact assessment of developmental activities forms the basis for such studies. Pollution Control Board while according NOC ascertains, by and large, the cumulative impact of various developmental projects in the region with a view to ensure pollution load within the prescribed limit. Carrying Capacity studies would basically be required in the areas which have reached critical levels and further expansion, therefore, should be very cautiously undertaken."
77. Respondent 7 has also filed objections to the NEERI report in which they have in detail traversed the various contentions raised in the NEERI report. But in substance they are all in conformity with the stand of the State of Karnataka and the KSPCB. It is submitted that clearance has provided more than adequate protection to protect the integrity of Dakshina Kannada district.
78. The objections are directed against the clearances given by KSPCB and the MoEF. Therefore, we shall take up for consideration the manner in which the Government considered the material placed before it in the shape of application form, executive summary of REIA, REIAs 'answers to that questionnaire. The consideration of the application and other material placed was taken up in the meeting held on February 19/20th, 1996 at Delhi. Before the meeting was convened, the Impact Assessment Reports should contain the executive summary which alone need be circulated amongst the members. The Committee also took into consideration information available in other material. This committee noted the various aspects such as its location and that the proposed site had been previously cleared for NTPC project in January 1992 for an installed capacity of 2/210 MW On an earlier occasion, in the meeting held in July, 1995 certain clarifications had been sought for on various environmental issues The project proponents and their consultants were invited to give presentation of their project and they were also asked to elaborate on the issues raised in the course of discussions held either at the earlier meeting or at the subsequent meetings. Amongst the issues that were discussed, views were recorded and it was suggested that they did not allow drawing of water from Mulki river and there will be no discharge of waste water into Mulki estuary area. A proposal to draw fresh water from Mulki river was rejected outright in view of the limited water available in the area. They were asked only to use sea water including the ones required for cooling tower project. Regarding ash disposal, the project proponents were asked to workout land requirements for dry and wet disposal. The total area required for ash disposal system for plant life for 30 years would be 135 hectares. The land required for dry ash disposal also would be same or slightly more. The calculations indicated an annual ash generation for four units at 3 lakh tonnes. The ash ponds are asked to be lined up to avoid deterioration of ground water quality. On air quality modelling, it was stated that 24 hour data will have to be collected and keeping in view the impact of fumigation, the proponents are importing coal with heating value of 6111K calorie per KG with 17% ash content and sulphur content would be 0.8% as against the maximum content of 0.6%. Even though sulphur content is higher in the proposed fuel, the total tonnage required would be less and as such the emissions would be within the prescribed limits.
79. A detailed plan for fly ash utilisation was considered. During the first year 12-20% ash will be used with full utilisation by 9th/10th year. On its location in the area, it was noticed that the project would affect 181 families whose land have been acquired and the compensation package includes the value of the land, establishment of a rehabilitation colony prior to initiating the construction work, free domestic supply of electricity, training for affected people, employment priority for people of the area, scholarship for children of the affected people. It was also proposed to constitute a 'Citizens Advisory Committee' with representatives from the local affected people, institutions, industries, etc., which would work as a watch dog to ensure transparency in various fields.
80. The project proponents also assured the committee that they are establishing Dakshina Kannada Environment Research Centre dedicated to long term monitoring and protection of Western Ghat eco-systems. A comprehensive afforestation plan will be implemented not only in the project impact area but also in the adjoining area, it was also committed that ambient air quality, water quality, meteorology, noise and ecological monitoring will be an integral part of the operation of thermal power projects. Data collected as a part of the monitoring will be made available to the Government Departments, institutions and the colleges for use in establishing environmental management practices.
For transportation of coal, SPM would be installed in Arabian Sea and conveyor belt would be used for bringing the coal on shore.
The committee recommended clearance of the project subject to further clarifications:
1. Use of sea water in cooling towers and related literature;
2. Possibility of dry fly ash collection;
3. Analysis of the quartz content in ash and use of close conveyor belt with dusts separation system;
4. Commitment regarding installation of metecrological tower to be set up in the area;
5. Availability of space of installation of flue gas desuiphurisation plant; and
6. Use of FTIR instrument for analysing the stack gases, the instrument is reported to commonly used and World Bank Guidelines and UNEPA.
A techno-economic clearance was given by the Central Electricity Authority on 10.7.1996. On September 27, 1996, the Government of India approved the Coastal Zone Management Plan of Karnataka pursuant to the directions issued by the Supreme Court in its judgment dated 18.4.96. It was pointed out therein the CRZ for creeks, rivers and backwaters will be 100 mts where the width of creek, river, or backwater is less than 350 kms and will be 150 mts where the width of creek, river or backwater is 350 mts. or more. We have elaborately set out the pleadings, the material on which reliance was placed on either side and the law on the matter. What requires for consideration now in this case is whether the Government of Karnataka or the KSPCB or the MoEF could have given the necessary clearances for installing the project which is stated to be environmentally hazardous.
81. The first contention put forth before us is that the necessary guidelines relating to location of the site has not been followed and in dealing with such question, it is contended that we have to bear in mind-
1. Ecological fragility of the area
2. Thermal power station is highly hazardous
3. Impact on the social, economic and cultural aspects
4. Whether the authorities have taken informed decision
5. Whether such decision is in conformity with the relevant law, notification, statutes or international conventions.
In the Environmental Guidelines for Thermal Power Stations issued in 1987, at para 2, siting criteria is adverted to. Selection of environmentally acceptable sites for thermal power stations would be guided by siting criteria which would cover the following aspects:
1 Due consideration needs to be given to topography, geology, hydrology, meteorology, fuel storage 'and ash disposal in the selection of the site.
2. Location of the thermal power plant should be avoided within 25 kms of the outer boundaries of peripheries of metropolitan cities, national parks and wild life sanctuaries, ecological sensitive areas like tropical forests, biosphere reserves, important lakes and coastal area rich in coral formation. (3) In order to protect coastal area upto 500 mts. a buffer zone of 5 kms should be kept free of thermal power stations. (4) The site should be atleast 500 mts away from the flood plain of the riverine systems. (5) The site should also be atleast 1/2 km away from the highways. (6) Location of TPS should be avoided in the vicinity of places of archaeological, historical, cultural or religious or tourist importance and defence establishments and certain other criteria are mentioned therein. This aspect should not detain us very long because this Court had occasion to consider this very aspect in JANA JAGRUTHI SAMITHI v. UNION OF INDIA AND ORS. 1991(2) Kar.L.J. 524, One of the petitioners Jana Jagruthi Samithi had approached this Court earlier. The report of Dr Chokkalingam was taken note of. In that report, the justification for location of the project at Nandikur village has been in detail set out. There is description of the location, layout and the topography. As regards the land use pattern, it is stated in that report that it is a generally undulating terrain with scarce vegetation, outcrops of bedrock existed, dry weather prevails in the area for more than nine months in the year. Cultivable land is in very small proportion to dry and wet land. Paddy cultivation is done in small and isolated pockets of land and single crop per area is the usual practice. Coconut plantation and paddy cultivation in valley like are a between hillocks is practised in a small scale considering the 5 kms ridges around the proposed site at Nandikur. In the proposed area, there is no endangered specie of wild life, no animal, plant of rare specie. No places of cultural or historical and other tourist interest. There are no monuments, big buildings or temples within 25 kms from the proposed site. As against this report, material has been placed before the court to show that the area is a vast agricultural land where paddy is grown and there are coconut plantations, apart from that there are certain species of wild life, species of rare wild or plant life and there are places of religious interest such as two mutts - Palimar and Pejawar and there are also Nagavanas which are sacred forests.
82. In the course of the minutes of the meeting, to which we have made detailed reference, of the MoEF before granting clearance, discussion has been made with reference to earlier clearances given to NTPC in respect of which Chokkalingam report had been relied upon and also new facts placed before the Court as regards which in the REIA there has been due reference. Thus the material placed before the Court was also before the concerned Committee.
83. It is also clear the siting guidelines and the environmental guidelines and CRZ notification have stood displaced now by the new notifications issued on the environmental impact assessment. It is stated therein site clearance will be given after site specific project is mentioned in para 2(2) of the notification. Project proponents will be required to furnish information according to the environmental appraisal questionnaire for site clearance as may be prescribed by the authorities from time to time. Additional information will have to be given as and when required within the time specified therein. It is therefore, contended on behalf of the respondents that in the matter of locating an industry it is no longer necessary to comply with the guidelines on which the petitioners have relied upon. But, even on the basis of the guidelines effective in 1987 will hold good for the present case, as these aspects have been taken note of by the authorities concerned. Thermal plant is nowhere near a metropolitan city for near any national park or wild life sanctuary much less is it near tropical forest or biosphere reserve or important lakes and near a coastal area which is rich in coral formation. In what manner the siting criteria is not observed is not clear either from the pleadings or from the arguments put forth before the Court. Exhaustive consideration by this Court in Jana Jagruthi Samithi's case wherein this Court has clearly answered that such location is good. Special Leave Petition preferred against the said order was disposed of subject to certain observations. Thus, the order made by this Court earlier has become final. It is not as though for the first time, an attempt was being made to locate the thermal project in the area. KPCL wanted to set up such an unit when a study was made. Thereafter, NTPC took over the same and wanted to establish such a project. In the clearance given by the Government, MoEF, this is the specific aspect considered by them. They took note of the fact that the proposed site was previously cleared for NTPC project in January 1992 for installation capacity of 2/210 MW. Therefore, if the authorities bear in mind the best utility in relation to the project sought to be located in the area and having found that, that was the best area to locate the said project, it may be difficult for this Court to substitute its view to that of the authorities concerned. In the executive summary to which we adverted to earlier, the data as to hydrology, geology, topography and meteorology has been taken note of. Flora and fauna available has also been set out. It has been discussed that the land upto 10 Kms from the site consists of hilly terrain on the eastern side intercepted by fertile agricultural land, streams and rivers, estuarine complex, mangrove vegetation and sandy shore. General flora consists of evergreen deciduous trees with rich plant diversity, there are pockets of low land green forests, the sandy beach supports plants like coconut and casuarina. The aspects pointed out by the petitioners in the course of their pleadings or arguments before us have been put forth before the authorities concerned. As observed by the Supreme Court in Rural Litigation & Entitlement Kendra v. State of Uttar Pradesh, it is for the Government and the nation and not for the Court to decide whether the natural resources should be exploited at the cost of ecology and environmental consideration or the industrial requirements should be otherwise specified. It may perhaps be possible to exercise greater control and vigil over the operations and strike a balance between the preservation and utilisation. That would indeed be a matter for expert body to examine and on the basis of the appropriate advice, Government should take a decision and firmly implement the same. As was stated in SACHIDANANDA PANDEY v. STATE OF WEST BENGAL, we cannot flatter ourselves much on account of human victories over nature. For each such victory, nature takes revenge on us. Even so, we cannot say that the location as such was improper or incorrect. The location of the project does not fall within the parameters of CRZ Notification at all. There is a clear and categorical statement made by all the authorities that the project does not fall within the CRZ at all. Therefore, there is no violation of either the guidelines issued in 1987 or CRZ Notification in the matter of location of the plant in question. We have already dealt with the contention put forth on the location of the project. Though there is no requirement in law as such, to hear the public but by reason of the guidelines issued by the Government of India in the matter of clearance of projects while considering the environmental aspects, such public hearing ought to be given to maintain proper transparency in the action taken by them. It is no doubt true, in the material placed before the Court there was a public hearing held and a date was also fixed for further hearing on 12th August, 1995. It is now contended that the clearance given by the KSPCB without the said hearing on 12.8.1995 is not proper consideration of the matter, This aspect has been in detail adverted to by the KSPCB in the course of their statement of objections filed and it is explained as to how another date of hearing the public further was put off. On the main issue as to the location of the project, there was due hearing. On other issues such as rehabilitation and environmental safeguards to be provided there were differences amongst the various authorities and to give them sufficient time and attention to them on these aspects, matter was put off and therefore, we do not think that there is need for public hearing at all in the matter of site clearance. However, if on further public hearing or on fresh information being gathered by the Board, it is certainly open to them to reconsider the clearances given to them if any telling circumstance is pointed out which would tilt the result of clearance. Therefore, in the background of the material which was available to the authorities concerned as to the site clearance, in the shape of the clearance that had been given to NTPC earlier and the material that had been gathered as also the material that had been placed before the authorities by the project proponents, we must hold that there was due application of mind by them, by the KSPCB and the MoEF in this regard as had been held in the decision in JANA JAGRUTHI SAMITHI's case. We must also conclude that there was due justification for the location of the project at Nandikur. On an earlier occasion, Writ Petitions had been preferred by JANAJAGRUTHI SAMITHI and those Writ Petitions came to be disposed of by noticing that it is premature inasmuch as clearance by the concerned authorities had not been given and it was certainly open to the parties concerned to prefer their objections to the clearance before the concerned authorities. It was stated that such objections had been filed. It is complained that the same has not been taken note of or considered subsequently. An affidavit had been filed on behalf of the Union of India that there was due consideration of the objections filed on behalf of JANA JAGRUTHI and a letter also had been sent to that effect. Therefore, we must say this was in extension of the public hearing that was given earlier to all those who were interested in the matter of maintenance of the environment who wanted to be heard in the matter.
84. Now we shall take up for consideration the objections raised by the petitioners regarding the project clearance:
1. Ecological fragility of the area : We have pointed out earlier that the location of the plant is outside the CRZ. Even otherwise due care and caution has been taken in fixing the parmeters within which the project proponents will have to act.
2. Emissions that may result by solid waster matter or gaseous or contamination of air and water has also been duly taken care of. In the rules framed in the Environment Protection Act, specific conditions have been imposed and standards prescribed as to the extent of sulphurdioxide and nitrous oxide emissions and the manner in which the fly ash could be managed. If the authorities find that the conditions prescribed by them would meet the adequate required standards and such prescription of standards conform to the statutory requirements, it becomes very difficult for this Court in judicial review to upset such a decision. In doing so, the authorities have relied upon the expert opinions and the provisions of law have been borne in mind and such a decision cannot be characterised as not an informed decision as contended for by the petitioners. There is enough material on record to show that there are safeguards provided in the conditions prescribed regarding contamination of soil, or ground water, spills or leakages or leaching nor is there any specific material to show that there will be any land or biodiversity affecting the habitat of any specie or marine life nor can there be any riveraine life affected. Plethora of material is placed before the Court to show that the coastal management plan, as directed by the Supreme Court, are being prepared and placed before the Supreme Court and in no manner there has been any violation on the part of the respondents in giving clearance in question.
85. On the question whether the new material sought to be placed before us in the shape of DANIDA report or the NEERI report or the views expressed by Mr. Sagardhara, the same needs to be considered in the context of how Courts approach in matters of this nature. In Marsh v. Oregon Natural Resources Council to which we have adverted to earlier, it has been held that the agency need not supplement on an environmental impact statement every time any information comes to light after the same is finalised. Primafacie, we do not find that, that any aspect that has been adverted to either in the reports given by the DANIDA, NEERI or Mr. Sagardhara to state that new information has come into existence which will affect the quality of human environment in a significant manner and are questions which are not already taken note of by the concerned authorities. But we shall not state anything finally on this aspect of the matter.
86. We shall now deal with some of the minor objections raised by the petitioners. The clearance given either by the KSPCB or MoEF is not a final clearance but hedged in there are many conditions and has been issued in great haste and does not fulfil several conditions required under the statute and they did not have sufficient material before them to come to the conclusion one way or the other and really speaking it is submitted that there was paucity of material and in the absence of which clearance could not have been given. We must bear in mind that in giving clearance to the project such as the present one, there has been threshold consideration of the proposal. Such consideration will be with reference to Sections 3, 4, 5, 6, 25 and 26 of the Environmental Protection Act. The application to be made by them is a statutory application provided as under Schedule II to the Environment Impact Notification 1994. Therefore, at the stage of clearance of the project or the site of the project, it cannot be said that clearance can be given without conditions and if clearance has been given with conditions, it cannot be said that it is subject to so many conditions imposed therein and therefore, clearance is incomplete. An argument cannot be made as 'head I win, tail you lose'. If conditions are imposed, they are required to be fulfilled. If conditions are not imposed, then an objections could be raised and there is no application of mind by the authorities concerned in not providing sufficient safeguards for conserving the environment. Conditions have been imposed in the present case bearing in mind statutory requirements to which we have adverted to in great detail. Therefore, we do not think that the conditions imposed by the authorities in any way are incorrect or uncalled for nor can it be said that there is no application of mind.
87. As regards the existence of certain Mutts or religions places or holy forests, in what matter the establishment of the project would affect them is not clearly spelt out particularly when adequate safeguards have been taken into consideration in the matter of SO2 and NOx or in the matter of control of fly ash.
88. In regard to utilisation of coal, the sulphur content to be emitted has been duly taken note of by the concerned authority. In that content it is stated that the quantity of coal that would be consumed is less since it is imported and thus contamination is limited. In addition, by putting high chimneys measuring about 275 mts. and also other technology adopted, its emissions would be controlled. Besides meteorological control system will be set up to keep watch over the existence of emissions entering into air and water.
89. So far as fly ash disposal is concerned, again the authorities concerned have taken various precautions, as to setting up a separate yard and the process by which the same could be utilised. Strong reliance was placed on a Circular issued by the Central Government that the fly ash disposal should be taken from day one of the starting of the project. In imposing any condition, the authority concerned will have to take a pragmatic approach and cannot pass Utopian orders which is not capable of implementation. If conditions of such nature which cannot be fulfilled an imposed then the same will be violated with impunity or would again be subject to ignoring the same. Therefore, if the authorities in this particular casa have taken a pragmatic view on fly ash disposal by proper preservation either by dry method or wet method and cent percent disposal in the course of 9 to 10 years, we do not think such an action is irrational and uncalled for.
90. The contention that the clearance granted is only tentative in character and hence no clearance at all as contemplated under law need not detain us long because any clearance given is certainly tentative in character because whenever any project is cleared by various authorities and on its further activities, if it is found hazardous either to the environment or ecology, the project can certainly be stopped. Therefore, the contention that the clearance given is tentative has no force at all.
91. We shall next take up the contention that noncalling of tenders in the present case is bad and distribution of the largesse of the State without giving an opportunity to all concerned is bad. We may refer to the decision in RAMDAS SHRINIVAS NAYAK v. UNION OF INDIA AND ORS. wherein in identical circumstances in which the Government of India and the Slate Government took a decision to enter into Memorandum of Understanding with a foreign company, was upheld as has been done in the present case by the State with the MPC - a Cogentrix Inc subsidiary. We have set out the circumstances and the manner in which this contract is entered into. As held by Supreme Court in Sachidananda Pandey's case, it is not always necessary to follow the system of calling for tenders or awarding contracts by public auction. In certain special circumstances, it is permissible for the authority concerned to award a contract by adopting any other appropriate measure. There is material on record to show that there is great scarcity of electricity power in the State of Karnataka. Therefore, there was urgent need to set up a power plant in the State. The power plant to be set up was of a very big magnitude and capacity to set up the same was of primary consideration. If the authorities concerned felt that on giving wide publicity to the same and having entered into discussions with various groups of persons that Cogentrix Incorporated who were collaborating with the different organisations have the capacity to carry on such a work, we do not think we should substitute another view by sitting in appeal over the decision taken by them. In such matters, the law is that as has been held in SACHIDANANDA PANDEY's case that it is only when Courts are appraised of gross violation of fundamental rights by a group or class or there are acts which shock the judicial conscience of the court, should examine such matters at the instance of parties who are not directly affected by it. We have perused the affidavit filed by the State of Karnataka in this regard to which we have made reference earlier which sets out in great detail the manner in which the memorandum of understanding was reached with Cogentrix Inc. of which 7th respondent is a subsidiary. Hence, we do not think that contention raised in this regard is also tenable.
92. One other aspect which needs attention is the clearance given by the authorities concerned without making a carrying capacity study. We have referred to the concept of carrying capacity by different authors and views expressed therein. We have concluded that the carrying capacity/concept is dependent upon so many imponderables and absence of such a study by itself may not be of grave infirmity in giving the clearance in the present case. For future development of the District perhaps such a study may be required and this again is a matter under consideration of the concerned authority.
93. The concepts of environment and environmental movement is not homogeneous and diverse views and ideological positions have been raised. There are two different strands of reasoning and emotion that shroud the environmental debate. Development should be understood in a broad sense enhancing the ability and power to direct their own lives in the context of environment, history and aspirations for future. It is not about the catching up with other people but is about an enlarged range of qualities of choices of lifestyles or occupation. India charted its developmental path with considerable political debate about which alternative should be in the best interest of the Indian people, and it is even suggested by the Prime Minister that poverty itself is the worst kind of pollution. Indian planning was conscious of the concept of social and environmental dimensions of development such as the need to maintain the health of the soil, to safeguard places of livelihood, to establish institutional mechanisms for a more decentralised development. Nevertheless, oppression and poverty persists while natural environment is increasingly being jeopardised. The relationship between development and environment is the crux of the debate in this case. People are a part of the environment closely linked to the area, water, soil, flora and fauna. This complex network of living and nonliving systems is under a perpetual state of flexibility and sustains the process of life. It is not a fragile fabric but a tough and dynamic system with a tremendous capacity for transformation or resurface in times of need. The environment provides the resource base for development. But how people use these resources would depend upon the technological capacity, on the social structure which govern the relationship and on the national or international views. There is a great temptation to selectively interpret only those facts that fit into the framework of a selected environmental approach as the ideas and values of environmentalism spread, several myths have also arisen. This results in ignoring the distortion of those aspects of a situation which may not fit with theory and/or whether they fit, it is awkward. As a result, many environmentalists like the hardcore developmentalists seem to lose touch with the empricial reality with awkward and often absurol dimension of environment. The concepts of environmentalism may have an impact on the developmental policy, but, once the policy is spelt out, either by the legislature or by the authorities authorised under the law and those policies fit into the framework of law, we do not think the courts can intercede to state what the policy should be and such matters should well neigh to be left to experts with the knowledge, information and wisdom to deal with the same.
94. In the result, we conclude that none of the objections raised by the petitioners are sustainable to quash the clearance granted by the KSPCIB or MoEF. However, considering the fact that certain material is available now and could not have been brought to the notice of the concerned authorities and inasmuch as the project is still at the initial stages of being put through, NoEF is directed to take into consideration the report of the DANIDA, NEERI and the views expressed by Mr. Sagardhara on the project. It shall also take note of the criticism of absence of the carrying capacity study and its impact to ascertain whether such information is such that the action taken by the 7th respondent will affect the quality of human life and environment in a significant manner or extent which has not already been considered by them and decide the issues arising therein. Such action shall be taken within a period of three months from today. If the petitioners or any other interested party so desires, they may file appropriate representations to MoEF for its consideration. Unless the MoEF considers oral hearing is necessary, the same need not be extended to the petitioners or any other party. Subject to these directions, these petitions stand dismissed.