Major blow to Adani's Udupi power project; NGT declares clearances granted to set up plant are illegal

Udupi, Mar 16: In a major blow to Adani's Udupi Power Plant project at Yellur village of Udupi district, the Principal Bench of the National Green Tribunal declared on 14" March 2019 that all the clearances granted to set up the power plant are illegal. It has also ordered the suspension of the Environmental Clearance dated 1.08.2017 granted to expand the plant by addition of 2x800MW units to raise ultimate capacity to 2800MW. The Tribunal invoked the "Polluter Pays" principle and appointed a committee of experts to ascertain the damages to the crops and the environment in general of the area. It has directed the Company to pay 5 crores as an interim environmental compensation to CPCB who will also be the Nodal agency to study the damages caused. It has also ordered the Company to pay Rs. 1 lakh as cost to the Petitioners.

The Tribunal found that genuinely serious issues raised by the villagers and the Applicants had not been given the due attention it observed by all concerned including the Government. The fact that multitudes of disputes and litigations relating to the project had been instituted bears witness to the fact that all was not well. Environmental clearance dated 20.03.1997 had been granted without following the due process statutorily prescribed and mandatorily required to be followed. Extension of the validity period of the EC had been granted on 16.04.2002 at the request of the project proponent as work could not be commenced within the 5 years' period stipulated in the EC. This is without authority of law. On 05.10.2004 the EC was cancelled by the Ministry as the project proponent had still not commenced with the work of the project. This order of cancellation was recalled vide a personal letter dated 31.01.2005 by the Director MOEF under questionable circumstances at the request of the project proponent.

The Tribunal pointed out that the procedures laid down under the EIA Notifications are not mere formalities to be followed but have been prescribed to ensure that the environment is duly protected while taking up a project keeping in view the Precautionary Principle and the principle of Sustainable Development. The fact that the procedures prescribed in the Notification were not at all followed except few parts of it, lead it to reasonably conclude that there has been damage caused to the environment for which consequences have fallen on the people in terms of healtn, decline in the agricultural productivity and, therefore, their livelihood, degradation of natural habitat of birds and animals, etc.

Tribunal took a serious note of the study carried out on "Environmental Profile and People's Livelihood aspects in the vicinity of Coal Based Thermal Power Plant at Yellur Panchayat, Udupi District" by a group of Scientists as CES Technical Report 126 dated April 2012 published by the Energy & Wetland Research Group, Centre for Ecological Sciences, Indian Institute of Science, Bangalore, has made alarming observations in respect of the project area during field investigations. It has been observed that mismanagement of the environment was evident from the contamination of the water (surface and ground), soil and air apart from the impaired functional aspects of the biotic elements. This was deduced from the reduced productivity of grains, jasmine flower and horticultural produce, reproductive ability of livestock, poultry animals, etc. There was dust on the leaves during the dry seasons which induced phyto-toxicity leading to poor pollination and hence reduced productivity. There was reduction in the population of pollinators. Stunted growth of saplings and enhanced respiratory diseases, etc. were noticed caused by release of saline mist from the cooling towers of the plant which is locally dispersed by the wind even up to 2 kms.

The Tribunal found the conduct of the MoEF&CC in the entire episode does not appear to be above board. The Tribunal expresses grave anguish and concern which in its view ought to be corrected and left it upon the MoEF&CC to deal with this aspect as their wisdom may dictate.

The Tribunal observed that justifiably, therefore, the directions would be called for to remove the plant and order for restoration of the area and the environment. However, considering the facts and circumstances, the lapse of time and the fait accompli situation that has arisen, we are of the view that the interest of public will not be served in passing such order. The need of the hour is to explore such measures and steps that would mitigate the harm already caused in addition to ensuring that the plant operates strictly within the environmental norms. It has thus invoked the "Polluter Pays" principle under Section 20 of the National Green Tribunal Act, 2010 and hold M/s. Udupi Power Corporation Ltd., the Respondent No. 5, project proponent, liable to pay Environmental Compensation which shall bg assessed by a Committee of Experts. It has constituted a Committee comprising of- 1. Senior Scientist, CPCB. 2. Senior Representative, IIT Chennai. 3. Senior Scientist, IIT Bangalore. CPCB shall be the nodal agency to coordinate amongst the Members for taking up the task.

The Committee shall assess the environmental damage on account of the environmental violations and submit its report within three months. Awaiting such report, it directed UPCL to pay an interim Environmental Compensation of k5 crores with the CPCB. The interim compensation would be subject to assessment of final damages by the Committee of Experts. This amount shall be deposited within a period of one month from hence. The CPCB, in the meanwhile, shall utilize the interim compensation for restitution and remedial works for restitution of the environment including the possible plight of the people affected by the plant. It has made it clear that this amount shall be distinct from the other obligations of UPCL under the Corporate Social Responsibility (CSR) or other obligations.

The project was challenged as early as in 2004 by the Samithi before the then National Environmental Appellate Authority (NEAA), New Delhi. The appeal was dismissed by the sole non-judicial adjudicator who was formerly the Secretary, MOEF responsible earlier for the grant of the very Environmental Clearance. Aggrieved by the decision, the Samithi filed WP before the Karnataka High Court in 2005. Bellibettu Alade Devasthana and CSI St. Luke's Church also filed separate Writ Petitions before the High Court. The cases were transferred to the National Green Tribunal South Zone, Chennai in 2012 under the Supreme Court order. Due to the lack of Judges in Zonal Tribunal at Chennai the cases were finally heard by the Principal Bench at New Delhi and the judgement was released on 14th March 2019. The State of Karnataka actually does not need power from the plant and Govt has either stopped or considerably reduced receiving the supply from UPCL. The Energy Dept website show that as on 31.07.2018 the total generation of power from various sources has increased to 27,176.43 MW out of which 4,713.26 MW is Wind Energy and 5,172.72 MW is Solar among others. The website also shows that the available potential of the Renewable Energy totals to 86,792MW of which Wind Energy is 55,857MW and Solar 24,700MW. With such RE potential the killer coal-based power plants are not at all required in the State leave alone in the sensitive Ecologically Coastal Zone.

As such the State Govt is required to issue directions to UPCL to shut it down and shift it to another place perhaps another country like Bangladesh. It has also come to the knowledge of the Samithi that UPCL is now planning new Transmission Lines to supply power to other State perhaps through the grid at Kerala. It would only mean that we would be used as sacrificial lambs for the Company and this will not be acceptable.