Ennore Thermal Power Plant Project: 'Can't Stop Authorities From Exercising Statutory Powers'; NGT Southern Zone Refuses To Reschedule Public Hearing

The Southern Zone of the National Green Tribunal (NGT) has refused to reschedule the public hearing on Ennore Thermal Power Plant project. The public hearing for TANGEDCO's coal-fired 660 MW power plant is scheduled to be held today by Tamil Nadu Pollution Control Board (TNPCB).

A bench of Justice K.Ramakrishnan ( judicial member) and Dr. Satyagopal Korlapati (expert member) observed that the prayer in the application for rescheduling the date of public hearing does not fall within the purview of Section 14 of the National Green Tribunal Act, contrary to the contentions put forward by Applicants.

"Section 14 of the National Green Tribunal Act, 2010 deals with the dispute regarding pollution or other environmental issues or any danger being caused on account of non-implementation of the provisions provided under the statues covered by Schedule – I attached to the NGT Act, 2010. So as such, the prayer in this application is not coming within the purview of Section 14 of the NGT Act, 2010. Further, EIA Notification, 2006 mandates public hearing and a procedure has been provided under the Annexure attached to the EIA Notification, 2006 which gives discretion for the authorities who are conducting the public hearing to postpone the same, if the conditions are not conducive for the purpose of conducting the public hearing."

Citing the above, NGT opined that the concerned authorities have the discretion to take a decision on the conduct of public hearings. Moreover, MoEF&CC's Office Memorandum in 2020 (during the pandemic) did not prohibit public hearings provided that some restrictions were put in place.

Observing that the tribunal cannot give directions to the authorities to not exercise their statutory powers ( TNPCB and District Collector in this application), it was added by the Bench that the latter can choose to postpone the date or not upon satisfaction of the prevailing situation and the Government Orders.

"...we are also not expressing our opinion or interfering with the discretion of the District Collector and the TNPCB to take appropriate decision as to whether they will have to proceed with the public hearing or not, considering the circumstances prevailing in that area as well", the tribunal remarked.

Background And Arguments Raised

The State Government had issued G.O. (Ms.) No.3 dated 3rd January, placing certain restrictions under Disaster Management Act, due to the spread of Omicron variant. Previously, on 17th September, the Tribunal had directed Ministry of Environment, Forest and Climate Change (MoEF&CC) to conduct a public hearing on the thermal power plant and pass appropriate orders based on the same. In the same order, the Tribunal also put the Environmental Clearance (EC) granted for the expansion project in abeyance for a period of six months. Afterwards, TNPCB issued a public notice at the request of TANGEDCO, and the date for the public hearing was fixed as 6th January, 2022.

While setting out the facts of the matter, the Tribunal also disagreed with the stand of the District Collector that TANGEDCO was the authority conducting the public hearing. The bench underlined that it is TNPCB that conducts the public hearing. The bench reached the said conclusion by referring to EIA Notification, 2006. Interpreting the said notification, the bench added that the TNPCB has to conduct the meeting, at the request of the project proponent, after making necessary publication giving clear 30 days time.

The applicants had argued that conducting a public hearing in the current circumstances would defeat the purpose for which such a meeting is held in the first place. Since the number of attendees will be restricted to 100 if MoEF&CC's Office Memorandum is made applicable, A. Yogeshwaran, the counsel for the applicants, contended that the public hearing must be rescheduled. Even as per the Annexure of the EIA Notification, 2006 regarding procedure for public hearing, certain circumstance warrants postponement of the public hearing, he argued.

 S. Sai Sathya Jith, TNPCB's counsel, submitted that the application is not maintainable under Section 14 of the NGT Act. Responding to the applicants' submissions, he argued that the Tribunal does not have the power to injunct the statutory functions of authorities. He added that the public meeting can be held by following the safeguards mentioned and restrictions imposed in the latest government order.

The counsel for the District Collector, Dr. D. Shanmuganathan, also agreed with the submissions made by TNPCB.

Case Title: R.L. Srinivasan & Anr. v. Tamil Nadu State Pollution Control Board & Ors.

Case No: Original Application No. 05 of 2022 (SZ)

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