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

A Bench comprising Justice MR Shah and Justice CT Ravikumar passed the order in pleas challenging two orders of the NGT - the first, upholding the validity of the Environmental Clearance (EC) granted to the company with direction to review and add additional conditions; the second, quashing the corrigendum adding conditions to the original EC issued to the company. While permitting the company to continue with the power plants, the Bench noted that Tamil Nadu is an energy deficit State and closing the power plants that supply power to about 40 lakhs households would not be in public interest.

Background

M/s. IL&FS Tamil Nadu Power Company Limited, now a company under the Govt. of India, was originally incorporated in 2006 for establishing an imported coal based thermal power plant in Tamil Nadu. In 2008, the company had submitted the form to obtain terms of reference for EIA study.

Eventually, the Expert Appraisal Committee considered the project and recommended it for Environment Clearance (EC) subject to stipulation of specific conditions like, project to keep space for providing Flue Gas De-sulfurization system with all the five units of the power plant to enable the system to be installed whenever required. Accordingly, it was granted EC.

Challenging the grant of EC, petition was filed by fishermen and persons acting for welfare of fishermen before the National Environment Appellate Authority. Once the National Green Tribunal (NGT) was constituted the petition was transferred to it.

The NGT upheld the validity of the EC but directed MoEF to review the EC based on cumulative impact assessment study and if required stipulate additional conditions. In the interim, it suspended the EC. Instead of a cumulative impact assessment study the company conducted a Raid cumulative impact Assessment. The EAC recommended certain additional conditions to the EC including the requirement of installing a FGD system as part of the power plant. Based on the recommendation of the EAC, the MoEF issued a corrigendum to the EC imposing additional conditions. The original petitioners again challenged the issuance of the corrigendum. By order dated 10.11.2014, the NGT quashed the corrigendum. By an interim order the Apex Court stayed the order of 10.11.2014 due to which the company commenced two power plants which are in operation since 2015.

Analysis by the Supreme Court

The Court noted that post the interim stay order, the company had commenced with two power plants and is presently supplying power to approximately 40 lakhs households. Moreover, it observed that the power plant is situated in an energy deficit State like Tamil Nadu. Thus, it opined that closing the power plant would adversely affect the power sector of the State and in turn the larger public interest. However, it noted that the company has to abide by the conditions imposed by the corrigendum. The Court noted that there was substantial compliance of the conditions imposed on the company. Though there are no fundamental breaches, the Court was of the view that some conditions are still partially complied with. The Court permitted the company to continue with the two power plants which are in operation subject to compliance of all the conditions mentioned in the EC and also the ones mentioned in the corrigendum to the EC. It also directed the company to comply with the conditions which are partly complied with within the stipulated time as was proposed by the company.

Addressing the issue “whether against the corrigendum to the EC along with additional conditions, an appeal before the NGT would be maintainable or not”, the Bench held that an aggrieved person may always challenge the corrigendum imposing additional conditions to the Environmental Clearance, but the appeal would be restricted to the corrigendum if the original EC is not under challenge and/or the original EC has been confirmed by the NGT earlier on certain conditions which have not been challenged.

Case details

M/s. IL&FS Tamil Nadu Power Company Limited v. T. Muruganandam And Ors. |2023 LiveLaw (SC) 192 |Civil Appeal No. 1811-1812 of 2015|17th February, 2023|Justice MR Shah v. Justice CT Ravikumar

National Green Tribunal Act 2010- Challenge to Environmental Clearance -Whether against the corrigendum to the EC along with additional conditions, an appeal before the NGT would be maintainable or not-An aggrieved person may always challenge the corrigendum imposing additional conditions to the Environmental Clearance, but the appeal would be restricted to the corrigendum if the original EC is not under challenge and/or the original EC has been confirmed by the NGT earlier on certain conditions which have not been challenged - Para 9

Environmental Clearance - Supreme Court permits IL&FS Tamil Nadu Power Company Limited to continue operating its power plants in Tamil Nadu