Office Memoranda allowing thermal power plants to change coal sources without Environmental Clearance amendment quashed for diluting EIA statutory safeguards, bypassing public hearing and violating Precautionary Principle as changes alter pollution load.

JUDGMENT

Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member

1. The challenge in this application is to the OM dated 11.11.2020 bearing number F.No.-J-13012/8/2009-IA,II(T) issued by the MoEF&CC. The said OM allowed the thermal power plants to change their coal source without requiring fresh EIA or Environmental Clearance. According to the applicant this OM undermined the statutory environmental safeguards and facilitated increased pollution without regulatory oversight, and violated constitutional and environmental principles.

2. Considering the fact that the said OM has pan India significance, originally the Original Application was transferred to the Principal Bench on 06.03.2021. However, the same was challenged alleging that it created an artificial hierarchy among the NGT zonal benches which was not provided for under the Act. The Hon’ble Madras High Court before which the said challenge was made, ruled it in favour of the applicant holding that all the zonal benches of the NGT exercise equal jurisdiction and that there was no statutory basis for requiring matters of pan-India significance to be heard only by the Principal Bench. Consequently, the matter was transferred back by the Principal Bench, NGT to the Southern Zone for adjudication.

3. The Environmental concerns raised in the O.A by the applicant are:

EIA process bypassed:

4. The EIA Notification, 2006 mandates that the project listed in the Schedule should be established only after obtaining prior Environmental Clearance under the Notification which includes even the change in fuel source, the impugned OM effectively nullifies this requirement by allowing the thermal power plant to switch from imported coal to domestic coal or vice-versa without conducting EIA, public hearing or obtaining amendment to the Environmental Clearance. It is emphasised by the applicant that such a change is significant, as different types of coal having varying emission characteristics, ash content and calorific value which directly impact air and water pollution, necessitating thorough review.

Jurisdiction over reaching by MoEF&CC:

5. The applicant argued that MoEF&CC lacks the authority to dilute the statutory environmental safeguards through an administrative order under Section 3 and 5 of the Environmental Protection Act, 1986. The Ministry is empowered only to take measures for protecting and improving the environment quality. The OM however does the opposite by taking away the regulatory standards thereby exceeding the Ministry’s jurisdiction and facilitating industrial operation at the cost of environment protection.

Increased Environment and public health risks:

6. It is specifically pointed out that shifting to a different coal type would alters the emission levels of pollutants like Sulfur dioxide (SO2), Nitrogen Odixes (Nox), Carbon Monoxide (CO), Carbon Dioxide (CO2), Mercury (HG), Arsenic (As), Lead (Pb) and particulate matters. The change in the emission levels does have far reaching environmental and health consequences including:

(i) Air pollution: The change in the different coal type