KARIYAWASAM

Vs.

CENTRAL ENVIRONMENT AUTHORITY AND OTHERS

SUPREME COURT
PRIYANTHA JAYAWARDENA,J.
PRASANNA JAYAWARDENA, J.
DEHIDENIYA, J.
SC/FR/141/2015
FEBRUARY 8, MARCH 7, OCTOBER 4, 2018

Fundamental rights-Article 12(1) of the Constitution-Public interest litigation-Pollution of groundwater and soil by thermal power station- National Environmental Act, No. 47 of 1980, Parts IV A, IV Band IV C - National Environmental (Procedure for Approval of Projects) Regulations, No. 1 of 1993-National Environmental (Protection and Quality) Regulations, No. 1 of 2008-Directive Principles of State Policy-Rio Declaration on Development and the Environment, 1992-Public Trust doctrine-The 'Polluter Pays' principle

The petitioner filed this application as public interest litigation on behalf of himself and the residents of Chunnakam, Jaffna District. He complained that the activities of the 8th respondent Northern Power Company (Pvt) Ltd (NPCL), which had been operating a thermal power station in Chunnakam since December 2009, was causing pollution of the groundwater and soil in the area, making the groundwater unfit for human consumption. He alleged that the Central Environmental Authority (CEA), Ceylon Electricity

Board (CEB), Board of Investment of Sri Lanka (BOI), National Water Supply and Drainage Board (NWSDB) and the Provincial and Local Authorities had failed to enforce the law against the 8th respondent and had failed to stop the 8th respondent from polluting groundwater and soil, thereby violating the fundamental rights of the petitioner and the residents of Chunnakam under Article 12(1) of the Constitution.

NPCL's power station was constructed in 2007 in the same complex as the Chunnakam Power Station which was operated by the CEB until 2012, the private "Aggreko" power station which functioned for close to a decade until it was closed down in 2012, and the CEB's new "Uthuru Janani" power station which began operating in 2013. NPCL's power station originally had a generation capacity of 15MW, which was supplied to the National Grid under a power purchase agreement with the CEB. Somewhere between 2012 and 2013, the generation capacity was enhanced to 27MW. Since 2008, residents of Chunnakam had complained of pollution in groundwater and soil in the area around the CEB complex. This was confirmed by several reports and studies carried out between 2008 and 2017, which found that groundwater in the area had been contaminated with oil. In 2012, the NWSDB had to cease distribution of pipe-borne water from its intake well in Chunnakam as the well was contaminated with petroleum waste.

It was not disputed that NPCL had not carried out an Initial Environmental Examination Report (JEER) or Environmental Impact Assessment Report (EIAR) either prior to the construction of the power station in 2007, or prior to the enhancement of its capacity in 2012-2013. The first Environmental Protection License (EPL) was issued to NPCL by the CEA in May 2020, after the power station had been in operation for over five months. Thereafter, EPLs were issued to NPCL by the BOI, since NPCL was a Company registered under the BOI. In November 2014, the CEA issued a Scheduled Waste Management License (SWML) to NPCL. There were lapses of several months in renewing the EPLs by NPCL, during which time the power station continued to operate.

lt was the respondents' position that as a result of practical difficulties, including the absence of a branch office of the CEA functioning in the Jaffna Peninsula in 2007, no institution was in a position to travel to Chunnakam to inspect and make an assessment of NPCL's power station prior to the end of the war in 2009. NPCL pleaded that it obtained the necessary EPLs as soon as practicable after the end of the war in May

2009, and the issue of these EPLs confirms that NPCL was operating within the parameters of the law. The respondents also pointed out that duri