Supreme Court of India. Photo: PTI
In a verdict that will have a bearing on all future thermal power projects, and other big projects in general, the Supreme Court of India upheld the National Green Tribunal’s ruling requiring detailed studies of the environmental impacts of power projects earlier this month. The most important takeaway from the ruling is that the cumulative impact – i.e. the combined impact of all activities in a given region, including past, present and prospective ones – have to be assessed before a new project is approved or during its construction – and not once it has been built.
The decision offers the country welcome respite from the prevailing, and now ritualised, nature of such exercises. It has been increasingly common for project proponents to finish building out a project, and sometimes even operate for several years, even as cumulative impact assessment studies are still underway. As a result, these studies are rendered moot.
In its order dated July 20, 2021, the bench of Justices Rohinton Fali Nariman and B.R Gavai allowed the project proponent – in this case, NTPC, Ltd.1 – to continue construction, but upheld the need for a detailed set of studies that the National Green Tribunal (NGT) had ordered in its May 27 judgment. The Supreme Court also directed that the environmental clearance already granted should be kept in abeyance until the mandatory studies are completed and their results have been assessed by an expert committee of the Union environment ministry.
The court’s ruling sets a precedent for environmental jurisprudence on several other fronts, too. First, it recognises the fact that burning coal is responsible for more than just particulate pollution or carbon emissions. Second, project proponents need to commission environmental studies even for those projects nearing completion. Third, these studies are not merely academic exercises; their findings will decide the fate of the project. Fourth, if the project proponent changes their source of coal, they will need to commission new studies. Fifth and last – and most important – the project proponent will not be able to claim “equity” if the studies’ findings are unfavorable. That is, they can’t plead that they be allowed to run the project on the ground that they have spent money.
In the Supreme Courts’ words, the project can’t be “kicked off” without an approval that is based on the impact assessment study’s outcome.
The NGT judgement was delivered by a bench comprising Justices K. Ramakrishnan and Saibal Dasgupta in the case of Uma Maheshwari v. Union of India. It challenged an environmental clearance granted to the 1,600-MW Telangana Super Thermal Power Project in Ramagundam village, Karimnagar. In its judgment, the bench directed NTPC to undertake three important studies (among others)
- Radioactivity and heavy metal test of coal to be used, including alternative coal that they propose to use
- Cumulative impact assessment of ambient air quality modelling within 15 km of the project area (in all directions) given that there are 13 mines, four thermal power plants, one fertiliser unit and one cement-manufacturing unit within the same distance of the proposed project
- A hydro-geological impact assessment considering the project plans to store ash slurry in an ash pond
The issue of ash management is quite relevant given a spate of ash-pond accidents across India in the last few years. One recent report found that at least 17 major incidents had occurred in seven states between April 2020 to March 2021, including at facilities operated by the NTPC.
Further, the NGT has also discussed the idea of cumulative impact assessments at length, and two parts of it are worth excerpting here.
On the definition of a cumulative impact assessment:
“… the cumulative impact as the term indicates is not the impact of any project in isolation but it is a total impact resulting from the interaction of the project with other project activities around it-past, present and those to come up in future…”
On the importance of a cumulative impact study, the NGT made the following observations that will be important for environmental decision-making in future (emphasis added):
“… the necessity for conducting the cumulative impact assessment study is a must for considering the question of allowing a new industry to come in an area which is already an industrial estate having a lot of polluting industries, and non-conducting of such a study and suppression of certain material facts by the project proponent will be a ground of setting aside the environment clearance or suspending the environment clearance…”
India’s dependence on coal is only going to increase in future. In fact, the Indian government’s premier policy think tank, the NITI Aayog, has conducted an analysis showing that the share of coal will likely rise to 51% in 2030, from the present level of 47%. In turn, policymakers are using clever cost-benefit techniques to justify the continued need for thermal power projects. On the other hand, the ecological impact of burning coal are too well-known today. Communities like the people of Ramagundam suffer ill health, ecological desolation, job losses and access to clean air on account of coal-fired thermal power plants – across India. And the economics of a thermal power plant seldom factor in the cost of such externalities, as a result keeping coal power cheap.
The Supreme Court and the NGT verdicts could change this status quo by delegitimising the economic feasibility of coal power.
We can’t ignore the ecological and public health and the climate impact of coal any longer. It is imperative that policymakers develop mechanisms that help India’s macro and regional economies transition to cleaner alternatives in a just way. Of course, together with the political reality of India’s dependence on coal for future energy security, this move will impose several practical challenges – and the Ramagundam verdict should be viewed in this context.
In addition to serving as a tool to assess the health and environmental damage of burning coal, the proposed cumulative impact studies also take us a step closer to internalising the externalities of coal-based development. Assuming that these studies are conducted in good faith and fairly.
Dharmesh Shah is a senior technical advisor with the Delhi-based Lawyers’ Initiative for Forests and Environment (LIFE).
Formerly the National Thermal Power Corporation↩