The High Court orders meaningful public hearings

Rahul Choudhary

Whenever any project is envisaged and approved, the local affected persons’ consent is the least concern for the authorities. The formal process of public participation in the decision making process comes only at the time of public hearing as provided in the Environment Impact Assessment (EIA) Notification 2006. As per the notification, thirty days notice should be given prior to the public hearing, so that the local affected person and others can submit their comments and objections. Thereafter the Expert Appraisal Committee of the Ministry of Environment and Forest has to do the detailed scrutiny of the project including the proceedings of public hearing and the objections raised at the time of public hearing. However the Notification does not empower the affected persons to say no to project. At best they can raise objection. And the Expert Appraisal Committee in most of the cases just see whether public hearing was held or not and not into the objections of the public during the hearing.

M/s Pandurang Timblo Industries, Margao, Goa is the lessee of Borga Dongrachem Fall Mine and Sociedade Timblo Irmaos Ltd. is lessee of Oiteiro Borga Do Bairro Queri Mine. Both mines were in operation till 1994. When there was again an increase in demand of iron ore from countries like China, South Korea and Japan, the owners in 2006 proposed for restarting the mines. There was a total opposition to the project at the time of public hearing. There was not a single participant who was in support of the project. The detail of the project, and the Executive Summary was made available to the gram panchayat and local affected person only nine days prior to the Public hearing. In the proceedings of public hearing it was clearly recorded that “not a single application nor a single member of the public was in favour of restarting of mine due to grave environmental and social damage”. The opposition of the restarting of mine was on the grounds of damages to agricultural fields and depleting ground water level that the mining will result into.

Without considering the objections and opposition of the affected persons in the public hearing, the Expert Appraisal Committee granted Environmental Clearance to the project on July 26, 2007. The local affected person challenged the order of the Ministry of Environment and Forest before the National Environment Appellate Authority (Utkarsh Mandal Vs. Ministry of Environment & Forest, Appeal No. 12 of 2007). As expected, the NEAA dismissed the appeal against the order of the Ministry of Environment and Forest. The NEAA categorically noted that the Executive Summary of the project was made available only 9 days prior to the Public Hearing, but then it argued that the EIA notification does not specify any time period for giving Executive Summary to the affected people. The NEAA also gave the finding that the Expert Appraisal Committee (EAC) has not considered the opposition at the public hearing, but concluded that this will not vitiate the environmental clearance granted to the project.

The order of the NEAA was challenged by the local affected persons before the Delhi High Court. The Delhi High Court headed by Chief Justice and Justice S. Muralidhar allowed the petition (Writ Petition (Civil) No. 9340 of 2009, Delhi High Court) and also questioned the functioning of the Expert Appraisal Committee. During the course of hearing, it was also brought to the notice of the Court that the EAC (Mines) was chaired by a person who happened to be the director of four mining companies and as many as 410 mining approval has been granted in the first six months of 2009. In this context, the court concluded that appointing a person who has a direct interest in the promotion of the mining industry as Chairperson of the EAC (Mines) is an unhealthy practice that will rob the EAC of its credibility since there is an obvious and direct conflict of interest. The High Court by order dated November 26, 2009 gave findings on issues related to public hearing and functioning of EAC. This order of the High Court interpreted the provisions of public hearing provided in the EIA Notification 2006. The High Court gave the finding that the purport of the clause (2.4 and 3 of Appendix IV of EIA Notification 2006) of the notification is to “make the public hearing a meaningful one with participation of all interested persons who may have a point of view to state. The above clauses operationalise the de-centralised decision making in a democratic set up where the views of those who are likely to be affected by decision are given a say and an opportunity to voice their concerns. This procedure is intended to render the decision fair and participative and not thrust from above on a people who may be unaware of the implications of the decision… If their participation has to be meaningful, informed and meaningful, then they must have full information of the pros and cons of the proposed project and the impact it is likely to have on the environment in the area.” The High Court concluded that the Executive Summary should be made available 30 days in advance.

On the requirement of the EAC to give reason, the Court held that “in context of EIA Notification dated 14th September 2006 and the mandatory requirement of holding public hearings to invite objections it is the duty of the EAC, to whom the task of evaluating such objections has been delegated, to indicate in its decision the fact that such objections, and the response thereto of the project proponent, were considered and the reasons why any or all of such objections were accepted or negatived. The failure to give such reasons would render the decision vulnerable to attack on the ground of being vitiated due to non-application of mind to relevant materials and therefore arbitrary.”

This judgment delivered by the Delhi High Court, for the first time, discusses the issues of public hearing, the functioning of EAC and the manner in which the environmental clearances are being granted by the Ministry of Environment and Forest. The Ministry has virtually become a clearing house, accepting almost every project that it receives. Anyone who fulfills the required paper work will get the approval, irrespective of the socio-economic and environment impact.