The Environmental Clearance (EC) granted for the construction of a new airport at Mopa in Goa has been suspended by the Supreme Court..The EC will remain suspended until the Expert Appraisal Committee (EAC) revisits the recommendations made by it for the grant of an EC, including the conditions which it had formulated..EAC shall carry out the above exercise within a period of one month from the date of receipt of today’s judgment by the Supreme Court..The judgment which was delivered by a Bench of Justices DY Chandrachud and Hemant Gupta paints a pretty grim picture of the manner in which various statutory bodies conducted itself to sanction the Environment Clearance for the Mopa Airport..Facts.Since the airport at Dabolim is saturated in terms of its capacity for annual air traffic, the State government initiated a process in 1997 to commission studies and project reports for a proposed international airport. After various studies, Mopa in northern Goa was chosen to construct the new airport..On May 1, 2000, the Government of India communicated its approval for the setting up of an airport at Mopa. The process of land acquisition commenced in 2008 under the Land Acquisition Act, 1894. On September 14, 2006, the Government of India in the Ministry of Environment and Forests issued a notification mandating a prior EC for Category ‘A’ projects (specified in the Schedule) by the Union Government and for Category ‘B’ projects at the state level by the State Level Environment Impact Assessment Authority. Following the 2006 notification, the MoEF placed an Environment Impact Assessment (EIA) Guidance Manual for Airports in the public domain in February 2010. The stages of scoping, public consultation and appraisal, leading up to the grant of the EC for the proposed airport are governed by the express terms of the 2006 notification..In March 2011, the State of Goa, as the project proponent submitted Form 1 as stipulated in the 2006 notification to the MoEF. On 8 March 2011, the State of Goa applied for Terms of Reference to the MoEF. The Terms of Reference (ToR) were finalized on 11 and 12 May 2011 by the Expert Appraisal Committee (EAC) constituted under the 2006 notification. On 1 June 2011, the MoEF issued the ToR for the preparation of the Environmental Impact Assessment report. On October 3, 2014, the State government floated a tender for the development of a greenfield international airport project on a PPP basis. On May 20, 2015, the State of Goa submitted a final EIA report to the MoEFCC, seeking the grant of an EC for the project. Eventually at the meeting held on October 20, 2015 the EAC recommended the grant of an EC for the project. On 28 October 2015, the MoEFCC, as the regulatory authority under the 2006 notification for Category ‘A’ projects, communicated its approval for the grant of an EC.Following the grant of the EC, the tender process which had been initiated on 3 October 2014 was concluded on 26 August 2016. GMR Goa International Airport Limited (GGIAL) was awarded the contract on a revenue sharing of 36.99 percent to the State of Goa. On 8 November 2016, the concession agreement was executed between the Government of Goa and GGIAL for the development and operation of the airport with the concession period of 40 years..Challenge.The grant of the EC was challenged before the Western Zonal Bench of the NGT by the Federation of Rainbow Warriors. Hanuman Laxman Aroskar also filed an appeal before the Western Zonal Bench of the NGT. These appeals were subsequently renumbered before the Principal Bench of the NGT at New Delhi By its judgment dated 21 August 2018, the NGT disposed of both the appeals upholding the EC and imposing additional conditions to safeguard the environment. Assailing the judgment of the NGT, two appeals were been filed before the Supreme Court: one by Hanuman Laxman Aroskar and the other by the Federation of Rainbow Warriors. On 18 January 2019, notice was issued in the appeals and an order of status quo was passed by the Supreme Court..The essence of the challenge to the grant of EC was two-fold:.(i) Form 1, which was filed by the project proponent, did not contain any disclosure of the name or identity of forests within an aerial distance of 15 kilometers. Item 2 under the heading of ‘Environmental Sensitivity’ requires a clear disclosure of “areas which are important or sensitive for ecological reasons – wetlands, water sources or other water bodies, coastal zone, biospheres, mountains and forests”; and.(ii) Table 2.1 of Chapter II of the EIA report delineates ESZs within an aerial distance 15 kilometres from the project boundary. For the State of Goa, the table indicates the presence of forests but not of protected forests. For the State of Maharashtra, Table 2.1 indicates that there were neither reserved nor protected forests within 15 kilometers from the project boundary..Judgment.Failure of Form I Disclosure.The Supreme Court noted that the disclosure in Form 1 constitutes the very foundation of the process which is initiated for such projects..In the instant case, there was an abject failure on the part of Goa government to disclose wetlands, water sources, water bodies, biospheres, mountains and forests within an aerial distance of 15 kilometers as required by Form 1, the Court held..“We cannot gloss over the patent and abject failure of the State of Goa as the project proponent in failing to disclose wet lands, water sources, water bodies, biospheres, mountains and forests within an aerial distance of 15 kilometres as required by Form 1. The disclosure in Form 1 constitutes the very foundation of the process which is initiated on the basis of the information supplied by the project proponent. Following the disclosure in Form 1, ToR are formulated, and this leads to the preparation of the EIA report.” .A duty is cast upon the project proponent to make a full, complete and candid disclosure of all aspects bearing upon the environment in the area of study. The project proponent cannot profess ignorance about the environment in the study area. The project proponent is bound by the highest duty of transparency and rectitude in making the disclosures in Form 1, the Court made it clear..Clause (vi) of para 8 of the 2006 notification provides that deliberate concealment or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection and lead to the cancellation of a prior EC granted on that basis..Scope of “Forests”.The Court also turned down the submission of Additional Solicitor General Atmaram Nadkarni that only forests which were notified as Reserved Forests under Section 20 of Indian Forests Act need to be disclosed..It was urged by him that the issuance of a notification under Section 4 of the Indian Forests Act is indicative only of intent and a “forest” stands “reserved” only upon issuance of a notification under sub-section (2) of Section 20. The ASG submitted that the reliance which the appellants placed on the Survey of India map was misplaced as, in the absence of a notification under Section 20, a forest cannot be regarded as being reserved..The Court made it clear that it cannot accept the submission. Form 1 requires disclosure of areas which are important or sensitive for ecological reasons, among them, being “forests”. The expression “forests” is used without reference to a statutory or artificial definition and must hence incorporate a meaning which bears upon the ordinary description of the term, the Court said. Hence, the expression “forests”, means a forest as commonly understood, without reference to a notification under the Indian Forest Act 1927 or any other statutory enactment..“The purpose is to ensure that all relevant facets of the environment are noticed, that base-lines are documented, and that the potential impact of a project or activity on the environment is assessed. Forests are forests without reference to recognition in a statutory form devised for a specific purpose..In the context of the 2006 notification and the underlying purpose of facilitating an EIA report, the expression ‘forests’ must receive its ordinary and natural connotation. The effort must not be o overlook and destroy forests but to notice and protect them.” .Thus, it ruled that in the context of the 2006 notification and the underlying purpose of facilitating an EIA report, the expression ‘forests’ must receive its ordinary and natural connotation. The effort must not be to overlook and destroy forests but to notice and protect them..In the alternative, it was urged by the ASG that the EIA report takes into account the forest cover surrounding the site and within the prescribed aerial distance. As regards Form 1, the ASG submitted that at that stage, the project proponent may not be expected to be aware of all the features of the environment and hence the omission to refer to forests and other areas which are sensitive ecologically should be discountenanced..The Court, however, turned down this submission too. It observed that information furnished in Form 1 is crucial to the preparation of the ToR by the EAC. The EAC is constituted for the specific purpose of assessing the information furnished in Form 1 and preparing comprehensive ToR. Thus, there is an intrinsic link between the disclosures in Form 1 which constitute the basis for formulating the ToR and between the ambit of the EIA report required by the ToR and the final EIA report..The ToR guide the preparation of the EIA report. A failure to disclose information in Form 1 impairs the functioning of the EAC in the preparation of the ToR and in consequence, leads to preparation of a deficient EIA report, the Court held. Thus, it concluded that the submission that the EIA report deals with the prevalence of forested areas and warrants the grant of an EC cannot be accepted..Environment Impact Assessment Report.The Court then delved into the EIA Report in detail. It noted various aspects with respect to the EIA Report. Some of them were:.failure to notice the existence of Ecologically Sensitive Zones within a buffer distance of 1 km of the project site which the Court termed as a “glaring deficiency”;.collection of both primary and secondary data of fauna in the EIA report was perfunctory;.Attempt to gloss over the existence of tree at the airport site and felling of over 50,000 trees which the court terms as a “serious omission” and “serious dereliction of duty”.Regarding the same, the Court noted.“there was a glaring omission of the factual existence of as many as 54,676 trees in the EIA report. For project proponents, the environment may not possess a human voice. But the purpose of prescribing an EIA report is precisely to undertake a baseline study on all aspects of the environment and to anticipate the impact of a projected activity on the environment. Ignoring any component of the environment amounts to a serious dereliction of duty which detracts from the rule of law in matters of environmental governance.”.Expert Appraisal Committee.The Court also came down on the EAC for its shoddy analysis of the EIA Report and abdication of its duty in the process..“This analysis of the EIA report is, to say the least, sketchy and perfunctory and discloses an abdication of its functions by the EAC.”.Considering that the EAC is an expert body, it was to speak like one by applying itself to every relevant aspect of the project. It was not bound by the EIA report but was duty bound to analyse the report and adopt modalities if any deficiency was found..“The EAC is an expert body. It must speak in the manner of an expert. Its remit is to apply itself to every relevant aspect of the project bearing upon the environment. It is not bound by the analysis which is conducted in the EIA report. It is duty bound to analyse the EIA report. Where it finds it deficient it can adopt such modalities which, in its expert decision-making capacity, are required.”.The Court noted that the EAC granted its approval based on the peculiar circumstance of the case. Mincing no words, the Court said that what the peculiar circumstances are is “left for pure guess work”. It also observed that the EAC granted approval after considering circumstances extraneous to its function..“What the peculiar circumstances are, is left for pure guess work or surmise. The EAC refers to the delay in acquisition proceedings, a larger public interest and the fact that the project proponent “has not concealed facts and circumstances”. Each one of the reasons which has weighed with the EAC betrays a lack of comprehension of the true nature of its function under the 2006 notification. The EAC has failed to consider relevant circumstances bearing on the environmental impact of the project and has instead considered circumstances extraneous to its function.”.The Court, therefore, concluded that a failure of due process before the EAC, as in the present case, must lead to the invalidation of the EC..Directions.In the light of the above, the Court issues, inter alia, the following directions:.The EAC shall revisit the recommendations made by it for the grant of an EC, including the conditions which it has formulated, having regard to the specific concerns which have been highlighted in this judgment;.The EAC shall carry out the exercise under (i) above within a period of one month of the receipt of a certified copy of this order;.Until the EAC carries out the fresh exercise as directed above, the EC granted by the MoEFCC on 28 October 2015 shall remain suspended;Upon reconsidering the matter in terms of the present directions, the EAC, if it allows the construction to proceed will impose such additional conditions which in its expert view will adequately protect the concerns about the terrestrial ecosystems noticed in this judgment. The EAC would be at liberty to lay down appropriate conditions concerning air, water, noise, land, biological and socioeconomic environment..The Court also directed that no other Court or Tribunal shall entertain any challenge to the report that is to be submitted before this Court by the EAC in compliance with the present order..Counsel.Advocate Anitha Shenoy appeared for the appellants. Attorney General KK Venugopal appeared for the State of Goa. Additional Solicitor General Atmaram S Nadkarni appeared on behalf of the MoEFCC. Senior Counsel Parag P Tripathi Senior Counsel and advocate Aastha Mehta appeared on behalf of the Concessionaire..Read the judgment below.
The Environmental Clearance (EC) granted for the construction of a new airport at Mopa in Goa has been suspended by the Supreme Court..The EC will remain suspended until the Expert Appraisal Committee (EAC) revisits the recommendations made by it for the grant of an EC, including the conditions which it had formulated..EAC shall carry out the above exercise within a period of one month from the date of receipt of today’s judgment by the Supreme Court..The judgment which was delivered by a Bench of Justices DY Chandrachud and Hemant Gupta paints a pretty grim picture of the manner in which various statutory bodies conducted itself to sanction the Environment Clearance for the Mopa Airport..Facts.Since the airport at Dabolim is saturated in terms of its capacity for annual air traffic, the State government initiated a process in 1997 to commission studies and project reports for a proposed international airport. After various studies, Mopa in northern Goa was chosen to construct the new airport..On May 1, 2000, the Government of India communicated its approval for the setting up of an airport at Mopa. The process of land acquisition commenced in 2008 under the Land Acquisition Act, 1894. On September 14, 2006, the Government of India in the Ministry of Environment and Forests issued a notification mandating a prior EC for Category ‘A’ projects (specified in the Schedule) by the Union Government and for Category ‘B’ projects at the state level by the State Level Environment Impact Assessment Authority. Following the 2006 notification, the MoEF placed an Environment Impact Assessment (EIA) Guidance Manual for Airports in the public domain in February 2010. The stages of scoping, public consultation and appraisal, leading up to the grant of the EC for the proposed airport are governed by the express terms of the 2006 notification..In March 2011, the State of Goa, as the project proponent submitted Form 1 as stipulated in the 2006 notification to the MoEF. On 8 March 2011, the State of Goa applied for Terms of Reference to the MoEF. The Terms of Reference (ToR) were finalized on 11 and 12 May 2011 by the Expert Appraisal Committee (EAC) constituted under the 2006 notification. On 1 June 2011, the MoEF issued the ToR for the preparation of the Environmental Impact Assessment report. On October 3, 2014, the State government floated a tender for the development of a greenfield international airport project on a PPP basis. On May 20, 2015, the State of Goa submitted a final EIA report to the MoEFCC, seeking the grant of an EC for the project. Eventually at the meeting held on October 20, 2015 the EAC recommended the grant of an EC for the project. On 28 October 2015, the MoEFCC, as the regulatory authority under the 2006 notification for Category ‘A’ projects, communicated its approval for the grant of an EC.Following the grant of the EC, the tender process which had been initiated on 3 October 2014 was concluded on 26 August 2016. GMR Goa International Airport Limited (GGIAL) was awarded the contract on a revenue sharing of 36.99 percent to the State of Goa. On 8 November 2016, the concession agreement was executed between the Government of Goa and GGIAL for the development and operation of the airport with the concession period of 40 years..Challenge.The grant of the EC was challenged before the Western Zonal Bench of the NGT by the Federation of Rainbow Warriors. Hanuman Laxman Aroskar also filed an appeal before the Western Zonal Bench of the NGT. These appeals were subsequently renumbered before the Principal Bench of the NGT at New Delhi By its judgment dated 21 August 2018, the NGT disposed of both the appeals upholding the EC and imposing additional conditions to safeguard the environment. Assailing the judgment of the NGT, two appeals were been filed before the Supreme Court: one by Hanuman Laxman Aroskar and the other by the Federation of Rainbow Warriors. On 18 January 2019, notice was issued in the appeals and an order of status quo was passed by the Supreme Court..The essence of the challenge to the grant of EC was two-fold:.(i) Form 1, which was filed by the project proponent, did not contain any disclosure of the name or identity of forests within an aerial distance of 15 kilometers. Item 2 under the heading of ‘Environmental Sensitivity’ requires a clear disclosure of “areas which are important or sensitive for ecological reasons – wetlands, water sources or other water bodies, coastal zone, biospheres, mountains and forests”; and.(ii) Table 2.1 of Chapter II of the EIA report delineates ESZs within an aerial distance 15 kilometres from the project boundary. For the State of Goa, the table indicates the presence of forests but not of protected forests. For the State of Maharashtra, Table 2.1 indicates that there were neither reserved nor protected forests within 15 kilometers from the project boundary..Judgment.Failure of Form I Disclosure.The Supreme Court noted that the disclosure in Form 1 constitutes the very foundation of the process which is initiated for such projects..In the instant case, there was an abject failure on the part of Goa government to disclose wetlands, water sources, water bodies, biospheres, mountains and forests within an aerial distance of 15 kilometers as required by Form 1, the Court held..“We cannot gloss over the patent and abject failure of the State of Goa as the project proponent in failing to disclose wet lands, water sources, water bodies, biospheres, mountains and forests within an aerial distance of 15 kilometres as required by Form 1. The disclosure in Form 1 constitutes the very foundation of the process which is initiated on the basis of the information supplied by the project proponent. Following the disclosure in Form 1, ToR are formulated, and this leads to the preparation of the EIA report.” .A duty is cast upon the project proponent to make a full, complete and candid disclosure of all aspects bearing upon the environment in the area of study. The project proponent cannot profess ignorance about the environment in the study area. The project proponent is bound by the highest duty of transparency and rectitude in making the disclosures in Form 1, the Court made it clear..Clause (vi) of para 8 of the 2006 notification provides that deliberate concealment or submission of false or misleading information or data which is material to screening or scoping or appraisal or decision on the application shall make the application liable for rejection and lead to the cancellation of a prior EC granted on that basis..Scope of “Forests”.The Court also turned down the submission of Additional Solicitor General Atmaram Nadkarni that only forests which were notified as Reserved Forests under Section 20 of Indian Forests Act need to be disclosed..It was urged by him that the issuance of a notification under Section 4 of the Indian Forests Act is indicative only of intent and a “forest” stands “reserved” only upon issuance of a notification under sub-section (2) of Section 20. The ASG submitted that the reliance which the appellants placed on the Survey of India map was misplaced as, in the absence of a notification under Section 20, a forest cannot be regarded as being reserved..The Court made it clear that it cannot accept the submission. Form 1 requires disclosure of areas which are important or sensitive for ecological reasons, among them, being “forests”. The expression “forests” is used without reference to a statutory or artificial definition and must hence incorporate a meaning which bears upon the ordinary description of the term, the Court said. Hence, the expression “forests”, means a forest as commonly understood, without reference to a notification under the Indian Forest Act 1927 or any other statutory enactment..“The purpose is to ensure that all relevant facets of the environment are noticed, that base-lines are documented, and that the potential impact of a project or activity on the environment is assessed. Forests are forests without reference to recognition in a statutory form devised for a specific purpose..In the context of the 2006 notification and the underlying purpose of facilitating an EIA report, the expression ‘forests’ must receive its ordinary and natural connotation. The effort must not be o overlook and destroy forests but to notice and protect them.” .Thus, it ruled that in the context of the 2006 notification and the underlying purpose of facilitating an EIA report, the expression ‘forests’ must receive its ordinary and natural connotation. The effort must not be to overlook and destroy forests but to notice and protect them..In the alternative, it was urged by the ASG that the EIA report takes into account the forest cover surrounding the site and within the prescribed aerial distance. As regards Form 1, the ASG submitted that at that stage, the project proponent may not be expected to be aware of all the features of the environment and hence the omission to refer to forests and other areas which are sensitive ecologically should be discountenanced..The Court, however, turned down this submission too. It observed that information furnished in Form 1 is crucial to the preparation of the ToR by the EAC. The EAC is constituted for the specific purpose of assessing the information furnished in Form 1 and preparing comprehensive ToR. Thus, there is an intrinsic link between the disclosures in Form 1 which constitute the basis for formulating the ToR and between the ambit of the EIA report required by the ToR and the final EIA report..The ToR guide the preparation of the EIA report. A failure to disclose information in Form 1 impairs the functioning of the EAC in the preparation of the ToR and in consequence, leads to preparation of a deficient EIA report, the Court held. Thus, it concluded that the submission that the EIA report deals with the prevalence of forested areas and warrants the grant of an EC cannot be accepted..Environment Impact Assessment Report.The Court then delved into the EIA Report in detail. It noted various aspects with respect to the EIA Report. Some of them were:.failure to notice the existence of Ecologically Sensitive Zones within a buffer distance of 1 km of the project site which the Court termed as a “glaring deficiency”;.collection of both primary and secondary data of fauna in the EIA report was perfunctory;.Attempt to gloss over the existence of tree at the airport site and felling of over 50,000 trees which the court terms as a “serious omission” and “serious dereliction of duty”.Regarding the same, the Court noted.“there was a glaring omission of the factual existence of as many as 54,676 trees in the EIA report. For project proponents, the environment may not possess a human voice. But the purpose of prescribing an EIA report is precisely to undertake a baseline study on all aspects of the environment and to anticipate the impact of a projected activity on the environment. Ignoring any component of the environment amounts to a serious dereliction of duty which detracts from the rule of law in matters of environmental governance.”.Expert Appraisal Committee.The Court also came down on the EAC for its shoddy analysis of the EIA Report and abdication of its duty in the process..“This analysis of the EIA report is, to say the least, sketchy and perfunctory and discloses an abdication of its functions by the EAC.”.Considering that the EAC is an expert body, it was to speak like one by applying itself to every relevant aspect of the project. It was not bound by the EIA report but was duty bound to analyse the report and adopt modalities if any deficiency was found..“The EAC is an expert body. It must speak in the manner of an expert. Its remit is to apply itself to every relevant aspect of the project bearing upon the environment. It is not bound by the analysis which is conducted in the EIA report. It is duty bound to analyse the EIA report. Where it finds it deficient it can adopt such modalities which, in its expert decision-making capacity, are required.”.The Court noted that the EAC granted its approval based on the peculiar circumstance of the case. Mincing no words, the Court said that what the peculiar circumstances are is “left for pure guess work”. It also observed that the EAC granted approval after considering circumstances extraneous to its function..“What the peculiar circumstances are, is left for pure guess work or surmise. The EAC refers to the delay in acquisition proceedings, a larger public interest and the fact that the project proponent “has not concealed facts and circumstances”. Each one of the reasons which has weighed with the EAC betrays a lack of comprehension of the true nature of its function under the 2006 notification. The EAC has failed to consider relevant circumstances bearing on the environmental impact of the project and has instead considered circumstances extraneous to its function.”.The Court, therefore, concluded that a failure of due process before the EAC, as in the present case, must lead to the invalidation of the EC..Directions.In the light of the above, the Court issues, inter alia, the following directions:.The EAC shall revisit the recommendations made by it for the grant of an EC, including the conditions which it has formulated, having regard to the specific concerns which have been highlighted in this judgment;.The EAC shall carry out the exercise under (i) above within a period of one month of the receipt of a certified copy of this order;.Until the EAC carries out the fresh exercise as directed above, the EC granted by the MoEFCC on 28 October 2015 shall remain suspended;Upon reconsidering the matter in terms of the present directions, the EAC, if it allows the construction to proceed will impose such additional conditions which in its expert view will adequately protect the concerns about the terrestrial ecosystems noticed in this judgment. The EAC would be at liberty to lay down appropriate conditions concerning air, water, noise, land, biological and socioeconomic environment..The Court also directed that no other Court or Tribunal shall entertain any challenge to the report that is to be submitted before this Court by the EAC in compliance with the present order..Counsel.Advocate Anitha Shenoy appeared for the appellants. Attorney General KK Venugopal appeared for the State of Goa. Additional Solicitor General Atmaram S Nadkarni appeared on behalf of the MoEFCC. Senior Counsel Parag P Tripathi Senior Counsel and advocate Aastha Mehta appeared on behalf of the Concessionaire..Read the judgment below.
