Decks cleared for Mopa Airport in Goa: SC lifts suspension of Environment Clearance grant following EAC recommendations

The Supreme Court on Thursday lifted its suspension of the Environmental Clearance (EC) granted for the construction of a new airport at Mopa in Goa.

Last year, the Bench of Justices DY Chandrachud and Hemant Gupta had found serious flaws in the process leading up to the grant of EC for the airport project. Therefore, it had suspended the grant of EC for the project, while directing that the Environmental Impact Assessment (EIA) for the same be reviewed by an Expert Appraisal Committee (EAC).

In the judgment passed today, the Court noted that the project proponent had furnished supplementary information to the EAC “which revealed certain significant environmental features.”

This included information pertaining the the existence of reserved forests, rivers, mountain ranges, wetlands and mangroves proximate to the airport project area.

The EAC proceeded to compile information on the likely impact of the construction and operation of an airport on the flora, fauna and hydrological systems in Environmentally Sensitive Areas (ESAs) as well as likely climatic variations.

Following the same, the Court was informed that the EAC has recommended the grant of an EC to the airport project with additional environmental safeguards and conditions, over and above those which were stipulated in the earlier EC dated October 28, 2015; and the order of the National Green Tribunal (NGT) dated August 21, 2018.

The Court accepted the recommendation and lifted the suspension of the EC granted for the Mopa airport, while directing that the conditions are complied with.

Further, the Court has ordered that the National Environmental Engineering Research Institute (NEERI) be appointed to oversee the compliance of these conditions.

On the sufficiency of EAC findings

During hearings, the findings of the committee was questioned by Senior Counsel Anitha Shenoy, who appeared for the appellant. Shenoy contended that the 13-member EAC did not qualify as an expert body as none of the members had relevant expertise in ornithology or on terrestrial eco-system.

Further, the independence of the EIA consultant who prepared the EIA report was also questioned. It was submitted that there was a conflict on the part of the EIA consultant i.e. Engineers India Limited (EIL) since he was also an independent engineer for the construction of the airport.

Shenoy also contended that the EAC failed to fulfil its remit of revisiting the EC as mandated the earlier order of the Supreme Court, arguing that it had not undertaken all studies required.

Ultimately, Shenoy urged that no effective mitigating measures can be implemented unless authentic information is gathered, subjective and independent assessment of the likely environmental impact is carried out, and a specific finding is arrived by the EAC if the damage and impact can be mitigated.

The Supreme Court, however, disagreed. On the arguments concerning the expertise of the EAC, the Bench alluded to the qualifications of the members of the committee, before opining that it is not inclined to accept such a generalised challenge.

However, it added a note of caution, that the Government should hereafter ensure that members constituting expert committees must possess relevant domain expertise.

“Having commended such an exercise to the Union government, we would leave the matter there. As we have observed earlier, the challenge to the minutes of the 23 April 2019 must be addressed on merits, there being no reasonable basis for this Court to conclude that the EAC lacked the expertise to make its recommendations.”

On the arguments concerning the independence of the EIA consultant, the Bench found that, “the fact that EIL whose services were engaged as an EIA consultant was subsequently appointed as an independent engineer after the initial grant of an EC will not result in the invalidation of the EC.”

The Court added that it has limited role to play in overseeing the manner in which expert committees function.

“The evaluation of merits is a matter which primarily rests with an expert authority. The court can certainly supervise procedural compliance and ensure that all necessary inputs which are required to be factored into the decision- making process have been duly borne in mind.

Once this has been done, the court must be circumspect in micro-managing the decision-making process by the EAC by substituting its own opinion for that of the EAC. Undoubtedly, no process can be perfect or free from studied criticism.”

The Court also pointed out that it should bear in mind that the EAC was only given a month to arrive at its findings, while weighing the criticism levelled against it. The Bench observed,

“Having assessed the process which took place following the judgment of this Court and the outcome, it would be difficult for this Court to hold that it fails to meet the standards which the court applies in the course of judicial review in environmental matters.”

Additional Solicitor General ANS Nadkarni appeared for the Union Ministry for Environment, Forests and Climate Change.

Court’s directions

Ultimately, the Court lifted the suspension imposed earlier on the EC grant for the Mopa airport at Goa, subject to the compliance of the recommendations of the EAC in addition to the conditions earlier specified in October 2015 and the NGT’s 2018 directions.

Further the Court also took on record an undertaking given by the concessionaire GMR Goa International Airport Limited that it would be committed to making sure that the proposed Mopa Goa airport would be a zero carbon airport operation. The Court has also added this as a condition to be complied with.

“We have also taken note of the assurance which has been tendered on behalf of the concessionaire that it will adopt a Zero Carbon Programme both in the construction and operational phases of the airport. We accept the undertaking of the concessionaire and issue a direction for compliance.”

The Court has also ordered that the NEERI be appointed to oversee the compliance of these directions. The project proponent has been directed to bear the costs, expenses and fees of NEERI.

With these directions, the Court ordered,

“The suspension on the EC shall accordingly stand lifted. The Miscellaneous Application is accordingly disposed of.”

[Read the Judgment]