Rampal power plant issue merits re-evaluation
FE Team | Published: October 12, 2013 00:00:00 | Updated: February 01, 2018 00:00:00
Syed Emran Hossain
The proposed Rampal power station is a coal-based thermal power plant and its location is at Rampal Upazila of Bagerhat district. The site of the plant is maximum 14 km away from the Sundarbans, which is the largest single block of tidal halophytic mangrove forest in the world. The Sundarbans was recognised as a UNESCO World Heritage Site in 1997. The forest also contested for the New7Wonders of Nature in the world.
The owners of the power project are the Power Development Board (Bangladesh) and the National Thermal Power Corporation (India). The joint venture company is known as the Bangladesh-India Friendship Power Company (BIFPC). It will be the country's largest power plant costing US$ 1.5 billion and its maximum capacity is 1,320 megawatt (MW).
In August 2010, a Memorandum of Understanding was signed between the PDB and the NTPC where they agreed to implement the project by 2016. On January 29, 2012, the BPDB signed an agreement with the NTPC to build the plant.
From the very beginning, the project became a subject of criticism and faced an allegation that it is going to violate the Environmental Impact Assessment (EIA) Guidelines and will have a negative impact on the ecological system. It was alleged that the project is against the Ramsar Convention (international treaty 1971) which is the only global environmental treaty that deals with reservation of wetlands. Bangladesh became a signatory of the Convention in 1992.
According to environmental experts, the proposed plant might destroy the world's largest mangrove forest Sundarbans. There are high risks of water, air, soil and noise pollution. The plant may also be responsible for increased air temperature, pollution from coal ash, health hazards and all these will have a destructive impact on the ecosystem. The National Committee on Protection of Oil, Gas, Mineral Resources, Power and Port, environmentalist groups, left-leaning parties and general people of Bangladesh have vowed against the Rampal Power Plant. The main opposition BNP also vigorously opposed the power plant project.
On the other hand, the government strongly continues to assert that it has taken highest measures so that the Rampal power project does not cast any adverse impact on the Sundarbans. The Prime Minister said, while inaugurating the Bangladesh-India Power Transmission Centre and laying foundation stone of the Moitree Super Thermal Power Project, that the government is going to use high quality coals, high chimney and latest technology to minimise air and water pollution.
In the midst of blame game, on September 29, four Supreme Court (SC) lawyers filed a Writ Petition seeking a direction to stop the construction of the Rampal power plant near the Sundarbans. The petition urged the court to direct the government to form a committee that includes national and international experts. The committee is to give a report assessing the impacts of the proposed power plant on environment and the lives of the common people of the surrounding area. The petition sought a stay order on the activities of the project till the committee issues a final report. The bench of Justice Naima Haider and Justice Zafar Ahmed heard the matter for a few days and on September 02, the junior judge felt 'uncomfortable' and no stay was granted. Consequently, the matter was referred to the Chief Justice and he sent the matter before the bench of Justice M Moazzam Husain and Justice Md Badruzzaman. The bench on October 06 summarily rejected the petition on the ground that it lacks substantial merit and the petitioners had no jurisdiction to move such a petition.
In the world today, environmental protection gets utmost priority. Even the US Supreme Court holds the view that the judiciary as a guardian of fundamental rights should protect the right of each individual with regard to environment. For this, national and international landmark cases should be considered. In the case of City Sugar Industries Limited vs Human Rights and Peace for Bangladesh reported in 62 DLR (AD) 428, the Appellate Division relied on the maxim Salus papuli suprema lex esto i.e. let the safety of the people be the supreme law and held that the court must ensure safety to the people. Besides such judicial maxims, we have our own legal mechanism or instrument to deal with such crisis.
The parent law in Bangladesh in this regard is the Bangladesh Environment Conservation Act 1995. According to section 2(g) of this Act, 'ecosystem' means the inter-dependent and balance complex association of all components of environment which can support and influence conservation and growth of all living organisms. Section 2(d) also says 'environment' means the inter-relationship existing between water, air, soil and physical property and their relationship with human beings, other animals, plants and micro-organisms.
According to subsection (e) 'environment pollutant' means any solid, liquid or gaseous substance which causes harmful effect to the environment and also includes heat, sound and radiation'. Furthermore 'pollution' means the contamination of the physical, chemical or biological properties of air water or soil, including change in their temperature, taste, odour, density, or any other characteristics. This also means such other activities which, by way of discharging any liquid, gaseous, solid, radioactive or other substances into air, water or soil or any component of the environment, destroys or causes injury or harm to public health or to domestic, commercial, industrial, agricultural, recreational or other useful activity. Or such discharge destroys or causes injury or harm to air, water, soil, livestock, wild animal, bird, fish, plant or other forms of life [sub section (b)].
The Act also provides that it is the duty of the Director General of the Environment Department to advise the government to avoid such manufacturing processes, commodities and substances as are likely to cause environment pollution [section 4(2)(g)]. As per the Act no industrial unit or project shall be established or undertaken without obtaining, in the manner prescribed by rules, an Environmental Clearance Certificate from the Director General (section 12).
Therefore, though the government obtained clearance certificate, there is a likelihood that, as per the allegations, the power plant project at Rampal may constitute environmental pollution and hamper the ecosystem as per the Act of 1995. It can be noted that the NTPC failed to get approval of the Indian Central Green Panel (Green Tribunal) in 2010 for the construction of that coal-fired thermal power plant because a vast portion of double-crop agricultural land reportedly comprised the site, a similar situation to Rampal.
It is also true that a court can refuse to exercise its writ jurisdiction if the extent of damage is negligible and the project is an important development for the economic and social structure of the people (Goa Foundation v Konkan Railways Corporation AIR 1992 Bom. 471). However, in case of a matter of national importance and significance a more cautious step could have been taken. The arguments put forward by both the parties along with the legal principles involved critical and scientific analysis. The government's action was questionable. It unveiled the foundation plaque of the power plant pending the Writ Petition.
The petitioners have already expressed their willingness to go to the Appellate Division against the order of the High Court Division. The highest court will hopefully balance needs of the environment with the needs of the community at large and of the developing country. The government should also not proceed any further until disposal of the matter by the apex court, if pending.
The writer is Lincoln's Inn Barrister and Advocate, Supreme Court of Bangladesh. hossainsyedemran@gmail.com
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