It is well recognised that justice delayed is justice denied. This adage is equally relevant to regulations for protecting the environment and human health, where it is becoming increasingly clear that 'implementation delayed is implementation denied', and where delays become a convenient way of violating or circumventing the law and its protections for the environment. This is once again brought home by what is happening with the regulations to control emissions and water consumption of coal-based thermal power plants.
The Regulations of December 2015
Coal-based power generation is the largest source of electricity in the country. For the year 2017-2018, coal and lignite-based plants generated an overwhelming 82% of all electricity generated in the country. However, burning coal to generate power results in massive quantities of pollutants, and uses huge volumes of water. According to a report by the Environment Pollution (Prevention and Control) Authority for NCR (EPCA), "thermal power plants in India are responsible for 70 per cent of the total freshwater withdrawal by all industries; over 60 per cent of the particulate matter emissions; 50 per cent of SO2, NOx emissions and more than 80 per cent of mercury emissions."
In recognition of the large emissions and water use of thermal power plants and their health impacts, and due to continuous pressure from environmental activists, the Ministry of Environment, Forests and Climate Change (MoEFCC) notified for the first time, in December 2015, standards for emission of sulphur di-oxide (SO2), nitrogen oxides (NOx), mercury (Hg), and norms for consumption of water by thermal power plants. Further, the standards for emission of particulate matter (PM) were made more stringent. Somewhat lenient standards were notified for power plants installed before 2016, and more stringent requirements were mandated for plants to come online after January 2017. A period of two years, until December 2017, was given for all plants to comply with the regulations. Plants to be installed after January 2017 had to comply on commissioning.
When implemented, these new standards were estimated to bring in significant benefits. As per the Central Pollution Control Board (CPCB), the benefits included "reduction in PM, SO2 and oxides of nitrogen by about 40%, 48% and 48% respectively…reduction of mercury emissions by 60% … and reduction of water consumption by about 40%." The new norms were welcomed by environmental activists, public health professionals and communities living in the vicinity of power plants as a good first step in reducing the health and livelihood impacts of power plants.
Stall, Delay, Dilute
However, the sense of satisfaction was short-lived, as it soon became apparent that neither the industry nor the Ministry of Power (MoP) was really interested in implementing the new standards. Undoubtedly, implementation of the notification was a complex process as it involved retrofitting many of the plants with additional equipment to meet the standards; arranging for additional finance for the same at a time when non-preforming assets (NPAs) including power sector NPAs were constraining bank lending; a shutdown of plants for a short period during the retrofit and managing the staggering of such shutdowns so that the country did not face power shortage; tariff setting process to allow the costs of meeting the regulations to be recovered, and so on.
Such a situation needed immediate action by individual power plants, as well as some coordination by the Central Electricity Authority (CEA), the Ministry of Power (MoP) and the central and state electricity regulatory commissions (ERCs). However, instead of getting down to planning the actions to meet the norms, most of the industry started clamouring for delaying, stalling and even diluting the standards. Documents obtained by several people under the Right to Information Act and reviewed by this author were revealing.
Immediately after the notification was issued, several industries and industry associations wrote to the MoEFCC / CPCB raising several concerns. These concerns included standards being too stringent, cost of meeting the standards being very high, impossibility of implementing the standards in some of the older plants due to lack of space, exempting under-construction and older plant from these standards, some technology not proven in India, not enough suppliers to meet the equipment needed for retrofitting so many plants at a time, and the need for more time to implement the norms.
By mid-February 2016, MoEFCC/CPCB had considered these concerns and objections and categorically stated that except exempting coastal power plants based on sea water cooling from the water use norms, no other changes were necessary in the notified norms, nor were any deadlines required to be changed. Interestingly, all these objections had also been raised by the industry when the draft of the notification had been put out by the MoEFCC in June 2015. Even at that stage, MoEFCC/ CPCB has examined all the objections and issued the notification in December 2015.
Thus, it was clear that these objections had been examined twice, once at the draft notification stage and second after the final notification had been issued, and at both times, MoEFCC was clear that the objections were not well-founded. In fact, CPCB also offered to provide support to industry if needed; however, it emphasised that the industry needed to show proof of intent to implement the norms. In particular, in context of objections raised by NTPC, the CPCB stated: "MoEFCC can be approached for technological solution not for relaxation of limit ... Power companies should come with action plan and firm schedule and otherwise two years' time is sufficient if timely action is initiated by the power companies. Even if more time period is required MoEFCC may consider the same based on physical and financial commitment by the Power companies". (Emphasis added)
The intention and commitment of the power companies to implement the new norms could have been easily confirmed based on whether they had shown the "physical and financial commitment" mentioned by CPCB. This would have in the form of the several interim steps necessary for implementation like assessments of the measures necessary to implement the new standards, detailed designing for the equipment and retrofits needed, budgeting for the same, approaching the electricity regulatory commissions with such plans and budgets to seek recovery of the costs through tariffs, issuance of tenders and so on.
Unfortunately, barring a few isolated projects, most of the projects did not take any of the above steps even as the deadline to meet the norms came to an end in Dec 2017, indicating a clear lack of meaningful action (and intent) to implement the new norms. The CEA and MoP took some steps to coordinate the actions of the power companies, but the pace and direction of this did not inspire optimism, and in any case, the main intent seemed to be on scheduling the roll-out of the measures as this would involve some temporary plant shut downs. In effect, virtual inaction on meeting the deadline led to two full years being wasted.
A tolerant regulatory regime
Presumably, all this was encouraged by a belief that regulations in India need not be taken seriously, and stalling implementation would always be rewarded with extensions of timelines and even dilutions of norms. MoEFCC's own lax attitude in that it did not bother about monitoring the interim steps that need to be taken to meet the deadline would have reinforced this feeling.
It was only on 21 September 2016 that the CEA and MoP constituted a committee to prepare an action plan for implementation of the norms. On 30 June 2017, just six months before the end of the deadline for implementation, Secretary MoP wrote to MoEFCC, giving a "plan" which said that SO2 emission norms would be met through installation of Flue Gas Desulphurisation (FGD) units for all plants that needed them, in the next 7 years! The same time period was suggested from compliance to PM norms as well as NOx norms. The MoEFCC decided that this was too long, and reduced the time period to 5 years. Based on this, CPCB issued directions to all power plants in Dec 2017 allowing this relaxation.
There was no penalty levied on any power plant for not meeting the deadline as per extant regulations. Inaction on the norms for two years was rewarded with a 5-year extension. Not only that, while the regulations were notified through a gazette notification, the relaxation of the time limit was done through a mere letter or direction. The new "plan" to achieve compliance by 2022 had mainly the dates for each plant to meet the FGD installation but had no interim milestones, no mention of any penalties for defaulting on interim milestones, and no specific and credible mentoring mechanism.
The lack of interim milestones and penalties for missing them was a critical omission given the experience that the earlier two years have been wasted by the industry with virtually no steps being taken; absence of interim monitoring can lead to a situation where at the end of the deadline one is confronted with a fait accompli of emission targets not being met, and there is little one can do except extend the deadline, and let communities bear the hardships of continued pollution. On the other hand, interim milestones and their monitoring can ensure that timely steps are being taken and to bring in timely course correction in case they are not met.
As per the CPCB's December 2017 letter, the extended timeline for meeting the water norms was to be "finalised in consultation with the plants". This appears to be a somewhat irregular because on one hand, this was a blanket extension of the deadline; and on the other because this would involve total discretion in the hands of the CPCB leaving room for suspicion of adjusting timelines for extraneous considerations. Moreover, unlike for emissions where at least some reasons (though mostly untenable) had been put forward to justify the extensions, in case of water norms no such arguments have been offered as to why an extension is necessary, nor any criteria given by which extension could be allowed and its extent determined.
Moving the Supreme Court for extension
Against this background, in November 2017, in an unrelated case in the Supreme Court pertaining to air quality in the National Capital Region, the amicus curiae moved an application asking the Court to " ... direct the implementation of the 2015 emission standards for power plants as per schedule i.e. by December 2017". This brought the emissions' notification squarely in the purview of the Supreme Court.
Unfortunately, instead of using the occasion to ensure better implementation of the norms, the case is being used for pushing the excuses for extending the deadlines and diluting the norms. Given that some aspects of the matter are technical in nature, the Supreme Court is not the best placed institution to judge whether these extensions and dilutions are justified. The MoEFCC, which notified the standards and timelines in the first place and hence could have presented justifications for them, has virtually stepped aside and the matter is being led in the Court by the MoP.
On one hand, the MoP has projected itself a coordinating ministry, and has been playing the role of an advocate for the interests of the power companies. The MoP has argued for diluting the NOx norms, exempting several plants from the SO2 norms, and in general pushing the case for extensions of timelines for all thermal power plants. At the same time, when the time came for taking responsibility for ensuring implementation, MoP has said it can take responsibility only for the NTPC and DVC projects (that are under its control) and for the rest, it is a matter between the MoEFCC and the individual projects.
Water drawing canal of a coal thermal power plant. Pic: Shripad Dharmadhikary
As of now, the matter seems to have been reduced to looking at only large plants (capacity greater that 500 MW), and that too only those which are in densely populated areas or in critically polluted areas. This comes to about 57,000 MW, which is just about 30% of the installed capacity of coal based power generation in the country. It is hoped that this focus in the Court does not result in the exclusion of the rest of the power projects, because the original notification (which is still in force as a law) is meant to apply to all operational power plants. Last but not the least, the standards for the water consumption and zero waste water discharge, which are also a part of the notification, seem to have been completely ignored, both, in the court discussion and otherwise.
In the court, neither the MoP nor the MoEFCC has deemed it fit to even talk about – let alone defend - the interests of the people affected by the pollution, especially the communities living in the vicinity of these projects. Nor have they talked about the environmental and social costs of the dilutions and extensions.
Role of MoEFCC
In the entire matter, serious questions have risen around the MoEFCC and the role it has played. All documents available show that objections had been raised by industry when the draft of the emission and water use norms was first put out, and the objections had been firmly overruled by the MoEFCC. That MoEFCC rejected all these objections was clear from the fact that the final notification was virtually the same as the draft and it retained the time line of 2 year for implementation. The industry again raised the same objections after the final notifications, which were rejected once again by the MoEFCC. The MoEFCC categorically reiterated that there is no need for any dilution in the norms, and that two years are sufficient for their implementation.
So it is not clear why MoEFCC is not defending the standards or the timeline now. Does it mean that MoEFCC had not applied its mind when preparing the draft and when it reviewed the objections earlier? Or does it mean that now it is being steamrolled by industry and MoP in allowing unwarranted dilutions to the norms and unnecessary extensions? Either way MoEFCC does not come out looking good.
Another question is why the MoEFCC has not been monitoring the interim milestones for rolling out the implementation of the norms, when it knows that not doing so had the risk of having a fait accompli of violations on its hands. Lastly, the silence of MoEFCC in the Supreme Court, particularly in not defending its original notification as well as not talking about the severe health and ecological impacts of diluting or taking longer time for implementation of the emission and water standards is also questionable. If MoEFCC does not defend the environment, who will? Isn’t this a gross abdication of its responsibility?
As always then, the responsibility of defending the environment and the affected communities has fallen on civil society, the Courts, and some of the amicus curiae. As of now, the result of this process is the severe narrowing of the scope of the original notification, the push for dilution of several parts and the undue extension of deadlines for implementation. And people continue to suffer the impacts of severe emissions and the high water usage of thermal power plants. One can only hope that the Supreme Court’s intervention and strong actions by civil society and affected communities will help bring about effective implementation of the notification and more generally, better regulation of the environmental and social impacts of the thermal power projects.