Do verdicts matter?

People from fishing, farming, grazing and salt panning communities living in and around Bhadreshwar in Mundra Taluka of the ecologically fragile Kutch district of Gujarat have resisted the construction of a thermal power plant by OPG Power Gujarat Limited since the plan was first revealed in 2009 when the plan was first revealed. Locals also know that although OPG is talking about constructing a plant of 300 MW capacity, it is also seeking approval for expansion of the plat to 2600 MW. This came to light when a response through Right to Information had revealed that OPG had simultaneously applied for an expansion plan even as their application for approval of the 300 MW plant was still pending before the State Environment Impact Assessment Authority (SEIAA).

Over the last three years the locals and the company have been locked in both conversation and confrontation. However, throughout this period the local sentiment has been consistent and clear - they are against the setting up of the power plant in an area of thriving fishing, salt panning, grazing and agriculture.

They've seen what happened to the nearby traditional fishing harbours, which got erased in the industrialisation plans of the Adani group - direct fishing routes and access to the sea have been hit, acres of mangroves chopped off, creeks filled up and salt pans in inter-tidal areas excavated to make way for power plants, ports, railway lines and much more. And they are anxious that the same fate should not fall on Bhadreshwar.

Three three separate cases against OPG were heard challenging the environment clearances given to the company, as well as for diversion of forest land for non-forest use. While the main power plant had received its environmental approval with a long list of 121 conditions in 2010, there were substantial delays in the company getting the approval for laying its water intake and outfall facilities and a desalination plant.

This was primarily because of two reasons, first that the expert committee examining this integral aspect of the project felt that the area is extremely ecologically fragile and therefore the open water channel design was not in order. Second, the OPG group initiated construction activity on their main plant back in October 2010 without their CRZ (Coastal Regulation Zone) approval being in place. Following complaints, the MoEF had issued a show cause notice to the company on 15 December 2010 indicating violations and seeking explanations, following work on the site stopped.

When OPG got its CRZ approval on 15 September 2011, they disclosed to the local forest department that the water pipeline for their project to draw water for the plant would require diversion of forest land for non-forest use. Without the water, the plant cannot be operational. However, the construction activity was kept going even though the clearance for diversion of land-use had not yet been given. When the people of the area took this up before the National Green Tribunal in November 2011, the counsels for OPG attempted to delink the thermal power plant from the sea water pipeline and desalination plant, arguing that the permissions for the pipeline are not linked with those of the main plant.

Meanwhile the tussle on the ground continued. OPG filed police complaints and sought police protection to start construction of the pipeline. Arrest warrants were issued against those who had raised their voices and those who'd taken the matter to the the MoEF and the courts. When things came to a head in November 2011, close to 500 people followed the other 10 who had been singled out by the company. The police then had no choice but to retreat, and activity on the traditional fishing harbour at Randh Bander stopped. But work on the main thermal power plant continued.

On 8 February 2012, the MoEF placed before the Green Tribunal a show-cause notice that they had issued just days earlier against OPG for suppression of information while seeking approval under the CRZ notification. The show cause dated 6 February 2012 threatened suspension of the clearance issued to them under the CRZ Notification in September 2011, in the light of serious violations by the company and including non-disclosure of information. As mentioned earlier, while seeking approval under the CRZ notification, OPG did not disclose before the Expert Appraisal Committee (EAC) that the route of the sea water pipeline will involve use of forest land.

The notice adds that, "the disclosure of information after appraisal of the project amounts to suppression of information by the project proponent before the Ministry and the EAC at the time of appraisal".

The legalese and arguments finally led to a judgment a few weeks ago, revealed on the NGT website a few days after the last hearing. This judgment directed that no construction activity should take place with respect to the plant till all approvals are obtained. Point 14 of the judgment says that "A cumulative reading of all the specific and general conditions, more particularly the conditions quoted above, leads to the conclusion that the project cannot commence its activities until prior permission / clearance are obtained from various Authorities under different Acts / Law."

The judgment while listing a set of conditions laid out in the environment clearance letter of the 300 MW plant, reiterated the need for the project authorities to abide by them. These conditions clearly say that construction activity should not be initiated without the requisite permissions being in place. It further asked OPG to proceed with either getting the required CRZ and forest diversion permissions within two months or approach the the SEIAA with their alternate proposal of changing the technology of the plant to being air-cooled instead of water-cooled which was to be decided upon within four months.

In response, the company has made a public statement that neither the judgment nor the condition require them to stop construction activity; this was quoted in an article dated 17 February 2012 in the Gujarati newspaper Divya Bhaskar. This issue has now once again been highlighted to the SEIAA, MoEF Delhi and its regional office in Bhopal seeking their immediate intervention. A letter has been sent to the Shri Hardik Shah, Secretary, Gujarat SEIAA and SEAC on that day itself, but a response from any quarters is still awaited.

In the meanwhile OPG continues to lay the foundations of its cooling tower, and its staff visit the forest department and other concerned offices for approvals. It's almost as if the judgments asking the company to get the approvals first have not happened at all. And the affected people gear up for a fight that they are determined not to lose.