In its environmental clearance the Union Ministry of Environment, Forests & Climate Change (‘the ministry’) issued a letter dated 11 July 2022 to Mahagenco stating that the approval had been granted. An expert body of the ministry, the Expert Appraisal Committee (EAC), which analyses potential environmental impacts of industrial projects, had earlier recommended approval for the project in a meeting held on 28 September 2020.

However, a group of people belonging to the villages that will be impacted by the coal mine filed a petition with the Tribunal’s central bench located in the city of Bhopal in the Indian state of Madhya Pradesh, highlighting irregularities in the environmental-approval process. They pointed out that a study of the health impacts of coal mining in Raigarh which had been conducted by the Indian Council of Medical Research (ICMR), a central government-owned autonomous institute, had been ignored in the granting of the approval. It was alleged that the central government had failed to consider the possible impacts that the proposed project would have on the water resources of the region. Furthermore, they claimed that the environmental integrity of the region, already dotted with numerous coal projects, could not withstand the ecological consequences of yet another mine and that an assessment of the carrying capacity of the area had not been properly conducted.

The Tribunal concurred and stated in its order: ‘… we find that prior EC [environmental clearance] granted in the case in hand is vitiated in law on account of observations made hereinabove, particularly, with regard to public consultation, non-consideration of ICMR report, Hydrological study and carrying capacity … EC dated 11.07.2022 granted to respondent 4 [Mahagenco] is quashed. MoEF&CC [the ministry] may re-examine the matter from the stage of conducting public consultation afresh ….’

The project proposes extracting 23.6 MT (of coal) per annum (MTPA). The mining lease covers 2583.48 ha – the equivalent of nearly 5000 football fields. Fourteen villages – Tihli Rampur, Kunjemura, Gare, Saraitola, Murogaon, Radopalli, Pata, Chitwali, Dholnara, Jhinka Bahal, Dolesara, Bhalumura, Sarasmal and Libra – will be affected by the project. Farmland, forests, water bodies, habitations, schools and other public infrastructure are set to be flattened because the main chosen method of mining is opencast.  Underground mining would account for a small proportion of coal extraction – 1.6 MTPA (about 7%).

The controversial public hearing

The mandatory public hearing was conducted on 27 September 2019 amid opposition from large numbers of local people who had gathered in the vicinity of the meeting venue in order to protest. Within weeks, thousands of local people expressed their displeasure over the manner in which the public hearing was forced through by the government by holding a major street march. This was part of an annual public event, held on 2 October (the birthday of Mahatma Gandhi) for the past 15 years to mark the negative consequences of commercial coal mining in Raigarh. This form of protest is known as a Koyla Satyagraha.

Local communities had successfully stalled the public hearing on at least three earlier occasions earlier – in June 2018, in May 2019 and in August 2019. A protest march had also occurred in Raigarh, under the banner of a farmers’ association, ahead of the meeting that had been proposed in August 2019.

‘The public hearings were stalled on these dates because of the immense pressure of local communities that want no more coal projects in this region,’ Raigarh-based activist Rajesh Tripathi told this correspondent. ‘But the government went ahead with a hearing in September 2019 despite the continuing large-scale opposition.’

The minutes of the public hearing’s proceedings prepared by the Chhattisgarh government indicate that only 58 people attended. It was held in a government-owned primary school in Dolesara village. Out of the people whose names were marked on the attendance register, 37 were from Dolesara, five from Dolnara, three from Chitwali, six from Tamnar, one from Pata, one from Gonda, one from Bagbehri and one from Karnal. Information pertaining to the residential status of two attendees was not recorded in the attendance register. Another attendee was an office bearer of a farmers’ body called Rashtriya Kisan Morcha.

According to the executive summary of the environment impact assessment (EIA) report, on the basis of the which the public hearing was held, the region of the project site is populated mostly by economically weak tribal communities who not only lack adequate public amenities such as roads and electricity supply, but also proper drinking-water facilities and dwellings. These communities lack good education, employment opportunities and medical facilities. The Tribunal came down strongly on the project proponent for citing varying figures regarding the number of families to be displaced by the project. In the approved mining plan, the figure was 1679 families and in the Rehabilitation and Resettlement Plan it was 2245 families.

‘Number of families in each of the villages which were to be affected by the project is not given and, therefore, the number of families to be displaced whether constitute substantial number of the total population likely to be affected or not, is difficult to ascertain. Moreover, when people likely to be affected belong to socially and economically weaker section and the area is deficient in all kinds of amenities, holding public hearing at one place deprives the people residing in other villages, opportunity of participation and this is evident from the fact that out of 14 villages, people only from 4 or 5 villages could participate in public hearing,’ said the Tribunal.

An overwhelming proportion (64% per cent) of the attendees belonged to Dolesara, the village in which the hearing took place. Very few of the participants at the meeting were identified as coming from the other 13 villages listed as affected by the project. Though the minutes of the proceedings mention that around 1000 people had gathered outside the premises of the public hearing venue demanding entry, there was no documentary record as to why these persons were protesting, where they were from and why they had been denied entry.

‘It would be an understatement to say that 1000 people had gathered around the meeting venue in protest,’ said Tripathi, who was amongst the protesters on the day of the public hearing. ‘The number must have been well over 10,000 because almost the entire population of all 14 villages, barring infants, the old and the infirm, had gathered outside the venue.

‘The number of women protesters alone was around 3000. The organisers of the public hearing could not get a sizable number of people to support the project. On the attendance register, they used the signatures of the cooks, helpers and tent-house workers who had been hired to set up the pandal for the meeting and prepare food for attendees.’

The Tribunal noted that it appeared that ‘only those who were supporting the project were allowed to participate and their statements were made part of the proceedings’.

Regarding the written objections that were submitted after the public hearing, many resolutions against the mining project had been adopted in the previous three years by Gram Sabhas (local village councils comprising all adult citizens) of the 14 affected villages, but that these were not taken into consideration. These written objections highlighted the ham-fisted manner in which the public hearing took place despite the protests.

‘The officials responsible for conducting public hearing, in collusion with the officials of the proponent, managed to induct 50-60 people on the venue through an alternative entrance or early in the morning and public hearing proceedings were conducted, ignoring the other people gathered outside the venue and raising protest,’ the judgment further states.

The land that will be taken over for the project includes private land belonging to tribal communities (987.505 ha), other private land (1,090.113 ha), government land inhabited by local communities (90.328 ha), and other government land (200.672 ha). In addition, a huge number of trees will be felled because 214.869 ha of the project occur on forested land that is categorised as reserved by the government.

Crucial health assessment report ignored

The tribunal criticised the ministry saying there was ‘non-application of mind’ and ‘perversity’ in ignoring a crucial report on the health conditions of Raigarh local communities while granting the environmental clearance. The report was prepared by the central government agency ICMR after surveying 5233 individuals from 984 households across 33 villages of the region.

The survey found that a whopping 42.7% of pre-school children in the region were underweight. Acute respiratory infection (20.9%) constituted the most common morbidity among pre-school children followed by fever (6.2%) and scabies (1.6%). Among the adults, about 8.8% of males and 6.6% of females were found to be suffering from Grade II chronic energy deficiency. The adult population was also afflicted by hypertension (21.8%), anemia (16.1%) and fungal infections (4.0%). Amongst other recommendations, the report advocated for provision of clean drinking water, free from fluoride and arsenic, in at least two of the villages to be impacted by the mine, Murogaon and Saraitola.

The Tribunal clinically dissected the contents of the documents pertaining to the environmental-approval process and arrived at the damning conclusion that the ICMR report had been suppressed. The minutes of the EAC meeting held on 5 December 2019 say that the ICMR health assessment report was ‘yet to be completed’. In the records of the minutes of the meeting held on 28 September 2020, it was again said that the report was ‘yet to be completed’. These minutes devote just one line to issues raised during public hearing, including potential health impacts of the project, saying that such issues had been ‘addressed adequately and complied [with]’.

The petitioners, however, drew the Tribunal’s attention to the fact that the ICMR report had been submitted in February 2020, well before the granting of environmental approval, arguing persuasively that it could have been taken into consideration.

‘What impact the said report would have and whether additional conditions were to be imposed upon proponent or grant of EC [environmental clearance] would have been desirable or not, are all the questions within the realm of appraisal which is within the domain of EAC and MoEF&CC [the ministry] who had to consider question of grant of prior EC but if they have failed in discharge their statutory obligation on incorrect facts and relevant material is ignored, this Tribunal will have to hold such a decision to be vitiated in law as it has failed to consider relevant material and that too on incorrect facts,’ the Tribunal said in its order.

Is the region capable of bearing yet another coal project?

In an important order issued in August 2018 (Shivpal Bhagat vs Union of India & Others), a separate bench of the Tribunal set down specific rules for conducting studies of carrying capacity – that is, an analysis of the maximum environmental load of industries that a particular area can sustain. The Tribunal ruled that such a study, wherever necessary, must be commissioned only through the pollution control board of the concerned state government or of the central government, or through a reputed institute. However, the project proponent of Gare Pelma II conducted the study through a private agency instead of through the Chhattisgarh Environment Conservation Board or the Central Pollution Control Board.

Gare Pelma II is in an area of Raigarh where numerous top names of India’s corporate sector have coal mines and coal-power plants. Highlighting that a proper carrying capacity study had not been conducted for Gare Pelma II, the Tribunal referred to the damaging findings of a survey report finalised in November 2016 by a two-member fact-finding team as part of the above precedent-setting case. As per the report of this fact-finding team, the air, water and soil in the region has been rendered unsuitable for humans because of environmental pollution from a multiplicity of coal projects.

The report said the air quality in and around the villages bordering the mines, coal-power plants and coal washeries was extremely poor. There were reports of drastic depletion of groundwater levels owing to extraction by industries in several villages. At least 90 of the 116 villages in the tehsil (an administrative block) where Gare Pelma II is located were found to be affected by dropping water tables. There were serious depletion and drying of surface water resources due to the dewatering effect of mines. Surface and groundwater resources were found to be contaminated, primarily through discharge of pollutants and wastewater from mines, coal-fired plants, fly ash ponds and washeries. Agricultural fields were found to be contaminated by leaching and overflow of pollutants from ponds and dumps storing or treating coal dust or fly ash.

The team found that water courses had become depleted due to diversion of water to heavy industry. In certain instances, coal ash was dumped from power plants near agricultural fields and dwellings, contaminating local water sources and air. Certain coal mines had been illegally expanded, threatening parts of villages. The ‘rehabilitation’ of villagers displaced by mines had been neither adequate nor complete. The report concluded that the cumulative impact of these developments was ‘severe’ for the livelihoods, health and well-being of local communities.

‘All through the interaction, people complained of poor air and water quality, depletion of water resources, water resources being rendered impossible to use, death and depletion of fish, destruction of forests, discharge of contaminated waters like water bearing coal dust, mine drainage, ash slurry into agricultural fields and local water bodies, illegal expansions of mines and the failure of the local and the state administration in enforcing any standards or directions the erring units,’ said the report.

The bench referred to yet another report published in July 2017 on environmental sampling around coal mines, power plants and ash ponds in the Raigarh region. The report – which is titled Poisoned and was vetted by scientists based in the United States and the United Kingdom – says that the air, water, soil and sediments of the region have been found to be ‘seriously contaminated’ with various toxic heavy metals. These included aluminum, arsenic (carcinogen), antimony, boron, cadmium (carcinogen), chromium, lead (probable carcinogen), manganese, nickel (probable carcinogen), selenium, zinc and vanadium. These metals are known to cause ailments that include respiratory disorders, shortness of breath, lung damage, reproductive damage, liver and kidney damage, skin rashes, hair loss, brittle bones, nausea, vomiting, diarrhea, stomach pains, muscle and joint pain and weakness. The report concluded that humans and animals in the area were at risk of amplified harm because of the exposure to multiple toxicants and carcinogens.

Based on the above findings and observations, the Tribunal, in the case of Shivpal Bhagat vs Union of India, arrived at the conclusion that there was continued damage to the environment and public health by indiscriminate and illegal storing, transportation and disposal of fly ash in Raigarh. The tribunal ordered the implementation of remedial measures for the management of fly ash in Raigarh.

Impact of project on water sources not studied properly

The tribunal concluded that the hydrological study conducted for the proposed Gare Pelma II mine did not adequately assess the impact of the project on drainage streams and the nearby Kelo River, an important tributary of the major east-flowing Mahanadi River which originates from Chhattisgarh and flows through the neighboring state of Odisha before draining into the Bay of Bengal.

The project proponent has proposed to draw 6000 kilolitres of water daily from the Kelo River to meet its requirements of the mine. This 112-km-long river, which passes through the eastern corner of the mining lease boundary, meets the drinking-water needs of Raigarh (a city with a population of 1.5 million). It also provides water for agriculture and various other industries. The bench cited scientific literature to arrive at the conclusion that a proper and detailed study is required to ascertain the impact of the Gare Pelma II coal mine on local water resources that include the Kelo River.