India's Green Tribunal suspends environmental clearance to Posco

Published by MAC on 2012-04-02
Source: The Hindu, Business Standard, statement

Green Tribunal suspends environmental clearance to Posco

The Hindu

30 March 2012

The environment clearance granted to Posco's steel project in Orissa in January 2011 will remain suspended till the Environment Ministry reviews it afresh, the National Green Tribunal held on Friday.

"The environment clearance granted on January 31, 2011 to the project shall remain suspended till such review and appraisal is done by the Ministry," a Bench of Tribunal comprising Justice C.V. Ramulu and Devendra Kumar Agarwal held.

The Tribunal pointed out that memorandum of understanding between the Orissa government and Posco states that the project is for production of 12 million tonnes of steel per annum (MTPA) but the environment impact assessment (EIA) report has been prepared only for 4 MTPA steel production in the first phase.

It said the MoEF should take "policy decision" that in projects of such magnitude the EIA should be done for the complete project. "The EIA should assess it for the full capacity right from the beginning," it said.

The Tribunal directed the MoEF to review the clearance afresh and attach "specific conditions", which Posco would have to follow in a defined timeline.

It also directed the MoEF to set up a special committee to "monitor the compliance to the environment clearance" thus granted. The Bench said appointment of Meena Gupta as chairman of the committee to review the environmental clearance showed "departmental bias" as she had only "supported" the environment clearance granted to Posco earlier during her tenure as the Secretary, the MoEF.

"The entire process was vitiated in the eyes of law," the Bench said in this regard.

The Tribunal also said that the project proponent should generate its own source of water instead of utilising the drinking water meant for the Cuttack city in Orissa.

"In the country drinking water is scarce. It would be better to ask the project proponent to generate its own source of water. Avoiding utilising water meant for Cuttack city could be asked by the Ministry," it said.

The order came on a plea filed by environment activist Prafulla Samantray seeking quashing of the environmental clearance granted to Posco on the ground that it was "contrary to the provisions of the EIA Notification 2006" and was illegal and arbitrary.

Advocate Ritwick Dutta, appearing for the petitioner, had said that impact on environment in case of steel production by the plant to its full capacity would be much more.

Mr. Prafulla, in his petition said, "It is admitted that the project will not be viable if it is restricted to the steel production of only 4 MTPA. In such circumstances, the EIA report should have been for 12 MTPA (of steel production). The project proponent has opted to do an EIA for 4 MTPA since the likely impact of 12 MTPA is bound to be much more and very significant."

Posco India Pvt. Ltd. was granted environmental clearance for its two projects, steel-cum-captive power plant project and captive minor port, in Jagatsinghpur district of Orissa in 2007.

The MoEF after reviewing the same, granted environmental clearance with additional conditions on January 31, 2011, which prompted the petitioner to move the Tribunal.

The clearance was assailed contending that "the whole approach of the expert appraisal committee (EAC) was not to give an unbiased opinion, but rather to justify the decision to grant environmental clearance to both the projects."

The Environment Ministry, however, had told the Tribunal there was no infirmity in its decision to grant environmental clearance to Posco. Posco had also maintained that it has not violated any law and is working in compliance with the norms.

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Update from POSCO Pratirodh Sangram Samiti (PPSS)

31st March 2012

Dear Friends,

We welcome the judgment of National Green Tribunal (NGT) on 30th March 2012 for suspension of the final 2011 environmental order of the then environment minister Jairam Ramesh in favour of the Korean Company. From the beginning, we have been protesting against handing over our fertile agricultural land, sources of livelihood of 20,000 people and rich environment to a private company like POSCO. The judgment of NGT now brings the real truth. We demand the complete scrapping of this project.

The tribunal pointed out that memorandum of understanding between the Odisha government and Posco states that the project is for production of 12 million tonnes of steel per annum (MTPA) but the environment impact assessment (EIA) report has been prepared only for 4 MTPA steel productions in the first phase. "The entire process was vitiated in the eyes of law," the bench said in this regard.

NGT has rightly said that "A project of this magnitude particularly in partnership with a foreign country has been dealt with casually, without there being any comprehensive scientific data regarding the possible environmental impacts. No meticulous scientific study was made on each and every aspect of the matter leaving lingering and threatening environmental and ecological doubts un-answered."

You may remember that Ramesh had set up a four-member committee under the ex-environment secretary Meena Gupta to review the case. Gupta had given a minority report in favour of the project even while pointing out several lacunae, but the other three had demanded the project's cancellation. Ramesh went ahead and cleared the project after this in January, 2011, with some conditions.

The tribunal bench observed that Gupta's findings were "definitely hit by personal/official/departmental bias, in other words she supported the decision made by her earlier. This is a gross violation of principles of natural justice. Therefore, the entire process of review is vitiated under law".

In another development, the Comptroller and Auditor General of India (CAG) in its latest report (civil) for the year ended March 31, 2011 has rapped the state revenue department for acquiring land for these industries by invoking emergency provisions without fulfilling the conditions prescribed under Land Acquisition Act-1894.

An audit scrutiny of these land acquisition cases reveals that 4,967.08 acres of land valued at Rs 165 crore (approximate present market value Rs 901.30 crore) were acquired between July 2002 and March 2011 for establishment of industries by six promoters- Posco India Ltd (Jagatsinghpur)-437.86 acres, Aditya Aluminium Ltd (Sambalpur)-2021.41 acres, Bhusan Power & Steel Ltd (Sambalpur)-608.67 acres, Viraj Steel & Energy Ltd (Sambalpur)-2.58 acres, VAL (Kalahandi)-826.56 acres, Dhamara Port Company Ltd (Bhadrak)-1070 acres and.

The CAG is also sore over the fact that land acquired in case of all these six industrial projects was not put to use for a period ranging from 15 months to six years three months from the date of publication of notification under Section 4 (1) against the stipulated time period of six months.

The CAG has also pointed out that application of emergency clause in these cases was misplaced and deprived the land losers of the opportunity to contest the propriety of such acquisition and to be heard under Section 5A of the Land Acquisition Act. We also come to know from the media report that the Orissa law department has objected to the proposal to extend or renew the memorandum of understanding (MoU) signed with the POSCO, saying that it will be illegal to extend the validity of an expired MoU.

As you may know that the five-year term of the MoU signed between the Orissa government and Posco in June 2005 for setting up integrated steel plant at our villages lapsed in June 2010. The government and POSCO had been in negotiation since for renewal of the MoU with some changes in original terms and conditions.

The law department said. That "In the instant case it appears that 5 years have already expired. So, after expiry of the period of validity, extension of the same may not be possible. Extension is made prospectively before the expiry of the
original MoU,"

We will keep opposing the project. All these reports by NGT and the CAG exemplifies the strength of our democracy and the independence of various institutions of democracy. We are confident that at the end of the day the voice of people will be victorious.

In Solidarity,

Prashant Paikary
Spokesperson, POSCO Pratirodh Sangram Samiti
Mobile no-09437571547

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Press Note on NGT Verdict on POSCO

Scrap POSCO Project

Book the Company for all Violations

Book the Culprit Officers for Criminal Conspiracy Against the People and the Land

March 31, 2012

Bhubaneswar: The Lok Sakti Abhiyan while welcoming the decisions of the NGT to suspend the arbitrary, unjustified and uncalled for green node given to the so called mega steel project POSCO on January 31, 2011 by the MOEF of government of India, congratulates the Judges for not succumbing to the pressures of the global finance capital and their Indian slaves. The President of Lok Sakti Abhiyan and petitioner in the NGT against POSCO Sri.Prafulla Samantara stated here today that it is indeed the victory of the people of Dhinkia, Gadakujanga and Nuagaon Gram Panchyats of Jagatsinghpur who have sustained their struggles against this giant steel company at a huge cost to their life, liberty, peace and happiness for the last 6 years. The women and children of the struggle deserve special thanks for the sacrifice they have made and also for inspiring the whole nation. It is quite painful for any conscientious citizens of an independent and democratic nation to realize that its elected representatives are willing to serve any unscrupulous and erring corporation even if the people who have elected them suffer in terms of life, livelihood and peace.

It may be recalled here that the LSA along with others has raised again and again the issues of violations of forest, environmental laws of the country by the company with active support from the state government in Odisha. The government at the center is equally responsible for any single act of commission and commission. The NGT verdict to suspend environmental clearance, review the whole project, suppression of facts, misleading investigations and to have a holistic approach to the project raises many questions. The judges have said, "A close scrutiny of the entire scheme ... reveals that a project of this magnitude particularly in partnership with a foreign country has been dealt with casually, without there being any comprehensive scientific data regarding the possible environmental impacts. No meticulous scientific study was made on each and every aspect of the matter leaving lingering and threatening environmental and ecological doubts un-answered."The following recommendations deserve special attentions:

Land and infrastructure: The clearance was given for a 4 million tonnes per annum (MTPA) steel plant, but the land, water etc. were allocated for a 12 MTPA project (which has been POSCO's stated plan). The judgment directs MoEF to "consider optimizing the total land requirement for 4 MTPA steel plant proportionately."(para 8.5) Moreover, the impacts of other infrastructure for the plant have not been assessed at all, even though they were planned for a 12 MTPA plant.

Issues that should have been done now, but which MoEF left for future studies: On several points highlighted by the review committee, the MoEF just said future studies should be done and ignored the issue. The Tribunal finds this deeply unsatisfactory, and notes the following among other issues:

Water: The Tribunal said that "We are all aware that ... the drinking water is becoming scarce commodity and at every level precaution needs to be taken for protecting the drinking water supply to human habitation and preventing from utilizing such water for industrial use ... alternative water source for the present project, like creating/ constructing a small barrage or augmenting any other existing source at the cost of project proponent to avoid the utilizing the water meant for Cuttack city... could be examined." (para 7.4, page 29)
Pollution: The plant's discharge was also left for future study by MoEF. The Tribunal says this is a "serious environmental concern." (para 7.4, page 30)
Impact on surrounding wetlands and mangroves, as well as cyclone risk: This was left for vague future studies without any time frame or modus operandi.

Therefore, the LSA demands that no lenient view be taken on the company-POSCO. The project should immediately be scrapped, the Company should be booked for manipulating facts and misleading the nation and all officers involved in the criminal conspiracy against the people and land must also be booked under law and tried. The CAG report has clearly shown how land has been under valued to suit the interests of the company. WE also see how the Collector, Jagasinghpur has decorated his official residence with money from rehabilitation/compensation fund. On the other hand one sees how even the grass root democracy like the GP has been dishonoured and the elected leaders not allowed to function.The battle is not yet over. People will not depend on any judicial process. But recent verdict of the NGT shows that people were right in their opposition and they will continue their struggle against any unjust and immoral imposition on them which would destabilize their life and livelihoods.

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State law department objects to MoU renewal with Posco

Business Standard 

30 March 2012

Kolkata / Bhubaneswar - The Orissa law department has objected to the proposal to extend or renew the memorandum of understanding (MoU) signed with the Korean steel maker Posco, saying that it will be illegal to extend the validity of an expired MoU.

The five-year term of the MoU signed between the Orissa government and Posco in June 2005 for setting up of a 12 million steel plant at Paradip, had lapsed in 2010. The two parties had been in negotiation since for renewal of the MoU with some changes in original terms and conditions.

The MoU hurdle has further queered the pitch for the steel giant which was facing problems in getting the project off the ground due to agitation by the locals to land acquisition and delays in getting statutory forest and environment clearances.

"In the instant case it appears that 5 years have already expired. So, after expiry of the period of validity, extension of the same may not be possible. Extension is made prospectively before the expiry of the original MoU," the law department said.

In the absence of a valid MoU, the state government was often criticised by the opposition political parties for going ahead with land acquisition and other facilitating work for the  project.

The law department, although did not see any legal problem in going ahead with land buying without a proper MoU, suggested that the state government must sign a tripartite agreement with Posco India and its parent company based in South Korea. It also offered a way out to validate all the project related work done after the expiry of the MoU.

The law department's comments were discussed threadbare in a high level meeting of senior bureaucrats chaired by chief secretary BK Patnaik this week. Apart from the law secretary, senior officials and secretaries of steel and mines and industries department took part in it.

The meeting decided, "An instrument (a legal agreement or deed) may be signed allowing further time for establishment of the project after obtaining orders of the government. The instrument will contain a clause providing that the actions done pursuant to the provisions of the original MoU after expiry of the validity period will be treated to have been done as per the instrument,"

"The instrument may contain the details of revised clauses or new additions with a provision that the clauses not specifically revised, will remain as such as provided in the original MoU," the group of officials recommended.

It may be noted two weeks before the expiry of the MoU, Posco India had applied for its renewal on June 8, 2010. However, the state government had wanted some changes in the terms and conditions of the original MoU, particularly in reference to raw material swapping clause and addition of new clause on prioritizing jobs for locals. The difference between the two sides on these issues had delayed the renewal process.

The state government, after dragging its feet over MoU renewal for more than a year, has shown interest to make progress in the formalities, ostensibly after the Prime Minister Monmohan Singh assured the South Korea President about speedy expedition of clearances for the project last week.

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POSCO Judgment of National Green Tribunal

National Alliance of People's Movements Briefing Note

30 March 2012

On March 30, 2012, the National Green Tribunal held in Prafulla Samantra and Anr. vs Union of India and Ors. that the 31.1.2011 final order of the Environment Ministry - permitting the POSCO project to go ahead with certain conditions - should be suspended until a full review of the project can be undertaken (by specialists with fresh terms of reference). The NGT Bench consisted of Justice C.V. Ramulu, Judicial Member, and Dr. Devendra Kumar Agarwal, Expert Member.

The tribunal has observed that, "A close scrutiny of the entire scheme ... reveals that a project of this magnitude particularly in partnership with a foreign country has been dealt with casually, without there being any comprehensive scientific data regarding the possible environmental impacts. No meticulous scientific study was made on each and every aspect of the matter leaving lingering and threatening environmental and ecological doubts un-answered." (para 7, page 22)

It has also seriously questioned the appointment of Ms. Meena Gupta as the chairperson of the review committee which was set up by the MoEF in 2010. The judgement states that Ms. Gupta's appointment was "definitely hit by personal / official / departmental bias, in other words, she supported the decision made by her earlier. This is in gross violation of principles of natural justice." (para 6.9 page 22)

Key Directions of the Green Tribunal

The Tribunal has directed a "fresh review of the Project" (para 8.1) that has to look at the problems noted in this judgment as well as the majority and minority reports of the earlier Enquiry Committee (see list of dates), etc. In particular it has to look at:

Land and infrastructure: The clearance was given for a 4 million tonnes per annum (MTPA) steel plant, but the land, water etc. were allocated for a 12 MTPA project (which has been POSCO's stated plan). The judgment directs MoEF to "consider optimizing the total land requirement for 4 MTPA steel plant proportionately."(para 8.5) Moreover, the impacts of other infrastructure for the plant have not been assessed at all, even though they were planned for a 12 MTPA plant.

Issues that should have been done now, but which MoEF left for future studies: On several points highlighted by the review committee, the MoEF just said future studies should be done and ignored the issue. The Tribunal finds this deeply unsatisfactory, and notes the following among other issues:

Water: The Tribunal said that "We are all aware that ... the drinking water is becoming scarce commodity and at every level precaution needs to be taken for protecting the drinking water supply to human habitation and preventing from utilizing such water for industrial use ... alternative water source for the present project, like creating/ constructing a small barrage or augmenting any other existing source at the cost of project proponent to avoid the utilizing the water meant for Cuttack city... could be examined." (para 7.4, page 29)

Pollution: The plant's discharge was also left for future study by MoEF. The Tribunal says this is a "serious environmental concern." (para 7.4, page 30)

Impact on surrounding wetlands and mangroves, as well as cyclone risk: This was left for vague future studies without any time frame or modus operandi. In addition, the Ministry has to frame a policy to ensure large projects are assessed in full for a single clearance (rather than being allowed to get piecemeal clearances for each component, as in this case) and for their full capacity at the start (paras 8.7,8.9). It also has to do a strategic assessment of the ports in Orissa. (para 8.8)

POSCO and the government sought to argue that the case cannot be filed as the original clearances were given in 2007 (and, incidentally, will expire in May/July this year). The Tribunal held that the 2011 order can still be looked at even if the 2007 ones cannot be; it therefore directed review and suspension of the 2011 order.

POSCO and/or the government can appeal this decision in the Supreme Court. Meanwhile, MoEF has to constitute a review committee of subject specialists (para 8.3), define timelines for compliance with conditions (para 8.4), establish a committee for monitoring compliance with these conditions (para 8.4). No work can start on the project until the review process is over.

The case was argued by Sr. Adv. Raj Punjwani, Adv. Ritwick Dutta and Adv. Rahul Choudhary for the petitioners.

Key Events

· June 2005: POSCO, Orissa government sign MoU for 12 million tonne steel plant, private port and captive iron ore mines. Protests begin in steel plant area and area is cordoned off by peaceful protesters.

· May 2007: Environmental clearance for port granted by Environment Ministry, then under A. Raja.

· July 2007: Environmental clearance for plant granted by Environment Ministry, then under PM. Secretary is Meena Gupta. Protests continue in the face of violent attacks and numerous arrests.

· December 2009: Forest clearance granted for taking over forest land by Environment Ministry, then under Jairam Ramesh.

· August 2010: Forest clearance suspended following complaints of violations of law, and Enquiry Committee constituted under Meena Gupta.

· October 2010: Three member majority of enquiry committee gives report saying environmental and forest clearances illegal. Meena Gupta dissents, holds clearances legal but recommends additional study and time to ensure compliance.

· January 31, 2011: Environment Ministry disregards both majority and minority reports, upholds environment and forest clearances, while prescribing some additional conditions (mostly consisting of additional studies to be done in future).

· June 2011: Prafulla Samantray challenges final order in National Green Tribunal.

· March 31, 2012: Green Tribunal judgment.

For further information:

Prafulla Samantray, activist and petitioner in this case, 09437259005
Prashant Paikray, POSCO Pratirodh Sangram Samiti, 09437571547
Kanchi Kohli, activist, 9811903112
Shankar Gopalakrishnan, Campaign for Survival and Dignity, 9873657844

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Open Letter to Naveen Pattnaik, the Chief Minister of Odisha State, India

The Chief Minister of Odisha State, Naveen Pattnaik
Bhubaneswar-751001
Odisha, India

23 March 2012

We - human rights, labor, and civic organizations in Korea - are writing to you with our deep concern regarding the current attacks continuously made to villagers who are opposing the construction of POSCO steel plant.

Even 6 years have been passed since the project in Odisha State had begun, POSCO could never have had approval from the villagers. And conflicts surrounding the construction of ironworks are continued.

The villagers made their peaceful resistance lying down on the roads while the government of Odisha State mobilizing the police to take their lands by force. This was on the rise to international community, including Korea, as a human rights issue.

Recent few months, however, the villagers and Anti-P OSCO activists are being attacked by anonymous groups of armed men. On December 14, one person was killed and many were injured by a group of armed mafias while protesting. Bapi Sharkel is suspected to be the leader of this attack, however, Odisha police had not made proper investigation on this. Rather, questions are suggested that Odisha State is securing him.

Odisha State had not made fair work on Bapi Sarkhel, principal offender of the violence on December 14, and even had released him on February 29. And after 2 days from his release, another villager was attacked by an unidentified armed man.

A group of armed men came around 1PM on March 2, 2012 and took away Umakant Biswal, a known activist of the Anti-POSCO struggle. We got reports that he has been kept in Paradip police station and is being physically and mentally tortured. We do not know whether the attackers were the police, or the group of Bapi Sarkhel.

What is certain, however, is that Umakant Biswal, who was injured, could not exercise his legal rights. We are aware of the fact that, as per the Indian Criminal code, the police are supposed to produce him before the magistrate within 24 hours of arrest. However, more than 24 hours have passed but he has not been produced before the magistrate. No one including the villagers, lawyer or even the parents is allowed to meet him in the police station.

We are concerning on the reason that why Bapi Sarkhel didn't went through appropriate investigation and the testimony that he had received all kind of conveniences. Also, we strongly question the correlation between his release and the violence 2 days after that. If POSCO and the Odisha State government who wants to push ahead the construction are behind this series of incidents, this is gross abuse of human rights as well as significant part that damages the legitimacy of POSCO project.

There are many cases in korea which government and corporations oppressed the resistance of civilians by mobilizing gangsters over developments. The development project that does not protect right to life and right to live could never be successful.

We request Naveen Pattnaik, the Chief Minister of Odisha State

- To make thorough investigation into Bapi Sarkhel, including the criminals of the violence on December 14, 2011.

- To punish the offenders who had attacked Umakant Biswal and the police who had violated the article 57 of the code of criminal procedure and had refused to hospitalizing and conference with attorney.

- To stop the suppression on the villagers who oppose the construction of POSCO.

- Not to push ahead the construction without the consent of villagers.

Sincerely yours,

Advocates Public Interests Lawyers
Corporation For All
Energy & Climate Policy Institute for Just Transition
International Solidarity Committee of Minbyun
Korean House for International Solidarity
Korean Lawyers for Public Interest and Human Rights
Network for Glocal Activism
People's Solidarity for Participatory Democracy
People's Solidarity for Social Progress
Public Interest Lawyers' Group Gonggam
SARANGBANG group for human rights