Environmental Law Moot

MEMORIAL ON BEHALF OF RESPONDENTS
Problem No:- A2
Roll No :- 10BAL053
environmental law moot court competition
Before the HONORABLE HIGH COURT Of jamboodweep WRIT PETETION NO..........OF 2013
IN THE MATER OF :
PEOPLE ....................................................................................PETETIONER VERSUS STATE OF JAMBOODWEEP .................................................................................RESPONDENTS
Page 1
TABLE OF CONTENTS
LIST OF ABBREVIATIONS....3
INDEX OF AUTHORITIES...4-5
STATEMENT OF JURISDICTION....6
STATEMENT OF FACTS.....7
ISSUES RAISED. ....8
SUMMARY OF ARGUMENTS...9
ARGUMENTS ADVANCED......10-19
PRAYER .......20
Page 2
LIST OF ABBREVIATIONS
1. Mr. - Mister 2. SC- Supreme Court 3. AIR- All India Reporter 4. &- And 5. Honble- Honorable 6. u/s- under section 7. r/w- Read with 8. Govt.- Government 9. FIR- First Information Report 10. LJ- Law Journal 11.Cri- Criminal 12. Edt. Edition 13.OLR Orissa Law Review 14.MoEF Ministry of Environment and Forest 15.C.R.Z Costal Zone Regulations
Page 3
INDEX OF AUTHORITIES
CASE REFERRED
Dahanu Taluka Environment Electricity Supply Company ltd 1 Bses Limited V/S Union Of India 2 Carlos Noronha & Anr V/S Union Of India & Ors3 Protection Group v. Bombay Suburban
Fishermen Co-Operative Society, Bibinagar Village And Mandal, Nalgonda Dist V/S A P Pollution Control Board4 Indian Council For Enviro-Legal Action V/S Union Of India5 Intellectuals Forum, Tirupathi V/S State Of A P6 Intellectuals Forum, Tirupathi V/S State Of A P7 Jana Jagruthi Samithi V/S Union Of India8
1991 (2) JT 1, 1991 (1) Scale 472, 1991 (1) UJ 578, 1991 (2) SCJ 446, 1991 (2) SCC 539, 1991 (3) BCR 39, 1991 AIR(SCW) 910 2 BSES LIMITED V/S UNION OF INDIA 2001 (1) BCR 394, 2001 (1) AllMR 435, 2001 AIR(Bom) 128
3
2011 (113) BLR 609, 2011 (2) BCR 36, 2011 (1) AllMR 589
4 5 6 7
2001 (5) ALD 755, 2001 (6) ALT 162 1997 ILR(Kar) 2956 2006 3 SCC 549 2006 3 SCC 549
1991 2 KarLJ 524
Page 4
Lakshminagar Welfare Society V/S State Of Andhra Pradesh 9
M Nizamudeen V/S Chemplast Sanmar Limited, Rep By Its General Manager (Legal), T Ravichandran And Ors 10 S K Bansal V/S Union Of India 11 Sadanand S Varde V/S State Of Maharashtra 12 Dyeing & Mfg. Co. Ltd(3) v. Bombay Environmental Action Group13 Goa Foundations v. Diksha Holdings(P) Ltd14 Consumer and civic action group v. Union of India 15
Fertilizers and Chemicals Travancore Ltd. Employees Assn. V. Law Society of India16
G.Sundarrajan v. The Union Of India17
2001 LawSuit(AP) 165 2010 (2) JT 623, 2010 (3) UJ 1362, 2010 (2) Supreme 358 11 1998 4 AD(Del) 828 12 2001 1 BCR 261
10
13 14
( 2005)5 SCC 561 AIR 2001 SC 184
15 16 17
AIR 2002 Mad 298, 2002 (3) MadLW 393
AIR 1994 Ker 308 G.Sundarrajan v. The Union Of India W.P.No.24770 of 2011
Page 5
Websites Referred
www.manupatra.com www.indiankanoon.org www.alastairhudson.com www.indianjuris.com www.vakilno1.com www.westlawindia.com www.thehindu.com www.levonstechnology.com
Page 6
STATEMENT OF JURISDICTION
The following petition has been made under Art-226 of the Constitution Of Jamboodweep in the Honble High Court with compliance to the notice issued by the Honble Court . The counsel stands on the behalf of the Respondents .
Page 7
STATEMENT OF FACTS
1. Jamboodweep, in the Indian Ocean, is a peninsular country having an eco-system and a legal order similar to that of India. 2. Within 500 metres of the CRZ Area, one of the States in the region, which is the economic capital of Jamboodweep, has planned to build a Thermal Power Plant, to meet its growing energy demands. 3. Environmental Clearances for the same have been given. 4. Certain concerns have been raised by the local residents of the nearby area regarding the ecological impact of the said thermal power plant. 5. A Public Interest Litigation has been made, which has brought this case into action.
Page 8
ISSUES RAISED
ISSUE 1 :- Whether the establishment of the Thermal Power Plant is in accordance with law . Were the Regulations complied with . Why is there a need to comply with the said regulations.
ISSUE 2 :- Whether there is a contravention to the Doctrine of Sustainable Development . What is Sustainable Development. Mere apprehension cannot be grounds for decommission.
ISSUE 3 :- Why the thermal power plant would not be harmful to the citizens.
Page 9
SUMMARY OF ARGUMENTS
ISSUE 1 :- Whether the establishment of the Thermal Power Plant is in accordance with law . It is submitted that the first issues deals with the regulations concerning the Creation of a Thermal Power Plant within the C.R.Z area. It also goes on to establish the fact that a Thermal Power Plant can be legally set up in the C.R.Z area if the required clearances are provided.
ISSUE 2 :- Whether there is a contravention to the Doctrine of Sustainable Development It is submitted that this issue defines what the courts infer from the term Sustainable Development and how it co relates to the development of the Environment and Development for the society at large .
ISSUE 3:- Why the thermal power plant would not be harmful to the citizens It is submitted that this issue makes it explicitly clear that not only were the regulations complied with but other notifications of the government have also been taken up for enforcement.
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ARGUMENTS ADVANCED
ISSUE 1 :- Whether the establishment of the Thermal Power Plant is in accordance with law . Were the Regulations complied with . It is submitted that consent has been provided for all required clearances. The same has been done in accordance with the laws of the state and the clearances have been given by the Ministry of Environment and Forest, Jambodweep. The said consent has been admitted in accordance with the regulations adapted as passed by the Indian Legal System. The said clearance have been obtained in accordance with the notification dated 6th January 2011 by the Ministry of Environment and Forest, India 18. Paragraph 3 of the said notification states about Prohibitive activities within CRZ19 Which includes setting up of new industries however the exception clause clarifies that the aforementioned restriction shall not apply to the following industries :3. Prohibited activities within CRZ,- The following are declared as prohibited activities within the CRZ,(i) Setting up of new industries and expansion of existing industries except,(a) those directly related to waterfront or directly needing foreshore facilities; Explanation: The expression foreshore facilities means those activities permissible under this notification and they require waterfront for their operations such as ports and harbours, jetties, quays, wharves, erosion control measures, breakwaters, pipelines, lighthouses, navigational safety facilities, coastal police stations and the like.;
18
COASTAL REGULATION ZONE NOTIFICATION MINISTRY OF ENVIRONMENT AND FORESTS (Department of Environment, Forests and Wildlife) To be published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii) of dated the 6th January, 2011)
19
CRZ :- Costal Regulation Zone
Page 11
Further the paragraph 4 talks about the Regulation of certain activites within the C.R.Z and the sub section (ii) further enumerated the industries which would require the prior clearance from the MoEF20. The relevant portion is as under : 4. Regulation of permissible activities in CRZ area.- The following activities shall be regulated except those prohibited in para 3 above,. . . (ii) the following activities shall require clearance from MoEF, namely:(a) those activities not listed in the EIA notification, 2006. (b) construction activities relating to projects of Department of Atomic Energy or Defence requirements for which foreshore facilities are essential such as, slipways, jetties, wharves, quays; except for classified operational component of defence projects. Residential buildings, office buildings, hospital complexes, workshops of strategic and defence projects in terms of EIA notification, 2006.; (c) construction, operation of lighthouses; (d) laying of pipelines, conveying systems, transmission line; (e) exploration and extraction of oil and natural gas and all associated activities and facilities thereto; (f) Foreshore requiring facilities for transport of raw materials, facilities for intake of cooling water and outfall for discharge of treated wastewater or cooling water from thermal power plants. MoEF may specify for category of projects such as at (f), (g) and (h) of para 4; (g) Mining of rare minerals as listed by the Department of Atomic Energy; (h) Facilities for generating power by non-conventional energy resources, desalination plants and weather radars; (i) Demolition and reconstruction of (a) buildings of archaeological and historical importance, (ii) heritage buildings; and buildings under public use which means buildings such as for the purposes of worship, education, medical care and cultural activities; The aforementioned provisions of the said regulation have been so highlighted to bring to notice the point about due process of Law required for obtaining permission for establishing a Thermal Power Plant in the C.R.Z area. The aforementioned regulation makes it clear that a Thermal power Plant cannot be established without the prerequisite condition. In the present case, the said prerequisite conditions have not only been complied with but have also been given consent to by the Government of Jambodweep. Hence the question about due process of law has been fully complied with.
20
MoEF :- Ministry of Environemt and Forest, India.
Page 12
Why is there a need to comply with the said regulations ? In order to establish the aforementioned sub point, it is submitted that a Thermal Power Plant relies upon the usage of water in a large quantity. The same has been enumerated by the Delhi Electricity Board in its report on Minimisation of water requirements in Coal Based Thermal Power Plants21 The operative portion of the said report is as under :Water is one of the key input requirements for thermal power generation. Water is required for process cooling in the condenser, ash disposal, removal of heat generated in plant auxiliaries, and various other plant consumptive uses. For power plants located on main land, the raw water is generally drawn from fresh water source such as river, lake, canal, reservoir, barrage. Treated sewage water may also be used as source of raw water for the power plants located adjacent to the cities. For power plants located in coastal areas, water for cooling of condenser and auxiliaries is drawn from the sea or creek which provides for water requirement of the wet ash handling system also. The requirement of water for other plant consumptive uses is met from an alternative source or by installing desalination plant The aforementioned report makes it abundantly clear that in a Thermal Power Plant, water is one of the key requirements to complete the process of energy generation. A study conducted by the United States Department Of Energy/ Natural Energy technology Laboraty also states 22: Most of the demand for water in thermoelectric plants is for cooling water for condensing steam. Thermoelectric power production is the conversion of thermal energy into electrical energy. This is done in two ways, the Brayton cycle and the Rankine Cycle. In the Rankine cycle (or steam cycle), fuel is used to heat a liquid to produce a high pressure gas (usually water is heated to produce steam), which is expanded over a turbine to produce electricity. The aforementioned studies make it amply clear that Water plays an integral part in the process of Energy Generation in a Thermal Power Plant. Water is essentially required for :1. 2. 3. 4. Water is first boiled to convert it into steam. The steam is them made to rotate a turbine . This rotation of the turbine produces energy. The steam is then condensed and is then re-heated to form steam and the cycle continues.
21
Report on Minimisation of Water requirement in Coal based Thermal Power Stations Central Electricity Authority , New Delhi January2012 22 Department of Energy, National Energy Technology Laboratory, Power Plant-Water R&D Program Barbara
*
by:- Carney , Thomas Feeley, and Andrea McNemar U.S. Department of Energy/National Energy Technology Laboratory
Page 13
Hence water is one of the most crucial requirements of any Thermal Power Plant. Hence the Power Plant Comes under the exception of Paragraph 3 of the MoEF notification. Further it comes under the paragraph 4 of the MoEF notification which states about activities which are permitted in C.R.Z area which include Foreshore activities. It is submitted that :a. The Thermal Power Plant has complied with all the regulations b. The Thermal Power Plant comes under the preview of MoEF Notification and hence the aforementioned regulations for which consent is granted are directly applicable to it . Further it is submitted that the Supreme Court in the landmark judgement of Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Company ltd. 23Held that :we are satisfied that the clearance to the thermal power station was granted by the Central Government after fully considering all relevant aspects and in particular the aspects of the environmental pollution of air, water and environment have been insisted upon in the conditions of grant In the present case, the Government has given all the clearances after full consideration of relevant aspects of environment pollution of air, water and environment. This aforementioned reasoning of the Supreme Court of India was upheld in various cases
1. 2. 3. 4. 5. 6. 7. 8. 9. 10.
23
Bses Limited V/S Union Of India 24 Carlos Noronha & Anr V/S Union Of India & Ors25 Fishermen Co-Operative Society, Bibinagar Village And Mandal, Nalgonda Dist V/S A P Pollution Control Board26 Indian Council For Enviro-Legal Action V/S Union Of India27 Intellectuals Forum, Tirupathi V/S State Of A P28 Jana Jagruthi Samithi V/S Union Of India29 Lakshminagar Welfare Society V/S State Of Andhra Pradesh30 M Nizamudeen V/S Chemplast Sanmar Limited, Rep By Its General Manager (Legal), T Ravichandran And Ors 31 S K Bansal V/S Union Of India 32 Sadanand S Varde V/S State Of Maharashtra 33
Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Company ltd. 1991 (2) JT 1, 1991 (1) Scale 472, 1991 (1) UJ 578, 1991 (2) SCJ 446, 1991 (2) SCC 539, 1991 (3) BCR 39, 1991 AIR(SCW) 910 24 BSES LIMITED V/S UNION OF INDIA 2001 (1) BCR 394, 2001 (1) AllMR 435, 2001 AIR(Bom) 128
25
2011 (113) BLR 609, 2011 (2) BCR 36, 2011 (1) AllMR 589
26 27
2001 (5) ALD 755, 2001 (6) ALT 162 1997 ILR(Kar) 2956 28 2006 3 SCC 549 29 1991 2 KarLJ 524 30 2001 LawSuit(AP) 165 31 2010 (2) JT 623, 2010 (3) UJ 1362, 2010 (2) Supreme 358 32 1998 4 AD(Del) 828
Page 14
ISSUE 2 :- Whether there is a contravention to the Doctrine of Sustainable Development . What is Sustainable Development. The term sustainable development was first coined at the by the Club of Rome in March 1972 in its epoch-making report on the "Limits to Growth", written by a group of scientists led by Dennis and Donella Meadows of the Massachusetts Institute of Technology. Describing the desirable "state of global equilibrium", the authors used the word "sustainable"34: "We are searching for a model output that represents a world system that is: 1. sustainable without sudden and uncontrolled collapse; and 2. capable of satisfying the basic material requirements of all of its people." However the term sustainable development does not mean the development of the environment without taking into consideration the needs of the people. The same has been upheld by the Supreme Court of India . In the case of Bombay Dyeing & Mfg. Co. Ltd(3) v. Bombay Environmental Action Group 35, the Supreme Court has observed : The development of the doctrine of sustainable development indeed is a welcome feature bit while emphasising the need of ecological impact, a delicate balance between it and the necessity for development must be struck, Whereas it is not possible to ignore intergenerational interest, it is also not possible to ignore the dire need which the society urgently require. What the court should follow is a principle of sustainable development and find a balance between the developmental need which the respondents assert and the environmental degradation that the appellants allege Furthermore the Supreme Court stated in the case of Goa Foundations v. Diksha Holdings(P) Ltd36 : The society have to prosper, but not at the cost of the environment and in the similar vein, the environment shall have to be protected but not at the cost of the development of the society there shall have to be both the development and the proper environment and as such, a balance has to be found out and administrative action out to proceed in accordance therewith and not dehorns the same The aforementioned judgements of the Supreme Courts highlight the fact that Development cannot be at the cost of the environment and the Environment cannot be protected at the cost of the urgent needs of the people.
33 34
35 36
2001 1 BCR 261 Club of Rome-1972
( 2005)5 SCC 561 AIR 2001 SC 184
Page 15
The State of Jamboodweep is in dire need of Electricity. In this competitive world, Jumboodweep has established a reputation of itself as being one of the better developing countries. However this development requires energy so that the production can go on. Hence there is s dire need for the Thermal Power Plant. The following table enumerates how the shortage of power was greatly reduced by the introduction of thermal power plants in India 37. Year 1996-97 1997-98 1998-99 1999-2000 2000-2001 2001-2002 Requirement 413490 424505 446584 480430 507216 388591 Availability 365900 390330 420235 450594 467400 360140 Shortage 47590 34175 26349 29836 39816 28451 Shortage 11.5 % 8.1 % 5.9 % 6.2 % 7.8 % 7.3 %
It goes without saying that this shortage has been further reduced with the introduction of more Thermal Power Plants in the State of India. Hence the need for development cannot be ignored. The Bombay High Court further in the case of Sneha Mandal Coop. Housing Society Ltd v. Union Of India38 held that :Development cannot be permitted at the cost of environment and the protection of environment cannot be permitted at the cost of development. They have to go hand in hand. Similarly in the case of Consumer and civic action group v. Union of India 39, the Madras High Court held : The Environment shall have to be protected, but not at the cost of the development of the society. Both the development and the environment shall coexist and go hand in hand. Therefore, a balance has to be struck and administrative action ought to proceed in accordance therewith, and not dehorn the same.
37 38 39
Ministry of Power, Government of Jambodweep, Annual Report 2001-2002, 2.7 AIR 2000 Bom 121, 2000 (1) BomCR 395, (2000) 1 BOMLR 13
AIR 2002 Mad 298, 2002 (3) MadLW 393
Page 16
Mere apprehension cannot be grounds for decommission. It is submitted that, mere apprehension of a future harm is not a sufficient ground for the termination of a project. A project such as a Thermal Power Plant has been given the due clearances only after due scrutiny of the various impacts on the environment. Further The Supreme Court in the case of Fertilizers and Chemicals Travancore Ltd. Employees Assn. V. Law Society of India40 held that We have to live with certain risks, which are counterbalanced by the services and amenities provided by these entities. Many factories, plants and utilities are vulnerable to certain risks but they cannot be decommissioned or dismantled. We have to live with them if they are serving the public interest and do not post grave threat to the environment.
A point that was recently upheld by the Honerable High Court of Madras in the Public Interest Litigation of G.Sundarrajan v. The Union Of India41 and others regarding the issue of Kundankulam Nuclear Plant and its reprocutions if allowed to be established in India. HON'BLE MR.JUSTICE P.JYOTHIMANI ,AND HONOURABLE MR.JUSTICE M.DURAISWAMY held that The mere apprehension of danger cannot be a ground for stalling any project and if such view is taken, no project could have come up in the world . The court was of the view that if we adopt a policy of abandoning projects because there is a fear that they could be harmful for the society then there would be no projects that would be allowed to set up . And we as an economy would never grow . In this era of globalisation , it is not only important to invest in other countries , but it is equally important to allow foreign money to enter into our country .
40 41
AIR 1994 Ker 308 G.Sundarrajan v. The Union Of India W.P.No.24770 of 2011
Page 17
ISSUE 3 :- Why the thermal power plant would not be harmful to the citizens. It is submitted that not only the regulations under Issue 1 have been complied with, but the following standards of the Environemt Protection Act have also been adhered to . There are well-defined regulatory requirements which imply that the government must regulate various aspects of the TPP operations and construction to reduce their environmental and social impacts In order to regulate the discharge of effluent and emission from TPPs, the following standards are notified under Environment (Protection) Act, 1986. Corresponding standards are 42:TEMPERATURE LIMIT FOR DISCHARGE OF CONDENSER COOLING WATER FROM THERMAL POWER PLANT A. New thermal power plants commissioned after June 1, 1999. New thermal power plants, which will be using water from rivers/lakes/reservoirs, shall install cooling towers irrespective of location and capacity. Thermal power plants which will use sea water for cooling purposes, the condition below will apply. B. New projects in coastal areas using sea water. The thermal power plants using sea water should adopt suitable system to reduce water temperature at the final discharge point so that the resultant rise in the temperature of receiving water does not exceed 7C over and above the ambient temperature of the receiving water bodies. C. Existing thermal power plants. Rise in temperature of condenser cooling water from inlet to the outlet of condenser shall not be more than 10C. D. Guidelines for discharge point. 1. The discharge point shall preferably be located at the bottom of the water body at mid stream for proper dispersion of thermal discharge. 2. In case of discharge of cooling water into sea, proper marine outfall shall be designed to achieve the prescribed standards the point of discharge may be selected in consultation with concerned State Authorities/ NIO.
The said Thermal Power Plant not only complies with all the aforementioned reports, but also has complied with the industry standards for protection of the Environment.
42
Source: EPA Notification [GSR 7, dated Dec. 22, 1998]
Page 18
The sustainable development approach claims to be able to avoid the environmental degradation that has previously accompanied economic growth by integrating economic and environmental decisions. For most governments this means incorporating the environment into the economic system. David Pearce and his colleagues, in their report on sustainable development to Margaret Thatcher, then British Prime Minister, said that the principles of sustainable development meant recognizing that 'resources and environments serve economic functions and have positive economic value.43 As a component of the economic system, the environment is seen to provide raw materials for production and to be a receptacle for its wastes.
Traditional model of an economic system.
This has now been modified to include environmental resources Modified model of an economic system.
This new approach of the government towards developments does put some extra amount of pressure on the environment , however in these changing times, the resources have to be utilised to the maximum, minimizing the amount t of waste produced. Only then can there be any significant development.
43
'(1989, p.5)
Page 19
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Honble Court may be pleased to state : 1. That the PIL is not maintainable because the principles of Environmental Protection are not being violated.
2. The court should remove any hindrances caused due to this PIL in the way of introduction of the said Thermal Power Plant.
And order any other relief that this Honble Court may deem fit in the interests of justice, equity and good conscience. For this act of kindness the counsel shall duty-bound ever pray.
Page 20

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MEMORIAL ON BEHALF OF RESPONDENTS