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Rampal Power Station

Not worthy of a summary rejection

Syed Em ran Hossain
FROM the very beginning the Rampal power station became the subject matter of criticism and faced the allegation that it is going to violate the Environmental Impact Assessment (EIA) Guidelines and will have a negative impact on the ecological system. It was alleged that the project is against the Ramsar Convention (international treaty 1971) which is the only global environmental treaty that deals with reservation of wetlandsand Bangladesh became a signatory in 1992.
According to environmental experts the plant might destroy the world's largest mangrove forest Sundarbans. There are high risks of water, air, soil and noise pollution. The plant may also be responsible for increased air temperature, pollution from coal ash, health hazards. As a result it will have a destructive impact on the ecosystem. The National Committee on Protection of Oil, Gas, Mineral Resources and Power-Port, environmentalist groups, bodies of the left-leaning parties and general people of Bangladesh vowed against the Rampal power plant. The main opposition political party also vigorously opposed the power plant project.
On the other hand the government strongly continues to assert that they have taken highest measures so that Rampal power project does not cast any adverse impact on the Sundarbans. The Prime Minister said, while inaugurating Bangladesh-India Power Transmission Centre and laying foundation stone of Moitree Super Thermal Power Project, that the government is going to use high quality coals, high chimney and latest technology to minimize the air and water pollution.
In the midst of blame game, on 29 September 2013, four Supreme Court (SC) lawyers filed Writ Petition seeking a direction to stop the construction of Rampal power plant near the Sundarbans mangrove forest. The petition urged the court to direct the government to form a committee that includes national and international experts for giving a report assessing the impacts of the power plants on the environment and the lives of the common people of the surrounding area, and sought a stay order on the activities of the project till the committee issues a final report. The bench of Justice Naima Haider and
Justice Zafar Ahmed heard the matter for few days and on 2 October 2013 the junior judge felt 'uncomfortable' and no stay was granted. Consequently the matter was referred to the Chief Justice and he send the matter before the bench of Justice M Moazzam Husain and Justice Md Badruzzaman and that bench on 6 October 2013 summarily rejected the petition on the ground that it lacks substantial merit and the petitioners had no jurisdiction to move such petition.
In the above way such an important national and international issue was summarily decided. In the recent world environmental protection gets utmost priority and it is the duty of the judiciary to view the need to uphold human rights on one hand and the environmental protection on the other hand as the two faces of the same coin. American Supreme Court holds the view that the judiciary as a guardian of fundamental rights should protect the right of each individual in relation to environment and for this purpose national and international landmark cases should be considered. In the case of City Sugar Industries Limited v Human Rights and Peace for Bangladesh reported in 62 DLR (AD) 428 the Appellate Division relied on the maxim Salus Papuli Suprema lexesto i.e. let the safety of the people be the supreme law and held that the court must ensure safety to the people. Beside such judicial maxims we have our own legal mechanism or instrument to deal with such crisis.
The parent law in Bangladesh in this regards is the Bangladesh Environment Conservation Act 1995. According to section 2(g) of this Act "ecosystem" means the inter-dependent and balance complex association of all components of the environment which can support and influence the conservation and growth of all living organisms. Furthermore "pollution" means the contamination of the physical, chemical or biological properties of air water or soil, including change in their temperature, taste, odour, density, or any other characteristics, such other activity which, by way of discharging any liquid, gaseous, solid, radioactive or other substances into air, water or soil or ;any component of the environment, destroys or causes injury or harm to public health or to domestic, commercial, industrial, agricultural, recre-
ational or other useful activity, or which by such discharge destroys or causes injury or harm to air, water, soil, livestock, wild animal, bird, fish, plant or other forms of life [subsection (b)|.
The Act also provides that it is the duty of the Director General of Environment Department to advise the government and as per the Act no industrial unit or project shall be established or undertaken without obtaining, in the manner prescribed by rules, an Environmental Clearance Certificate from the Director General (section 12). Therefore, though the government obtained clearance certificate, there is a likelihood that, as per the allegations, the power plant project at Rampal may constitute environmental pollution and hamper the ecosystem as per the Act of 1995. It can be noted that National Thermal Power Corporation (NTPC) failed to get approval of the Indian Central Green Panel (Green Tribunal) in 2010 for the construction of that coal-fired thermal power plant because a vast portion of doublecrop agricultural land reportedly comprised the site, a similar situation to Rampal.
It is also true that court can refuse to exercise its writ jurisdiction if the extent of damage is negligible and the project is an important development for the economic and social structure of the people (Coa Foundation v Konkan Railways Corporation AIR 1992 Bom. 471). However, in case of a matter of national importance and significance a more cautious step could have been taken. The arguments put forward by both parties along with the legal principles involved critical and scientific analysis. Therefore amicus curies could have been appointed or at least a Rule Nisi been issued. Moreover government's action was questionable. They have unveiled the foundation plaque of the power plant pending the Writ Petition.
The petitioners have already expressed their willingness to go to Appellate Division against the order of the High Court Division. Hope Appellate Division will balance needs of the environment with the needs of the community at large and needs of the developing country. It is expected that government should not proceed any further till disposal of the matter by the Apex Court if pending.
THE WRITER IS AN ADVOCATE, SUPREME COURT OF
BANGLADESH.