Sudiep Shrivastava v. Union of India, Appeal No. 73/2012 (March 24, 2014)
National Green Tribunal
The Ministry of Environment and Forests approved a proposal to clear 1,900 hectares of forest land for coal mining. The Minister overruled a recommendation by the Forest Advisory Committee (FAC) to preserve the forest, claiming in part that the mining would occur in a “fringe” area separated from a biodiversity-rich forest (and mining no-go area) by a significant ridge. Para. 3. The Minister also claimed that the coal mining was necessary to support energy production in the states of Chhattisgarh and Rajasthan.
The appellant challenged the Minister’s decision to overrule the FAC’s recommendation, stating that the decision was “purely on his subjective assessment without there being any basis for it; and the Minister had no power to take a contrary view from the one taken by the expert body. . . .” Para. 5. The Minister also ignored that the forest area had been designated “no-go” for mining. The Tribunal considered whether recommendations of the FAC are binding and whether the Minister provided sufficient basis to overrule the FAC’s recommendation. Para. 11.
The Tribunal first declared that advice from the FAC is not binding, but cannot be ignored by the Minister without scientific basis. The Tribunal explained: “In our considered view the advice of the FAC springs from its opinion – an opinion of an expert body and to overturn the same there should be appropriate reasoning backed by data the expert’s opinion carries its value, not only persuasive but weighty enough to tilt the scales either in favour or against the proposal examined and as such cannot be brushed aside on conjectures or imaginative grounds having no basis anywhere. Mere expression of the fanciful reasons relating to environmental concerns without any basis in fact situation, scientific study or past experience would not render the advice of the FAC – a body of experts inconsequential. The Minister rejecting the recommendation of such expert body must bear in mind that he is countering an expert opinion/viewpoint and in doing so he must meet it with such opinion or viewpoint which it would outweigh both by content and quality as aforesaid.” Para. 21.
The Tribunal then assessed the Minister’s reasons for overturning the FAC’s recommendation. It declared that “there is a reason for the State Governments to persistently follow up the opening of the coalfields as [their] power generation plants are linked to the coal blocks. However, these are anthropocentric reasons the merit of which needs to be evaluated in context with ecocentric reasons in order to understand whether the development proposed is sustainable.” Para. 28. It also found there to be little support for the Minister’s other rationales. The Tribunal concluded that the “Minister acted arbitrarily and rejected the FAC’s advice for the reasons having no basis either in any authoritative study or experience in the relevant fields. In short the reasons adduced by the Minister fail to outweigh the advice rendered by the FAC. This calls for quashing of the Minister’s order.” Para. 49.
The Tribunal also took issue with the FAC’s assessment of the proposed mining project, stating that it failed to give due regard to certain key issues surrounding the project. Paras. 45-48.