HANUMAN LAXMAN AROOSKAR versus UNION OF INDIA & ORS. on 16 January 2020

SUPREME COURT REPORTS

[2020] 1 S.C.R.

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HANUMAN LAXMAN AROOSKAR

v.

UNION OF INDIA & ORS.

M.A. No.965 of 2019 IN

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(Civil Appeal No. 12251 of 2018)

JANUARY 16, 2020

[DR. DHANANJAYA Y CHANDRACHUD ANDHEMANT GUPTA, JJ.]

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CEnvironment – Environmental clearance for a greenfieldairport – The Union of India sought a direction that the minutes ofthe fortieth meeting of the Expert Appraisal Committee (EAC) dated23.4.2019 be taken on the record so that the embargo imposed bythe Supreme Court on the Environmental clearance (EC) for agreenfield airport at Mopa Goa can be lifted – Earlier, the SupremeDCourt in its judgment reported as Hanuman Laxman Aroskar v. Unionof India (2019 SCC Online 441) held that the process leading up tothe grant of an Environmental clearance on 28.10.2015 was flawed– Held: On reading of the process leading upto the instant proceedings,it cannot be said that EAC has, it its appraisal process, ignored theEconcerns which were highlighted by the Supreme Court – The EAChas adequately addressed four areas i.e. (i) Forests; (ii) Ecologicallysensitive areas; (iii) Western Ghats and (iv) Flora & Fauna and haslaid down additional conditions to ensure the adequate protectionof the environment – A comprehensive process has been followed bythe EAC bearing in mind the requirements of the Airport GuidanceFManual – The process which has been adopted by the EAC and itsultimate conclusions must be scrutinized, in the course of judicialreview, in the context of the limitations which were attached to theCourt conducting a merits based review – Earlier, the Court did notquash the EC but suspended it until the EAC revisited itsGrecommendations in the light of the concerns which were expressedby the Supreme Court – Having assessed the process which tookplace following the judgment of the Supreme Court and outcome, itwould be difficult to hold that it fails to meet the standards whichthe Court applies in the course of judicial review in the environmentalmatters – The minutes of the meeting of the EAC dated 23.4.2019H

are taken on record – The additional conditions which have beenimposed by the EAC shall, together with the original conditions ofthe EC dated 28.10.2015 and the directions issued by the NGT becumulatively observed – Also in the earlier judgment, the SupremeCourt noted abject failure of the project proponent to providecomplete information on the existence of reserved forests – In theproceedings that followed the judgment, the project proponent soughtto remedy its failure by taking into account additional informationon the significant aspects of the environment – In the process leadingto the grant of the EC as well as the Registry of its suspension bythe Supreme Court, numerous mitigatory conditions have beenimposed on the project proponent – To ensure the oversight of theproject by a specialized body to ensure compliance with thedirections cumulatively issued by the Court, the NationalEnvironmental Engineering Research Institute to be appointed tooversee compliance with directions cumulatively issued by theSupreme Court – The suspension on the EC accordingly, stand lifted.

Disposing of the Miscellaneous Application, the Court

Conclusion

Disposing of the Miscellaneous Application, the Court HELD: 1. During the course of the judgment which wasrendered by this Court on 29 March 2019, certain flaws werenoticed in the process leading up to the grant of an EC on 28October 2015. The project proponent had not complied with itsobligation to make a full disclosure of information on materialaspects of the environment in Form 1 as an intrinsic part of theEIA process. This Court specifically recorded its concerns onvital aspects which had not been adequately addressed by theEAC. Having noticed the flaws in the process and the deficienciesin the decision making process of the EAC, the Court directedthe EAC to revisit the recommendations made by it for the grantof an EC including the conditions which it had formulated, havingregard to the specific concerns which were highlighted in thejudgment. Thereafter if the EAC were to allow the constructionto proceed, it was directed to impose additional conditions toprotect the terrestrial eco-systems. The EAC was under a specificmandate to lay down conditions pertaining to air, water, noise,land and the biological and socio-economic environment. Duringthe course of this judgment, this Court has traced the process asit evolved before the EAC following the earlier directions of this AB

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ACourt. The net result of the process is that the concessionairehas been subjected to a slew of mitigatory conditions: 53 in theoriginal EC, 16 at the behest of NGT and 40 imposed by the EACin the second round. On a reading of the process leading uptothe present proceeding, it cannot be said that the EAC has, in itsappraisal process, ignored the concerns which were highlightedBby this Court. The appellant focused submissions on four areasnamely (i) Forests; (ii) ESAs; (iii) Western Ghats; and (iv) Floraand Fauna. The EAC has adequately addressed these concernsand laid down additional conditions to ensure the adequateprotection of the environment. [Para 42][1069-G-H; 1070-A-D]

C

2. A comprehensive process has been followed by the EACbearing in mind the requirements of the Airport GuidanceManual. The EAC took note of the presence of reserved forestsand of ESAs in the Western Ghats and deliberated on the impactof the construction and operation of the proposed airport on floraDor fauna, hydrological systems and climatic variations. Theprocess which has been adopted by the EAC and its ultimateconclusions must be scrutinized, in the course of judicial review,in the context of the limitations which are attached to the courtconducting a merits based review. The EAC has accounted forthe relevant factors outlined by this Court in its previous judgmentEin the assessment leading to the grant of the EC. [Para 44][1072-C-F]

3. The evaluation of merits is a matter which primarily restswith an expert authority. The court can certainly superviseprocedural compliance and ensure that all necessary inputs whichFare required to be factored into the decision-making process havebeen duly borne in mind. Once this has been done, the courtmust be circumspect in micro-managing the decision-makingprocess by the EAC by substituting its own opinion for that ofthe EAC. Undoubtedly, no process can be perfect or free fromGstudied criticism. The Appellant has attempted to perform suchan exercise when it was submitted that the collection of primaryfaunal data from a nearby village and secondary data from ZSIsources was not an adequate means of dealing with the concernsexpressed by this Court. In assessing these criticisms, this Court H

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must equally be cognizant of the fact that by the judgment of thisCourt dated 29 March 2019, the EAC was required to carry outthe exercise within a period of one month from the receipt of theorder of this Court. The Court did not quash the EC but directedthat it should remain under suspension until the EAC revisitedits recommendations in the light of the concerns which wereexpressed by this Court. Having assessed the process which tookplace following the judgment of this Court and the outcome, itwould be difficult for this Court to hold that it fails to meet thestandards which the court applies in the course of judicial reviewin environmental matters. [Para 45][1073-B-F]

4. For the above reasons, the minutes of the meeting ofthe EAC dated 23 April 2019 are taken on record as prayed for.The additional conditions which have been imposed by the EACshall, together with the original conditions of the EC dated 28October 2015 and the directions issued by the NGT becumulatively observed. [Para 46][1073-G]

5. The earlier judgment of this Court highlighted numerousdeficiencies by the project proponent leading to the grant of theEC. This Court highlighted numerous concerns including thepreservation of forests, the existence of ESAs with their attendantfeatures and the impact of the proposed project on natural waterchannels. The Court also noted the abject failure of the projectproponent to provide complete information on the existence ofreserved forests. In the proceedings that followed the judgmentof this Court, the project proponent sought to remedy its failureby taking into account additional information on significant aspectsof the environment. In the process leading to the grant of the ECas well as the lifting of its suspension by this Court, numerousmitigatory conditions have been imposed on the projectproponent. We deem it appropriate to ensure the oversight ofthe project by a specialized body to ensure compliance with thedirections cumulatively issued by this Court. This Court directsthe National Environmental Engineering Research Institute tobe appointed to oversee compliance with the directionscumulatively issued by this Court. The project proponent shallbear the costs, expenses and fees of NEERI. [Para 48][1090-A-D]

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ALafarge Umiam Mining Private Limited v. Union of India(2011) 7 SCC 338 : [2011] 7 SCR 954 – relied on.

Hanuman Laxman Aroskar v. Union of India (2019)SCCOnline SC 441 – referred to.

Case LawReference

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[2011] 7 SCR 954relied onPara 44

CIVIL APPELLATE JURISDICTION: Miscellaneous ApplicationNo. 965 of 2019. In Civil Appeal No. 12251 of 2018.

From the Judgment and Order dated 21.08.2018 of the NationalCGreen Tribunal, Principal Bench, New Delhi in Appeal No. 6 of 2018(earlier Appeal No. 1 of 2016/WZ)

Ms. Anitha Shenoy, Sr. Adv., Ms. Rashmi Nandakumar, RitwickDutta, Ms. Kanika Sood, Sanjana Thomas, Ms. Ayushana Awasthi,Shankar Narayanan, Advs. for the Appellant.

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K.K. Venugopal, AG, ANS Nadkarni, ASG, Parag P Tripathi,Sr. Adv., Pratap Venugopal, Ms. Surekha Raman, Akhil Abaraham Roy,Vijay Valson, Ms. Suhasini Sen, S.B. Narayan, S.S. Rebello, Arzu Paul,Neeleshwar Pavani, Shivika Agarwal, Niraj Kumar, Ms. Priya Soni,Gurmeet Singh Makker, M.S. Ananth, Mahesh Agarwal, Yojit Mehra,ESrinivasan Ramaswamy, Ms. Aashna Agarwal, E. C. Agrawala, Advs.for the Respondents.

The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

FINDEX

A. Introduction

B.Appraisal by the EAC

B.1Zero-Carbon programme

C.Genesis of the proposed airport

G

D. The present challenge

D.1Domain Expertise of the EAC

D.2Conflict of interest

H

D.3Western Ghats and ESAs

D.4Forestland and flora and fauna

E.Directions

A. Introduction

1. The Union of India in the Ministry of Environment, Forests andClimate Change[1] moved these proceedings, seeking a direction that theMinutes of the fortieth meeting of the Expert Appraisal Committee[2 ]dated23 April 2019 be taken on the record so that the embargo imposed bythis Court on the Environmental Clearance[3] for a greenfield airport atMopa Goa can be lifted. This follows upon the judgment dated 23 April2019 which was rendered on a challenge addressed to this Court againsta decision of the National Green Tribunal[4] upholding the EC, subject tocompliance with certain conditions. By the judgment of this Court, reportedas Hanuman Laxman Aroskar v Union of India[5], the process leadingup to the grant of an EC on 28 October 2015 was held to be flawed. Thedirections that were imposed by the Court were formulated in thefollowing terms:

“175. …

(i) The EAC shall revisit the recommendations made by it for thegrant of an EC, including the conditions which it has formulated,having regard to the specific concerns which have been highlightedin this judgment;

(ii) The EAC shall carry out the exercise under (i) above within aperiod of one month of the receipt of a certified copy of this order;

(iii) Until the EAC carries out the fresh exercise as directed above,the EC granted by the MoEFCC on 28 October 2015 shall remainsuspended;

(iv) Upon reconsidering the matter in terms of the presentdirections, the EAC, if it allows the construction to proceed willimpose such additional conditions which in its expert view willadequately protect the concerns about the terrestrial eco systems 1 MoEF-CC

2 EAC

3 EC

4 NGT

5 (2019) SCCOnline SC 441

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Anoticed in this judgment. The EAC would be at liberty to lay downappropriate conditions concerning air, water, noise, land, biologicaland socio-economic environment;

(v) The EAC shall have due regard to the assurance furnished bythe concessionaire to this Court that it is willing to adopt andBimplement necessary safeguards bearing in mind international bestpractices governing greenfield airports;

(vi) We grant liberty to the State of Goa as the project proponentand the MoEFCC, as the case may be, to file the report of theEAC before this Court in the form of a Miscellaneous ApplicationCso as to facilitate the passing of appropriate orders in theproceedings; and

(vii) No other Court or Tribunal shall entertain any challenge tothe report that is to be submitted before this Court by the EAC incompliance with the present order.”

DPending the completion of the process mandated in the aboveterms, this Court suspended the EC which had been granted on 28October 2015.

The directions issued by this Court required the EAC:

(i) To revisit its recommendations for the grant of the ECEincluding the conditions which it had imposed; and

(ii) To impose, in the event that it allowed the constructionof theairportto proceed additional conditionsto adequatelyprotectthe concerns governing the terrestrial eco-systems noticedin the judgment, besides formulating conditions pertaining toFair, water, noise, land, biological and socio-economicenvironment. While doing so, the EAC was under a mandateto take into consideration the specific concerns which werehighlighted in the judgment.

2. The basis of the directions that were issued by this CourtGwasformulated in the penultimate paragraphof the judgment which readsthus:

“174. Bearing in view the necessity to maintain a balance betweenthe need for an airport and environmental concerns, we are of theview that it would be appropriate if the EAC is directed to revisitH

the conditions subject to which it granted its EC on the basis ofthe specific concerns which have been highlighted in thisjudgment. Such an exercise primarily is for the EAC to carry outin its expert decision making capacity. The EAC is entrusted withthat function as an expert body. The role of judicial review is toensure that the rule of law is observed. Hence, we propose by thedirections which we will issue under Article 142 of the Constitution,to direct the EAC to revisit the conditions for the grant of an EC.While doing so, it would be open to the EAC to have due regardto the conditions which were incorporated in the order of the NGTand to suitably modulate those conditions in pursuance of the libertywhich we have preserved to it. To facilitate an expeditious decision,we propose to direct the EAC to carry out this exercise in aprescribed time schedule during which period, the EC shall remainsuspended. We propose to direct that after the EAC has formulatedits views, they shall be placed before this Court in a MiscellaneousApplication in the present proceedings, so as to enable the Courtto pass final orders. The Miscellaneous Application may be filedeither by the State of Goa as the project proponent or by theMoEFCC. We clarify that no other Court or Tribunal shall entertainany challenge to the ultimate decision of the EAC and final ordersthereon shall be passed by this Court in the present proceedings.”

3. Essentially, the concerns which were highlighted in the judgmentof this Court related to the need to preservethe biodiversity of the WesternGhats. These concerns have been the subject of a seminal exercisecarried out in 2013 by a High Level Working Group[6] on the WesternGhats chaired by Dr K Kasturirangan[7]. The report of the HLWG hasbeen dwelt upon in the earlier judgment and continues to be a focal pointof the continuing debate in the present case. The HLWG was constitutedunder the auspices of the MoEF-CC.Its report dated 15 April 2013 is avaluable contribution to the preservation of biodiversity in the pristineenvironment of the Western Ghats.

4. The judgment of this Court emphasized the failure of the Stateof Goa, as the project proponent, to provide complete information on theexistence of reserved forests including those which fall within a 15 kmradial distance of the proposed airport at Mopa.Underlying the serious 6 HLWG

7 Kasturirangan Committee report

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Adeficiency in the disclosure of information by the project proponent, thisCourt noted its concerns on certain specific aspects. These includedprimarily:

(i) Preservation of forests, including reserved forests;

(ii) Existence of EcologicallySensitive Areas[8] with their attendantBfeatures such as flora, fauna and environmental quality interms of water, soil, noise and climatic variations;

(iii) Impact of the proposed construction on the flow of water innatural water channels; and C(iv) Socio-economic and environmental concerns which wereraised in the course of public consultations.

B. Appraisal by the EAC

5. Following the judgment of this Court, the project proponentfurnished supplementary information to the EAC which revealed certainDsignificant environmental features. The disclosure is extracted below:

“a) There are seven reserved forests within 15 km. of the proposedAirport in the Goa region (under Section-20) and six proposedreserved forests (under section-4) of Indian Forest Act, 1927.(Survey of India Toposheet and Forest Working Plan of NorthEGoa)

b) There are twenty-nine proposed reserve forests within 15 km.of the proposed Airport in Maharashtra region under Section-4 ofIndian Forest Act, 1927 (Survey of India Toposheet & ForestDepartment, Sawantwadi Division)

Fc) There are four rivers in Goa viz. Terekhol river, Kalna river,Chapora river, Moide river and one river viz. Tilari river inMaharashtra (source: Survey of India Toposheet).

d) There are few patches of mangroves observed near Moideriver, Terekhol river, Chapora river.

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e) Western Ghat Mountain range falls within the study area.

f) There are two wetlands, of which one i.e. Anjuna reservoir hasbeen identified inNational Wetland Atlas of Goa.

g) There are no coastal areas and declared biospheres in the vicinityof the proposed airport site.”

6. The EAC tabulated the details of forest areas which fell withina radial distance of 15 kmsof the proposed airport and within the territoriesof the States of Goa and Maharashtra. The forested areas were foundto be situated in three talukasin the State of Goa (Bicholim, Pernem andBardez)and in three talukas in the State of Maharashtra (Sawantwadi,Dodamarg and Vengurla). In Pernem taluka, the information set out inthe minutes of the EAC dated 23 April 2019 demonstrate the existenceof reserved forests inter alia in Mopa.

7. While reviewing the Environmental Impact Assessment[9], theEAC observed:

“As per Forest Policy, 1988 of Government of India, requiredforest cover is 33%. Whereas, India average is 21.54%, Goa’sforest cover as per India’s state of forest report 2017 is 60.21%.There would be impact on forest due to felling of trees buteventually the forest cover will improve with a 1:10 compensatoryafforestation program to be undertaken over a period of 5 yearsby the concessionaire, Goa State Biodiversity Board andDirectorate of Civil Aviation. The enhanced forest cover wouldlead to healthy biodiversity.Further impacts on water, air, soil andnoise environment will be minimal considering the felling of treesover a large area and compensatory afforestation plan as approved.

It is noted that the airport site is not fragmenting the forest areathus not restricting and affecting the movement of fauna. TheAirport plateau has villages on one side and forest cover on theother side. The plateau is just an extension of forest cover withtrees, which had 15 houses, some grazing activity and someagricultural activity where the animals from the nearby forest mayhave been straying. The proposed airport will be protected fromall sides with compound wall as per DGCA guidelines and thusanimals will not able to enter the airport premises.

The proposed 10 times compensatory plantation needs to bemonitored by the Government of Goa so that the target of planting5.5 lakhs saplings is achieved in a time bound manner, their survival AB

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SUPREME COURT REPORTS

Arate is monitored and mortality is replenished. As major chunk of2.5 lakh of saplings is proposed to be done by the village levelBiodiversity Committees, it is necessary to ensure that people arelargely given native species and/or fruit bearing saplings so thatthey will be able to derive economic benefits from such fruit cropsand also such trees will provide better biological environment toBbirds.”

8. On the existence of ESAs, the EAC noted that the EIA reporthad only indicated that Pernem taluka, where the project is to come up,has not been earmarked as an ESAin the Kasturirangan Committeereport. The EAC, in its minutes dated 23 April 2019, took note of theCfact that based on the Kasturirangan Committee report, the MoEF-CCpublished a draft notification on 3 October 2018 indicating proposed ESAsin the Western Ghats according to which, ten villages in Sawantwaditaluka of Sindhudurg district in Maharashtra are comprised in the ESAsof the Western Ghats. Apart from the ESAs within the State ofDMaharashtra, the EAC noted the existence of an additional eighteenspecies of mammals and fourteen bird species in the study area on thebasis of data collected from the Zoological Survey of India[10]. Reviewingthe EIA with reference to the existence of ten ESAs within a radialdistance of 10 Kms in the State of Maharashtra, the EAC noted in itsminutes dated 23 April 2019:E

“EAC noted that all the 10 ESA areas within 10 kms in the Stateof Maharashtra are beyond 4 kilometers from the project boundary,the nearest one being at a distance of 4.1 kms (Village Galel). Asper Airport guidance manual maximum impact on the air and noiseenvironment will be there till the aircraft gains a height of 1000 ft.FEmissions from aircraft below 1,000 ft. above the ground will bethere typically around 3 km from departure or, for arrivals, around6 km from touchdown. The altitude of 1000 ft in landing and takeoffis achieved within the project site. Considering that all the ESAsare far away from the project, the impact on air and noiseGenvironment is expected to be minimal. With regard to soilenvironment, impact will be mostly on the airport site self. Asregards water environment, as the water flow from the airportsite will feed the water bodies in the State of Goa, no impact isenvisaged on the ESA areas.”

9. The EAC also deliberated on the likely impact of the constructionand operation of an airport on the flora, fauna and hydrological systemsin the ESAs as well as in regard to climatic variations. The EACcategorized them in the following terms:

“WATER ENVIRONMENT:

- Changes in the natural flow of storm water, stunted growth,delayed flowering and fruiting.

- Fauna migration in search of water to other places.

- Change their habitat and breeding capacity.

-Due to eutrophication influence, certain toxic algae productionsome animals can suffer symptoms like skin irritation or healthproblems if drinking SOIL ENVIRONMENT:

- Soil impact may lead in to non-germination of seeds & stuntedgrowth, delayed flowering & fruiting, erosion and clearing of topsoil(loss of habitat & habitat fragmentation)

- Affects the quality of the environment or habitat in which theylive

- Affects the availability and quality of the food supply

- Soil erosion may increase the turbidity which could impact aquaticfauna’s respiration capacity.

- Loss of local aquatic biodiversity

- Habitat loss

- Erosion and clearing of topsoil (loss of micro-fauna).

- Influence the abundance and health of dependent species AIR ENVIRONMENT:

Air impact may lead reduced productivity, changes in water vaporlevels.

SURROUNDING / NOISE ENVIRONMENT.

- Migration of birds

- Breeding capacity reduction

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1042SUPREME COURT REPORTS

[2020] 1 S.C.R.

A- Affect life cycle Shy mammals may move away

- Bird Aircraft strike

- Wild life hazard management

Climatic Variations:

B

- habitats of many species will move pole ward

- experience increase in temperature regimes, rainfall

- decrease in the moisture regimes and increase in fire incidences.”

Dealing with these features and the impact upon them of theCproposed project, the EAC observed:

“The EAC noted that a total of 385 species of plants, 36 medicinalplant, 86 species of birds, 33 butterfly species, 5 species ofamphibians, 18 species of reptiles, 35 fish species, 28 number ofmammal species were identified in the study area based on primaryDand secondary source of data. The proposed project has minimalintervention and impact on the surrounding ecosystem. There aremitigation measures already prescribed in EC conditions so as tominimize the impact on Biodiversity-Flora & Fauna, HydrologicalSystems. This will help enabling the process for sustainabledevelopment that benefit both environment and local livelihoods.EWith regards to climatic variations, the EAC felt that additionalinitiatives such as Green Infrastructure Development program,adoption of low emission intensive technologies, renewable energyprogram, and Airport Carbon Accreditation need to be adopted toreduce the impact on Green House Gas (GHG) emissions andFthereby climate change.”

10. The next set of concerns that were dealt with by the EACrelated tothe impact of the proposed project on natural channels for thedrainage of water. This Court had noted in its earlier judgment that theMopa plateau is at a height of 155 metres above Mean Sea Level[11] andGwater from the plateau flows down to the rivers in the State of Goa. Thelaterite plateau is an important source of drainage by providing naturalchannels for water. The deficiency which was seen by this Court wasthat the impact of a greenfield airport on the closing of natural channels H11 MSL

which feed water bodies had not been scientifically mapped or studiedand adequately addressed.

11. In reviewing the EIA on this aspect, the EAC in its minutesdated 23 April 2019 observed:

“If natural water channels that feed the local water bodies arenot protected then there will be water deficiency in the villagesfor agriculture, fishing etc. Further, there will be impact on theground water levels in the villages. EAC while granting EC forthe project had detailed deliberation on this aspect so as to ensurethat natural water channels feeding the water bodies are notblocked. The EAC reviewed the entire gamut of natural/artificialdrainage and the storm water drainage pattern. As per thesupplementary information provided now, the airport site, by virtueof being located on a plateau and the laterite soil surface, wouldnaturally facilitate the flow of storm water and other artificialdrainage. The proponent has designed for appropriate drainagechannels in such a manner that the water flow from project site ischannelized suitably into the natural water channels feeding thewater bodies down slope. All due precautions, however, need tobe exercised during the construction phase so as to ensure thatconstruction material/debris does not, in any manner, block/obstructthe natural water channels or springs.

The EAC deliberated on the current state of the projectconstruction and noted that in the ensuing monsoon season theearth piled up at the project site due to excavation may drift to thenatural water channels which may ultimately reach the waterbodies in the villages. This is a matter of grave environmentalconcern which needs to be addressed by the project proponentimmediately by development of embankment structures aroundthe excavated earth so that piled up earth doesn’t drift to thenatural water channels and the run-off from the site does notpollute or contaminate the water bodies. This shall be maintainedduring construction/operation phase of the project.”

12. As regards the concerns which were raised in the course ofpublic consultations, the EAC dealt with environmental concerns whichincluded:

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“rain water harvesting, STP and solid waste management plan,impact on flora and fauna, soil quality and its impact, storm watermanagement, impact on ground water, socio cultural impact, dustpollution during construction activity, employment opportunities tothe local people, compensation to the affected land owners”

The EAC has opined that these have been adequately addressed.13. Finally, after analyzing the responses submitted before it, theEAC summed up its analysis thus:

“1. The EAC observed that the earlier Form-1 did not give properdisclosure in respect of the details of forests on the land and nearbywet land as well as on the water bodies. The EAC took into accountthe supplementary report that has been submitted which takesinto account the deficiency of disclosure and the same thing hasbeen complied with in the supplementary report. In addition, it isalso noticed that the mitigation measures in respect of the depletionof forest cover on the project land and water bodies have beentaken into account. As against 54,176 trees, which have beenfelled on the project site based on earlier approvals given bycompetent authority, the project proponent is proposing to plant5,50,000 trees (50,000 trees at the project site, 2,50,000 trees inthe nearby villages supervised by the Biodiversity Board and2,50,000 trees under the supervision of DGCA. This is 1:10 timesthe number of trees affected as against the standard requirementof 1:3 times number of trees to be planted. The overall supervisionof this compliance within the time frame of 5 years would bevested with DGCA. DGCA, however, needs to constitute a localmonitoring committee for periodic monitoring of this vital exercise.

2. The EAC noted that neither the project site nor the villages inarea under study (primary data source) falls in any Eco-SensitiveZone (ESZ). The 10 villages in Maharashtra side fall in ESA notESZ and where the impacts of the project would be minimal. TheEAC also observed that the villages in vicinity of the project in theGoa and Maharashtra region are not located in very closeproximity. The nearest village is about 4.1 km from the boundaryof the project. The EAC also observed that beyond the runway of3.75 km, the flight operation generally found at an altitude of about1000 feet and thus there would not be any adverse impact onflora and fauna in the surrounding area of the airport.

3. The EAC observed that a certificate from Chief Wildlife Warden(CWLW) of State through State Government be obtainedconfirming that none of the area of the project falls in the notifiedEco-sensitive Zone (ESZ) in the State of Goa and no activityprohibited in the Ecosensitive zone will be taken up be taken bythe project proponent.

4. The EAC further observed that as per the supplementary reportand the proposal of the water bodies with respect to observationregarding plateau effect of the land and also laterite surface andthe springs, streams and water courses in the project land havebeen taken into account and appropriate drainage channels havebeen designed to take care of the water flows into the nearestwater courses/rivers, etc.

5. Appropriate storm water drainage channeling has been takeninto account not only for the pre-monsoon season but also formonsoon and heavy rainfall. The drainage plan should haveratification by the concerned water resources department of Goa.It should be ensured that sustainable water flow in the variouschannels of watershed in the plateau is maintained. For the present,base level data on flow of water should be collected and used forfuture monitoring.

6. The EAC observed that in respect of the fauna, the primarydata has been collected from one of the nearest village and thesecondary data has been collected from ZSI. In respect of theobservation of sighting a leopard by villager, the authorities haveindicated that they do not have any definitive information on thesame and this need to be verified/authenticated.

7. It is a well-established fact of silvicultural science and practicethat no plantation can replace the natural forest. The kind ofbiodiversity in any natural forest is almost impossible to be replacedby any kind of plantation activity which at best can be a mix ofvarious monocultures. We are still far away in our knowledge ofreplicating the creation of natural forest. Therefore, to this extent,the EAC does not agree with the assessment of project proponentthat after cutting of trees and planting of 1:10 trees, richerbiodiversity the forest would be created. However, 1:10 plantationactivity under expert guidance can to some extent compensatethe loss of natural forest.

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A8. With respect to the various points raised in the public hearing,the EAC observed that the supplementary report has madeavailable point-wise clarifications on the various concerns on thepublic hearing. However, Hon’ble court shortlisted 14 items ofconcern in the public hearing. Solution/management plan to allthese need to be clearly spelt out in the EMP and implemented inBletter and spirit.”

14. Accordingly, the EAC has recommended the grant of an ECto the project with additional environmental safeguards and conditions,over and above those which were stipulated in (i) the EC dated 28 October2015; and (ii) the order of the NGT dated 21 August 2018.The conditionsCwhich have been imposed by the EAC have been classified under thefollowing heads:

(i) Statutory compliance;

(ii) Air quality monitoring and preservation; D

(iii) Water quality monitoring and preservation;

(iv) Noise monitoring and prevention;

(v) Energy conservation/ climate change measures;

(vi) Waste management;

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(vii) Green Belt; and

(viii) Public hearing and human health issues.

15. The EAC has also incorporated as a part of itsrecommendations additional conditions as mandated by the NGT in itsForder dated 21 August 2018 under the following heads:

(i) Air environment;

(ii) Water environment;

(iii) Land environment;

G(iv) Noise environment;

(v) Land environment;

(vi) Biological environment; and

(vii) Socio-economic environment.

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B.1 Zero-Carbon programme

16. During the course of the hearing before this Court, a statementhas been made on behalf of the concessionaire GMR Goa InternationalAirport Limited, that in the event of this Court sustaining the EC for theproject, it stands committed to fulfill the objective of making the proposedgreenfield airport at Mopa Goa, a zero carbon airport operation.Thepurpose of a zero carbon airport operation is to eliminateanthropogenic carbon emissions reaching the atmosphere completely orto the minimum extent possible from airport activities performed duringits operation. The statement which has been tendered by theconcessionaire before this Court is in the following terms:

B

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“I. Zero carbon programme

1. The objective of making “Zero Carbon” airport operation is toeliminate the anthropogenic carbon emissions reaching toatmosphere completely or to the minimum extent possible fromthe activates performed at Airport during its operation.

D

2. Climate Change and its mitigation in Aviation Industry ismonitored by International Civil Aviation Organization(ICAO)and the emissions from domestic aviation are monitored by therespective countries under the United Nations FrameworkConvention on Climate Change (UNFCCC) frameworks.

E

3. Carbon emissions management is guided by Airports CouncilInternational (ACI), through its globally recognized AirportCarbon Accreditation (ACA) Program.

4. In airports, this is addressed by developing infrastructures/systems which will generate zero or minimum carbon emissionsFduring its operations as per UNFCCC approved marketmechanisms by:

a. Adopting green building concepts,

b. Generation and use of renewable energy, G

c. Use of energy efficient systems,

d. Developing green landscapes,

e. Plantations as carbon sink to absorb carbon emission fromthe atmosphere H

Af. Adopting carbon offset measures for the residual emissionsof airport operations

5. Level 3+ is the highest level of accreditation for carbon emissionmanagement of airports. As of July 30, 2019, there were 52Level 3+ (Neutrality) accredited airports globally (out of 1,957BACI member airports), including GMR Group’s Delhi andHyderabad Airports (Additional Affidavit of Respondent No.5, pp.23-24).

6. Level 3+ Neutrality is achieved by fulfilling requirements ofLevel 1,2 and 3 accreditation program (R-5 Affidavit, PageC17) and offset of residual emissions under the airport’s control.(Sources of emission and measures under the ACA Program– Page 18). The Zero Carbon Emission ImplementationFramework provides for various measures such as:

a. Internal audit once in two year

Db. External audit after every 5 years

c. Adopt Energy Management System – ISO 50001 and 3[rd]Party certification

d. Improve energy efficiency of buildings and equipment &lightings,E

e. Improve ground water availability

f. Promote energy efficient and alternate fuel vehicles.”

C. Genesis of the proposed airport

F17. Before we deal with the principle challenges addressed beforethe Court on behalf of the original appellantrepresented by Ms AnithaShenoy, learned Senior Counsel, it would be worthwhile to set out brieflythe genesis of the proposed airport at Mopa Goa.Mr K K Venugopal,learned Attorney General for India emphasized the following features ofthe project:G

(i) The construction of an airport at Mopa Goa has been on thedrawing board for nearly two decades;

(ii) The site at Mopawas chosen among three options after dueexamination by experts; H

HANUMAN LAXMAN AROSKAR v. UNION OF INDIA & ORS.1049[DR. DHANANJAYA Y CHANDRACHUD, J.]

(iii) The existing airport at Dabolim is a defence establishmentwhich is closed to area traffic between 8:30am to 1:30pmdaily; A

(iv) The existing airport at Dabolim was intended to serve fourmillion passengers annually while the existing passenger trafficis about 7.5 million annually;B

(v) The passenger traffic at Goa is expected to rise in the upcomingfinancial years to the following extent:

C

(million passengers)

(vi) Due to capacity constraints, international charter flights arenot granted parking facilities at night at Dabolim; and D

(vii) The proposed greenfield airport will have a capacity to handle4.4 million passengers in Phase–I, 13 million passengers inPhase–II and 30 million passengers in Phase–III annually.

18. The project area ofthe proposed Mopa airport is spread over2,131 acres. Terms of Reference[12] were issued on 1 June 2011 andwere extended on 19 June 2013 and 29 May 2015. The process for landacquisition was initiated around 2008. The Request for Qualification[13]for the Mopa airport was issued on 3 October 2014. The EC was grantedon 28 October 2015. The concession agreement was executed on 8November 2016. The airport is required by the terms of the agreementto be operational within thirty-six months from 4 September 2017.According to the concessionaire, as on 18 January 2019, approximately14.06 per cent of the project work had been completed. Pursuant to theorders for the removal of trees, 54,176 trees were felled and 500 treeswere earmarked for transplantation. Ten trees of local species are to bereplanted for every tree which has been felled. 20,000 saplings havebeen re-planted. The concessionaire has placed on record the followingfinancial features of the project:

E

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G

12 ToR13 RFQ

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A“a. The indicative capital cost of the Mopa Airport, Phase I, wasestimated at INR 1,900 Cr. Total Project Cost was estimatedat INR 3,000 crores (70% debt and 30% equity).

b.Total debt commitment incurred by Respondent No.5 for theMopa Airport is approximately INR 1,330 Crs.B

c.The annual debt servicing incurred by Respondent No.5 basedon current disbursement is approximately INR 17 Crs.

d.Respondent No.5 has also entered into contractualcommitments for following amounts – INR 1,377 Crs. TowardsEngineering Contracts, Project Consultant INR 38 Crs.CIndependent Engineer INR 11 Crs. totaling – INR 1,426 Crs.

e.Prior to the order dated 18.01.2019 passed by Hon’ble SupremeCourt directing status quo be maintained, approximately 1,500workforce were gainfully engaged at the Project site alongwith requisite plant and machinery.D

f.The estimated traffic at Goa is (passengers in MillionPassengers per Annum – MPPA):

E

g.The Scheduled Commencement Date was contemplated as 3years from Appointed Date (04.09.2017) – 03.09.2020.

h.The Concession Period is for 40 years from Appointed DateFwith a right of first refusal to Respondent No.5 for an extensionof 20 years.

i.GoG’s share of revenue – 36.99% on Gross Revenue from6[th] year of Commencement of Appointed Date.”

According to the concessionaire, the following work was inGprogress at the project site when the implementation of the EC wassuspended:

“i.Airside Earthworks – these include excavation and filling ofrunways, taxiways, aprons, parking bays, etc.

ii.PTB – foundations and column works in progress,H

iii.ATC Building – excavation for foundations are in progress,A

iv.Administration Building – foundation and column works inprogress,

v.Precast Compound Wall works – casting of panels andcolumns in progress, B

vi.City Side Development Master plan works is in progress.”

D. The present challenge

19. The essence of the controversy in the present case is whetherthe concerns which were highlighted in the earlier judgment of this Courtdated 29 March 2019, have been adequately addressed and remedied.

C

20. Ms Anitha Shenoy, learned Senior Counsel appeared on behalfof the appellant submitted that by the judgment of this Court dated 29March 2019, the EAC was directed to revisit the EC granted to theproject and to decide whether or not the project should be approved.Ms Shenoy prefaced her submissions with two preliminary points:

D

(i) The composition of the EAC (Infrastructure-2) which hasthirteen members does not qualify it as an expert body. Noneof the members had expertise on ornithology or on terrestrialeco-system. The EAC is chaired by a former Director of theCouncil for Social Development with retired officers of theState and Central Pollution Control Boards. One of themembers has an architectural background, another in chemicalengineering while one of the members is a Professor of Law.The minutes do not disclose whether the EAC sought theopinion of a subject specialist or specialized institution; and E

F

(ii) There is a conflict of interest on the part of the EIA consultantwho had prepared the EIA report. As on the date of EACmeeting, Engineers India Limited[14] was the EIA consultantas well as an independent engineer on the project. The EACminutes recorded that the project proponent and EIL made adetailed presentation on the observations of this Court withcomments and responses. EIL was defending its actions asan EIA consultant while at the same time being an independentengineer for the construction of the airport. This involves aconflict of interest.

G

H

AApart from addressing the above preliminary points, Ms Shenoyhas urged submissions focusing upon the following specific areas:

(i) Forests;

(ii) Western Ghats;

B(iii) Ecologically Sensitive Areas; and

(iv) Absence of avi-faunal study.

21. Based on the submissions on the above four facets, Ms Shenoyhas dwelt upon mitigation measures suggested by the EAC and the needto factor in the objections which were addressed during the process ofCpublic consultation. Ms Shenoy urged that the EAC minutes are virtuallya facsimileof the presentation submitted by the concessionaire and thatthe EAC has failed to fulfill its remit of revisiting the EC as mandated bythe order of this Court. The submissions which were addressed undereach of the four heads noted above are catalogued below:

D

(i) Forests

D

(i) Forests

In the supplementary information contained in updated Form1, the project proponent had disclosed a list of thirty-fiveproposed reserved forests around the project site. However,there has been no collection of primary data through remotesensing or ground truthing as required by the AirportGuidance Manual. No impact study was carried out of theproposed project on the newly disclosed forests. The EAChas merely recorded the fact that the Western Ghats fallwithin the study area without undertaking a study of thelikely impact of the construction of the airport. The MoEF-CC, in its affidavit before this Court, however sought tocontend that the Western Ghats are far away from theproject and the impact due to the operation of the airportwould be minimal. Though there are ten villages in the talukaof Sawantwadi in Sindhudurg district of Maharashtra locatedin the ESAs of the Western Ghats, no study has beenconducted of their vulnerability. The HLWG recorded thatTiger and Elephant corridors mostly fall in the ESAs of theWestern Ghats. Thus, the EAC has arrived at a conclusionthat there will be no impact on the ESAs without knowingwhy an ESA is proposed to be notified and without carrying E

F

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out an impact assessment. The EAC has equated the issueof tree felling at the project site with the issue of the impacton the 42 forests surrounding the site. However, in itssumming up, the EAC has acknowledged that compensatoryforestation can never replace a natural forest.

(ii) Impact on Western Ghats

The EAC has only adverted to the fact that the WesternGhats fall within the study area. While accepting thepresence of this critical ecological biodiversity hotspot, theEAC has not directed any study on the impact nor has itadverted to the likely impact of the activity. The criticalsignificance of the Western Ghats has been emphasized inthe HLWG report. Absent a study by the EAC, therecommendations are flawed.

(iii) Ecologically Sensitive Areas

The EAC has noted that ten villages in the taluka ofSawantwadi in Sindhudurg district are located in the ESAof the Western Ghats. The EAC ought to have determinedwhat makes each ESA ecologically sensitive and to studythe reasons for their vulnerabilities. The EAC has notendeavored to find the specific vulnerability of each ESAand has recorded its satisfaction with a generic explanation.

(iv) Flora and Fauna

The collection of primary and secondary data of flora andfauna in the EIA report was perfunctory. Areas which areused by protected, important or sensitive species of flora orfauna for breeding, foraging, nesting, resting, over-winteringor migration were not considered by the project proponent.The EAC merely included a number of additional species,citing a publication of the ZSI as the source, as supplied bythe project proponent. Species found near the Maharashtra– Goa border as well as those found throughout India inforested areas show at least 1172 species. On the otherhand, the list of species submitted by the project proponentdoes not have a single Scheduled I species despite the factthat there are 42 dense forests around the project area.Important species such as the Indian elephant, royal Bengal A

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1054SUPREME COURT REPORTS

Atiger and leopard have been excluded. The EAC did notdirect the carrying out of an avi-faunal study, in violation ofthe directions of this Court, the only reference being to birdstrikes.

22. As regards the mitigation measures proposed by the EAC,BMs Shenoy submitted that the Airport Guidance Manual requires arigorous study of the impacts of a proposed airport project on the biologicalenvironment and the measuresrequired to address these impacts.Information relating to the state of the environment in the 15 km. radiuswas submitted before the EAC without there being any primary orsecondary data collection. The EAC however came to the conclusionCthat the impact would be minimal. The additional environmental safeguardsproposed by the EAC have no bearing on the peculiar conditions of theproposed airport at Mopa. Ms Shenoy ultimately urged that no effectivemitigating measures can be implemented unless:

(i) Authentic information about flora, fauna and natural featuresDin the study area exists;

(ii) A scientific objective and independent assessment of the likelyimpact of the proposed project is made; and

(iii) A specific finding is arrived at by the EAC on whether theEdamage and impact can be mitigated.

D.1 Domain Expertise of the EAC

23. The first aspect which merits scrutiny is the criticism leveledby Ms Anitha Shenoy, learned Senior Counsel against the domainexpertise of the EAC. At the outset, it is necessary to note that the EACF(Infrastructure–2 Sector) was constituted under an order dated 7 January2019 of the MoEF-CC. The composition of the Committee was as follows:

(i) Prof. T Haque, Retd. Director & CEO, Council for SocialDevelopment;

(ii) Dr N P Shukla, Ex. Chairman, MPPCB, Bhopal; G

(iii) Dr H C Sharatchandra, Ex. Chairman, Karnataka, SPCB;

(iv) Sh. V Suresh, Former CMD, HUDCO;

(v) Dr V S Naidu, Member;

(vi) Sh. B C Nigam, Member;

H

(vii) Dr Manoranian Hota, Member;

(viii) Dr Dipankar Saha, Member;

(ix) Dr Jayesh Ruparelia, Member;

(x) Dr (Mrs.) Mayuri H Pandya, Member;

(xi) Dr M V Ramana Murthy, Member;

(xii) Representative of School of Architecture and Planning,New Delhi, Member (to be nominated);

(xiii) Addl. Director/Director/Advisor of MoEF& CC, MemberSecretary.

24. The EAC has a vital role in conducting the appraisal of proposedprojects in terms of their environmental impact and consequences. TheEAC is intended to be an expert body. The members of the EAC areexpected to bring to the deliberations of the body their knowledge anddomain expertise. The composition of the EAC as noted above indicatesthat it comprises of experts with a scientific background as well as personshaving domain knowledge on matters pertaining to the environment.Among the members of the EAC were personswho had a backgroundof service in the State and Central Pollution Control Boards, the IndianForest Service, MoEF-CC and the National Institute of OceanTechnology. The constitution of the Committee cannot be faulted on theground that as a body, the EAC lacked domain expertise. As a Committeewhich deals with infrastructure projects, the body as constituted alsocomprises of persons with relevant background and experience.Ultimately, the legitimacy of the decision which has been arrived at bythe EAC will be assessed during the course of the judgment. At thisstage, we are not inclined to accept a generalized challenge on the groundthat the members of the EAC lacked domain expertise.

25. It is necessary to emphasis two facets:First, under clause4(vii) of the order dated 7 January 2019 constituting the EAC, thechairperson is empowered to co-opt an expert as a member for aparticular meeting of the Committee. Infrastructure projects which theEAC is called upon to assess and appraise do not fall into one specificmould. Hence, the EAC should engage with the enabling provision whichhas been made in clause 4(vii) to co-opt experts. The exercise of thisenabling discretion will facilitate the work of the EAC by allowing forthe benefit of the knowledge and expertise of an expert in a particular A

B

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Asubject area being made available to it. The failure to co-opt an expertdoes not, as a consequence, lead to the invalidation of the exerciseconducted by the EAC. But the desirability of co-opting experts needsto be underscored so as to bring a diversity of experience in the work ofthe EAC. Second, the composition of the EAC is dominated in a largemeasure by retired officials drawn from the Pollution Control Boards inBthe Centre and State and from former officials of the MoEF-CC. In thecomposition of the EAC, the Union Government should travel beyondformer officials of the Pollution Control Boards and Ministries. Withoutdisparaging their credentials or their experience, it is nonetheless desirablethat the members of the EAC should comprise of a cross section ofCpersons drawn from different specialties having a bearing onenvironmental protection. Where the EAC has to deal with infrastructureprojects, it is of course necessary to include persons who are familiarwith the need for a balanced growth of infrastructureconsistent withenvironmental protection.D26. We strongly commend to the Union Government the need toensure in the composition of the EAC the inclusion of persons withspecialized knowledge of diverse disciplines in relation to environmentalprotection. Having commended such an exercise to the Union government,we would leave the matter there. As we have observed earlier, thechallenge to the minutes of the 23April 2019 must be addressed on merits,Ethere being no reasonable basis for this Court to conclude that the EAClacked the expertise to make its recommendations.

D.2 Conflict of interest

27. The second preliminary point that was urged by Ms ShenoyFwas of a conflict of interest in the role and position of EIL as an EIAconsultant as well as an independent engineer for the project. The AttorneyGeneral for India in his written note of submissions on behalf of theState of Goa has submitted that EIL was appointed as a consultant forpreparing the EIA report in 2012. The assignment of EIL concludedupon the issuance of an EC by MoEF-CC on 28 October 2015. Thereafter,Gthe Government of Goa floated a tender for the appointment of anindependent engineer to supervise the work of construction in 2017. EILsecured the bid and came on board as an independent engineer inDecember 2017. After the judgment of this Court dated 29 March 2019by which the EAC was directed to revisit the EC conditions, theHGovernment of Goa sought the assistance of EIL which was the author

of the EIA report in presenting its case before the EAC. Hence, fromthe facts which have been set-forth before the Court by the learnedAttorney General, it becomes clear that EIL was appointed as anindependent engineer for the project only after the EC had been grantedon 28 October 2015 and in a competitive tendering process. The role ofthe independent engineer is to supervise the construction of the airportin accordance with the ICAO standards. Certification and licensing ofthe airport is in the domain of the Director General of Civil Aviation[15] ofthe Government of India. Compliance with environmental conditionscontained in the EC is monitored by the regional office of the MoEF-CCat Bengaluru. Moreover, there is merit in the submission which wasurged by Ms ANS Nadkarni, learned Additional Solicitor Generalappearingfor the MoEF-CC that the decisionin regard to the grant of an EC restswith MoEF-CC. The fact that EIL whose services were engaged as anEIA consultant was subsequently appointed as an independent engineerafter the initial grant of an EC will not result in the invalidation of theEC.

D.3 Western Ghats and ESAs

28. Addressing the concerns of Ms Anitha Shenoy in relation tothe Western Ghats and the ESAs, Mr Nadkarni urged that the scope ofthe Kasturirangan Committee reportwas to suggest an all-round andholistic approach for sustainable and equitable development while keepingin focus measures toconserve, protect and rejuvenate the ecology in theWestern Ghats. The HLWG, with the aid of the National Remote SensingCentre[16] developed a scientific and objective methodology for identifyingESAs in the Western Ghats. In doing so, the HLWG bore in mind diverseparameters including forest and vegetation types, natural and culturallandscapes, forest fragmentation, biological richness, village boundaries,population density, protected areas, wildlife corridors and world heritagesites among other considerations. Ten ESAs falling within the study areahave been disclosed in the report along with mitigation measures. It wasurged that upon detailed discussion, it was found that the impact onthese ESAs, as a result of the project, would be minimal. The area wherethe project site is located, it was urged, has not been identified as anESA. The nearest village identified in the State of Maharashtra – Galel– is at an aerial distance of 4.1 km from the boundary of the project site.

15 DGCA

16 NRSC

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AMr Nadkarni rebutted the contention that the project would impinge uponwildlife corridors. The nearest identified corridor, it was submitted, is onthe boundary of the States of Goa, Karnataka and Maharashtra which isfar away from the project site.

29. Volume-I of the report of the Kasturirangan Committee onBthe Western Ghats dated 15 April 2013 contains a summary of therecommendations. The report notes that the Western Ghats regionstraddles six states of which 60,000 square kms representing 37 percent of the geographical coverage of the Western Ghats has been identifiedas an ESA. In that context, the report notes:

C“About 60,000 km[2] of natural landscape (approximately 37% ofthe total geographical area of Western Ghats Region) has beenidentified as Ecologically Sensitive Area (ESA) by HLWG, whichrepresents more or less a contiguous band of vegetation extendingover a distance of 1500 km across 6 States of Western Ghatsregion and includes Protected Areas and World Heritage Sites.DThe demarcation unit of ESA is the village. IRS LISS III derivedspatial layers on vegetation type and landscape level indices (witha fine spatial resolution of 24 m) were used as the basis foridentification of ecologically sensitive areas (ESAs).

To facilitate sustainable development in the WG region, which isEinhabited by about 50 million people, the non ESA comprisingmostly cultural landscape is also demarcated. HLWG recommendsthat the Central government should immediately notify the ESAarea, demarcated by HLWG in public interest. The need for urgentaction is evident. In this notified area, development restrictions asFrecommended in this report will apply.”In its recommendations dealing with restrictions on developmentin the proposed ESAs, the report notes:

“HLWG is recommending a prohibitory and regulatory regime inESA for those activities with maximum interventionist andGdestructive impact on the ecosystem. All other infrastructuredevelopment activities, necessary for the region, will be carefullyscrutinized and assessed for cumulative impact and developmentneeds, before clearance.”

Among the recommendations of the HLWG are the following:H

“All other infrastructure and development projects/schemes shouldbe subject to environment clearance under Category ‘A’ projectsunder EIA Notification 2006.

All development projects, located within 10 km of the WesternGhats ESA and requiring Environment Clearance (EC), shall beregulated as per the provisions of the EIA Notification 2006.”

30. Chapter IV of the Kasturirangan Committee reportexplainedthe procedure adopted to define and demarcate the boundaries of theWestern Ghats for identifying ESAs, in the absence of an accepteddefinition of Western Ghats. Chapter V dealt with the need for a scientific,objective and practical strategy for delineating ESAs within the naturallandscape with the village as a unit. In that context, the report notes:

“The results obtained based on the methodology adopted byHLWG are analyzed for 188 talukas in terms of the area coveredunder ESAs and number of villages falling under ESA. Maps ofWestern Ghats showing vegetation and land cover classes, naturaland cultural landscapes, biodiversity richness, fragmentation andhuman population density and ESA, and Maps of each of SixStates showing natural and cultural landscapes and ESAs are alsoprovided.”

Chapter III of the report analyses the impact of climate changeon the ecology of the Western Ghats. Explaining the criteria which it hadadopted in demarcating the Western Ghats, the report of theKasturirangan Committee reportnotes :

“HLWG, in the absence of geologically and gemorphologicallysound criteria in demarcating WG, decided to adopt the criteriafollowed by the Western Ghats Development Programme ofPlanning Commission which defined WG in terms of geologyconceptually, but has taken altitude as the criterion for identificationof talukas/blocks under Western Ghats Development Programmeof Planning Commission as recommended by High LevelCommittee, because the Ghats are usually 760-915 m high. Allthose talukas/blocks at 600 m and above elevation and those talukashaving more than 20% of the area at 600 m and above elevationthat are contiguous to higher altitudes and formed part of theadministrative boundaries of Western Ghats DevelopmentProgramme are listed under Western Ghats Development

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[2020] 1 S.C.R.

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Programme. This criterion has geological connotation – that at600 m on the east the WG springs from Deccan Plateau, on anaverage the mean elevation of WG all along its length from northto south is greater than 600 m, and most of the Ghats have heightof over 600 m.”

B31. Adverting to the biodiversity of the Western Ghats, the report notes:

“The Western Ghats has unique taxonomic hierarchies, remnantecosystems and strong endemic associations. The sholas,mangroves, kans, dry evergreen forests, swamps, reeds andCriverine belts represent the unique ecosystems. The forests ofWG are some of the best representatives of non-equatorialevergreen forests in the world. The resource value of this megadiversity centre spans from timber-non timber category throughwilderness–ecotourism to gene pools of plants of medicinal-aromatic-food-industrial value…

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Floristically the Western Ghats is one of the richest areas in thecountry and harbours as many as 4000-4600 species of floweringplants of which 56 generic and 2100 species are endemic.”

32. The HLWG has catalogued three talukas of Goa as ESAs.These are tabulated as follows:E

F

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In the district of Sindhudurg in Maharashtra, five talukasnamely:Devgad, Kankavli, Kudal, Sawantwadi and Vaibhavvadi havebeen demarcated as ESAs.

33. Figure 18 in the report of the HLWG which demarcatesElephant and Tiger corridors which is reproduced below:

B

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A34. Figure 21 delineates the natural and cultural landscapes in theWestern Ghats region of Goaand is reproduced below:BCDEFG

HANUMAN LAXMAN AROSKAR v. UNION OF INDIA & ORS.1063[DR. DHANANJAYA Y CHANDRACHUD, J.]35. The ESAs in the Western Ghats region of Goa are depicted inAFigure 22 of the Kasturirangan Committee reportwhich is as follows:BCDEFG

1064SUPREME COURT REPORTS[2020] 1 S.C.R.A36. Figure 23 provides a depiction of the natural and culturallandscapes in the Western Ghats region of Maharashtra, which is asfollows:BCDEFG

D.4 Forestland and flora and fauna

37. The criticism leveled against the recommendations of the EACin its appraisal of the impact of the project on forested areas has beendealt with in the submissions as follows:

(i) Details of forested land as marked in working plans wereobtained by the project proponent from the Governments ofGoa and Maharashtra, details of which have been recordedby the EAC in its minutes of 23 April 2019, within a 15 km.radial distance from the project site;

(ii) Concerns about non-disclosure were addressed by the projectproponent by giving details of forests with impacts andmitigation measures;

(iii) Remote sensing has been done by the project proponent asmentioned in Annexure IX of the EIA report.Ground truthingis usually done on site, performing surface observations andmeasurements of various properties and features of the groundon the remotely sensed digital image. In this case, the airportoperation is within the boundaries of the project site and detailsof forest, springs, wetlands etc. were also given and discussedin the EAC; and

(iv) Impact of the airport operations on the air and noiseenvironment will generally extend until an aircraft gains aheight of 1000 feet.According to the Airport Guidance Manual,emissions from aircraft at a height upto a 1000 feet aboveground will extend typically around 3km from departure or, inthe case of arrivals 6 km from touchdown. Since the airportsite is at a height of 155 metres above MSL, the aircraft willgain a height of 1000 feet during departure within the projectsite. Aircraft operations follow a dedicated path called thefunnel, which in this case has an east-west orientation forlanding and takeoff. The impact on forests which are primarilyon the northern and southern sides of the airport site in Goaand Maharashtra and their ecological features will be minimal.The project proponent has relied on a Google image of theMopa region indicating a super imposed flight path for landingand takeoff at the airport which is extracted below:

A

CD

A

B

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Similarly, an image indicating the location of all ESAs within 10km.Dradius of Mopa airport has been relied upon by the project proponent:

E

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38. The criticism that the EAC has conflated the issue of thefelling of trees with the environmental impact on 42 forests has beenaddressed in the submissions placed before this Court by Mr ANSH

Nadkarni, learned Additional Solicitor General appearing for MoEF-CC.It has been submitted that:

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(i) The forest eco-system comprises mainly of flora and faunain the environmental settings of air, water and land. Theimpacts of all these elements have been assessed andmitigation measures have been proposed;B

(ii) The EAC took due cognizance of the presence of forestlandand also observed that though a significant number of treeswere required to be felled, this was a requirement in thewake of an identified project site. In that context, it made areference to the compensatoryafforestationprogrammeCrequired in the ratio of 1:10;

(iii) The EAC has noted that the airport site does not fragmentthe forest areas and does not restrict the movement of fauna.The airport site is predominantly a plateau and the forestcover is not contiguous to it. With a boundary wallsurrounding the airport, there is no possibility of animalsbeing endangered by entry into the project site; D

(iv) The impact of airport operations on the soil and waterenvironment has also been assessed and necessarymeasures put into place by the EAC for protection andconservation; and E

(v) Nearly 3 lakh trees are to be planted: 50,000 at the site and2,50,000 in nearby villages within15 km duly supervised bythe Biodiversity board. Besides this, another 2,50,000treesare to be planted and monitored by the DGCA. TheEAC has mandated the plantation of native species andfruit bearing saplings to enable residents depending onagriculture to derive economic benefits while at the sametime preserving the biological environment to birds.

F

39. MoEF-CC has also responded to the criticism against theapproach adopted by the EAC in regard to avi-faunal studies and data.According to the submission, the project proponent presented data drawnfrom the ZSI and other sources. It has been submitted that the appellantwhile referring to the fauna species from ZSI data has referred to“external distribution” in most cases. However, ZSI data categoricallymentions the “sighting area/localities” where specific species have been G

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Aactually sighted; all these locations are notably far away from the projectsite. Moreover, as an example, it has been submitted that the appellant inadverting to the sighting of leopards in Goa and Maharashtra did notlimit the submissions to the study area but to the entire territory of theStates of Maharashtra and Goa. ZSI studies on the fauna of Maharashtrarecords leopard sightings in places like the Melghat Tiger Reserve,BTadoba-Andhari Tiger Reserve, Pench National Park, Sanjay GandhiNational Park, Bhimashankar Wildlife Sanctuary, and the Phansad WildlifeSanctuary among others. None of these sites fall within the study area.Similarly, the ZSI publication on fauna of Goa records sightings of leopardsin places like Molem National Park, Cotigao Wildlife Sanctuary andCBondla Wildlife Sanctuary, not of which fall within the study area.Moreover, in the Wildlife Institute of India[17]report (2010), the presenceof tigers has been recorded in Molem Wildlife Sanctuary and in theforests of Ponda and Sanguen Tehsil which are not within a 10 km radiusof proposed Mopa airport. Relevant data drawn from the WII and theWildlife Trust ofIndia (2017) on the presence of tigers and elephants hasDbeen relied upon.

40. The submission which has been urged on behalf of MoEF-CCis that the distance of the ESA/ESZ is a prime factor in determining thelikely impact of the project activities on the environment. On examinationby the EAC, it has been found that neither the project site nor the villagesEunder the study area fall in any ESZ. Moreover, of the 10 ESA villagesin Maharashtra falling within a 10 km. radius of the project site, thenearest village (Galel) is about 4.1 kms from the boundary of the projectand is located in the northern direction. The runway of the proposedairport has an east-west orientation. Beyond the runway of 3.75 km.,Fflight operations at an altitude of about 1000 feet would have a minimallyadverse impact on the flora and fauna surrounding the airport. Moreover,the common faunal species would primarily be restricted to the forestareas. The proposed airport site is not home to any of these species. Itwas, in this context that the EAC has observed that the project site does not fragment any forest area. The mitigation measures proposed in theGEC conditions as well as the NGT directions stipulate measures forminimizing the impact on biodiversity. The project proponent would bebound to follow DGCA and ICAO aircraft strike hazard managementguidelines including the setting up of an Airfield Environment ManagementCommittee. Moreover, it has been submitted that EIL had stated theH17 WII

migration status of various species of birds in the EIA report. Thisinformation was updated with regard to the migratory status of additionalfauna found in the study area in supplementary Form1. However, no setroutes of flyways were observed near the airport site. DGCA haspublished the National Aviation Safety Plan 2018-2020 emphasizing avi-faunal and wildlife management in airports. MoEF-CC has annexed toits submissions, DGCA circulars/directions on the following aspects whichwould have to be implemented by the concessionaire:

a) Climate Change Initiatives and Local Air Quality Monitoringin Civil Aviation, 2015;

b) Noise Management of Aircraft Operations at Airports, 2014;

c) Carbon Off-setting and reduction scheme for InternationalAviation;

d) Guidance on Wildlife Hazard Management;

e) National Aviation Safety Plan, 2018-2020, 2019.

41. In regard to the concerns which emerged during the course ofthe public consultation, it has been submitted by MoEF-CC that theupdated report submitted by the project proponent took into accountthese concerns which primarily are comprised within two categories(environment and livelihood).The project proponent made a detailedpresentation before the EAC on these concerns and the action planswere discussed in the EAC meeting. The EAC has stipulated theimplementation of the environment management plan for addressing theconcerns which were raised during the course of the public hearing.According to the Airport Guidance Manual, the concerns of the publicwhich were expressed during public consultation must be addressed bythe applicant either through an updated EIA and EMP or through asupplementary report. The project proponent has done so through updatedinformation.

42. During the course of the judgment which was rendered bythis Court on 29 March 2019, certain flaws were noticed in the processleading up to the grant of an EC on 28 October 2015. The projectproponent had not complied with its obligation to make a full disclosureof information on material aspects of the environment in Form1 as anintrinsic part of the EIA process. This Court specifically recorded itsconcerns on vital aspects which had not been adequately addressed by A

B

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Athe EAC. Having noticed the flaws in the process and the deficienciesin the decision making process of the EAC, the Court directed the EACto revisit the recommendations made by it for the grant of an EC includingthe conditions which it had formulated, having regard to the specificconcerns which were highlighted in the judgment. Thereafter if the EACwere to allow the construction to proceed, it was directed to imposeBadditional conditions to protect the terrestrial eco-systems. The EACwas under a specific mandate to lay down conditions pertaining to air,water, noise, land and the biological and socio-economic environment.During the course of this judgment, we have traced the process as itevolved before the EAC following the earlier directions of this Court.CThe net result of the process is that the concessionaire has been subjectedto a slew of mitigatory conditions: 53 in the original EC, 16 at the behestof NGT and 40 imposed by the EAC in the second round. On a readingof the process leading upto the present proceeding, it cannot be said thatthe EAC has, in its appraisal process, ignored the concerns which werehighlighted by this Court. Ms Anitha Shenoy, learned Senior Counsel, asDwe have noted earlier, focursed her submissions on four areas namely(i) Forests; (ii) ESAs; (iii) Western Ghats; and (iv) Flora and Fauna. TheEAC has adequately addressed these concerns and laid down additionalconditions to ensure the adequate protection of the environment.

43. The Airport Guidance Manual published by MoEF in FebruaryE2010 contains significant points for guidance having a bearing on thecontroversy which has been raised in the present case. In relation to thestudy area, the Manual states:

“Primary data through measurements and field surveys; andsecondary data from secondary sources are to be collected in theFstudy area within 10 km radius from Aerodrome Reference Point(ARP). Primary data should cover one season other than monsoonand secondary data is to cover one full year. The basis for selectionof these criteria is that the aircraft gains a height of 1000ft in thisarea below which noise and air pollution are generated maximumGduring its take off stage. Secondary data should be collectedwithin 15 km aerial distance for the parameters as specificallymentioned at column 9 (III) of Form I of EIA Notification, 2006.Details of secondary data, the method of collection of secondarydata, should be furnished. Similarly the proposed locations ofmonitoring stations of water, air, soil and noise etc should be shownHon the study area map.”

The study area in other words, comprises of a radial distance of10 kms. from the Aerodrome Reference Point.The Manual indicatesthat the basis for selection of the criteria is that an aircraft gains a heightof 1000 feet in this area and the maximum impact of noise and air pollutionis generated during the takeoff stage.The Aircraft Guidance Manualalso states that:

“Aircraft engines produce emissions that are similar to otheremissions resulting from any oil based fuel combustion. These,like any exhaust emissions, can affect local air quality at groundlevel. It is emissions from aircraft below 1,000ft, above the ground(typically around 3km from departure or, for arrivals, around 6kmfrom touchdown) that are chiefly involved in influencing local airquality.”

This is again emphasized in the following extract:

“Ambient Air Quality (AAQ) is important for the airport projects.The significance of aviation’s impact on air quality will varydepending on many other factors such as, background pollutionlevels, other sources of pollution, weather and proximity ofresidential areas.

Aircraft engines produce emissions that are similar to otheremissions resulting from any oil based fuel combustion. These,like any exhaust emissions, can affect local air quality at groundlevel. It is emissions from aircraft below 1,000ft, above the ground(typically around 3km from departure or, for arrivals, around 6kmfrom touchdown that are chiefly involved in influencing local airquality. These emissions disperse with the wind and blend withemissions from other sources such as domestic heating emissions,factory emissions and transport pollution.

The local air quality relevant emissions attributed to aircraftoperations at airports are oxides of nitrogen (NOx), carbonmonoxide (CO), Unburnt hydrocarbons (NMHC and VOCs),sulphur dioxide(SO2), particulate matter (PM10 and PM2.5).

Aircraft engines, auxiliary power units, apron vehicles, de- icing,and apron spillages of fuel and chemicals emit these pollutants.Local factors influence the significance of individual emissionsfor each airport, but often NOx is by far the most abundant and is A

B

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Aconsidered the most significant pollutant from an air quality standpoint.

Baseline data of these parameters extending over an area of 10kmradial distance from ARP of the project by observation at a numberof locations, predominantly in the windward direction duly takingBinto account changes in predominant wind direction in the monsoonperiod and changes in humidity in atmosphere. Specific importanceis to be attached to areas in close proximity of project up to 3kmis essential, considering the mobile source of emission such asaircraft.”

C44. A comprehensive process has been followed by the EACbearing in mind the requirements of the Airport Guidance Manual. TheEAC took note of the presence of reserved forests and of ESAs in theWestern Ghats and deliberated on the impact of the construction andoperation of the proposed airport on flora or fauna, hydrological systemsand climatic variations. The process which has been adopted by theDEAC and its ultimate conclusions must be scrutinized, in the course ofjudicial review, in the context of the limitations which are attached to thecourt conducting amerits based review. In Lafarge Umiam MiningPrivate Limited v Union of India,[18] an application was made underthe 1994 EIA notification for the grant of an EC to a proposed limestoneEmining project at Nongtrai Village, East Khasi Hills District Meghalaya.EC was granted for the project in 2001. A three judge Bench of thisCourt rejected the challenge and upheld the grant of the EC for theproposed project. Chief Justice S H Kapadia, speaking for the Court,formulated the standard of judicial review which must be applied in casesrelating to the environment in the following terms:F

“In the circumstances, barring exceptions, decisions relating toutilisation of natural resources have to be tested on the anvil ofthe well-recognised principles of judicial review. Have all therelevant factors been taken into account? Have any extraneousfactors influenced the decision? Is the decision strictly inGaccordance with the legislative policy underlying the law (if any)that governs the field? Is the decision consistent with the principlesof sustainable development in the sense that has the decision-maker taken into account the said principle and, on the basis ofrelevant considerations, arrived at a balanced decision? Thus, theH18 (2011) 7 SCC 338

Court should review the decision-making process to ensure thatthe decision of MoEF is fair and fully informed, based on thecorrect principles, and free from any bias or restraint.”

The EAC has accounted for the relevant factors outlined by thisCourt in its previous judgment in the assessment leading to the grant ofthe EC.

45. The evaluation of merits is a matter which primarily rests withan expert authority. The court can certainly supervise proceduralcompliance and ensure that all necessary inputs which are required tobe factored into the decision-making process have been duly borne inmind. Once this has been done, the court must be circumspect in micro-managing the decision-making process by the EAC by substituting itsown opinion for that of the EAC. Undoubtedly, no process can be perfector free from studied criticism. Ms Anitha Shenoy, learned Senior Counselhas attempted to perform such an exercise when she submitted that thecollection of primary faunal data from a nearby village and secondarydata from ZSI sources was not an adequate means of dealing with theconcerns expressed by this Court. In assessing these criticisms, we mustequally be cognizant of the fact that by the judgment of this Court dated29 March 2019, the EAC was required to carry out the exercise withina period of one month from the receipt of the order of this Court. TheCourt did not quash the EC but directed that it should remain undersuspension until the EAC revisited its recommendations in the light ofthe concerns which were expressed by this Court. Having assessed theprocess which took place following the judgment of this Court and theoutcome, it would be difficult for this Court to hold that it fails to meetthe standards which the court applies in the course of judicial review inenvironmental matters.

E. Directions

46. For the above reasons, the minutes of the meeting of the EACdated 23 April 2019 are taken on record as prayed for. The additionalconditions which have been imposed by the EAC shall, together with theoriginal conditions of the EC dated 28 October 2015 and the directionsissued by the NGT be cumulatively observed.The conditions cumulativelyimposed for the grant of an EC, have been set out below:

I. Conditions imposed by the EC dated 28 October 2015

AB

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1074SUPREME COURT REPORTS

AA. SPECIFIC CONDITIONS:

(i) ‘Consent to Establish’ shall be obtained from State PollutionControl Board under the Air (Prevention and Control ofPollution) Act, 1981 and the Water (Prevention and Controlof Pollution) Act, 1974.

B

(ii) The Project Proponent shall ensure availability of adequateland at the junction of the Mopa Airport road and Mumbai/Goa NH-17 for traffic circulation/management and toprovide for all the traffic interchanges and proposed clover.

(iii) The approach and exit roads to the Airport shall be approvedCfrom the NHA land should be according to IRC norms.

(iv) A perusal of the Topo sheet superimposed on the runwayarea indicates that the extreme end of the runway is coveringthe drainage area partly. The drainage area which is underthe runway shall be channelized. The area between theDparallel taxiway and runway shall be handled carefully todrain the water from the area in the outfall 2.

(v) The PP shall submit the site clearance certificate fromDirectorate General of Civil Aviation (DGCA), beforecommencement of work at the project site.

E

(vi) Sewage and other liquid effluent generated from the airportincluding from the existing terminal should be treatedaccording to the norms laid down by the State PollutionControl Board. The treated sewage shall be recycled forflushing/gardening. Proper Dual plumbing shall be provided.

F

(vii) The solid waste generated shall be properly collected,segregated and disposed according to the provisions of SolidWaste (Management and Handling) Rules, 2000. Theproject proponent shall make provisions for drinking waterat convenient places for passengers and also at theGcafeterias as to reduce generation of solid wastes includingPET bottles.

(viii) Installation and operation of DG sets shall comply with theguidelines of CPCB.

(ix) Parking provision shall be provided according to the NationalHBuilding Code of India, 2005.

(x) Water conservation fixtures shall be provided and waterbalance shall be maintained through verifiable metering forfresh raw water, recycled as well as rain water harvesting.

(xi) Necessary permission shall be obtained for drawing ofground water from competent authority prior toconstruction/ operation of the project.

(xii) The land use around the Airport complex shall be regulatedthrough a plan to control unauthorized development whichmay create problems in the operation of the Airport.

(xiii) The wastewater from hangers shall be tested for presenceof heavy metals, if any, and shall be treated in STP. Thetreated waste water shall be used for gardening/ flushing.

(xiv) Rain water harvesting shall be provided to recharge theground water.

(xv) Energy conservation to the extent of at least 20% shall beincorporated including water conservation (reuse/ recycle,rain water harvesting and water efficient fixtures) and othergreen building practices for various buildings proposed withinthe airport complex. The PP shall consider ECBC Guidelines2009 to achieve energy efficiency. The energy conservationmeasures shall be subject to periodic verification by thecompetent Energy Conservation/Efficiency authority in theState.

(xvi) The project proponent shall prepare a detailed trafficmanagement plan to take care of increased vehicular trafficwhich should also cover/clearly delineate widening/increasing the existing roads and associated roadinfrastructure approving/installation of road safety features/pedestrian facility/FOB/under passes etc (that can be doneby carrying out road safety audits). Measures shall be takento prevent encroachment along/within the ROWs onconnecting/main arterial roads.

(xvii) All the recommendations of the EMP shall be complied within letter and spirit. All the mitigation measures submitted inthe EIA report shall be prepared in a matrix format and thecompliance for each mitigation plan shall be submitted toRO, MoEF&CC along with half yearly compliance report.

A

B

C

D

E

F

G

H

b) The Environment Policy shall prescribe for standardoperating Process/procedures to bring into focus anyinfringements/deviation/violation of the environmentalor forest norms/conditions.

A

c) The hierarchical system or Administrative Order ofthe company to deal with environmental issues andfor ensuring compliance with the environmentalclearance conditions shall be furnished.

B

d) To have proper checks and balances, the companyshall have a well laid down system of reporting ofnon-compliances/violations of environmental norms tothe Board of Directors of the company and/orshareholders or stakeholders at large.

C

B. GENERAL CONDITIONS:

(i) Provision shall be made for the housing ofconstruction labour within the site with all necessaryinfrastructure and facilities such as fuel for cooking,mobile toilets, mobile STP, safe drinking water,medical health care, creche etc. The housing maybe in the form of temporary structures to beremoved after the completion of the project.

D

E

(ii) A First Aid Room will be provided in the projectboth during construction and operation of the project.

(iii) All the topsoil excavated during constructionactivities should be stored for use in horticulture/landscape development within the project site.

F

(iv) Disposal of muck during construction phase shouldnot create any adverse effect on the neighbouringcommunities and be disposed taking the necessaryprecautions for general safety and health aspectsof people, only in approved sites with the approvalGof competent authority.

(v) The diesel generator sets to be used duringconstruction phase should below Sulphur diesel typeand should conform to Environment (Protection)Rules prescribed for air and noise emission H

1078SUPREME COURT REPORTS

Astandards. The diesel required for operating DGsets shall be stored in underground tanks and ifrequired clearance from Chief Controller ofExplosives shall be taken.

(vi) Vehicles hired for bringing construction material toBthe site should be in good condition and should havea pollution check certificate and should conform toapplicable air and noise emission standards andshould be operated only during non-peak hours.

(vii) Fly ash usage shall be explored as building materialin the construction as per the provisions of Fly AshNotification of September, 1999 and amended ason 27[th] August, 2003.

C

(viii) Ready mixed concrete must be used in buildingconstruction.

D

(ix) Storm water control and its re-use as per CGWBand BIS standards for various applications.

(x) Water demand during construction should bereduced by use of pre-mixed concrete, curingagents and other best practices referred.

E

(xi) Separation of grey and black water should be doneby the use of dual plumbing line for separation ofgrey and black water.

(xii) Use of glass may be reduced by upto 40% toreduce the electricity consumption and load on air-conditioning. If necessary, use high quality doubleglass with special reflective coating in windows.

F

(xiii) Roof should meet prescriptive requirement as perEnergy Conservation Building Code by usingappropriate thermal insulation material to fulfillrequirement.

G

(xiv) Opaque wall should meet prescriptive requirementas per Energy Conservation Building Code whichis proposed to be mandatory for all air-conditionedspaces while it is aspirational for non-air-conditioned H

spaces by use of appropriate thermal insulationmaterial to fulfil requirement.

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necessary in the interest of environment and thesame shall be complied with.

(xxiii) The Ministry reserves the right to revoke thisclearance if any of the conditions stipulated arenot complied with the satisfaction of the Ministry.

(xxiv) In the event of a change in project profile or changein the implementation agency, a fresh referenceshall be made to the Ministry of Environment, Forest& Climate Change.

(xxv) The project proponents shall inform the RegionalOffice as well as the Ministry, the date of financialclosure and final approval of the project by theconcerned authorities and the date of start of landdevelopment work.

(xxvi) A copy of the clearance letter shall be marked toconcerned Panchayat local NGO, if any, from whomany suggestion/representation has been madereceived while processing the proposal.

(xxvii) A copy of the environmental clearance letter shallalso be displayed on the website of the concernedState Pollution Control Board. The EC letter shallalso be displayed at the Regional office, DistrictIndustries centre and Collector’s office/Tehsildar’soffice for 30 days.

(xxviii) The funds earmarked for environmental protectionmeasures shall be kept in separate account andshall not be diverted for other purpose. Year-wiseexpenditure shall be reported to this Ministry andits concerned Regional Office.

5. These stipulations would be enforced among othersunder the provisions of Water (Prevention andControl of Pollution) Act, 1974, the Air (Preventionand Control of Pollution) Act, 1981, the Environment(Protection) Act, 1986, the Public Liability(Insurance) Act, 1991 and EIA Notification 2006,including the amendments and rules madethereafter.

6. All other statutory clearances such as the approvalsAfor storage of diesel from Chief Controller ofExplosives, Fire Department, Civil AviationDepartment, Forest Conservation Act, 1980 andWildlife (Protection) Act, 1972 etc. shall beobtained, as applicable by project proponents fromBthe respective competent authorities.

7. The project proponent shall advertise in at leasttwo local Newspapers widely circulated in theregion, one of which shall be in the vernacularlanguage informing that the project has beenCaccorded Environmental Clearance and copies ofclearance letters are available with the StatePollution Control Board and may also be seen onthe website of the Ministry of Environment, Forest& Climate Change at http://www.envfor.nic.in.The advertisement should be made within sevenDdays from the date of receipt of the Clearance letterand a copy of the same should be forwarded to theRegional Office of this Ministry.

D

…

E9.Status of compliance to the various stipulatedenvironmental conditions and environmentalsafeguards will be uploaded by the projectproponent in its website.”

II. Conditions imposed by the NGT in its order dated 21August 2018

F

A.AIR ENVIRONMENT

1. Total Suspended Particulate Matter (SPM), RespirableParticulate Matter (RPM) during construction phase andun-burnet and Hydro Carbons (HC), Lead (Pb), CO2, SO2,GCO2,SOOT and Oxides of Nitrogen (NOx) during operationphase are going to be major pollutants in this kind of project,Besides, fugitive emissions of Volatile Organic Compounds(VOC) during fuel handling can be another issue for ambientair environment. The provision of only 6 (six) Air QualityMonitoring Stations is inadequate as sampling duration hasH

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1082SUPREME COURT REPORTS

Abeen given as ‘twice a week, 4 weeks in a season as perCPCB standards for NAAQM, 1994. It would beappropriate if the Project Proponent establishes real timeonline continuous Air Quality Monitoring Station also whichis connected to CPCB server and capable of monitoring allrelevant and critical parameters and mitigation measuresBtaken.

2. Although all parameters w.r.t. ambient air parameters havebeen found to be within limits for all 6 (six) locationsmonitored, we feel for the purpose of giving/depicting holisticpicture with regard to ambient air in the area, at least 3C(three) more locations falling in the State of Maharashtrabe also monitored and documented.

B.WATER ENVIRONMENT

1. Only two number of Rain Water Harvesting pits have beenprovided which we feel are not adequate and there is aneed to place other pits at such locations as to capture allthe excess drainage for water-recharge.

D

2. More frequent Water Quality Monitoring i.e.once everymonth may be carried out by Project Proponent at borewells and STP discharge plants instead of 4 (four) times ina year as proposed.

E

C.NOISE ENVIRONMENT

1. It has been proposed that ambient noise levels shall bemonitored around the premises of airport, near DG setsFand at main entrance/boundary of airport once a week at 7(seven) locations which we feel are inadequate. Besidesthese, continuous monitoring of occupational noise exposurelimits in such industrial environments would be appropriatewith audible or visual alarm output capability.

G2.Integrated Noise Model (INM) be more frequently usedand mitigation undertaken during the operational phase ofproject at regular intervals.

3. Although ambient noise levels have been found to be withinlimits at 9 (nine) locations monitored, we feel for the purposeHof giving/depicting holistic picture with regard to ambient noise levels in the area, at least 3 (three) more locationsfalling in the State of Maharashtra be also monitored anddocumented.

A

D.LAND ENVIRONMENT

1. There is a potential for impact on soil quality due to projectBrelated spills and leaks of fuel and chemicals anduncontrolled disposal of wastes and waste water. Adequatecare be taken to avoid spills and leaks of hazardoussubstances and all project related wastes. Littering on sitesand beyond the sites needs to be adequately prevented andcontrolled.C

C

2. Debris and Muck Management Plan to be prepared andimplemented so as to avoid spillage of muck and debris onthe slopes.

3. Soil conservation and stabilization measures needs to beundertaken by deploying both mechanical and bio-engineeringmethods.

D

4. Remediation, restoration and compensation needs to beintegral part of policy so as to provide adequate relief forany environmental or project related disasters.

E

E.BIOLOGICAL ENVIRONMENT

1. Efforts be made to transplant the trees to other locations inthe same vicinity by using appropriate mechanical deviceswhich are available these days.

2. Efforts be made to plant indigenous species which are tallin size rather than small saplings.

F

3. Concerns have been raised by appellants with regard toplant species ‘Dipcadi concanense’ which has been claimedto be a threatened plant. This claim of the appellants havebeen negated by the respondent by producing adocumentation of Botanical Survey of India, WesternRegional Centre, Pune, Maharashtra titled as ‘A Note onOccurrence and Distribution of Dipcadi Concanense”. Byinvoking Precautionary Principle, we direct the ProjectProponent to draw up a Conservancy by Plan/Scheme for G

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A‘Dipcadi concanense’ in collaboration with ForestDepartment, State of Goa and Botanical Survey of Indiaand ensure its implementation.

F.Socio-Economic Environment

1. Adequate drills with respect to implementation of DisasterBManagement plan needs to be carried out at regular intervalsso as to ensure preparedness and rapid response to anydisasters both man made or natural.

2. Although ‘Disaster Management Plan’ as Annexure-II ispart of EIA Report under the sub head 1.2.1-NationalCDisasters needs further elaboration especially in terms ofEmergency Response Measures, Rules and Responsibility,Mitigation, etc.”

III.Conditions imposed in the revised assessment of theEAC dated 23 April 2019

D

I.STATUTORY COMPLIANCE:

(i) The project proponent shall obtain certificate from ChiefWildlife Warden (CWLW) of State through StateGovernment that none of the area of the project falls in thenotified Eco-sensitive Zone (ESZ) and no activity prohibitedEin the Eco-sensitive Zone will be taken up.

(ii) The project proponent shall obtain Consent to Establish/Operate under the provisions of Air (Prevention & Controlof Pollution) Act, 1981 and the Water (Prevention & Controlof Pollution) Act, 1974 from the concerned State PollutionFControl Board/Committee.

(iii) The project proponent shall obtain necessary permissionfrom the competent authority for drawing of water fromTillari Irrigation Canal.

GII.AIR QUALITY MONITORING ANDPRESERVATION:

(i) The project proponent shall install system to carry outAmbient Air Quality monitoring for common/criterionparameters relevant to the main pollutants released (e.g.PM 10 and PM 2.5 in reference to PM emission and SO2, H

and NOx in reference to SO2and NOx emissions) withinand outside the airport area covering upwind and downwinddirections.

A

(ii) Notification GSR 94€ dated 25.01.2018 of MoEF&CCregarding Mandatory Implementation of Dust MitigationMeasures for Construction and Demolition Activities shallBbe complied with.

(iii) Soil and other construction materials should be sprayed withwater prior to any loading, unloading or transfer operationso as to maintain the dusty material wet.

C

(iv) The excavation working area should be sprayed with waterafter operation so as to maintain the entire surface wet.

(v) Excavated materials shall be handled and transported in amanner that they do not cause any air pollution.

(vi) The soil/construction materials carried by the vehicle shouldbe covered by impervous sheeting to avoid leaking of thedusty materials.

D

III.WATER QUALITY MONITORING ANDPRESERVATION:

(i) Appropriate drainage channels need to be designed to takeEcare of the water flow into the nearest water courses/rivers,etc.

(ii) It should be ensured that sustainable water flow in thevarious channels of watershed in the plateau is maintained.

F

(iii) Storm water drains are to be built for discharging stormwater from the air-field to avoid flooding/water logging inproject area. Domestic and industrial waste water shall notbe allowed to be discharged into the storm water drainsand directed to STP for treatment.

G

(iv) Proper drainage systems, emergency containment in theevent of a major spill during monsoon season etc. shall beprovided.

(v) The runoff from paved structures like Aprons can be routedthrough drains to oil separation tanks and sedimentationbasins before being discharged into rainwater harvestingstructures.

H

A(vi)Run off from chemicals and other contaminants fromaircraft maintenance and other areas within the airport shallbe suitably contained and treated before disposal. A spillageand containment plan shall be drawn up and implementedto the satisfaction of the State Pollution Control Board.

B(vii)The project activity shall conform to the General Standardsfor Discharge of Environmental Pollutants notified in theEnvironment (Protection) Rules, 1986, and amended fromtime to time.

(viii) Rain water harvesting for roof run-off and surface run-off,Cas plan submitted should be implemented. Rain waterharvesting structures shall conform to CGWA guidelines.Before recharging the surface run off-pre-treatment mustbe done to remove suspended matter, oil and grease.

IV.NOISE MONITORING AND PREVENTION:

D(i)Notification GSR 568(E) dated 18.06.2018 of MoEF & CCregarding Ambient Air Quality Standards with respect toNoise in Airport Noise Zone shall be complied with.

(ii) Noise level survey shall be carried as per the prescribedguidelines and report in this regard shall be submitted toERegional Officer of the Ministry as a part of six-monthlycompliance report.

(iii) Noise from vehicles, power machinery and equipment on-site should not exceed the prescribed limit. Equipmentshould be regularly serviced. Attention should also be givenFto muffler maintenance and enclosure of noisy equipments.

(iv) Acoustic enclosures for DG sets, noise barriers for ground-run bays, ear plugs for operating personnel shall beimplemented as mitigation measures for noise impact dueto ground sources.

G

(v) During airport operation period, noise should be controlledto ensure that it does not exceed the prescribed standards.During night time the noise levels measured at the boundaryof the building shall be restricted to the permissible levels tocomply with the prevalent regulations.

H

(vi) Where construction activity is likely to cause noise nuisanceAto nearby residents, restrict it to only during day time i.e.between 7 am to 6 pm.

V.ENERGY CONSERVATION/CLIMATE CHANGEMEASURES:

B

(i) Energy conservation measures like installation of LED shouldbe integral part of the project design and should be in placebefore project commissioning.

(ii) Initiatives such as Green Infrastructure Developmentprogram, adoption of less emission intensive technologies,Crenewable energy program, electrical vehicles and AirportCarbon Accreditation need to be adopted to reduce its impacton climate change and Green House Gas (GHG) emissionsas per environmental best practices governing Greenfieldairports.

D

VI.WASTE MANAGEMENT:

(i) Soil stockpile shall be managed in such a manner that dustemission and sediment runoff are minimized. Ensure thatsoil stockpiles are designed with no slope greater than 2:1(horizontal/vertical).

E

(ii) The project activity shall conform to the Fly Ash notificationissued under the EP Act of 1986.

(iii) The solid wastes shall be segregated as per the norms ofthe Solid Waste Management Rules, 2016. Recycling ofwastes such as paper, glass (produced from terminals andaircraft caterers), metal (at aircraft maintenance site),plastics (from aircrafts, terminals and offices), wood, wasteoil and solvents (from maintenance and engineeringoperations), kitchen wastes and vegetable oils (fromcaterers) shall be carried out.

F

G

(iv) Solid inert waste found on construction sites consists ofbuilding rubble, demolition material, concrete; bricks, timber,plastic, glass, metals, bitumen etc shall be reused/recycledor managed so as to strictly conform to the Solid WasteManagement Rules, 2016, and Construction and DemolitionWaste Management Rules, 2016.

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1088SUPREME COURT REPORTS

A(v)The project proponents shall implement a management planduly approved by the State Pollution Control Board andobtain its permissions for the safe handling and disposal of:

a Trash collected in flight and disposed at the airportincluding segregation, collection and disposed.

B

b Toilet wastes and sewage collected from aircrafts anddisposed at the Airport.

c Wastes arising out of maintenance and workshops.

d Wastes arising out of eateries and shops situated insidethe airport complex.

C

e Hazardous and other wastes.

VII.GREEN BELT:

(i) Green belt shall be developed in area as provided in projectdetails, with native tree species in accordance with ForestDDepartment. The green belt shall inter alia cover the entireperiphery of the Airport.

(ii) The plantation species in and around Airport site should becarefully chosen to avoid bird nesting and to improve pollutioncontrol and noise control measures. Water intensive and/orEinvasive species should not be used for landscaping.

(iii) Plantation activity should be taken up under the expertguidance for forest department of Goa, care should be takenthat soil erosion measures should be taken up on priority sothat the right mineralized soil of forest is not washed away.FThe plantation activity should also have an approach of soilconservation where planting is done along the contoursavoiding gully formation. As far as possible monocultureplantation should be avoided.

(iv) The proposed 10 times compensatory plantation need to beGmonitored by the Government of Goa so that the target ofplanting 5.5 lakh saplings is achieved in a a time boundmanner, their survival rate is monitored and mortality isreplenished. As major chunk of 2.5 lakh of saplings isproposed to be done by the village level Bio Diversity H

Committees, it is necessary to ensure that people are largelygiven native species and/or fruit bearing saplings so thatthey will be able to derive economic benefits from suchfruit crops and also such trees will provide better biologicalenvironment to birds.

A

(v) Top soil shall be separately stored and used in theBdevelopment of green belt.

VIII. PUBLIC HEARING AND HUMAN HEALTHISSUES:

(i) Solution/management plan regarding redressal of all theCconcerns raised in the public hearing must be clearly speltout in the EMP and shall be implemented in letter and spirit.Compliance for each mitigation plan shall be submitted toRegional Office, MoEF&CC along with half yearlycompliance report.

D

(ii) Provision of Electro-mechanical doors for toilets meant fordisabled passengers shall be ensured. Children nursing/feeding room shall be located conveniently near arrival anddeparture gates.

(iii) Emergency preparedness plan based on the Hazardidentification and Risk Assessment (HIRA) and DisasterEManagement Plan shall be implemented.

(iv) Provision shall be made for the housing of constructionlabour within the site with all necessary infrastructure andfacilities such as fuel for cooking, mobile toilets, mobile STP,safe drinking water, medical health care, creche etc. Thehousing may be in the form of temporary structures to beremoved after the completion of the project.

F

(v) Occupational health surveillance of the workers shall bedone on a regular basis.”

G

47. We have also taken note of the assurance which has beentendered on behalf of the concessionaire that it will adopt a Zero CarbonProgramme both in the construction and operational phases of the airport.We accept the undertaking of the concessionaire and issue a directionfor compliance.

H

A48. The earlier judgment of this Court highlighted numerousdeficiencies by the project proponent leading to the grant of the EC.This Court highlighted numerous concerns including the preservation offorests, the existence of ESAs with their attendant features and theimpact of the proposed project on natural water channels. The Courtalso noted the abject failure of the project proponent to provide completeBinformation on the existence of reserved forests. In the proceedings thatfollowed the judgment of this Court, the project proponent sought toremedy its failure by taking into account additional information onsignificant aspects of the environment. In the process leading to thegrant of the EC as well as the lifting of its suspension by this Court,Cnumerous mitigatory conditions have been imposed on the projectproponent. We deem it appropriate to ensure the oversight of the projectby a specialized body to ensure compliance with the directionscumulatively issued by this Court. We direct the National EnvironmentalEngineering Research Institute[19] to be appointed to oversee compliancewith the directions cumulatively issued by this Court. The projectDproponent shall bear the costs, expenses and fees of NEERI.49. The suspension on the EC shall accordingly stand lifted.TheMiscellaneous Application is accordingly disposed of.

EAnkit Gyan

Application disposed of.

F

G

H

19 NEERI