Environmental Law Moot

8/13/2019 Environmental Law Moot

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MEMORIAL ON BEHALF OF RESPONDENTS

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Problem No:- A2 Roll No :- 10BAL053

environmental law moot court competition

Before the HONORABLE

HIGH COURT Of jamboodweep

WRIT PETETION NO..........OF 2013

IN THE MATER OF :

PEOPLE

....................................................................................PETETIONER

VERSUS

STATE OF JAMBOODWEEP

.................................................................................RESPONDENTS



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TABLE OF CONTENTS

LIST OF ABBREVIATIONS....3

INDEX OF AUTHORITIES...4-5

STATEMENTOF JURISDICTION....6

STATEMENT OF FACTS.....7

ISSUES RAISED.....8

SUMMARY OF ARGUMENTS...9

ARGUMENTS ADVANCED......10-19

PRAYER....... 20


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LIST OF ABBREVIATIONS

1. Mr. - Mister

2. SC- Supreme Court

3. AIR- All India Reporter

4. &- And

5. Honble - Honorable

6. u/s- under section

7. r/w- Read with

8. Govt.- Government

9. FIR- First Information Report

10. LJ- Law Journal

11. Cri- Criminal

12. Edt. Edition

13. OLR Orissa Law Review

14. MoEF Ministry of Environment and Forest

15. C.R.Z Costal Zone Regulations


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INDEX OF AUTHORITIES

CASE REFERRED

Dahanu Taluka Environment Protection Group v. Bombay Suburban

Electricity Supply Company ltd 1

Bses Limited V/S Union Of India 2

Carlos Noronha & Anr V/S Union Of India & Ors 3

Fishermen Co-Operative Society, Bibinagar Village And Mandal, Nalgonda DistV/S A P Pollution Control Board 4

Indian Council For Enviro-Legal Action V/S Union Of India 5

Intellectuals Forum, Tirupathi V/S State Of A P 6

Intellectuals Forum, Tirupathi V/S State Of A P 7

Jana Jagruthi Samithi V/S Union Of India8

1 1991 (2) JT 1, 1991 (1) Scale 472, 1991 (1) UJ 578, 1991 (2) SCJ 446, 1991 (2) SCC 539, 1991 (3) BCR 39, 1991AIR(SCW) 910 2BSES LIMITED V/S UNION OF INDIA2001 (1) BCR 394, 2001 (1) AllMR 435, 2001 AIR(Bom) 128 3 2011 (113) BLR 609, 2011 (2) BCR 36, 2011 (1) AllMR 589 4 2001 (5) ALD 755, 2001 (6) ALT 162 5 1997 ILR(Kar) 2956 6 2006 3 SCC 549 7 2006 3 SCC 549

8 1991 2 KarLJ 524


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Lakshminagar Welfare Society V/S State Of Andhra Pradesh 9

M Nizamudeen V/S Chemplast Sanmar Limited, Rep By Its General Manager(Legal), T Ravichandran And Ors 10

S K Bansal V/S Union Of India 11

Sadanand S Varde V/S State Of Maharashtra 12

Dyeing & Mfg. Co. Ltd(3) v. Bombay Environmental Action Group 13

Goa Foundations v. Diksha Holdings(P) Ltd 14

Consumer and civic action group v. Union of India 15

Fertilizers and Chemicals Travancore Ltd. Employees Assn. V. Law Society ofIndia 16

G.Sundarrajan v. The Union Of India 17

9 2001 LawSuit(AP) 165 10 2010 (2) JT 623, 2010 (3) UJ 1362, 2010 (2) Supreme 358 11 1998 4 AD(Del) 828 12 2001 1 BCR 261

13( 2005)5 SCC 56114 AIR 2001 SC 184 15

AIR 2002 Mad 298, 2002 (3) MadLW 393 16 AIR 1994 Ker 308 17 G.Sundarrajan v. The Union Of India W.P.No.24770 of 2011


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Websites Referred

www.manupatra.com

www.indiankanoon.org

www.alastairhudson.com

www.indianjuris.com

www.vakilno1.com

www.westlawindia.com

www.thehindu.com

www.levonstechnology.com


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STATEMENT OF JURISDICTION

The following petition has been made under Art-226 of the Constitution Of

Jambo odweep in the Honble High Court with compliance to the notice issued by

the Honble Court . The counsel stands on the behalf of the Respondents .


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STATEMENT OF FACTS

1. Jamboodweep, in the Indian Ocean, is a peninsular country having an eco-system and alegal order similar to that of India.

2. Within 500 metres of the CRZ Area, one of the States in the region, which is theeconomic capital of Jamboodweep, has planned to build a Thermal Power Plant, to meetits growing energy demands.

3. Environmental Clearances for the same have been given.

4. Certain concerns have been raised by the local residents of the nearby area regardingthe ecological impact of the said thermal power plant.

5. A Public Interest Litigation has been made, which has brought this case into action.


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ISSUES RAISED

ISSUE 1 :- Whether the establishment of the Thermal Power Plant is in accordancewith law .

Were the Regulations complied with . Why is there a need to comply with the said regulations.

ISSUE 2 :- Whether there is a contravention to the Doctrine of SustainableDevelopment .

What is Sustainable Development. Mere apprehension cannot be grounds for decommission.

ISSUE 3 :- Why the thermal power plant would not be harmful to the citizens.


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SUMMARY OF ARGUMENTS


It is submitted that the first issues deals with the regulations concerning the Creationof a Thermal Power Plant within the C.R.Z area. It also goes on to establish the factthat a Thermal Power Plant can be legally set up in the C.R.Z area if the requiredclearances are provided.

ISSUE 2 :- Whether there is a contravention to the Doctrine of SustainableDevelopment

It is submitted that this issue defines what the courts infer from the term SustainableDevelopment and how it co relates to the development of the Environment andDevelopment for the society at large .

ISSUE 3:- Why the thermal power plant would not be harmful to the citizens

It is submitted that this issue makes it explicitly clear that not only were theregulations complied with but other notifications of the government have also beentaken up for enforcement.


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ARGUMENTS ADVANCED


Were the Regulations complied with .

It is submitted that consent has been provided for all required clearances. The same has beendone in accordance with the laws of the state and the clearances have been given by the

Ministry of Environment and Forest, Jambodweep.The said consent has been admitted in accordance with the regulations adapted as passed bythe Indian Legal System.

The said clearance have been obtained in accordance with the notification dated 6 th January2011 by the Ministry of Environment and Forest, India 18.

Paragraph 3 of the said notification states about Prohibitive activities within CRZ 19 Which includes setting up of new industries however the exception clause clarifies that theaforementioned restriction shall not apply to the following industries :-

3. Prohibited activities within CRZ, - The following are declared as prohibited activitieswithin the CRZ,-

(i) Setting up of new industries and expansion of existing industries except,-

(a) those dir ectly related to waterf ront or di rectly needing for eshor e facil iti es;

Explanation : The expression foreshore facilities means those activities permissibl e un der th is notif ication and they requi re waterfr ont for their operations such asports and harbour s, jetties, quays, whar ves, erosion control measur es, breakwaters,pipelines, li ghthouses, navigational safety facil it ies, coastal poli ce stations and th e like.;

18 COASTAL REGULATION ZONE NOTIFICATION MINISTRY OF ENVIRONMENT AND FORESTS (Department of Environment,

Forests and Wildlife) To be published in the Gazette of India, Extraordinary, Part-II, Section 3, Sub-section (ii) of datedthe 6th January, 2011) 19 CRZ :- Costal Regulation Zone


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Further the paragraph 4 talks about the Regulation of certain activites within the C.R.Z andthe sub section (ii) further enumerated the industries which would require the prior clearancefrom the MoEF 20. The relevant portion is as under :-

4. Regulation of permissible activities in CRZ area.- The following activities shall be

regulated except those prohibited in para 3 above,-...

(ii) the following activities shall require clearance from MoEF, namely:-(a) those activities not listed in the EIA notification, 2006.(b) construction activities relating to projects of Department of Atomic Energy or Defencerequirements for which foreshore facilities are essential such as, slipways, jetties, wharves,quays; except for classified operational component of defence projects. Residential buildings,office buildings, hospital complexes, workshops of strategic and defence projects in terms of

EIA notification, 2006.;

(c) construction, operation of lighthouses;(d) laying of pipelines, conveying systems, transmission line;(e) exploration and extraction of oil and natural gas and all associated activities and

facilities thereto;(f) F oreshore requi ri ng facil iti es for transport of r aw materi als, facili ties for in take ofcooli ng water and outfal l f or di scharge of tr eated wastewater or cooli ng water f romthermal power plants. M oEF may specify for category of pr ojects such as at (f), (g) and (h)of para 4;(g) Mining of rare minerals as listed by the Department of Atomic Energy;(h) Facilities for generating power by non-conventional energy resources, desalination

plants and weather radars;(i) Demolition and reconstruction of (a) buildings of archaeological and historicalimportance, (ii) heritage buildings; and buildings under public use which means buildings

such as for the purposes of worship, education, medical care and cultural activities;

The aforementioned provisions of the said regulation have been so highlighted to bring tonotice the point about due process of Law required for obtaining permission for establishing a

Thermal Power Plant in the C.R.Z area.

The aforementioned regulation makes it clear that a Thermal power Plant cannot beestablished without the prerequisite condition.

In the present case, the said prerequisite conditions have not only been complied with buthave also been given consent to by the Government of Jambodweep.

Hence the question about due process of law has been fully complied with.

20 MoEF :- Ministry of Environemt and Forest, India.


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Why is there a need to comply with the said regulations ?

In order to establish the aforementioned sub point, it is submitted that a Thermal Power Plantrelies upon the usage of water in a large quantity.

The same has been enumerated by the Delhi Electricity Board in its report on Minimisationof water requir ements in Coal Based Thermal Power Plants 21

The operative portion of the said report is as under :-

Water is one of the key input requirements for thermal power generation. Water is required for process cooling in the condenser, ash disposal, removal of heat generated in plantauxiliaries, and various other plant consumptive uses. For power plants located on mainland, the raw water is generally drawn from fresh water source such as river, lake, canal,reservoir, barrage. Treated sewage water may also be used as source of raw water for the

power plants located adjacent to the cities. For power plants located in coastal areas, water for cooling of condenser and auxiliaries is drawn from the sea or creek which provides forwater requirement of the wet ash handling system also. The requirement of water for other

plant consumptive uses is met from an alternative source or by installing desalination plant

The aforementioned report makes it abundantly clear that in a Thermal Power Plant, water isone of the key requirements to complete the process of energy generation.

A study conducted by the United States Department Of Energy/ Natural Energy technologyLaboraty also states 22:-

Most of the demand for water in thermoelectric plants is for cooling water for condensing steam. Thermoelectric power production is the conversion of thermal energy into electricalenergy. This is done in two ways, the Brayton cycle and the Rankine Cycle. In the Rankinecycle (or steam cycle), fuel is used to heat a liquid to produce a high pressure gas (usuallywater is heated to produce steam), which is expanded over a turbine to produce electricity.

The aforementioned studies make it amply clear that Water plays an integral part in the process of Energy Generation in a Thermal Power Plant.

Water is essentially required for :-

1. Water is first boiled to convert it into steam.2. The steam is them made to rotate a turbine .3. This rotation of the turbine produces energy.4. The steam is then condensed and is then re-heated to form steam and the cycle

continues.

21 Report on Minimisation of Water requirement in Coal based Thermal Power Stations Central ElectricityAuthority , New Delhi January2012 22 Department of Energy, National Energy Technology Laboratory, Power Plant-Water R&D Program Barbara

by:- Carney*, Thomas Feeley, and Andrea McNemar U.S. Department of Energy/National Energy Technology

Laboratory


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Hence water is one of the most crucial requirements of any Thermal Power Plant. Hence thePower Plant Comes under the exception of Paragraph 3 of the MoEF notification.

Further it comes under the paragraph 4 of the MoEF notification which states about activitieswhich are permitted in C.R.Z area which include Foreshore activities.

It is submitted that :-

a. The Thermal Power Plant has complied with all the regulations b. The Thermal Power Plant comes under the preview of MoEF Notification and hence

the aforementioned regulations for which consent is granted are directly applicable toit .

Further it is submitted that the Supreme Court in the landmark judgement of Dahanu TalukaEnvironment Protection Group v. Bombay Suburban Electricity Supply Company ltd. 23Heldthat :-

we are satisfied that the clearance to the thermal power station was granted by the CentralGovernment after fully considering all relevant aspects and in particular the aspects ofthe environmental pollution of air, water and environment have been insisted upon in theconditions of grant

In the present case, the Government has given all the clearances after full consideration ofrelevant aspects of environment pollution of air, water and environment.

This aforementioned reasoning of the Supreme Court of India was upheld in various cases

1. Bses Limited V/S Union Of India 24 2. Carlos Noronha & Anr V/S Union Of India & Ors 25 3. Fishermen Co-Operative Society, Bibinagar Village And Mandal, Nalgonda Dist V/S

A P Pollution Control Board 26 4. Indian Council For Enviro-Legal Action V/S Union Of India 27 5. Intellectuals Forum, Tirupathi V/S State Of A P 28 6. Jana Jagruthi Samithi V/S Union Of India 29 7. Lakshminagar Welfare Society V/S State Of Andhra Pradesh 30 8. M Nizamudeen V/S Chemplast Sanmar Limited, Rep By Its General Manager

(Legal), T Ravichandran And Ors 31

9. S K Bansal V/S Union Of India 32

10. Sadanand S Varde V/S State Of Maharashtra 33

23 Dahanu Taluka Environment Protection Group v. Bombay Suburban Electricity Supply Company ltd. 1991 (2)JT 1, 1991 (1) Scale 472, 1991 (1) UJ 578, 1991 (2) SCJ 446, 1991 (2) SCC 539, 1991 (3) BCR 39, 1991 AIR(SCW)910 24BSES LIMITED V/S UNION OF INDIA2001 (1) BCR 394, 2001 (1) AllMR 435, 2001 AIR(Bom) 128 25 2011 (113) BLR 609, 2011 (2) BCR 36, 2011 (1) AllMR 589 26 2001 (5) ALD 755, 2001 (6) ALT 162 27 1997 ILR(Kar) 2956 28 2006 3 SCC 549 29 1991 2 KarLJ 524 30

2001 LawSuit(AP) 165 31 2010 (2) JT 623, 2010 (3) UJ 1362, 2010 (2) Supreme 358 32 1998 4 AD(Del) 828


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ISSUE 2 :- Whether there is a contravention to the Doctrine of SustainableDevelopment .

What is Sustainable Development.

The term sustainable development was first coined at the by the Club of Rome in March1972 in its epoch-making report on the "Limits to Growth", written by a group of scientistsled by Dennis and Donella Meadows of the Massachusetts Institute of Technology.Describing the desirable "state of global equilibrium", the authors used the word"sustainable" 34:

"We are searching for a model output that represents a world system that is: 1. sustainablewithout sudden and uncontrolled collapse; and 2. capable of satisfying the basic materialrequirements of all of its people ."

However the term sustainable development does not mean the development of theenvironment without taking into consideration the needs of the people.

The same has been upheld by the Supreme Court of India .

In the case of Bombay Dyeing & Mfg. Co. Ltd(3) v. Bombay Environmental Action Group 35,the Supreme Court has observed :-

The development of the doctrine of sustainable development indeed is a welcome feature bitwhile emphasising the need of ecological impact, a delicate balance between it and thenecessity for development must be struck, Whereas it is not possible to ignore inter-

generational interest, it is also not possible to ignore the dire need which the society urgentlyrequire.

What the court should follow is a principle of sustainable development and find a balance between the developmental need which therespondents assert and the environmental degradation that the appellants allege

Furthermore the Supreme Court stated in the case of Goa Foundations v. Diksha Holdings(P)Ltd 36 :-

The society have to prosper, but not at the cost of the environment and in the similar vein,the environment shall have to be protected but not at the cost of the development of the

society there shall have to be both the development and the proper environment and as such, a balance has to be found out and administrative action out to proceed in accordancetherewith and not dehorns the same

The aforementioned judgements of the Supreme Courts highlight the fact that Developmentcannot be at the cost of the environment and the Environment cannot be protected at the costof the urgent needs of the people.

33 2001 1 BCR 261 34 Club of Rome-1972 35( 2005)5 SCC 56136 AIR 2001 SC 184


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The State of Jamboodweep is in dire need of Electricity. In this competitive world,Jumboodweep has established a reputation of itself as being one of the better developingcountries. However this development requires energy so that the production can go on.

Hence there is s dire need for the Thermal Power Plant.

The following table enumerates how the shortage of power was greatly reduced by theintroduction of thermal power plants in India 37.

Year Requirement Availability Shortage Shortage

1996-97 413490 365900 47590 11.5 %

1997-98 424505 390330 34175 8.1 %

1998-99 446584 420235 26349 5.9 %

1999-2000 480430 450594 29836 6.2 %

2000-2001 507216 467400 39816 7.8 %

2001-2002 388591 360140 28451 7.3 %

It goes without saying that this shortage has been further reduced with the introduction ofmore Thermal Power Plants in the State of India.

Hence the need for development cannot be ignored.

The Bombay High Court further in the case of Sneha Mandal Coop. Housing Society Ltd v.Union Of India 38 held that :-

Development cannot be permitted at the cost of environment and the protection ofenvironment cannot be permitted at the cost of development. They have to go hand in hand.

Similarly in the case of Consumer and civic action group v. Union of India 39, the MadrasHigh Court held :

The Environment shall have to be protected, but not at the cost of the development of the society. Both the development and the environment shall coexist and go hand in hand.Therefore, a balance has to be struck and administrative action ought to proceed inaccordance therewith, and not dehorn the same .

37

Ministry of Power, Government of Jambodweep, Annual Report 2001-2002, 2.738 AIR 2000 Bom 121, 2000 (1) BomCR 395, (2000) 1 BOMLR 13 39 AIR 2002 Mad 298, 2002 (3) MadLW 393


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Mere apprehension cannot be grounds for decommission.

It is submitted that, mere apprehension of a future harm is not a sufficient ground for the

termination of a project. A project such as a Thermal Power Plant has been given the dueclearances only after due scrutiny of the various impacts on the environment.

Further The Supreme Court in the case of Fertilizers and Chemicals Travancore Ltd.Employees Assn. V. Law Society of India 40 held that

We have to live with certain risks, which are counterbalanced by the services and amenities provided by these entities. Many factories, plants and utilities are vulnerable to certain risksbut they cannot be decommissioned or dismantled. We have to live with them if they are

serving the public interest and do not post grave threat to the environment .

A point that was recently upheld by the Honerable High Court of Madras in the PublicInterest Litigation of G.Sundarrajan v. The Union Of India 41 and others regarding the issue ofKundankulam Nuclear Plant and its reprocutions if allowed to be established in India.HON'BLE MR.JUSTICE P.JYOTHIMANI ,AND HONOURABLE MR.JUSTICEM.DURAISWAMY held that

The mere apprehension of danger cannot be a ground for stalling any project and if suchview is taken, no project could have come up in the world .

The court was of the view that if we adopt a policy of abandoning projects because there is afear that they could be harmful for the society then there would be no projects that would beallowed to set up . And we as an economy would never grow . In this era of globalisation , itis not only important to invest in other countries , but it is equally important to allow foreignmoney to enter into our country .

40 AIR 1994 Ker 308 41 G.Sundarrajan v. The Union Of India W.P.No.24770 of 2011


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ISSUE 3 :- Why the thermal power plant would not be harmful to the citizens.

It is submitted that not only the regulations under Issue 1 have been complied with, but the

following standards of the Environemt Protection Act have also been adhered to .

There are well-defined regulatory requirements which imply that the government mustregulate various aspects of the TPP operations and construction to reduce theirenvironmental and social impacts

In order to regulate the discharge of effluent and emission from TPPs, the followingstandards are notified under Environment (Protection) Act, 1986. Correspondingstandards are 42:-

TEM PERATURE LI M I T FOR DI SCHARGE OF CONDENSER COOLI NG WATER

FROM TH ERMAL POWER PLANT

A. New thermal power plants commissioned after June 1, 1999.

New thermal power plants, which will be using water from rivers/lakes/reservoirs, shallinstall cooling towers irrespective of location and capacity. Thermal power plants whichwill use sea water for cooling purposes, the condition below will apply.

B. New projects in coastal areas usin g sea water.

The thermal power plants using sea water should adopt suitable system to reduce water

temperature at the final discharge point so that the resultant rise in the temperature ofreceiving water does not exceed 7C over and above the ambient temperature of thereceiving water bodies.

C. Existing thermal power plants.

Rise in temperature of condenser cooling water from inlet to the outlet of condenser shallnot be more than 10C.

D. Gui deli nes for discharge point.

1. The discharge point shall preferably be located at the bottom of the water body atmid stream for proper dispersion of thermal discharge.

2. In case of discharge of cooling water into sea, proper marine outfall shall be designedto achieve the prescribed standards the point of discharge may be selected inconsultation with concerned State Authorities/ NIO.

The said Thermal Power Plant not only complies with all the aforementioned reports, but alsohas complied with the industry standards for protection of the Environment.

42 Source: EPA Notification [GSR 7, dated Dec. 22, 1998]


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The sustainable development approach claims to be able to avoid the environmentaldegradation that has previously accompanied economic growth by integrating economic andenvironmental decisions. For most governments this means incorporating the environmentinto the economic system.

David Pearce and his colleagues, in their report on sustainable development to MargaretThatcher, then British Prime Minister, said that the principles of sustainable developmentmeant recognizing that 'resources and environments serve economic functions and have

positive economic value. 43 As a component of the economic system, the environment is seento provide raw materials for production and to be a receptacle for its wastes.

Traditional model of an economic system.

This has now been modified to include environmental resources

Modified model of an economic system.

This new approach of the government towards developments does put some extra amount of pressure on the environment , however in these changing times, the resources have to beutilised to the maximum, minimizing the amount t of waste produced. Only then can there beany significant development.

43 '(1989, p.5)


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PRAYER

Wherefore in the light of the issues raised, arguments advanced andauthorities cited, it is humbly prayed that this Honble Court may bepleased to state :

1. That the PIL is not maintainable because the principles ofEnvironmental Protection are not being violated.

2. The court should remove any hindrances caused due to this PIL inthe way of introduction of the said Thermal Power Plant.

And order any other relief that this Honble Court may deem fit in the

interests of justice, equity and good conscience. For this act of kindness the

counsel shall duty-bound ever pray.

Environmental Law Moot

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