Following their land mark victory in Supreme Court, Environmental Foundation Limited (EFL), a non-profit organisation dedicated to the conservation and protection of the environment through public interest litigation vouched they would continue to fight to put an end to coal based power plants that severely pollute the environment. However, on the other hand, the Ceylon Electricity Board claims coal is the cheapest source of electricity in the world.Coming back to the case, EFL, filed a Fundamental Rights Application (Bearing No. SCFR 179/16), against the proposed controversial coal power plant in Sampur, in the District of Trincomalee, without a proper assessment of the severe impacts on the surrounding area.
When this matter was taken up before the Chief Justice in Supreme Court, Deputy Solicitor General. Sanjaya Rajaratnam, appearing for the 1st to the 8th Respondents (Ceylon Electricity Board, Central Environmental Authority, Public Utilities Commission of Sri Lanka, Minister of Power and Renewable Energy, Department of Coast Conservation, Ministry of Fisheries and Aquatic Resources Development, Marine Environment Protection Authority and Divisional Secretary-Mutur), informed Court that he has received instructions from Dr. Suren Batagoda, the Secretary to the Ministry of Power and Energy that the proposed Coal Power Plant will not be initiated in Sampur.
Upon this express undertaking given to Court, on behalf of the 1st to the 8th Respondents, above named, President’s Counsel K. Kanag-Isvaran, appearing for the Petitioner organisation, EFL, indicated to Court that they would not proceed with this Fundamental Rights application and agreed to the termination of proceedings.
Mr. K. Kanag-Isvaran PC, appeared for the Petitioner organisation with Ms. Wardani Karunaratne (Legal Consultant EFL) and Ms. Gayani Hewawasan (Head-Legal Division EFL) instructed by Aequitas Legal: Attorneys-at-law and Legal Consultants.
The Petitioner stated that The Petitioner is a non-profit making Company, Limited by Guarantee, incorporated under Laws of Sri Lanka and having its registered office at the address given above. The objects of the Petitioner includes, inter alia, monitoring State Departments and Regulatory Agencies and ensuring that the public interest in protecting the environment is fully considered in their administrative activities and enforcing laws relating to the conservation of nature and protection of the environment through legal means.
EFL concerned about environment
The Petitioner further stated that they are and continue to be genuinely concerned about the implementation and enforcement of the laws relating to the protection of the environment and also in performing the fundamental duty cast on every person under Article 28(f) of the Constitution of the Republic to protect nature and its riches. The Petitioner in its capacity has invoked the jurisdiction of Your Lordships’ Court and other courts in several matters (earmarked from famous Eppawala Phosphate Mining Case) relating to the environment and has obtained relief in pursuance of its aims.
In addition to their above objectives the Petitioner also presents this Petition “in the public interest” under Article 126 of the Constitution particularly, inter alia, to ensure due compliance with environmental protection and pollution control laws, regulations and procedures, to ensure performance of the Respondents’ entrusted duties and obligations thereto, as contemplated in Article 27(14), 28(d) and 28(f) of the Constitution of this Republic, for and on behalf of the citizenry of this Republic upon whom all such powers of government are absolutely and inalienably vested by virtue of their sovereign entitlement.
Thirteen respondents named
The Petitioner states that; (A) The 1st Respondent above named is the Chairman of Ceylon Electricity Board appointed in term of Section 6(1) of the Ceylon Electricity Board Act No. 17 0f 1969. , who exercises general purview, authority and supervision in respect of the electricity power of Sri Lanka whose statutory duty as more fully elaborated hereinafter becomes a principal subject matter in this application
(B) The 2ndRespondent is the Chairman of Central Environmental Authority (hereinafter sometimes referred to as the “CEA”) which has been statutorily constituted under the National Environmental Act No. 47 of 1980 (as amended – hereinafter at times referred to as “the NEA”) and its public duties constitute the implementation and administration of the NEA and Regulations made there under, including issuance of environmental clearance for the prescribed projects as the “Project Approving Agency” and 2nd Respondent is the sole authority mandated under the in terms of Part IV of NEA in respect of environmental protection and environmental quality as more fully elaborated hereinafter — a principal subject matter in this application.
(C) The 3rd Respondent is the Chairman of Public Utilities Commission of Sri Lanka (hereinafter at times referred to as “PUCSL”) established under the Sri Lanka Electricity Act No. 20 of 2009 (hereinafter at times referred to as “SLEA”) by which PUSL became the economic, safety and technical regulator of the electricity industry.
The 3rd Respondent has the statutory duty as the sole authority to take initiatives to regulate the electricity industry as more fully elaborated hereinafter become a principal subject matter in this application. (D) The 4th Respondent is the Minister of Power and Renewable Energy, who has ministerial purview over the electricity industry of Sri Lanka and who endorses, in his ministerial capacity, the commissioning of the coal power project in Sampur.
(E) The 5th Respondent is the Director General of Coast Conservation Department (hereinafter referred as the CCD) which is established by the Coast Conservation Act No. 57 of 1981 (hereinafter referred as the CCA) whose statutory duty to protect and conservation of coastal zone of the Island as more fully elaborated hereinafter becomes very crucial in respect of the principal subject matter in this application.
(F) The 6th Respondent is the Director General of Fisheries and Aquatic Resources Development of Ministry of Fisheries and Aquatic Resources Development who has ministerial purview over responsibilities for the development and conservation of fisheries sector of Sri Lanka which is going to be adversely impacted by the subject matter of this application. (G) The 7th Respondent is the Chairman of Marine Environment Protection Authority (hereinafter referred as the MEPA) which is established by the Marine Pollution Prevention Act No.35 0f 2008 (hereinafter referred as the MPPA) as the mandated authority as the apex body established as the sole authority to prevent pollution, control and management of Sri Lanka’s Marine Environment.
(H) The 8th Respondent is the incumbent Divisional Secretary of Mutur, who had control and supervision over state land come under his jurisdiction, where the predecessor of the 8th Respondent had granted the initial permission/clearance to release the land for the Sampur Coal Power Project within the Divisional Secretariat area of Mutur.
(I) The 9th Respondent is the project proponent, a private company incorporated with limited liability under the laws of Sri Lanka which is to carry out the construction and/ or operation of the coal power plant to be set up in Sampur in the District of Trincomalee in collaboration with Government of Sri Lanka.
(J) The 10th Respondent is a member of the Technical Evaluation Committee (herein after sometimes referred to as ‘TEC’) appointed by the Project Approving Agency, namely Central Environmental Authority in terms of the Section 23 BB of the NEA and its Regulation No 01 of 1993 published in Gazette No 772/22, who has made the purported recommendation to grant conditional approval for the Sampur Coal power plant serving in the capacity of an expert in the field of coastal modelling. (K) The 11th Respondent is a member of the said TEC who has made the purported recommendation to grant conditional approval for the Sampur Coal power plant serving as an expert in the field of Air Pollution Control.
(L) The 12th Respondent is a member of the said TEC and also an Ecology Expert who has allegedly made the recommendation to grant conditional approval for the Sampur Coal Power Plant. (M) The 13th Respondent is a member of the said TEC who has made the purported recommendation to grant conditional approval for the Sampur Coal Power Plant serving as an Expert in the field of water pollution control.
Views of a Renowned environmentalist
Renowned environmentalist, Dr. Ranil Senanayake, responding to queries said that Sulphur Oxides (SOx) and Nitrogen Oxides (NOx) can trigger wheezing, shortness of breath and tightness in the chest. SOx can also form particulate matter causing lung damage, heart disease and other illnesses that lead to premature death. Increased levels of NOx can cause inflammation of lung tissue, lead to aggravation of respiratory diseases and atmospheric discoloration. Sulfur Dioxide (SO2) and Nitrogen Dioxide (NO2) Inhalation of Sulphur Dioxide (SO2) causes inflammation & hyper-responsiveness of the airways, aggravates bronchitis, and decreases lung function.
Particulate Matter such as dust/dirt/soot or smoke- PM2.5 and PM10 Particulate Matter (PM) cause injury to the airways and lungs by damaging cells caused by oxidizing molecules in pollutants; leading to inflammation, cytotoxicity and death of cells. Similarly, it can aggravate asthma, coughing, painful breathing, and chronic bronchitis, decreased lung function can cause premature deaths in health and lung patients.
Heavy Metals:- The main threats to human health from heavy metals are associated with exposure to lead, mercury and arsenic etc. Chromium – can cause stomach ulcers, anemia, and stomach and lung cancers; Selenium – in excess can cause impaired vision or paralysis Boron – which can cause eye, nose, and throat irritation, or in large amounts damage to testes, intestines, liver, kidney, and brain Mercury – Hg Enters the food chain through marine organisms and exposure to high levels can permanently damage the brain, kidneys, and developing foetuses. Effects on brain functioning may result in irritability, shyness, tremors, changes in vision or hearing, and memory problems.
Arsenic:- As Ingestion of very high levels can possibly result in death. Long-term low level exposure can cause a darkening of the skin and the appearance of small “corns” or “warts” on the palms, soles, and torso. Lead – Pb Long-term exposure of adults can result in decreased performance in some tests that measure functions of the nervous system; weakness in joints; increases in blood pressure; and anemia. Exposure to high lead levels can severely damage the brain and kidneys and ultimately cause death.
In pregnant women, high levels of exposure to lead may cause miscarriage. Carbon Dioxide – CO2 High emissions of CO2, a primary Green House Gas, can exacerbate global warming and will be the highest contributor to GW in Sri Lanka.
Panel consisted of Chathura Ranasinghe, PhD, Lecturer at the University of Moratuwa; Janaka Ratnasiri, PhD, Former Chief Technical Adviser to the Ministry of Environment; Vidhura Ralapanawe, MSc; Lareef Zubair, PhD, Scientist, Columbia University, New York.; Eng. Parakrama Jayasinghe, MSc, President, Bio Energy Association; Kopalapillai Amirthalingam, PhD, Senior Lecturer in Economics, University of Colombo; Ranil Senanayake, PhD, Chairman of Rainforest Rescue International and Systems Ecologist; who are eminently qualified and well suited for such task, thus, Petitioner sought Your Lordships’ Court’s attention with respect to the facts set out in the said report for the purpose of assisting Your Lordships’ Court by providing a true and accurate status of the project/technology and the adverse impacts of the project.
A copy of the said Expert report titled “Irregularities in the EIA for the Sampur Coal Power Plant” is annexed hereto marked P15 and plead part and parcel hereof.
EIA Approval is not tenable in law. The Petitioner further states the alleged approval granted by the 3rd Respondent, marked above as P14 , are unlawful and not tenable in law and ought to be rejected on the basis, inter alia, that; a. The current project which is the subject of this application is partially/wholly located within the Coastal zone of the Cost Conservation Department under the Coast Conservation Act where no such development activity/access is permitted as more fully discussed in paragraph 35 (b).
It is evident in their own documentation that unloading jetty, water extracting facility and water discharge facility are in and/ or running across the coastal zone. b. No proper evaluation had been done by the 5th and 7th Respondents (CCD & Marine Environmental Protection Authority) in issuing no objection letters which has in fact been taken into consideration by the project approving agency, in arriving such decision to grant approval for the EIA. The project is expected to pollute the marine environment through discharge of acidic water (through absorption of SOx from stack air emissions) contaminated with heavy metals. Further, air emissions settle and dissolve in the ocean polluting the marine environment.
World Bank on coal plants
The World Bank’s board on recently agreed to a new energy strategy that will limit financing of coal-fired power plants to “rare circumstances,” as the Washington-based global development powerhouse seeks to address the impact of climate change.
The Bank will amend its lending policies for new coal-fired power projects, restricting financial support to countries that have ‘no feasible alternatives’ to coal, as it seeks to balance environmental efforts with the energy needs of poor countries.
The impact of this energy strategy may not be seen immediately, since bilateral donors and the private sector will still continue to finance coal. Some analysts hope the new strategy could send a signal that coal is a risky investment and prompt countries to turn to alternative energy sources.
EIA Not Submited For Norochcholai Plant?The Lakvijaya Power Station also known as the Norochcholai Power Station is the largest coal power station in Sri Lanka. The power station is located in Norochcholai, Puttalam, on the southern-end of the Kalpitiya Peninsula. The Norochcholai power plant, as a whole, adds 900 MW of electricity to the National Grid.
Environment Protection License is issued by Central Environmental Authority in Sri Lanka and once issued CEB bound to adhere to the conditions stipulated in it. To get EPL an environment impact assessment report should be submitted by the power plant. But such report has not been submitted so far.
The picture of a better future has long faded, five years after operations at Lakwijaya began. Today the environmental, social and cultural impacts of the power plant have exceeded all expectations and the long term consequences of this plant are already being felt by the people of Norochcholai and its surrounding villages. The residents of the area continue to lead their lives amidst these issues are the victims.
The plant is located 100m – 200m away from the seashore and the ship which transport coal has to be berthed in the sea as the coast line has eroded. Barges are used to get the coal in to the land and some chunks of coal fall in to the sea when unloading from ship to the barges. This happens again when unloading the coal from barges to the jetty. The fishery harvest of the area has been reduced by 20 percent while the fish habitats have been affected due to this exercises, fisherman of the area complained.
Around 60,000 metric tons of coal is transported to the plant annually. The other issue that needed to be address through EPL is the Fly Ash of the plant.
For six months of the year (April – August), with the onset of the South West monsoon, the wind brings coal dust and fly ash towards the landside, blackening agricultural fields, homes, coconut trees, etc. May is known to be the worst month during this period.
CEB initially planned to build a tree wall to block this ash going into the villages, which is yet to be implemented. Also there was another plan to sell the ash to cement industry, which again yet to see the light of implementation due to the higher percentage of carbon in fly ash. Ash is carried up to 2km away from the plant.
Sri Lanka’s government and the electricity regulator Public Utilities Commission is pushing hard for renewable energy and holds the approval of long term generation plan of CEB which again supports the coal power.
However authorities should ensure the Norochcholai power plant is operated under EPL, so that the damage to the environment would be somewhat controlled and minimised.