A Triumph Of Environmental Activism
“The most striking feature of this entire battle was the unyielding solidarity the people (in Chunnakam) showed till the end. They were united as one, and their unity was unwavering”, Dr. Ravindra Kariyawasam, Director of the Colombo based Center for Environmental and Nature Studies (CENS), who led the Chunnakam battle from the front quipped with intense satisfaction. Kariyawasam was the sole petitioner of this public interest litigation (PIL) case on behalf of the residents of Chunnakam. Attorneys-at-law Nuwan Bopage and Chathura Wettasinghe argued the case (SCFR/2015/141) free of charge.
Kariyawasam, a seasoned campaigner in the south, sees the whole issue in a different perspective. “There has been a massive environmental destruction in the North and East during the time of the 30 year civil war. This has not yet been restored. Many of us in the other parts of the country are not aware of this fact.”
Kariyawasam sees the need to address the issue of “environmental racism” which is taking roots today in the south. “What we see and are getting involved in are the environmental problems this side of Vavuniya; it is a shame”.
For him working with the Northerners was a novel, but a rewarding experience, “We worked closely with the people there. In the initial years, we, from both sides, had to face lot of coercion from elements who claimed to have connections to the defence ministry. They pressured us to drop the case. But the people in Chunnakum were no pushovers. That gave us lot of strength.”
Although the affected residents of Chunnakam didn’t take part in the case for the long physical distance and practical constraints, the trio Kariyawasam, Bopage and Wettasinghe—fought for them from Colombo.
However, there is another case filed by the residents under the provisions of section 98 (Public Nuisance) of the Code of Criminal Procedure Act before the Mallakam Magistrate’s Courts.
Chunnakam battle was different from others fought in the Northern terrain in the past for many reasons. It was not fought with military hardware, but with people power. The people sank their differences and stood up to the corrupt state agencies and a private power generation company violating their rights.
Chunnakam thermal power plant
The Chunnakam thermal power plant was constructed by the Northern Power Company Pvt. Ltd, a Malaysian enterprise, in terms of a licence granted to it by the Board of Investment (BOI) under the National Environment Act No 47 of 1980. It was operated in a land owned by the Ceylon Electricity Board (CEB), which was leased out to the said company, in October 2007. It started generating electricity using diesel in 2009, and the maximum stipulated capacity of power generation was 15 MW as per the terms of approval.
Within one year from the commencement of operation, residents of Chunnakam area complained to the authorities that their water resources and wells were contaminated with oil and grease affecting their cultivation and day-to-day activities.
The medical officer of health of the area (MOH Uduvil) visited the power plant on 29.08.2012 and made his observations with recommendations to the company by his letter dated 03.09.2012. While his observations include lack of proper disposal system of used oil and leaks in the oil storage tanks, he recommended the situation be rectified at the earliest.
The National Water Supply & Drainage Board (NWSDB, also the 11th respondent in the case), made a field inspection thereabouts, and wrote to the Central Environmental Authority’s (CEA) Jaffna regional office (on 12.10.2012) urging it to take necessary action to remedy the situation.
However, the response (dated 18.10.2012) NWSDB received from the CEA Jaffna regional office was shocking. Also it throws light on the issue of power devolution in relation to the environmental matters in the country. Further, it shows how powerful the BOI and how meek the provincial authorities could be, when confronted with issues that cross each other’s common boundaries. In short, it states the provincial office’s inability to pursue the matter any further as the particular project came under the BOI. However, it was informed that the matter had been referred to the higher level – the CEA head office in Battaramulla.
Groundwater situation in Jaffna
The Jaffna peninsula covers an area of 1,030 sq. km. including inland waters. In Jaffna four groundwater aquifers, namely in Vadamarachchi-east, Chawakachcheri, Chunnakam and Kayts are available for the water needs of the people.
Chunnakam aquifer is high in capacity and has acceptable quality water for drinking and other purposes. Therefore, its water is supplied to many water scarce areas such as Watharawaththai, Atchuvely, Navaly, Kantharodai, Sandilipay, Karainagar, Jaffna municipal council areas.
Water Board Study
In keeping with its responsibility towards its consumers, the NWSDB Jaffna, between November 2013 and September 2014, conducted a comprehensive study covering 150 wells in the area, where water samples were checked for pH, E. coli, hardness, chemical oxygen demand (COD), oil & grease, nitrate, nitrite, and heavy metals. To utter dismay, 109 out of the 150 wells (73%) not only had high concentration of grease and oil, but exorbitantly higher levels over and above the maximum permissible in some. The contamination was found to have occurred around a 1.5 km radius from the source of pollution. NWSDB’s investigations also found the power station to be discarding waste water into an adjacent bare land without proper treatment, which again was a pollution factor.
More power generation than claimed
The petitioner’s submission disclosed another sleazy operation by the polluting company, which was operating hand in glove with the governmental authorities that were responsible in granting permission for its operations. Although the Northern Power Company Pvt. Ltd obtained permission to generate 15 MW, in reality it had been generating more power.
CEA, CEB, BOI – Partners in crime
Any thermal power generation plant of over 25 MW capacity is required by law to submit an environment impact assessment (EIA) prior to its operation. However, initially by obtaining permission from the BOI as a facility that generates only 15 MW, it has evaded the obligation of an EIA in the sly. Interestingly, some of the documents marked by the respondents, namely the CEA, CEB and BOI have revealed that the power plant was in fact generating 30 MW, and this fact turned out to be favourable to the petitioners, subsequently.
By the BOI’s letter dated 16.01.2008 to Mr. Hari Mahadeva of Northern Power Company Pvt. Ltd, approval was granted for importing a 30 MW power plant without duty.
Bopage commenting on this obvious oversight on the part of the respondents in the lawsuit,said, “They were mainly concentrating on proving that there could be other sources of pollution. Thereby, they may have missed out on these important technical aspects”.
However, when the petitioner divulged to the court through documentary evidence that the capacity of the power plant exceeded 25 MW, the state counsel filed a motion dated 6th April 2018 admitting the fact that obtaining an EIA was necessary for the project. Nevertheless, even this mandatory requirement had not been fulfilled by the offending company, petitioner claimed in his submission.
The Supreme Court thoroughly studied the issue of ground water pollution in Chunnakam. There have surfaced many administrative matters that the authorities should answer.
Didn’t the BOI, CEA and CEB know they approved only 15 MW for the Chunnakam thermal power plant, when they subsequently had to deal with matters pertaining to its 30 MW generation?
Don’t these above mentioned agencies have a monitoring and evaluation schema (environmental and otherwise) with regard to the private projects they approve?
Didn’t they ever advise the Chunnakam thermal power plant to carry out an EIA prior to upgrading its capacity to over 25 MW?
It is stated in the petitioner’s submission “… it is crystal clear at the very beginning of this project all the government institutions acted with collusion with the 8th Respondent (Northern Power Company Pvt. Ltd) and allowed them to carry out this illegal and hazardous project without caring the statutory duties and responsibilities vested with them towards general public”. Further, the petitioner argued that the responsible government agencies have “suppressed and misrepresented the most important material facts that the capacity of the power plant exceeds the 25 MW”.
The common excuse tendered by the offending government agencies was that it had been difficult to conduct EIA during the time of the civil war. But in reality, during the time in question, Jaffna peninsula was under military control and no hindrance in conducting an EIA.
Bopage also noted, “Even in the judgment it has been acknowledged the failure on the part of the governmental agencies to fulfill their obligations”
It is likely that this case has opened a can of worms, to say the least.
Why a “landmark” case?
The judgment was delivered on 4 April 2019 by a bench comprising Justices Prasanna Jayawardena, Priyantha Jayawardena and Lalith Dehideniya.
Bopage, commenting on significance of the 4th April verdict, said: “This is a landmark case in this country for several reasons. One is this was the first time that the principle of “polluter pay” was applied. We cited in our submission a case from India, Vellore Citizens Welfare Forum Vs Union of India & others, where a river was contaminated with chemicals released by a factory. In that judgment, the Indian court held the view that the burden of proof in a PIL to be the responsibility of the defendant. This principle was applied for the first time in Sri Lanka.
“Also this was the verdict that offered highest amount of compensation in a case of this nature. The SC ordered Rs. 20 million to be paid as compensation, amounting to Rs. 40,000 each for 500 households”.
Although the court permitted the Chunnakum power plant to resume operations in the light of prevailing power crisis, that will be subjected to strict supervision by the CEA, the BOI and the NWSDB. (Let’s presume, this time around the CEA and the BOI will do a clean job). It has been made mandatory to obtain Environment Protection License (EPL) and Scheduled Waste Management License (SWML) from the said authorities.
Referring to the famous Bulankulame vs. Ministry of Industrial Development Case (aka Eppawala case) Bopage said, “Delivering verdict Justice Amerasinghe noted in this case “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature (Principle 1 – Rio de Janeiro Declaration). In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it (Prnciple 4 – Rio de Janeiro Declaration)”.
This would provide the baseline for solving conflicts between environment and development.