“Polluter Pays” DELVING INTO THE CHUNNAKAM LANDMARK JUDGEMENT

Role of CEA and the health of residents

In a much hailed landmark judgment delivered in early April, the Supreme Court ordered the Northern Power Company to pay compensation amounting to Rs. 20 million to residents in Chunnakam who have been adversely affected by the contamination of ground water by its thermal power station.

Chunnakam, situated in the north of Jaffna, is densely populated and is home to a hive of commercial and agricultural activity. Several renowned temples, churches, schools and archaeological sites are situated in this area. However, the activities of the thermal power house polluted groundwater in the Chunnakam area and made groundwater unfit for human use. Accordingly, the fundamental rights application was filed by Dr. Ravindra Kariyawasam as a public interest litigation.

The Supreme Court ordered the Northern Power Company to pay Rs.20 million as compensation to the residents of the Chunnakam area, who reside within a 1.5 kilometre radius of the thermal power station and whose wells have been contaminated with Oil and Grease and/or BTEX.

The petitioner had claimed that the thermal power station uses “heavy oil” to fire its generator sets and complained that “the disposal of petroleum wastage” from the thermal power station has caused “massive environmental pollution” by the oil contamination of groundwater and wells. The Petitioner further claimed that the pollution affected the water used by the Water supply and Drainage Board to supply pipe-borne water in the area.

The compensation is to assist those persons to clean and rehabilitate their wells. The maximum sum payable is Rs. 40 000 and it will be paid to the chief occupant of the

household. The court speculated that 500 families will thus be compensated and in the event the number of families exceeds 500, the sum of Rs. 20 million is required to be distributed equitably. The Court stated that the worst affected wells are to be given priority.

Speaking to the , Attorneyat- Law Nuwan Bopage, who appeared for the petitioner, said that the Northern Power Company argued that the source of the pollution is not clear. “The company submitted reports prepared by private institutions stating that the source of the pollution is not clear as there are other thermal power stations around. Based on the polluter pays principle, they can’t escape liability saying the source is unclear. The court held that they should prove that they did not pollute,” said Bopage.

One of the main problems encountered in environment related public interest litigation is the delay in reports being submitted by Government institutions. Bopage said that as a result of the Chunnakam judgement, the petitioner can submit whatever report is available, but the burden is on the respondent to show that he did not pollute by submitting the necessary reports. “This is a turning point in public interest litigation because the burden of proof on the petitioner is less now,” he said.

Supreme Court Order

According to the Supreme Court judgement the Northern Power Company is permitted to resume operating its thermal power station provided adequate measures are taken to prevent contamination or pollution of the surrounding environs. This is on the basis of the prevailing need to generate additional electrical power to satisfy the demand of the National Grid.

The Supreme Court directed to identify a minimum of 50 wells representatively located within a 1.5 kilometre radius of the thermal power station of the Northern Power Company and, on a quarterly basis test samples of well water to ascertain the oil, grease content and BTEX content [Benzene, Toluene, Ethyl Benzene and Xylene] in the first year after the thermal power station resumes operation. If there is no increase in the content, the inspection will be carried out once in six months in the second year. If there is an increase in the content, and if it is found that the Northern Power Company is responsible, the Supreme Court ordered the CEA to suspend the operations of the thermal power station.

Health in jeopardy

Meanwhile, Dr. Kariyawasam Chairman of the Center for Environment and Nature Studies, said that the judgement does not refer to the health consequences suffered by the people as a result of the pollution. “The court order does not pay attention to the health of the residents in Chunnakam. People have fallen sick, children have contracted skin diseases and asthma. Their cultivations are destroyed. The State has an obligation to inspect the health of these people who have consumed the polluted water. There should be a systematic procedure to check their health status as their health is in jeopardy. Kidney testing should be conducted to assess the gravity of the situation,” he said.

CEA issues License to Pollute

Dr. Kariyawasam also alleged that the Central Environment Authority(cea) issued the Environment Protection License(epl) unlawfully.

According to the National Environmental (Protection and Quality) Regulations, No. 1 of 2008, the license will be issued only if it will not be used to contravene the provisions of the National Environmental Act or any regulation made under it. Further there should be no irreversible damage or hazard to any person, environment or any nuisance resulting from the acts authorized by the license. The applicant is also required to take adequate steps for the protection of the environment in accordance with the requirements of the Law.

“But as far back as 2012, we observed grease and oil in well water. So the CEA helped the company pollute as they did not take action to cancel the license when the damage was evident,” said Dr. Kariyawasam addressing a news briefing.

“In most cases the CEA does not represent the interests of the environment, but rather those of these companies and factories which pollute. The CEA is not an authority that issues an EPL, but instead the authority that issues an environment pollution license. They give the license to pollute,” he alleged.

He further alleged that the role of the CEA in destroying the environment can be observed in how the Jiffy Company is allowed to throw their effluents to the Deduru Oya.

Challenges

According to Bopage, initially a female student was to be the petitioner. However, she absconded and even several villagers who were keen on petitioning refused to, as a result of being subjected to intimidation by the company.

Once, the petition was filed in 2015, a stay order was obtained from the Magistrates Court restraining the thermal power house from functioning. But the company obtained permission to carry out maintenance work through a revision application made to the High Court. “This was a victory for the Company,” he said.

He further said that the Company, the BOI, the CEA, the CEB, the NWSDB and the Attorney General who have all been named as respondents, tried to justify the pollution. “Initially they said that an environment impact assessment report is not needed because its capacity is less than 24 MW. But its actual capacity was 30MW. Then the State had to accept that an EIA is needed. So right from the start State institutions tried to justify the environment pollution committed by the company,” he said.

He also alleged that the company attempted to approach the lawyers requesting to meet them.

Based on the polluter pays principle, they can’t escape liability saying the source is unclear NUWAN BOPAGE

In most cases the CEA does not represent the interests of the environment, but rather those of these companies and factories which pollute DR. KARIYAWASAM