COMPENDIUM OF SUMMARIES OF JUDICIAL DECISIONS IN ENVIRONMENT RELATED CASES

SRI LANKA

Sri Lanka - EIA

APPEAL UNDER SECTION 23DD OF NATIONAL ENVIRONMENTAL ACT BY CEYLON ELECTRICITY BOARD

SECRETARY, MINISTRY OF ENVIRONMENT (1995)
CECIL AMARASINGHE, SECRETARY, MINISTRY OF ENVIRONMENT

Introduction

The Ceylon Electricity Board (CEB) has appealed against the decision of the Central Environmental Authority (CEA) to refuse to approve the Upper Kotmale Hydropower Project (the UKH project). The CEA refused to concur in the decision of the Ministry of Irrigation, Power and Energy, the project approving agency (PAA), which recommended that this project be approved. As the case involved a variety of technical issues, a panel of experts was assembled to consider these issues and make a report which the Secretary, Ministry of Environment considered to reach this, decision.

The project has a long history, beginning with the formulation of a master plan study by the FAO in 1968. In 1985-87 the Japanese International Co-operation Agency (JICA) carried out a feasibility study of the project, and the CEB subsequently carried out an environmental impact assessment (EIA). The EIA report admitted that this feasibility study, which recommended two dam sites on technical and economic grounds only, did not adequately consider environmental issues. An engineering services study was carried out in 1993-94.

The technical evaluation committee (TEC) of the PAA identified several environmental impacts of the UKH project, including impacts on seven of Sri Lanka's waterfalls. The TEC found that these environmental considerations as well as others were not given adequate consideration in the EIA. The TEC recommended that other alternatives in the EIA be considered further. The PAA, however, went ahead and approved the UKH project, in spite of the TEC's recommendation.

Legislative Framework

Section 23DD National Environmental Act.

Held

The Secretary, Ministry of Environment reviewed United States case law dealing with EIA and concluded that an adequate and rigorous consideration of alternatives is at the heart of the EIA decision making process. In addition, the EIA must produce information sufficient to permit a reasonable choice of alternatives as far as environmental aspects are concerned.

CEB's EIA of this project is seriously flawed because it does not adequately address itself to alternatives to the project, and has not given adequate reasons for rejecting environmentally friendly alternatives. The original selection of the site was based on economic and technical grounds, with an inadequate consideration of environmental issues. A financial and technical evaluation must include a consideration of environmental costs and benefits. Environmental assets such as waterfalls and water quality can be assessed with available economic tools, however insufficient. The failure of the CEB to carry out such a rigorous evaluation leaves the decision-maker in doubt whether the chosen alternative is environmentally, financially and technically the better option.

In addition, it appears that the PAA did not base its decision to reject the TEC's advice on a careful evaluation of these recommendations in an independent and unbiased way. If the PAA could not do so impartially because of commitments it had to CEB, a different PAA could have been chosen.

This appeal is dismissed, and CEB is free to seek approval for this project with an EIA that addresses the concerns of this opinion. If CEB does so, another PAA should be nominated to conduct the EIA process.

Cases Cited

Natural Resources Defence Council Inc. v. Morton 458 F.2d 827 (D.C. Cir. 1972)
Monroe Country Conservation Council v. Volpe 3 ELR 20006-20007
Environmental Defence Fund v. Falk 2 ELR 2694
Calvert Cliffs Co-ordinating Committee Inc. v. Atomic Energy Commission 449 F.2d 1109 (D.C. Cir. 19711)
Libby Rod and Gun Club v. Potcat 8 ELR 20807
Sierra Club v. Callaway 499 F.2d 982 (5th Cir. 1974)