KATHMANDU JUNE 29
The five-member grand full bench of the Supreme Court delivered a split verdict on the case filed against the government's decision to build an international airport at Nijgadh, Bara, opining that the airport cannot be built at the proposed site, as 90 per cent of the site is covered with forest. The minority, however, was in favour of building the airport if certain measures were strictly followed.
The Supreme Court released the full text of its verdict in the case filed by Senior Advocate Prakash Mani Sharma and others against the government.
Justice Ishwar Prasad Khatiwada wrote the majority opinion with the concurrence of justices Prakash Man Singh Raut and Bishwambhar Prasad Shrestha.
Justice Hari Krishna Karki wrote the minority opinion with the concurrence of Justice Manoj Kumar Sharma.
Both opinions found faults with Environmental Impact Assessment report and quashed the government's decision to build the airport at Nijgadh.
The majority opinion stated that destruction of environment in the name of development cannot be accepted.
Justice Khatiwada wrote that public trust doctrine and inter-generation equity must be taken into account in matters of the environment.
In recent years, courts around the world have taken the protection of nature as nature's right.
This court had established a precedent 30 years ago that people's right to life means right to live in clean and healthy environment, states the majority opinion.
Justice Khatiwada wrote that state was merely a trustee to protect natural resources and any development project that adversely impacts environment could not be sustainable.
Responding to the government's argument that it had spent crores on the project, Justice Khatiwada wrote that the judiciary could not be swayed by the argument that some resources had already been spent on the project.
The bench said that the government erred by identifying the project site, allowing agencies to cut trees and to build infrastructure before completing environmental impact assessment report.
"EIA was completed three years after the government decided to build the airport at the disputed site and this cannot be termed an act in accordance with the law and procedures."
Justice Khatiwada wrote that EIA report did not fully comply with the environment directives.
EIA report itself states that since there are 2,450,319 big and medium sized trees in the airport area, the argument that it won't adversely impact environment cannot be accepted, he argued.
Majority opinion stated that EIA did not propose alternative management for the adverse impact that the project could cause.
EIA has not evaluated the impact of the project on flora and fauna in the project area.
The court ordered the government to build airport at a suitable place by completing all mandatory provisions, including consulting experts and ensuring minimum impact on environment.
The majority opinion stated that the defendants had not refuted petitioners' argument that the area was important from point view of flora and fauna as 22 types of endangered species of flora grew there and 23 types of mammals lived there. The area is close to Parsa Wildlife Reserve and there is a good source of ground water recharge in the project area.
Writing the minority opinion, Justice Karki stated that existing laws did not prevent the government from building a project in the forest area in case the government did not find an alternative place for the national priority project. He cited the case of the Turkish government which felled trees to build Istanbul airport. He also stated that the UK Supreme Court refused to stop expansion of Heathrow Airport.
Justice Karki, however, stated that the government's decision to accept EIA which had failed to propose ways to minimise environmental risks was not appropriate.
He wrote, "The argument that Nijgadh is not suitable for international airport is wrong. Even the petitioners have argued that only the disputed site is not suitable."
He issued an order to the government to conduct a study and try to keep the forest intact at the project site. It tells the government to take minimum forest areas for the construction of the airport. "If the government identifies an alternative place, it should also have a robust plan to protect flora and fauna and to minimise environmental impacts. If the government has to fell trees to build the airport, then it must plant trees at other sites to compensate the loss of trees at the airport site."
Justice Karki also states that the forest area should not be used for the building of airport city.
Key points of majority opinion
• Most of the world's airports are not the size of proposed NijgadhAirport for which the government has proposed 8,045-hectare land. There are many international airports in other countries that are built over less than 2,000-hectare land. There is a question mark over the allocation of so much land for the project
• It is ironic to think that building a large airport at the cost of environment is in national interest
• The federal government felled some trees in the project area ignoring Madhes province's concerns and as national forests are under province's jurisdiction, it is wrong to take a decision on issues of national forest, use of water resources and environment management that fall under provincial jurisdiction
• Trees were felled without completing detailed project report. There is no objective ground to prove that there is no alternative to Nijgadh forest land for the construction of international airport
• Possibility should be explored to construct the airport by ensuring the protection of environment including forest to the extent possible and by reducing adverse environmental impact
• Destroying a large forest for the construction of airport is not good
A version of this article appears in the print on June 30, 2022, of The Himalayan Times.
