The Mullaperiyar dam near Thekkady in 2021. File photo: Special Arrangement
The story so far: The Expert Appraisal Committee (EAC) of the Ministry of Environment, Forest and Climate Change (MoEF) cancelled its May 28 meeting, which was supposed to consider Kerala’s request for a new Terms of Reference (ToR) for conducting an Environment Impact Assessment for a new dam at Mullaperiyar in Idukki district. The meeting was cancelled at the eleventh hour without assigning any reasons. The top officials of the Irrigation Design and Research Board of Kerala, who reached New Delhi for the meeting, were informed that the meeting had been deferred.
Why was the meeting called?
Any development related to the masonry gravity dam at Mullaperiyar, which is located in the Idukki district of Kerala and owned and operated by the neighbouring State of Tamil Nadu, is keenly contested by both States at all legal and governmental levels. The Kerala Government’s latest move to get a new ToR as part of the groundwork for constructing a new dam in place of the 128-year-old structure too invited a sharp response from Tamil Nadu.
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Kerala decided to move the EAC for a new ToR for the new dam as the earlier one issued on November 14, 2018, with a lifespan of five years, had expired last year. The State needed a new ToR for preparing the EIA to estimate the possible environmental impacts of the construction of a new dam.
What is Tamil Nadu’s objection?
Kerala’s move irked Tamil Nadu, which depends on the water released from the dam to irrigate its arid Theni, Madurai, Sivaganga and Ramanathapuram districts. Chief Minister M. K. Stalin shot off a letter to Bhupender Yadav, the Union Minister of the MoEF, seeking to issue directions to the officials of the Ministry and the Member Secretary of the EAC to drop the agenda of ToR from the meeting.
Tamil Nadu objected to the EAC agenda by arguing that the decision to consider Kerala’s proposal amounted to a violation of an earlier order of the Supreme Court. Mr. Stalin stuck to the consistent position of Tamil Nadu that the existing dam was repeatedly found to be safe by various expert committees and the top court had passed orders to this effect on two occasions. Tamil Nadu went on to argue that the Supreme Court had specified in 2018 that its permission was required for any such studies. It also concluded that Kerala’s decision to take up an EIA study for a new dam and the decision of the EAC to consider the request for permission would amount to contempt of the Supreme Court. The State government also dropped hints that it would initiate legal action, including filing contempt of court petitions if the orders of the top court were not adhered to on the issue.
What is Kerala’s position?
The State argues that Kerala needs an extensive EIA considering the changed environmental scenario, especially the back-to-back floods in 2018 and 2019 as part of its preparatory works. A new data set covering various environmental aspects was needed, it argues. A new ToR and EIA are the prerequisites for such an exercise, according to Kerala officials.
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The Kerala government, which has almost finalised the design of the new dam, refuses to buy the contentions of Tamil Nadu and argues that the apex court had earlier dismissed the Interlocutory Application (IA) of Tamil Nadu objecting to the earlier ToR for an EIA and the clearance issued by the National Board for Wild Life (NBWL) for conducting the EIA. Kerala officials argued that Tamil Nadu was misleading the Union government regarding the Supreme Court order on ToR. The IA filed by Tamil Nadu in 2015 requesting to issue directions to restrain Kerala from conducting EIA studies and withdrawing the NBWL order was dismissed by the Supreme Court as infructuous in an order issued on April 13, 2016, Kerala argues.
Why does it want new terms of reference?
According to Kerala officials, Kerala needs extensive data to prepare a Detailed Project Report (DPR) as part of its efforts to build a new dam and to engage Tamil Nadu in a discussion regarding the new dam. Kerala decided to seek a new ToR since changes were introduced in the dam design. The earlier design and the DPR prepared in 2011 had undergone major changes, they argue. The earlier estimated cost of the dam was around ₹800 crore, which in any case, would go up. An EIA is required as the proposed site of the dam is situated in Periyar Tiger Reserve, a notified Protected Area, where prior environmental clearances have to be obtained. The Periyar Tiger Reserve is both a tiger and elephant reserve, and the clearance of the NBWL is also required. Since the forest land has to be used for constructing the new dam, which is a non-forestry activity, and the felling of trees is required, the permission of the Union Ministry as well as the apex court has to be obtained. The EIA of such activities will have to be documented while approaching various agencies for statutory clearance, they argue.
Is there a scope for consensus?
Kerala and Tamil Nadu have been engaged in a pitched legal battle since 1996. While the first phase of the legal contentions between the two States veered around the safety aspects of the existing dam, the second phase, which began in 1998 saw several Public Interest Litigations and writ petitions filed by both States challenging the legal validity of various acts of both the States. More legal battles may come up before the top court with this move of the Kerala government.
Kerala, which has been preparing the ground for a new dam, would require the consent of Tamil Nadu to construct a new dam as directed by the top court in one of its orders in 2014.
