30 Oct 2010
Is India's Environment Safe?
Shri Jairam Ramesh, the Minister of State for Environment & Forests should indeed be complimented for reviewing the clearances given for Vedanta (Bauxite Mining), POSCO (Steel Plant) and a few other projects. I welcome these decisions. They have certainly set a new trend in environment governance in the country.
From the point of view of environment governance, these decisions, though timely and well-intentioned, raise wider and more important concerns about the Ministry’s role. I have listed these issues below for a national debate.
1. There is an elaborate procedure put in place by Ministry of Environment & Forests (MOEF) for assessing the impact of projects on the environment. The fact that the Minister had to bypass this procedure and intervene selectively in a few cases such as Vedanta makes one uncomfortable about the credibility of the formal assessment procedure itself, as the Minister’s out-of-the-way action to constitute the Saxena and Meena Gupta Committees, in a way, casts a dark shadow on the institutions and processes that exist to protect India’s environment. From my experience with projects in Andhra Pradesh (AP), the majority of the Environment Clearances (ECs) issued by MOEF from time to time are highly suspect.
2. Usually, the Central and the State governments take decisions on mega projects on the preconceived notion that they are good for the people per se, without waiting for the regulatory authorities to assess their impact on the local communities. Nor does the local government try to elicit the views of the local communities on such externally imposed projects. Once such a decision is taken, the entire official machinery swings into action, distorts the facts and misreports the ground conditions to justify the project somehow and suppresses any voice of dissent with an iron hand. This is what has happened in the case of Vedanta, POSCO and many similar projects in AP (e.g. Sompeta Thermal Power Project) and in other States. The local communities expressed their opposition to these projects. The civil society and environmentalists repeatedly pointed out to the State and the Centre the statutory violations that had taken place. Their appeals fell on the deaf ears of the government.
3. As the first step towards setting up a project, the State either allots public land or forcibly acquires private land, even before the Environment Impact Assessment (EIA) procedures are set in motion. The selection of the land is rarely subject to any strict compliance with the environmental norms. Once a stretch of land is handed over to the project developer, the project itself becomes a fait accompli.
4. According to the prescribed procedure, an independent consultant is required to study the project and its impact on the local environment and the local community and present an EIA report for public discussion and debate. As per the procedure in vogue today, it is the project developer that chooses the consultant to prepare the EIA report. The consultant who receives remuneration from the developer usually prepares a report that is acceptable to the latter. I have come across several instances in which the consultant conveniently ignored to mention certain glaring facts relevant to environment impact analysis. I cite specific examples of AP below.
i. A 1,300 acre stretch of land was located entirely within an area prohibited for industry as per the Coastal Regulated Zone (CRZ) notification. The notification itself was issued by MOEF in 1991 with a view to protect the sea coast and its environment! In this case, the consultant failed to mention this fact in his report as it would have come in the way of the developer obtaining clearance from MOEF!
ii. The government spent crores of rupees from the Tribal Budget to construct a project to irrigate a 1000 acre stretch to benefit the tribals in the area. The consultant is required to analyse the socio-economic impact of the project on the people in the vicinity. The EIA report conveniently ignored the very existence of the project, diversion of the irrigated land for industry and its negative impact on the tribals. There are tribal villages of Orissa within 10 km of the project site. They should have been given an opportunity to appear at the public hearing. As a result of the silence on the part of the consultant and the local authorities, the tribals of Orissa stood deprived of their right to represent. All these facts were brought to the notice of MOEF which ignored this and went ahead with issuing clearances.
iii. MOEF has published a comprehensive EIA Manual in 2001 to guide studies leading to EIA. It is expected to serve as a checklist for a consultant in studying the project and its environment impact. In reality, I am yet to come across an EIA report that is fully compliant with this. MOEF has not questioned even a single consultant on this.
iv. The Ramsar Convention on Wetlands to which India is a party requires the government to identify and protect the wetlands. Degradation of the wetlands will have an adverse impact on green house gas emissions. Wetlands support thousands of livelihoods. There are at least three instances in AP in which the consulting companies failed to describe the sites as wetlands even though the official records clearly classified them as such. Even a visual inspection of the site would have enabled the consultant to appreciate the nature of the land in question.
v. One consultant did a neat cut-and-paste job of a large extract from an EIA report prepared earlier in another State by inserting the same in the EIA report of a project taken up subsequently in AP. The consultant however inadvertently allowed the name of the other State to remain in the pasted extract, thereby exposing the casual way in which he had conducted the EIA study. This is a case of outright fudging of the study.
5. In many cases, the consultant is in such a hurry to submit his report and collect the remuneration that he has failed to fulfill the essential requirement of observing a project site over the full cycle of a year to evaluate the seasonal variations in the ground conditions. I have not come across even a single instance of MOEF blacklisting such errant consultants even though the civil society brought specific cases to its notice.
6. The project developer makes tall promises of providing jobs, whereas none in the government has ever tried to count the number of families that lose their livelihoods as a result of displacement caused by the project. The government supports the projects in the name of encouraging “private enterprise”. It however ignores the fact that a small cultivator of land or a traditional fisherman, occupationally displaced by the project, is as much a private entrepreneur par excellence as the promoter of the company setting up the project. If anyone questions the rationale of setting up the project, he or she is considered to be an “anti-development” activist! The EIA report rarely captures the social costs and benefits of this kind. MOEF has by and large accepted such shoddy EIA reports for clearing projects!
7. Some of us have suggested to MOEF that it should delink the EIA consulting company from the project developer so as to ensure that the EIA reports serve their true purpose. MOEF could set up a fund from the fees levied on each project to be appraised. The Ministry could select the consultant at random to carry out the EIA study for a given project. Such an approach will ensure that the consultant carries out an objective study of the project. MOEF is yet to accept this suggestion. MOEF's decision to ask Quality Council of India(QCI) to provide accreditation to EIA consultants means nothing as QCI is generally reluctant to interact with the civil society and its knowledge of EIA consultants' performance is questionable.
8. The public hearing, the way it is conducted, has become a highly ritualistic process. The details of the EIA report are not made available in the local language in an easily understood format. The village-level local bodies, that is, Gram Sabhas/ Panchayats are not allowed to discuss the reports in any meaningful manner. Those that voice dissent are kept out of the public hearing which usually assumes the colour of a political rally. The companies promoting the projects usually ‘capture” a few leaders in the region who then ensure that the public hearing goes their way.
9. The district authorities who are required to report on the ground realities at the project site usually misrepresent the facts. Where there are fertile agricultural lands or lush green wetlands with water bodies, the district officials present them as “waste” and “uncultivable” lands. There are instances in AP in which the official reports, aimed at justifying a given project, concealed the existence of forests, hills, water bodies, bird sanctuaries, archaeological sites, lands assigned to the poor by the government and so on. The State Environment departments toe the line of the companies.
10. Appraisal of the project by the Expert Appraisal Committee (EAC) is the next step. MOEF has not put in place any system to verify whether the members of the EAC have any conflict of interest. In one case, the civil society cried hoarse when the chairman of an EAC happened to be on the Board of a company whose project that very same EAC had appraised! MOEF rightly intervened and dropped that member from the EAC. It is possible that quite a few members of these EACs are, in some way, linked to the companies whose projects they are supposed to scrutinize. In many cases, the EAC is anxious to “clear’ the projects somehow, as otherwise they will be blamed for creating obstacles or they have already pre-judged the suitability of the project for extraneous reasons. It is imperative that the selection of the EAC members is depoliticised and made transparent.
11. Large projects have multi-dimensional environmental implications. For example, where a project affects the tribals, there are Constitutional issues to be examined in consultation with the Ministry of Tribal Affairs. The local water supply-demand balance may not support a given project. In such a case, any appraisal worth its name should be based on a detailed analysis of water availability. EAC should then ask the State to provide the necessary data. In all such cases, despite the fact that the civil society has brought facts to the notice of both MOEF and EACs but the EACs have generally chosen not to go into such detail, thereby making a mockery of the appraisal procedure.
12. MOEF routinely issues ECs as soon as it receives EAC’s recommendations. The project developer cannot undertake construction without prior EC. There are several instances in which MOEF has not cared to invoke the relevant clause of the Environment (Protection) Act, 1986 and withhold the EC. As a result, the project developers take the Ministry for granted. Usually, once the promoter of a project has made a partial investment on the project, the Ministry itself cites it as an alibi for not reviewing the clearance at a latter stage.
13. MOEF cannot issue ECs when there are glaring statutory violations. Even in cases in which the civil society has brought specific instances of illegalities to its notice, MOEF has generally ignored the same and proceeded to issue the EC. Vedanta and POSCO are typical of this.
14. After the EC is issued, the State Pollution Control Board (SPCB) is required to issue Consent for Establishment (CFE) laying down preconditions for starting the construction work. As of now, PCBs are not independent, as they are headed by the State Chief Secretaries and manned by officers chosen and posted to the Board. The Pollution Control Boards need to be reformed. They need to be professionalized. MOEF has not acted so far in this direction. Many industrial units are known to cause hazardous pollution. They are known to contaminate the ground water sources and the surface water bodies. I have rarely come across any instance in which the Pollution Control Board has ordered the closure of such polluting industrial units.
15. Under Article 48A of the Constitution, MOEF has the primary responsibility of conserving the environment. There are instances in which the Ministry itself has dragged its feet when it came to rescuing the ecologically fragile stretches in the country. For example, the National Environment Policy (NEP) which has approval from the Union Cabinet requires MOEF and the States to identify and protect the wetlands. In 2008, MOEF brought out a draft set of wetland conservation rules and invited comments from the public. The rules were on display on MOEF’s website for a few months. However, they were withdrawn all of a sudden! These rules appeared once again during the early part of 2010. The reason for this mysterious disappearance of the Rules from the website and the reason for the rules not being finalized became clear when the Ministry, during the interregnum period, tried to defend itself on this dubious basis in several Writ Petitions filed by the civil society seeking judicial intervention to protect the wetlands from industrialization in AP! The Ministry conveniently informed the courts that it was not legally equipped to protect the wetlands! It is not difficult for anyone to read between the lines to appreciate the Ministry’s motive in this. During the intervening period, MOEF has allowed some valuable wetlands in AP to be destroyed permanently.
16. There are several cases in which the National Environment Appellate Authority (NEAA) and the higher courts have set aside environment clearances already given on the ground that the clearances were obtained on the basis of misleading reports. In the case of Vedanta and POSCO, it has come to light that the local officials concealed the fact of statutory violations. I have not come across any instance of MOEF and the State governments taking action against the concerned officials. Unless there are strong disincentives against misreporting, Vedanta-like situations will continue to arise.
One wonders whether India’s environment is safe at all in the hands of the institutions we have in place to protect it. If Vedanta and POSCO have necessitated the setting up of ad hoc expert committees to review the clearances given to them, so is the case with almost every coal-based thermal power project in AP, with the Polavaram Multi-Purpose Irrigation Project and the bauxite, iron ore, granite, barites projects in the State. However, is this approach the right way to go about? Constituting expert groups to deal with the review of individual projects will introduce an element of arbitrariness in the process of confirming or canceling the clearances already given. Instead, if the Minister is anxious to set his house in order, he should strengthen the institutions that exist to save the environment. He should put in place a more comprehensive legislative framework (e.g. wetlands conservation) to cover the gaps in regulation. He should make the penalties for environment crimes more stringent.
Otherwise, he may not be in a position to discharge his obligation under Article 48A of the Constitution.
(reproduced with slight changes from the appeal I have made at my website: http://eassarma.in)