Representation to the Deputy Commissioner of Uttara Kannada District, Karnataka, providing scientific justification and legal grounds against according permission to the Dandeli Mini-Hydel Project of Ms/ Murdeshwar Power Corporation Ltd. in accordance with process initiated at the Environmental Public Hearing for the project held at Dandeli on 03 January 2001 per the Environment Impact Assessment Notification of the Union Ministry of Environment and Forests
  1. The following statement is submitted to Mr. Nilay Mitesh, IAS, Deputy Commissioner and District Magistrate of the Uttara Kannada district, and upon his request, to state on record and affidavit, the various submissions made by the undersigned, Mr. Leo F. Saldanha, Coordinator of Environment Support Group (ESG), during the Environmental Public Hearing held at the Ambedkar Bhavan, Dandeli, Uttara Kannada on 03 January 2001 with regard to the Dandeli Mini-Hydel Project (DMH) project of Murdeshwar Power Corporation Ltd. (MPCL). It is structured for reasons of clarity as follows:
  1. Brief Introduction to ESG
  2. Brief History of Process of Clearance of the DMH Project
  3. Issues of concern with regard to the first Rapid Environment Impact Assessment (REIA) of the DMH Project of MPCL produced by Ernst and Young
  4. Issues of Concern with regard to the second Environment Impact Assessment (EIA) of the DMH Project of MPCL produced by Tata Energy Research Institute, Bangalore (TERI)
  5. Representation demanding rejection of DMH Project of MPCL and justification for the same

 

  1. Brief Introduction to ESG:
  1. ESG is an independent non-profit organisation (NGO) registered as a Trust and works on issues of environmental and social justice. It has represented various public interest causes, and has effectively worked with local communities, government agencies, the media and regional and international NGOs in bringing to light threats to our sensitive habitats and marginalised communities, and towards ensuring transparent and just environmental decision making.
  2. Since June 2000, ESG has actively monitored and investigated the decision of the Government of Karnataka to clear the DMH Project proposed by MPCL across River Kali in the Uttara Kannada district of Karnataka and found the same to have been consistently violating fundamental precepts of Indian environmental law and other related statutes. As part of its mandate to safeguard the public interest and the rule of law, it exposed, along with Parisara Samrakshana Kendra of Sirsi (PSK), the fact that MPCL had attempted to secure environmental clearances to DMH Project based on plagiarised and fraudulent Environmental Impact Assessments of the project. This information is archived on the internet at http://web.estart.com/~esg.

 

  1. Brief History of the Process of Clearance of the DMH Project
  1. From the evidence available to ESG, the Government of Karnataka endorsed support for the DMH Project of MPCL at the Global Investors Meet held at Bangalore on 5th June 2000, World Environment Day, as a project with an investment of Rs. 180 crores consisting of the construction of a "run of the river mini-hydel" scheme across Kali River at a location near Dandeli in the Western Ghats, to produce 18 MW of electricity.
  2. Subsequently, Mr. V. Umesh, IAS, then Secretary to Government, Department of Forest, Ecology and Environment, in his letter dated 05 July 2000 [No. FEE 142 ECO 2000 (P)] clarified the need for MPCL to get full environmental clearance for the DMH Project stating that:

    "the State Environmental Clearance Committee has discussed the subject of the issue of Environmental Clearance to your project located at Uttara Kannada dist. proposed during the Global Investors Meet. The Committee has opined that it is necessary to obtain Environmental clearance to your project as per Environment Impact Assessment Notification issued by Ministry of Environment and Forests, Government of India. Accordingly it is requested to submit the details of your project in the Application form enclosed to this letter to the Secretary, Ministry of Environment & Forests, Government of India. You are also requested to contact officials of the Karnataka State Pollution Control Board immediately regarding the submission of Environment Impact Assessment Report and public hearing in respect of your project."

  3. However, it was only on the 10th of July 2000 that official clearance was granted to the project by Mr. B. K. Sreenivas Rao, Secretary, Department of Energy, Government of Karnataka vide its letter No. EOE 96 NCE 2000. This order necessitated MPCL to:
  1. Form an agreement with the Government of Karnataka providing security deposit with regard to initiating process of clearances for the project within a period of three months, failing which the order would lapse and a fresh application would have to be made. (Ref. Clause 1: a to c of the order)
  2. MPCL would have to move necessary applications to obtain all statutory clearances from related departments including Dept. of Irrigation, Karnataka Power Transmission Corporation Ltd. (KPTCL), Karnataka State Pollution Control Board (KSPCB) and other relevant agencies. Based on this a detailed project report would have to be submitted within an year of signing of the agreement mentioned in Clause 1. (Ref. Clause 2 a to b)
  3. Based on such project report, the Government would consider providing technical clearance. Financial closure would then have to be obtained within 6months of the technical clearance, else the application would lapse. (Ref. Clause 3)
  4. The project would then have to be completed within a period of 24 months. (Ref. Clause 4)
  5. Failure to comply with Clauses 2,3,4 of the aforementioned order in any manner would ensure the Order supporting the project would lapse without prior notice. (Ref. Clause 5)
  1. Subsequent to this Order, an Environmental Public Hearing was held at Karwar by Mr. Atul Kumar Tewari, then Deputy Commissioner of Uttara Kannada district, on 21st August 2000 to examine the environmental and social impacts of DMH Project of MPCL based on a 30 day public notice issued by way of newspaper advertisements by the Karnataka State Pollution Control Board (KSPCB). This was in initiating environmental clearance for the project in conformity with relevant provisions of the Environment Impact Assessment Notification of the Union Ministry of Environment and Forests. The basis of this hearing was a Rapid Environmental Impact Assessment (REIA) produced by Ernst & Young in June 2000 for the DMH Project of MPCL. That the REIA was prepared even prior to the project being officially cleared on 10 July 2000 was an aspect that was completely (perhaps deliberately) ignored by the KSPCB and then DC of Uttara Kannada.
  2. ESG and PSK exposed by way of a Press Release dated 18 August 2000 (covered in Deccan Herald and other dailies), that the aforementioned REIA of Ernst & Young was a totally plagiarised version of the EIA in process for the Tattihalla Augmentation Scheme (TAS) of Karnataka Power Corporation Ltd., prepared by Institute for Catchment Studies and Environmental Management, Bangalore (ICSEM) and BASS Pollution Control Systems Ltd.
  3. On 19th August 2000, a representation was made by ESG and PSK to Mr. T. R. Baalu, Union Minister for Environment and Forests and Mr. S. M. Krishna, Chief Minister of Karnataka, with copy marked to Karnataka State Pollution Control Board, explaining to them that the proposed Hearing of 21st August was based on the plagiarised REIA and thus demanded that :
  1. "The Proposed Public Hearing must be cancelled immediately, and if held the proceedings must be declared null and void.
  2. A Judicial Enquiry ordered into the incident to pin responsibility within the Government for allowing this fraud.
  3. Disempanel Ernst & Young as EIA Consultant in India."


This representation is annexed at Annexure A.
  1. Even so the Hearing was held on 21st August. Continuing protests caused more newspapers and magazines, especially local dailies, to report the REIA plagiarism by Ernst & Young, what we described as the "worst case of fraud in environmental decision making history in India".
  2. The Indian Express reported this fraud on the Government's decision making processes as a Front Page main story on 27 August 2000, and the same was widely covered by other national dailies and magazines (Outlook on 29 August 2000, Times of India on 03 September, Business India of October 2nd 2000 and India Today on 21 October 2000) and internationally as well (The Guardian of UK on 6 September 2000, Strait Times of Singapore on 29 August 2000, International Rivers Journal, Earth Island Journal, etc.). There were also several letters from individuals and organisations to the Union Environment Minister and Chief Minister of Karnataka from both India and abroad, and a representative sample of the same is annexed at Annexure B.
  3. Perhaps owing to this pressure and embarrassment, MPCL enlisted the services of Tata Energy Research Institute (TERI) to conduct an Environment Impact Assessment (EIA) during September 2000. Amazingly, this study was ready by 24 October 2000!
  4. Considering that the DC's report of the contested Public Hearing held on 21 August 2000 was not ready even by the 1st week of September, it is fair to assume that the TERI study may have been commissioned only after the second week of September.
  5. On 06 November 2000 KSPCB issued another notification for an Environmental Public Hearing to be held on the DMH Project at Dandeli on 07 December 2000, giving 30 days notice. The basis of this Hearing was the TERI EIA. However, Mr. Nilay Mitesh, Deputy Commissioner of Uttara Kannada, being the Chair of the Public Hearing Panel, was constrained to postpone the Hearing as the Panel was "without quorum". This despite over 400 citizens having gathered to participate in the Hearing. There has been no investigation as to why about 13 of the 15 panelists were absent, despite most of those absent resident in the local area.
  6. Subsequently, another Hearing on the same project was notified by KSPCB to be held at Dandeli on 03 January 2001, but this time giving only 7 days notice period. The undersigned participated in this Hearing, and was one of over 60 persons who made submissions during the Hearing. Considering the averments made by the undersigned substantive, the DC requested the same to be reduced to writing on affidavit as is done presently.

 

  1. Issues of concern with regard to the first Rapid EIA for the DMH Project of MPCL produced by Ernst and Young
  1. Only pages 1-3 of the 65 pages of the Rapid EIA prepared by international consulting firm Ernst & Young (owned by Cap Gemini of France) for the DMH Project of MPCL are original. But considering that these pages constitute a description of the project features, they do not form any substantive contribution to the REIA.
  2. Substantive statements assessing environmental and social impacts of the project is sought to be made from pages 4 to 65 (Chapters 2 to 9). All these pages constitute a systematic and verbatim reproduction of the REIA conducted for Tattihalla Augmentation Scheme of Karnataka Power Corporation Ltd. (TAS), a project proposed across the Bedthi River at a distance of about 90 miles from the proposed DMH project, that was prepared by ICSEM during 1999. In other words, the Ernst & Young REIA of DMH Project is a totally plagiarised version of the Draft REIA of TAS Project, and the same can be confirmed by comparing pages 4-65 of Ernst & Young REIA for DMH, and pages 2.2 to 8.5 of ICSEM/BASS REIA for TAS.
  3. The Ernst & Young REIA was thus liable to be dismissed as a fraudulent document as described in the Environment Impact Assessment Notification and action initiated per Indian Penal Code against the consultant for fraudulently attempting to support project clearances of DMH Project. Consequently the DMH Project of MPCL was to be rejected as well. No such action was initiated by KSPCB or any of the other clearance authorities.
  4. As pressure mounted from the public and the media to unravel the truth, Ernst & Young initially attempted to dismiss these charges, especially to the Press. But eventually admitted to the fault, though claiming that it was all the fault of one individual. Following are some excerpts of newspaper reports of Ernst & Young official responses, and as well the official statement of Ernst & Young India Chief Kashinath Memani. The highly contradictory statements reveal that the institution is responsible for the attempted cover-up, and not just an individual of the consultant company:

    "Sudipto Das, Director of Environmental Services, Ernst & Young, claims that the one mistake they could have made is in 'not attributing the source of the data'. But he insists that 'ethically and professionally, no wrong was done'. Why? One: Das claims that a director od ICSEM, the institute which wrote the TAS report was 'involved' in the DMH report and hence the same data was incorporated! Two: Although the two projects are at different locations - over 100 kms apart - the 'data may not be radically at variance with each other' since this is a 'macro-level' study, the 'micro-level' research will be done next month'". (B. S. Nagaraj, The New Indian Express, 27 August 2000, p.1)

    "Sudipto Das retorts that MPC submitted the executive summary of the project along with additional inputs on the region's general environmental status in the form of the REIA document for public information. He observes: 'This REIA document included project-specific issues, relevant information as per the guidelines required at this stage of the proposed project'. It was reviewed and approved for public release by the KSPCB, he says. 'Hence, allegations against E&Y by misinformed groups regarding plagiarism are unfounded'. According to him, a detailed environmental study being conducted will incorporate the issues raised by the general public during the public hearing, which was favourable to MPC, his client. 'This report' he adds, 'will be reviewed by the environmental experts' committee set up by the KSPCB and MoEF before according environmental clearance to the project'. (Sarosh Bana, Deputy Editor, Business India, October 2-15, 2000, p. 131)

    "Top international accounting firm Ernst and Young has said it was rewriting an environmental impact report on a hydroelectric power project after accusations that it plagiarized a report on a different project 90 miles away. "We are investigating how this happened. The report was written and submitted in haste," said Kashi Nath Memani, the Ernst and Young director in New Delhi. "It’s a major embarrassment for us. We will be preparing another report and submitting it afresh." Memani however added, "I’m neither denying nor acknowledging these allegations." He said the report was prepared by one employee and was not checked by a supervisor. (The Economic Times and The Times of India, 03 September 2000.)

  5. In light of these statements of Ernst & Young officials to the Press, the Rejoinder Release by Mr. Kashi Nath Memani makes curious reading (as reported on http://www.123india.com). For he states:

    "Ernst & Young India has withdrawn the Rapid Impact Environment Assessment report for Murdeshwar Power Corporation Ltd. in Karnataka following an internal investigation. It was established that the person in-charge of the preparation of the report had trespassed all boundaries of the company's well laid-out internal review procedures and submitted this report on his own to the Murdeshwar Power Corporation.

    It was found that the concerned executive, himself an expert in environmental engineering, did not comply with the guidelines for preparation & submission of such reports. The executive concerned, who joined Ernst Young India less than a year ago, has since tendered his resignation owning the moral responsibility for the goof-up.

    We were appointed by the Bangalore based company to undertake a Rapid Environmental Impact Assessment for the Power project, which is planned to be undertaken by them. The acceptance of this assignment, its execution and the issue of the final report was undertaken by one employee in our Bangalore office in total violation of all the internal procedures related to the acceptance of clients, the execution of engagements, the review of draft reports and the relevant quality control procedures. The firm's procedures do not permit a single individual to undertake all these activities. The individual concerned signed and issued the report on his own. We have in a letter to the company as well as to the Karnataka Pollution Control Board explained the position.

    The firm regrets the difficulties the report has caused to all those concerned including the public and the environmental groups, who have expressed concern about the report.

    K.N. MEMANI

    CHAIRMAN

    ERNST & YOUNG INDIA"

  6. It must be pointed out that Mr. Memani confirms the REIA prepared by them for MPCL has been "withdrawn" following an "internal investigation" and lays the blame for this on one individual in the company who, it is claimed, "trespassed all boundaries of the company's well laid-out internal review procedures and submitted this report on his own to the Murdeshwar Power Corporation." And further, "The individual concerned signed and issued the report on his own." If this averment of Mr. Memani is contrasted with the statement of his colleague Mr. Sudipto Das, to The New Indian Express ['data may not be radically at variance with each other', i.e. with reference to the DMH and TAS REIA's] and Business India ['This REIA document included project-specific issues, relevant information as per the guidelines required at this stage of the proposed project'], it becomes clear that there is no agreement whatsoever, on facts and perceptions, between Mr. Memani's and Mr. Das's statements. Both deny Ernst & Young's role in plagiarisation even as the former admits it as a mistake of an employee, whilst the latter consistently suggests the data contained in the REIA as conforming with standards prescribed.

 

  1. Issues of Concern with regard to the second EIA of the DMH Project of MPCL produced by Tata Energy Research Institute
  1. In view of the Ernst & Young REIA, the TERI effort should have been a thorough assessment of the impacts of the DMH Project in full conformance with the standards prescribed per the Environment Protection Act, Notifications and Guidelines thereof.
  2. Whilst the exact time of TERI commencing its EIA effort for the DMH Project is unclear, it would be fair to assume that this would not have been prior to mid-September 2000, considering that at that time, Ernst & Young was still claiming with the Press to be consultant to MPCL. Even so it must be stated at the outset that the study was complete by 24 October 2000, as is so stated on every page of their EIA Report. Based on this assumption, the following submissions are made questioning the validity of TERI's EIA effort, and as well providing evidence to state that the report provides false and misleading information, and is thus fraudulent.
  1. By definition, an EIA implies a comprehensive assessment effort of environmental and social impacts. It would normally include details of the project, baseline environmental and ecological status of the impact study area, environment impact assessment, social impact assessment, evaluation of alternatives based on cost-benefit analysis, environmental management plan, and a disaster management plan based on risk analysis. Further, such a study would have to be done, per the Environment Impact Assessment Notification requirements, over the period of a year covering all seasons. The Notification exempts the need for a comprehensive EIA at the discretion of the Impact Assessment Agency for certain low-impact projects, but even so requires a Rapid EIA to be conducted. The Rapid EIA is defined as a study done for one season, but not including the monsoon period. Further, when a Rapid EIA study is done, the minimum period of study would be about 3 months, and often conducted during winter.

    Besides the fact that the TERI study has no qualifications of a standard EIA, as described above, it is a matter of great concern that it claims to be an EIA, even when it does not meet the most minimum standards prescribed for the so-called Rapid EIA. Considering the TERI EIA study was conducted during the months of September-October, clearly the period constituting Indian monsoons, it is an outstanding case for disqualification of the study for it violates the EIA Notification prescribed standards for period and as well season of the study.
  2. The TERI study bases its assessment largely on an Initial Environmental Examination survey (IEE) based on Asian Development Bank formats. A perusal of the IEE reveals that it is merely an aid to conducting an EIA, and is not an assessment in itself. In other words, it enables the researcher to define the scale and scope of the study, by quickly identifying areas that have to be researched. It is claimed on page Section I - 8 of the TERI study, that 15 man days were spent in preparing the IEE. The extent of detail of the IEE preparation is explained in page Section I - 9 as based on "visiting the project site by two professionals for a period of two days" and "informal discussions with officials of forest department, general public and officials from SUPA dam". And then stating, "A total of 15 man-days were spent to carryout IEE and preparation of" terms of reference. Thus it would be fair to assume that only 4 man days were spent in actual field observation for the IEE, and most of its attributes were filled in based on "informal" discussions, as stated. And yet, the TERI EIA proceeds to conclude that "comprehensive EIA with a three season monitoring is not required for the project" as "the initial environmental examination… shows that the project involves potentially moderate environmental impacts" (Section II - 1). How it would be possible to deduce a project has no significant impacts and consequently waive a comprehensive EIA effort and that based on a survey of study attributes, is really challenging to one's reason. And such a perusal is considered an "intense study" of the impacts (page Section I - 8). Consequently, there is adequate reason to suspect, as well, the 375 man days of work claimed to have been invested in preparing the TERI EIA, completed in one month (Section I - 8).
  3. The next substantive contribution of the TERI EIA, with regard to the impacts of the proposed dam, is in the nature of biological/ecological attributes described in pages Section 19-43. This section was reviewed by Dr. R. J. Ranjit Daniels, who worked in the Uttara Kannada area, including Dandeli, for his Ph. D. at the Centre for Ecological Sciences, Indian Institute of Science during the late 1980s. Based on this research experience in the area, and ongoing research on the biodiversity of the Western Ghats, he has found the information provided in the TERI EIA as "secondary and spurious". He thus concludes, that "recommendations based on these can't be taken seriously". The full text of Dr. Daniels' statement is reproduced below, and a signed statement of the same is annexed at Annexure C.

    "I am qualified only to comment on the ecological aspects having worked in the Dandeli area during the late 1980's.

    From a perusal of the TERI EIA it is obvious that the person who has done the flora/fauna is not a qualified biologist. Statements, such as, the forests here record "very less species per unit area" (Sec IV - 19) is absurd. Judging by the species (listed in the TERI EIA study), the forest is clearly a mosaic of deciduous and evergreen forests. Such forests are the richest in biodiversity in Uttara Kannada. Forest working plans published in 1993 (and used as basis of the TERI EIA study) might have been prepared years ago and hence with outdated information on plants and animals. To base species list on this is unwise.

    Names of species are erroneous, sometimes outdated and even non-existent in reality. Plant names are full of spelling and classification errors. List of fishes of River Kali is dubious. Sole (Cynoglossus lingua Ham.) is a marine estuarine species and it can hardly exist in the proposed site. There are no lung fishes in India! (as claimed to exist in Sec IV - 34 of TERI EIA).

    Crocodiles in Kali River? Where exactly? This is news! Source has not been provided for Bird List Karwar-Haliyal area even when there are specific lists for Dandeli prepared by a student of Univ. of Karnataka in Dharwar, (perhaps) in 1989. There are not more than 150 species of birds in the area (in contrast to the TERI EIA claims that 233 bird species are found in the Dandeli Dam Study Area) and the (bird) list (in the TERI report) is copied without acknowledgement.. Gallus gallus: Red Jungle Fowl, is not known from the State of Karnataka (as claimed to exist in Dandeli vide Table 4.14; Sec. IV - 35 of the TERI EIA). New records of species (as claimed to have been the result of the TERI EIA study), indicated with *, are well known in the district even 100 years ago! Further, there cannot be many of these species in the study area. Such compilations don't help.

    Too few butterflies. Many common butterfly species missed out.

    There are no 'herds' of elephants, in Dandeli (as claimed in the TERI EIA). 10-12 years ago there was one herd with less than 20 individuals around Haliyal. And, there are no foxes! Snake list consists of only the most common species (while the area has) many more. For eg. Even the more commonly occurring Pit Vipers are not listed?

    Amphibian data is spurious. Ansonia ornata, Bufo microtympanum are not known from the district. (as claimed to exist in Dandeli in Table 4.17, Sec IV - 43 of the TERI EIA)

    In general, the ecological data presented is secondary and spurious. And thus, recommendations based on these can't be taken seriously."

  4. In Section I-4 of the TERI EIA, the project is claimed to be a "RUN OF THE RIVER" scheme. However, considering that the built height of the dam is over 20 metres causing submergence over 208 ha, it begs to be questioned how the project can be claimed to be run of the river. Nowhere in the study is it defined what constitutes a run of the river scheme. TERI could easily have adopted any of the standards prescribed, such as in the International Ramsar Convention on Wetlands of International Importance (to which India is a signatory), the report of the World Commission on Dams, the standards prescribed by the Indian Ministry of Water Resources or perhaps the International Commission on Large Dams (ICOLD). To have thus subjectively stated the project to be a run of the river scheme, as if to suggest the project is of minimal impact and causing no submergence, would amount to presenting the nature of the project wrongly.
  5. Explicating the weaknesses of the TERI EIA, and the implications under law, ESG and PSK wrote to the TERI Country Director, Dr. R. K. Pachauri, and as well the Bangalore Division Chief and Dean, Mr. H. V. Dayal, calling upon them to withdraw the EIA submitted for the DMH Project, per our letter dated 05 December 2000, annexed at Annexure D. Similar letters were written by others and a sample of the same is annexed at Annexure E. Dr. Leena Srivatsava, Dean, Regulatory Studies and Governance Division of TERI responded to one such letter, and the same is annexed at Annexure F. It must be pointed out from Dr. Srivatsav's statement that it does not accept the TERI EIA to be fraudulent, and but admits there are plans "to reassess our report in the light of the comments made and, wherever required", to "modify and strengthen the same".
  6. Dr. Srivatsav's email was dispatched on 18 December 2000, about three weeks prior to the Statutory Environmental Public Hearing held on the DMH Project on 03 January 2001. However, Ms. Bineesha of TERI who made submissions based on the same study during the Hearing, categorically denied any such lapses. In other words, an attempt has been made once more to distort the nature of impacts and perhaps enable securing of environmental clearances to the project by TERI, as Ernst & Young had attempted in the past.
  1. Given the above assessments of the TERI EIA, it would be fair to conclude that the 6 page Environmental Impact Assessment attempted by the TERI researchers in Section V, based on the Carlisle and Lystra matrix, is clearly unacceptable. This is because, the ecological information provided is unrepresentative of the local area, no thorough primary assessment of the environmental and ecological attributes have been conducted as claimed, factual data has been concealed, and false recommendations arrived at (despite contentions over validity of data and public protests). Thus, the TERI EIA constitutes a fraud per Section 4 of EIA Notification of by the Union Ministry for Environment and Forests, which reads as follows:

"Concealing factual data or submission of false, misleading data/reports, decisions or recommendations would lead to the project being rejected. Approval , if granted earlier on the basis of the false data would also to be revoked. Misleading and wrong information will cover the following :

 

  1. Representation demanding rejection of DMH Project of MPCL and justification for the same
  1. Per the aforementioned letter of the Secretary, Department of Ecology and Environment of Government of Karnataka, dated 05 June 2000, it is clear that the project required a full cycle of environmental clearance as defined in the EIA Notification of the Ministry of Environment and Forests. Considering that the said Notification mandates a "site clearance" for such projects prior to initiating any other step with regard to environmental clearances, and given that steps to obtain such clearance was not even initiated, the process of proceeding with subsequent steps of clearance is fundamentally flawed and bad in law. The due inspection of the project area that would have been conducted by an interdisciplinary panel of experts as constituted by the Union Ministry of Environment and Forests, has thus been prevented overtly, and the relevant agencies of the Government of Karnataka have transgressed their powers by interpreting law to convenience vested interests and against wider public interests.
  2. Given that the first REIA produced by Ernst & Young for the DMH Project of MPCL was datelined June 2000, i.e. prior to the official existence of the project on 10 July 2000, and in any case being ready within the month of the policy clearance granted to the project during the 5th June 2000 Global Investors Meet, it should have been apparent to KSPCB and the Karnataka Dept. of Environment that MPCL had begun the process of securing environmental clearance by subverting law and standards as prescribed. Such a document should have been outright rejected by KSPCB and Dept. of Environment, even if it was a legitimate study. However, as has been explained in Section III of this affidavit, Ernst & Young plagiarised the study of TAS and based upon such a fraudulent study, MPCL attempted to secure clearances for its project. It is to be expected of first level screening and Impact Assessment Agencies, that KSPCB and Dept. of Environment are, to glean through the information provided and ensure the facts mentioned are reasonably accurate. Some lapses in review, considering high work pressures, are acceptable. But when even basic information on the location of the project is shown to be alien to the proposed impact area, as was done in the REIA of Ernst & Young, and type of forests and even names of villages being alien were overlooked, it is but fair to suspect complicity of the regulatory authorities. That such a document was put out in the public domain to initiate environmental clearance procedures, especially by way of calling for the Statutory Environmental Public Hearing held on 21 August 2000, and when exposed discretely accepting Ernst & Young's excuses without penalising them per law, exposes that not just Ernst & Young and MPCL perpetrated fraud on Statutory Clearance Mechanisms, but that KSPCB and Karnataka Dept. of Environment were party to such an attempt as well. Only a thorough investigation will reveal the extent of complicity of those involved, and thus the demand for a Judicial Enquiry into the whole process is reiterated.
  3. Per Ernst & Young India Chief Kashinath Memani's statement adverted to in para 20 of the affidavit, it appears that the consultant chose to "withdraw" the report following the Public Hearing held on 21 August 2000. Thus, this constitutes an attempt to employ distractive tactics and pass the blame only on an individual, when the consultant company as a whole failed to subvert the process of law. Thus, Ernst & Young is liable to be prosecuted under relevant provisions of the Indian Penal Code and other law on the matter.
  4. Per Clause 4 of the EIA Notification, adverted to in para 24 of this affidavit, KSPCB, a first level Impact Assessment Agency, with powers of granting "No Objection Certificate" to the project, must have rejected the "project". In effect, it would mean that the DMH Project as proposed by MPCL was liable to be rejected, an apt punishment in itself. Rather than adopting this correct step per law, KSPCB covertly accepted Ernst & Young's statement, apparently without independent and transparent investigation, and proceeded to allow MPCL to enlist another consultant to conduct an EIA for the project. An attempt was thus made, once more to speed up clearances for the project despite fundamental and statutory violations. Thus, KSPCB is guilty of complicity with MPCL in subverting the process of law, and the responsible officers are liable to be charged in accordance with appropriate administrative rules and law on the matter.
  5. Given awareness of the ongoing attempts of MPCL to secure environmental clearances for the DMH Project covertly and subversive of fundamental precepts of Indian environmental law and related statutes, Tata Energy Research Institute, being an agency with over 25 years experience, should have been attentive to detail of EIA reporting standards, particularly law on the matter, when accepting the consultancy brief from MPCL. To have proceeded to conduct an EIA (and not Rapid EIA, as is sometimes legally allowed), even when it was not clear if Ernst & Young was still involved in securing the project clearance, is itself a matter of great concern. Further, to have proceeded to complete the EIA within the span of a month, conducting the same in a season expressly prevented for legally and scientifically valid reasons, proceeding to provide spurious and fraudulent data of a secondary nature (yet claiming the same to be primary) and thus arriving at a decision that impacts are minimal, squarely settles this second attempt of TERI and MPCL to secure clearances for the DMH Project, as wholly contravening Clause 4 of the EIA Notification adverted to above. TERI would have been consistent with protecting the Rule of Law and high scientific standards for such enquiry, were it to have withdrawn its EIA for DMH soon as ESG, based on expert opinion, brought to the notice of its highest officers the serious lacunae contained in the study. Rather it proceeded to defend its study as being accurate, and as described in para 23 (v & vi) above, contested allegations of incorporation of fraudulent data and technically inconsistent methods of enquiry, without providing evidence to justify the stand. In fact nowhere in the TERI study is there a reference to a data source, even when claims are made to discovery of new "species", making such attempts a mockery of science and of those who invested rigorous efforts over decades to establish accurate environmental and ecological information of the area. Whilst it is left to the discretion of the authorities concerned as to what legal action needs to be initiated against TERI for such fraudulent attempts, it is uncontestable that the EIA prepared by them for the DMH Project of MPCL is liable to be rejected in conformance with the EIA Notification.
  6. Given the two attempts of MPCL to secure environmental clearances for its DMH Project in complete contravention of the EIA Notification and other related statutes, the Secretary, Department of Energy, Government of Karnataka must withdraw its Order dated 10 July 2000 (No. EOE 96 NCE 2000), in conformance with Clause 5 of the said order. MPCL must be debarred from executing such projects, in keeping with similar actions of the Government of Karnataka in other cases (Eg. M/s Atlanta Infrastructure Ltd vis a vis Bangalore Mahangara Palike).
  7. Considering the above, especially the fact that the Hearing of 03 January 2001 was called with only 7days notice, in abject violation of the 30 days notice mandated per the EIA Notification, the Environmental Public Hearing held for the DMH project of MPCL are clearly violative of the Environment Protection Act and Notifications thereof. Hence, all Hearings held must be declared null and void and the DMH Project of MPCL is liable for rejection.

 

Leo F. Saldanha 05 January 2001

Coordinator

Environment Support Group ®, S-3, Rajashree Apartments,

18/57, 1st Main, S. R. K. Gardens, Jayanagar, Bannerghatta Road,

Bangalore 560 041. Telefax: 91-80-6341977. Email: [email protected]