Public Involvement in Environmental Decision Making[1]

 

By

 

Leo F. Saldanha[2]

 

Setting the tone:

 

On 25 July 1995, the Karnataka State Pollution Control Board (KSPCB) issued a No Objection Certificate (NOC) to Mangalore Power Company (MPC), then promoted by Cogentrix Inc. of USA and China Light and Power Company, to set up a 1,000 MW coal fired thermal power plant in Nandikur and surrounding villages of the environmentally sensitive Dakshina Kannada district.  It was claimed in the NOC that an Environmental Public Hearing on the project had been held on 22 July 1995.  This “Hearing” was held in the Mangalore Circuit House, but no notice had preceded inviting the public to attend.  Participation in this “Hearing” claimed to be the wide public, involved the then Karnataka Environment Minister, Mr. Siddanagowda, then Member Secretary of KSPCB Dr. B. Shivalingaiah, Mr. Suresh Heblikar in his capacity as “environmentalist” and other invited “guests”. 

 

Considering this high impact project was under the constant gaze of the public, major protests followed.  The public, in particular the project affected communities, felt cheated out of what they perceived to be their legitimate right to be consulted in the process of decision making on a project that would fundamentally alter their lives and livelihoods, and the quality of their environment.  These protests were widely covered by the Press, but KSPCB did not amend its position on the “Hearing” and the NOC became basis for seeking higher clearances from other statutory authorities.  A year later the Ministry of Environment and Forests also granted the project “Environmental Clearance” (EC), despite several representations and thousands of letters urging the Ministry not to clear the project on various grounds, but predominantly on the issue of non-involvement of the public at large in the decision making process.  

 

Very soon, the project clearances were challenged in a Public Interest Litigation Janajagriti Samithi of Nandikur filed before the Hon’ble High Court of Karnataka[3].  One of the significant grounds in the petition remained that:

 

“Public hearing should have been provided before granting the clearance and no such opportunity has been given. The clearance suffers from certain assumptions which are non-existent and have no factual basis.”[4] 

 

The argument placed was that if such a process of consultation as held by KSPCB on 22 July 1995 constituted a “Public Hearing”, as provided in law, then there should have been a notification in at least two widely circulated local newspapers announcing the hearing, and this should have been issued at least 30 days prior to the date of the “Hearing”.  Considering that such notices were not issued, the Circuit House meeting could hardly conform to the status of a statutory “Public Hearing”.  Thereby, the NOC and EC accorded were in clear violation of the Environment Protection Act, in particular the Environment Impact Assessment Notification of the Ministry of Environment and Forests. 

 

The requirement of holding Public Hearings was not mandatory at that time.  The EIA Notification[5] essentially suggested that:

 

“Comments of the public may be solicited, if so decided by Impact Assessment Agency[6], within thirty days of receipt of proposal, in public hearings arranged for the purpose after giving thirty days notice of such hearing in at least two newspapers.  Public shall be provided access, subject to the public interest, to the summary of the reports/Environmental Management Plans at the Headquarters of the Impact Assessment Agency[7]”.

 

Clearly, a minimal process for conducting Public Hearings had been defined, which the KSPCB, being the agency designate to represent the Ministry in the local clearance mechanism, should have followed.

 

Justice Shri. Rajendra Babu and Justice Shri. Sreenivasa Rao, constituting a Division Bench of the Hon’ble High Court of Karnataka, decided on the Writ Petition filed by Janajagriti Samithi, and had this to say with regard to the contention whether a Public Hearing was held, or not:

 

Though there is no requirement in law as such, to hear the public but by reason of the guidelines issued by the Government of India in the matter of clearance of projects while considering environmental aspects, such public hearing ought to be given to maintain proper transparency in the action taken by them.  It is no doubt true, in the material placed before the Court there was a public hearing held and a date was also fixed for further hearing on 12th August, 1995.  It is now contended that the clearance given by the KSPCB without the said hearing on 12.8.95 (the date set for a “hearing” subsequent to protests for the “hearing” claimed in the NOC) is not proper consideration of the matter.   This aspect has been in detail adverted to by the KSPCB in the course of their statement of objections filed and it is explained as to how another date of hearing the public further was put off.  On the main issue as to the location of the project, there was due hearing.  On other issues such as rehabilitation and environmental safeguards to be provided there were differences amongst the various authorities and to give them sufficient time and attention to them on these aspects, matter was put off and therefore, we do not think that there is need for public hearing at all in the matter of site clearance.  However if on further public hearing or on fresh information being gathered by the Board, it is certainly open to them to reconsider the clearances given to them if any telling circumstances is pointed out which would tilt the result of clerance………”  [p. 160, 161.  References in parenthesis and emphasis not in original.]

 

And it was concluded that:

 

“An affidavit has been filed on behalf of the Union of India that there was due consideration of the objections filed on behalf of JANA JAGRUTHI and a letter also had been sent to that effect.  Therefore, we must say this was in extension of the public hearing that was given earlier to all those who were interested in the matter of maintenance of the environment who wanted to be heard in the matter”.  [p. 161. Capital as in original.  Remaining emphasis not in original.]

 

 

The following issues come to fore from the interpretations of the Court[8] with regard to public involvement in decision-making:

 

a)       It appears that the Hon’ble Court relied merely on the opinion of the State and Union Governments, and did not examine if the Hearing was held at all.  If indeed, the claimed Hearing was held, the proof would have been prior notices in newspapers, and there were none. 

b)       Again, it appears from the interpretation of the Hon’ble Court that due consultation with the public is not an essential prerequisite to a decision. Even as the Court holds that “such public hearing ought to be given to maintain proper transparency in the action taken” by the authorities.

c)       The Hon’ble Court even goes to the extent of stating “there is no requirement in law as such, to hear the public”.  It also suggests that if any member or organisation of the public files a representation to the relevant authority, the same could be construed as an “extension of the public hearing”. 

 

Clearly, an opportunity was lost in ensuring public involvement in decision making became a fundamental prerequisite of project clearances, especially when significant impact on the environment and people’s livelihoods were involved. 

 

The evolving basis of Public Involvement

 

The largest meeting of Heads of Nation States in the world remains the U. N. Conference on Environment and Development held in Rio de Janeiro during 1992.  The Rio Declaration[9] adopted a set of Principles for States to follow, and Principle 10 significantly proclaims:

 

“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.  At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes.  States shall facilitate and encourage public awareness and participation by making information widely available.  Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

 

Principle 22 of the Declaration explicitly highlights the need for involving local communities in environmental decision-making thus:

 

“Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices.  States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.”

 

The emphasis in Principle 10 that “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level” is of great import in a country as diverse, in both culture and environmental features, and large, in population and size, as India. 

 

 “Dams and Development – A New Framework for Decision-Making”, The Report of the World Commission on Dams released in November 2000, illustrates how the lack of such progressive engagements of the wide public in decision-making processes will manifest.  The Commission conducted a detailed survey of 105 dams across the world and states thus[10]:

 

“The WCD Knowledge Base shows that the most unsatisfactory social outcomes of past dam projects are linked to cases where affected people played no role in the planning process, or even in selecting the place or terms of their resettlement.  In addition, governments have frequently committed themselves unquestioningly to large infrastructure projects, whose merits have not been tested by public scrutiny, without hearing alternative views on the choice of development objectives for a village, region or country.”

 

“The Commission’s review identified the following recurring concerns and criticisms about how the public, and particularly affected people, have been involved:

·         Insufficient time, resources and information have been made available for public consultations;

·         The spectrum of participants was usually very narrow, ignoring rural communities, indigenous groups and women, and affected people’s organisations whose effective participation may be constrained both culturally and linguistically;

·         Where opportunities for participation of affected peoples and NGOs representing affected groups have been provided, they often occur late in the process and are limited in scope.  Moreover where substantial differences arise, those seeking to modify plans and decisions often must resort to legal or other action outside the normal planning process;

·         There was generalised failure to involve affected people in the design and implementation of project monitoring and follow-up; and

·         The government agency staff leading the discussions had often been trained onlyin one sector (such as engineering) and this reduced the scope for promoting a multi-disciplinary approach.”

 

“From the experiences recorded in the WCD Knowledge Base there are recent examples that show where participation has reduced conflict and made outcomes more publicly acceptable.  These contrast starkly with those where projects have been pushed through by central authorities without consulstation resulting in drawnout and acrimonious conflicts over compensation, resettlement and benefit sharing.”

 

“The failure to provide a transparent process that includes effective participation has prevented affected people from playing an active role in debating the project and its alternatives.  As a result they are unable to assist project planners to provide a development response that meets their needs and allows them to add to the benefits to be derived from the project.  Without doubt this has magnified the negative impacts of such projects and alienated affected communities leading to active opposition to projects and considerable uncertainty for project proponents. …  (T)he outcome is often not only poor performance of the social components of projects but also schedule delays, cost overruns and poor financial and economic performance.”

 

In the following sections case studies are presented wherein:

 

  1. Progressive engagement of the public aids in exposing a Environmental Impact Assessment fraud and in protecting a forest from potential submergence by a dam.   Case Study example: Dandeli Mini-Hydel Project
  2. The affected public is kept out of decision-making entirely, in developing a pigments and dyes factory wholly illegally in an environmentally sensitive location.   Progressive public action restores the force of law even as statutory authorities fail to. Case Study example: Engelhard Highland Pigments Factory in Kadandale, Dakshina Kannada.

 

Case Study 1: The Dandeli Mini Hydel Project

 

The Government of Karnataka endorsed support for the Dandeli Mini Hydel Project (DMH Project) of M/s Murdeshwar Power Corporation Ltd. (MPCL) at the Global Investors Meet held at Bangalore on 5th June 2000, World Environment Day.  This project involved 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.

 

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." 

 

It was only on 10th 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:

 

(a)     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)

(b)     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)

(c)     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)

(d)     The project would then have to be completed within a period of 24 months. (Ref. Clause 4)

(e)     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)

 

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.  The purpose of the Hearing was to examine the environmental and social impacts of DMH Project of MPCL based on a 30-day public notice issued in newspapers 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 the international consulting firm 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 ignored by the KSPCB and then DC of Uttara Kannada.

 

Only the Executive Summary of the EIA was available for review.  Examination revealed that the appreciation of the issues involved was very cursory, but importantly, there was something puzzling in the presentation of facts.  For instance, the geographical details provided were not corresponding with the location of the proposed dam.

 

Investigations by Environment Support Group (ESG) and Parisara Samrakshana Kendra of Sirsi (PSK) revealed that the Ernst & Young EIA was an entirely plagiarised from another EIA for the Tattihalla Augmentation Scheme (TAS) of Karnataka Power Corporation Ltd., being prepared by Institute for Catchment Studies and Environmental Management, Bangalore (ICSEM) and BASS Pollution Control Systems Ltd.  Ernst & Young had only replaced the cover sheet of the Tattihalla EIA with a cover stating it was about the Dandeli dam project. 

 

More shocking than this fraud was the fact that the KSPCB failed even to cursorily review the EIA.  For had it done so, it would have been easily confirmed that the information provided was invalid, even fraudulent.  Rather than initiating action under the relevant provisions of law, KSPCB initiated the process of decision-making by calling for and Environmental Public Hearing on 21 August 2001 at Karwar.  Two points need to be noted of this process:

a)       The Hearing was held in faraway Karwar, when the project was proposed at Dandeli.  The DC claimed this was for the convenience of public.

b)       The Citizens Panel consisted no representation from the Dandeli or Haliyal Taluka.

c)       Any discussion on the plagiarisation of the EIA was brushed aside, and investor induced lobbies shouted down issues raised by concerned public.

 

Representations were sent to Mr. T. R. Baalu, Union Minister for Environment and Forests and Mr. S. M. Krishna, Chief Minister of Karnataka explaining to them that the proposed Hearing of 21st August was based on the plagiarised REIA and demanding that:

 

(a)     "The Proposed Public Hearing must be cancelled immediately, and if held the proceedings must be declared null and void.

(b)     A Judicial Enquiry ordered into the incident to pin responsibility within the Government for allowing this fraud.

(c)     Disempanel Ernst & Young as EIA Consultant in India."

 

The Press was informed and there was wide coverage of this issue, not just locally, but nationally and internationally as well.  The Indian Express reported this fraud 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.

 

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, and found wanting in many respects, even as it was claimed that 375 man days of work had gone into the effort!  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, such an investment of human effort seems very specious. 

 

On 06 November 2000, KSPCB issued another notification for an Environmental Public Hearing to be held about the DMH Project at Dandeli on 07 December 2000.  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 Citizens Panel was "without quorum".  This when over 400 citizens had traveled from afar 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.

 

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 manner in which this Hearing was conducted by Mr. Mitesh, and the many well prepared submissions made by the wide public, decided the fate of the project thereafter. 

 

The investor had cleverly filled the front benches with supporters of his project, thus relegating people from affected communities to the back.  Sensing that this would provide little opportunity for equal participation, the DC rotated the turn of representation across the large venue, thus curtailing an attempt to subvert the process of discussion.  Over 500 people participated in a very meaningful process of discussions over a long day that saw very little obstructionist behaviour.  The author of this paper also participated in the process, and his comments exposing both EIAs and the manner in which the clearance mechanism had failed to take effective action, was sought on affidavit.  Because of this and various other representations, the DC, in consultation with the Citizens Panel, found sufficient evidence to reject the clearance sought for the dam.[11]

 

In summary, had the EIA fraud not been exposed, it would have been impossible to predict the impact of the dam, as no genuine EIA was ever conducted, and worse, a good part of the Dandeli Wildlife Sanctuary would have been submerged along with settlements of tribal communities.

 

Case Study 2: Engelhard Highland Pvt. Ltd.

 

Another experience on the lack of public involvement in environmental decision-making highlights the extents to which investors and consultants can go to subvert the process of law.   The example of the successful resistance by local communities of the remote Kadandale village in Dakshina Kannada, to the location of a chemical unit by the US chemical major Engelhard Inc, in collaboration with Highland Pvt. Ltd. of India is a case in point.

 

Engelhard Inc. in collaboration with its Indian counterpart began to construct a pigment-manufacturing unit in Kadandale sometime during 1996. The location was sensitive, as it was at the source of Shambavi River, which downstream is known as Mulki, and abutting forests and hill villages in the foothills of the Western Ghats.  Without sharing any project information, including even with statutory authorities and the local Panchayat, the factory construction began.  When local communities raised concerns that the facility was illegally developed and would pollute their main source of drinking water, the local Member of Legislative Assembly sought to dismiss this by issuing a “clearance” which he claimed was provided to the project by an “Environment Clearance Committee” that he had constituted.  It was claimed that the “Committee” had gone through sufficiently the EIA of the project prepared by project consultants, who included senior faculty of the Karnataka Regional Engineering College and a former Addl. Secretary of the Karnataka Dept. of Ecology and Environment and according to their report the project would have no adverse consequences on people’s health or the environment.

 

Such questionable processes initiated by an elected representative should have drawn the attention of the Statutory authorities, who were repeatedly approached by the local communities for relief.  Instead, the KSPCB accorded the project a No Objection Certificate, post-facto.

 

It may be stressed here that a significant claim of the investor and the EIA consultant, M/s Environmental Consultancy Services, was that the project need not conform to the full process of review per the EIA Notification, as it was manufacturing pigments that were non-polluting, and not dyes, which were listed as polluting in Schedule I of the EIA Notification.  Another major claim was that the initial capital cost was less than Rs. 50 crores (in fact it was marginally less, a few thousands below the 50 crore golden mark), and thus need not conform to the Public Hearing requirement.

 

The project-affected communities were not convinced with such arguments, as they believed the in-transparency surrounding the construction was to aid the development of a toxic facility.  They would not accept the theory that pigments were not as polluting as dyes, particularly when the learnt that the produce was for use in US Dollar Mints.  Why would an American company want to establish such a facility in such a remote corner of the world, particularly given that the volume of production was not high, and yet the transportation to US would be significant?  Was it a case of dumping toxic facilities on the developing countries, they enquired?

 

The local villagers launched a series of protests demanding demolition of the illegal structures being raised on agricultural land that had been acquired without conversion even. In an effort to break the movement, a series of criminal cases were filed against the protestors, including charges of attempting to murder the local MLA, but these charges were eventually dismissed as being “trumped up”.  However, it appears the process of criminal investigation was subverted in an attempt to harass local farmers.  The requirement of personal appearance in Court in criminal investigations clearly resulted in putting poor farmers in a very difficult situation as traveling to distant Mangalore for Hearings, essentially resulted in loss of income.  It was perhaps hoped that the fatigue resulting would break the resistance.  Quite the contrary actually happened.

 

The protests continued with more vigour, the press began to cover the growing movement against the Engelhardt facility and on 29 August 1997 it became a matter heated discussion and debate in the Karnataka State Assembly.  Reacting to pressure from the House, the then Deputy Chief Minister, Mr. Siddaramaiah, ordered a High-Level Committee to investigate into the entire affair.  An inter-disciplinary team was constituted under the Chairmanship of then Spl. Secretary of the Dept. of Ecology and Environment, Capt. Raja Rao, and the committee visited the site soon after. 

 

The Committee met with the project investors on site, but refused to meet the affected communities.  It was only after much persuasion and protest that they agreed to meet with the communities who in the first instance brought the matter to their notice. After the visit the Committee filed a report with the Government.  Despite the best efforts of the affected communities and support organisations, including Environment Support Group, the report was not made public and remains so to this day. 

 

Following a frustratingly long wait, and considering that regulatory agencies seemed unresponsive to blatant violations of the law, the communities decided to force the law in a manner that they knew best.  Drawing from the relevant provisions of the Water Act, pertaining to action that would follow for violations, the communities cut the access-bridge to the plant facility and set up road blockades.  The construction stopped, and in-time the investors backed out abandoning the machinery and the plant that was almost ready for commissioning. 

 

Engelhard Inc. has interpreted their involvement in this project in their filings with the US Securities Exchange Commission as a project that had become financially un-viable.  Not a word was spoken on their deliberate violations of Indian Environmental and Land Use planning laws.  As for the Government of Karnataka, no action has been initiated against the investors and their consultants, thus far.

 

What these instances highlight:

 

These instances highlight the problems recently encountered in interpreting and implementing the EIA Notification of India.  Some obvious questions that would have to be asked are:

 

1.       Whether, Public Involvement in decision-making has to be a matter of such contention that only specific legal instructions can mandate consultation.  Is it not possible for us to progressively interpret various existing provisions in law, especially some features in the widely forgotten Town and Country Planning Act[12], to ensure that environmental decisions do consider all options and impacts, and this would mean meaningfully involving the affected communities, before a decision is taken?  Should the appropriate location of a power plant or industry be made such a complex issue, involving even higher Courts that remove the understanding of the issues beyond the grasp of the common person?   This particularly when there is a wealth of knowledge and experience from both developed and developing countries in dealing with such conflicts?

2.       How do we constantly evolve our law and standards to keep specious and technical arguments, such as those floated in desperate defense by Engelhard and its consultants, especially given that our regulatory systems are lax and even complicit with violators?

 

These remain our challenges when addressing the goal of public participation in environmental decision-making. 

 

Public Hearings Gains and Threats:

 

Consequent to the April 1997 Amendment to the EIA Notification, when Environmental Public Hearings were mandatory for certain high impact developments, Hearings have formed a major focus of civil action in safeguarding social and environmental priorities.  Various groups across the country have taken maximal advantage of the little chink of access this process has provided in decision making, to proactively address many a social and environmental concern that would otherwise have not formed the basis of the decision.

 

Broadly, the experience thus far may be summarised as follows:

 

Some major gains where public involvement has helped improve environmental decision-making are explained:

 

A.       The public has introduced a very high level of scientific input in project review. Explorations of alternatives have been possible beyond merely those presented by the Government or Investors. For instance, in the case of the controversial Bangalore Mysore Infrastructure Corridor Project, ESG has relied on a variety of expert opinion and submitted a detailed document to the Ministry of Environment and Forests exposing the Investors’ claims and highlighting various viable alternatives that have not been considered.  This document is available online at: <http://www.indiatogether.org/campaigns/bmic> .

B.       The cause of protecting environmentally sensitive regions has been highlighted, and sometimes even helped protect the region. For instance, Environmental Public Hearings held during 1999 formed the basis of the decision to reject the clearance sought by Kudremukh Iron Ore Company Ltd. for building a second tailings dam across Kachige Hole (hole=stream) in Kudremukh National Park.  This Hearing also highlighted how continuation of mining in the region would destroy a unique forest and watershed for three major south Indian rivers.  Detailed documentation on this is available online at: http://www.altindia.net/esg/index.htm.

C.      Cost-benefit analysis has been reviewed by an audience wider than just project reviewing officers, whilst also enabling realistic recognition of social costs of the project. Further, conditions for environmental clearances are forced to be more rigorous than in the past. For example, the trans-district Bangalore Mangalore Petroleum Pipeline project involved seven Hearings in all.  In the final Hearing held at Bangalore, it was realised that the preceding hearings had been conducted merely based on the “Executive Summary” which often passes for the brochure of the investor.  ESG’s insistence that a Hearing is meaningful only if all public domain information on the project is served was accepted by the Government and in a landmark precedent, Mr. Shankarlinge Gowda, then DC of Bangalore, being the Chair of the Hearing panel, ordered that all project information should be made public.  Good use was made of this opportunity and a detailed response was filed, which ensured the decision conditions were much more specific and regulatory than is normally the case.

D.      Greater transparency is being ensured in the process and fraudulent practices being exposed.  An outstanding example for this is the expose’ of the plagiarised EIA presented by the international consultant Ernst and Young in promoting the clearance for the Dandeli Dam last year.  Forced by this embarrassing disclosure, the Government of Karnataka forced the investor to commission another EIA, and this was conducted by Tata Energy Research Institute.  ESG’s review of TERI’s EIA discovered that not only was it fraudulent, but was also completed in violation of the EIA Notification defined season for field investigation. This issue is documented online at: http://web.estart.com/~esg

 

There are problems, however, and these are broadly identified as follows:

 

A.       Technical interpretation and poor understanding of the law governing such Public Hearings on the part of Impact Assessment Agencies is resulting in the process being viewed merely as a procedural requirement to be fulfilled.  Most Hearings have been marked by such an attitude.

B.       Conducting of Public Hearings leave a lot to be desired, especially given that the public is perceived contemptuously. Resistance to part with public domain project information by Government and Investors has resulted in conflicts, including human rights abuse.  For eg., the Bangalore Mysore Infrastructure Corridor project witnessed the State violating human rights of citizens demanding their right to project information. This matter is now before the National Human Rights Commission and its decision has much bearing on the process of conducting Hearings across the country.  When the intervention of the High Court of Karnataka was sought, by way of a Public Interest Litigation, to direct the Statutory authorities to ensure public domain project information was available to the Pubic prior to Hearings, the Court took the view that such information as requested was not necessary for public review.[13]  Interestingly the position taken by the KSPCB in this instance was that the information sought by the Public was not available to it even, as the same was claimed by the Project Developer, M/s Nandi Infrastructure Corridor Enterprise (NICE), as being “confidential”. 

C.      More often than not, it has become ritualistic hearing process and not one of public consultation and review. In fact, it is a normally a one-off process, wherein the remaining procedure of clearance remains in transparent.  This is so as the EIA Notification does not provide for post clearance hearings, especially to review if conditions have been fulfilled.  Existing provisions allowing public inspection of compliance reports are rarely complied.  A recent instance of this is the denial of ESG’s application by the Bangalore Regional Office of the Ministry of Environment and Forests to review the half yearly compliance report on the environmental clearance granted to M/s NICE in the Bangalore Mysore Infrastructure Corridor Project. The position taken was that such reports could only be shared by the Impact Assessment Agency, and that would be the Delhi office of the Ministry!

D.      Public Hearing reports are not forming the basis of clearance process.  This is especially so when clear technical and legal reasons are offered in justification of positions.  Oftentimes, well-documented and researched representations examining investment decision are deliberately ignored, in keeping with the politically expedient need to “clear” the project.

 

An Overview for Reform:

 

During October 2000, the Ministry of Environment and Forests conducted a review of its functioning.  On the suggestion of Union Minister for Environment and Forests, Mr. T. R. Baalu, ESG submitted a note reviewing the problems dogging the functioning of the Ministry.  Some relevant extracts are enclosed below, as they summarise the basis issues that need to be addressed on matters relating to public involvement in environmental decision making, the basic objective of which is better environmental management and quality of life for all.

 

Issues of concern in the Environmental Clearance procedure

 

Weak EIA process

 

1.       Poor Quality of EIAs:  Perhaps the most critical area of concern with regard to the clearance procedure is that the quality of information furnished by the project developer as part of the Environment Impact Assessment/Environment Management Plan (EIA/EMP) and Detailed Project Report (DPR) is often found wanting in crucial areas of the project impacts. There have been cases where EIAs have been completely fudged (Eg. Ernst and Young REIA for Dandeli Dam), where the data furnished is unrepresentative to the area (Eg.  Air Pollution Modeling conducted by Transoft of France for Tata Consultany Services Rapid Environment Impact Assessment of Mangalore Power Company) and quite often there is a lot to be desired even in the fundamental aspects relating to presentation of facts and analysis of impacts.

2.       Weak Technical Competence of Consultants: Given that the EIA is prepared by consultants hired by the developer/investor, in most cases the EIA is viewed as a mechanism of compliance with procedures and information provided is very superficial and often not representative of the ground reality.  This problem has been widely acknowledged as undoing of the very precepts of the EIA Notification.  Despite that there is very little or no verification of facts presented by conducting site visits or ground verification.

3.       Need for empanelling Consultants: Several suggestions have been offered over time to fix such lacunae.  However, a most pressing need is to validate Consultants, thus ensuring, in the very least, the information brought is of a quality that is justifiable for initiating the clearance process.  The credentials of the Consultant/Consulting Company/Organisation should be subject to public review as in the case of all companies by way of furnishing Quarterly Report, Annual Reports, etc.  

4.       Need for Independent EIA Authority: There is also the demand for setting up an independent Environment Impact Assessment Authority headed by a judicial officer and comprising of eminent scientists, technocrats and environmentalists.  Such a step must be considered consciously and with due dispatch.  The presently available process of review by Environmental Appraisal Committees consisting of panels of inter-disciplinary experts attached to various wings of the Ministry has performed this role.  However, its authority is limited as its decisions are not binding on the Ministry, nor is the process transparent.

 

Faulty environmental clearances

 

1.       Pressure for Quick Clearance: The regulatory agencies at the State and Central levels are constantly under pressure to accord quick clearance to the project, by a combination of investor induced and bureaucratic and political interference.  Consequently, clearances are likely to be provided without sufficiently addressing all the issues that are involved.

2.       Technical Skills of Review: Additionally, in-house skills of review, from the scientific and legal points of view, have been found wanting in a variety of areas, and exposed repeatedly, especially through the process of Public Interest Litigation in different parts of the country.  In some instances in the recent past, various Courts have struck down final environmental clearances accorded, citing fundamental violations in administrative review, planning and environmental legislation and lack of application of mind on critical areas of environmental concern.

 

Rapid EIA and Conditional Clearances

 

1.       Rapid EIA:  With the demand to accord speedy clearances to industrial and infrastructure projects increasing, a mechanism adopted by Pollution Control Boards and Ministry of Environment and Forests has been to accord conditional clearances to projects merely based on Rapid Environment Impact Assessment.  Such assessments are based on one season data, which technically implies a 3-month period, but most often only a month’s data is provided.  Predominantly, the data gathering techniques are much below average scientific standards.  Furthermore, there is no clear procedure to establish whether the data has been collected afresh or collated secondarily.  This effectively provides an impression that some level of scientific work has been undertaken, whereas in real terms the quality of the scientific methodology involved is highly questionable.

2.       Violation of Conditions granted: Often, conditions are violated blatantly and the violators get away scot-free with the Ministry of Environment and Forests lagging in enforcing penal action against the violators as per law.  The immediate action that needs to be taken for not fulfilling the conditions is that the environmental clearance should be revoked.  This is not done in most cases and a classic example for this is the clearance accorded to the 1,000 MW thermal power plant of Mangalore Power Company proposed to be sited in the Dakshina Kannada region. 

3.       Quality of Conditions Framed:  A quick perusal of clearances granted by MoEF to a variety of projects brings to light the typical terminology used in defining conditions.  Some examples are listed:  "carefully examined", "strict compliance", "adequate facility", "regular monitoring", "sufficient funds", "properly trained", "appropriate measures to improve design and operating practices", etc., etc.  It may easily seen that none of these terms can be considered as clearly defining a particular type action that should be undertaken, which can be reviewed credibly based on existing standards and most importantly can be held per law to penalise non-compliance.  Such conditions reflect a lack of appreciation of the fundamental importance that clearances play in mitigating environmental damage within the concepts of sustainable development.  Were such terms used occasionally, it could have been ascribed to the lack of rigour on a few officers in applying their minds to the task on hand.  However, it is distressing to note that such terms are prevalent, rather than rare, and is seen to be acceptable, than being questioned.  This approach must be fundamentally revamped and clear and specific conditions, even exhaustively describing the compliance per existing standards, manuals, treaties, etc. should be the norm for framing.  The outcome of this will be that monitoring mechanisms would be tightened and violations framed can be easily defended in the Court of Law. 

4.       Monitoring Roles: Monitoring roles are exceptionally important steps in ensuring that environmental degradation is mitigated, especially in highly polluting industries.  Presently the Regional Office is mainly responsible for monitoring and reporting to the Central Office.  However, the decision is taken at the Central level.  This has repeatedly proved to be a disjointed process as the Officer who has monitored is not empowered in framing the conditions thereof and the officer framing the conditions has no ground knowledge of the impacts.  Quite clearly, in environmental compliance issues, there is simply no possibility of critical evaluation based on secondary data and information.  There is thus an immediate need to change this process and empower the investigating officer in formulating follow-up, rather than the existing scenario.  

5.       Compliance Reports: Presently a half yearly report of compliance is to be filed by the project developer following grant of environmental clearance.  The public should be able to access such reports on demand, but in reality access is normally denied.  What action is taken following clearances is thus not open to public scrutiny.  It would thus be in the interest of protecting the local environment that review and recommendations following clearance and monitoring by the MoEF and State Pollution Boards is also available for public review.  This will not only ensure a more benign reflection of the Ministry's creative interest in ensuring transparency, but will also bring in public involvement with technical input for better maintenance of local environment.

6.       Clearance bloopers: There have been instances where quite a few clearances granted have bloopers of a most interesting nature. The clearance granted to the Almatti dam project is a classic case and contains the following condition:
"3 (vi) Six monthly monitoring reports should be submitted to the Ministry and its Regional Office, Chandigarh for review." And the very next condition reads:
"4. Officials from Regional Office MoEF, Bangalore would be monitoring the implementation of the environmental safeguards….".  It is clear that the former condition may have been an oversight, but quite strangely there are several clearances which are marked by such blatant errors.  Almatti being in Karnataka, how Chandigarh comes into play is an issue that could become legally embarrassing at a later date.  What this reflects is that the such an important task as issuing environmental clearance is often done in a very lackadaisical manner. 

 

 

Public Hearing Process

 

1.       Quality of Information: The 10th April 1997 Amendment to the EIA Notification makes Public Hearings mandatory for all projects listed in Schedule 1.  The process of calling for the hearing and the conduct of the same is defined.  If effectively utilised, this could empower local populations tremendously in having some control over decision-making processes that directly impact them.  However, a critical area of concern remains the quality of information provided, as public has access only to the Executive Summary of the project and that prepared by the developer, giving room for advocating one’s project rather than making an objective statement of potential impacts.  Further, given the low awareness of the processes involved in industrial and infrastructure developments, the Public Hearing process may end up as a mere formality, if no clear initiatives are taken presently.  There is a great role for public interest advocacy agencies to play here and increase the level of awareness of local populations and empower them with such information that would enable them to make rationale choices.

2.       Experience of Recent Hearings: The experience from recent Public Hearings is that the project developer and the agency conducting the hearing are extremely secretive of information, even those pertaining to social and environmental impacts.  The Executive Summary is often a brochure and contains little quality information.  People participating in the Hearings are becoming disillusioned and often this is breeding conflict, that very thing that Hearings sought to avoid.  Considering the present move to introduce the Right to Information, there is clearly no need to make EIAs and related documents secretive as they absolutely do not impinge on the security of the nation.  An amendment to the Notification is thus needed immediately to allow access to all detailed environmental information on the project to ensure transparency, build public confidence, negate conflicts and develop conditions with public input that is of a high quality.

3.       Capacity Building:  There is also an emergent need to train the length and breath of this country in the conduct of and participation in Public Hearings, including by developing modules and audio-visual programmes for training, so this healthy process is evolved to maximum public interest advantage.

4.       Follow-up:  The follow-up after the Hearing should also be made available to the Public, for instance the report of the Public Hearing panel.  Also Hearings should be held post clearance and post project implementation to ensure proper compliance and develop confidence amongst the local community.  World-wide, such healthy openness and engagement of local communities has brought reputation to regulatory agencies and helped protect the environment.

5.       Widening the Hearings Base:  Public Hearings should also be made applicable to project involving Forest Clearance  and those with high impact that are not presently within the purview of Schedule I.  Eg.:  Massive automobile units are not included, though they have foundries and thus have major impacts.  The Toyota Kirloskar factory at Bidadi near Bangalore was cleared without Public Involvement even when the Special Secretary of the Karnataka Dept of Environment had insisted the need for Public Hearings.

 

 

Decentralisation of the Clearance and Review Mechanism

 

Some Possible Steps that could be adopted:

 

1.       Improving Democratic Involvement content: Perhaps a most critical feature that needs to be addressed in the environmental clearance cycle is that the entire process is initiated under bureaucratic control and is highly centralised.  The process of conducting “Public Hearing” is the only visible democratic intervention openly accessible to the public.  Apart from a representation of local elected representatives and leading citizens on the panel, there is no proviso for a project and its impacts to be discussed and debated in local elected bodies. 

2.       Integrating Environmental Management with Local Government Involvement: The involvement of the public and rationalisation of development projects and priorities has been provided for in the Town and Country Planning Legislations, and more recently in the 73rd and 74th Amendments.  These enactments require a very high degree of involvement within the planning processes by local bodies.  However, the set of environmental legislations presently in force do not recognise this need adequately.  Most decisions are left to the interpretation of regulatory agencies with no specific requirements for integration of the local demands and concerns.  The existing mechanisms within the prevailing environmental clearance cycle are largely exclusive of local government interventions and concerns, despite the requirements for the same as per “enabling planning legislations” (eg. Town and Country Planning Act) and those of local self government ( 73rd and 74th Constitutional Amendments).  In recognition of the principles laid down in the 11th and 12th Schedule, therefore, it is essential that local governments be an integral part of the environmental clearance cycle.

3.       Devolving Powers: Considering that the Ministry has to comply with the letter and spirit of the Constitutional 73rd and 74th Amendments, it would be worthwhile to explore the possibility of evolving a system of Regional Directorates to devolve powers of clearances and monitoring at more local levels than is presently the case.  Such Directorates should cover a range not as extensive as present Regional Offices, but without increasing administrative burden should work with State Regulatory agencies to evolve strong clearance and monitoring discipline.

 

In summary

 

On 3 January 2002, the Ministry of Environment and Forests amended the EIA Notification exempting mining projects involving areas less than 25 hectares, and highway expansion projects, from the Public Hearing requirement.  Experience since then has been that very little review of environmental and social impacts of these projects is being undertaken, as is the case in the felling of tens of roadside trees along the National Highway 7 near Tumkur, Karnataka.  Local citizens have come up with various proposals on how the quality of local environment can be secured even as the highway expansion were made possible, but they are today without a statutory forum to express their views.  Considering the major involvement of Multilateral Funding Agencies in supporting such schemes over the past two years, and in keeping with the Prime Minister’s dream of implementing the “Golden Quadrilateral Project”, the process of expansion of highways is being undertaken with great ferocity.  Another instance is the expansion of the Karkala-Kudremukh road involving the felling of hundreds of trees in the Kudremukh and surrounding forests.

 

It is difficult to understand why the Ministry should have exempted such massive impact projects from the process of public review.  True, such expansion projects are required, and should be undertaken keeping in view the economy and safety of travel and transport.  But for communities who have lived along these Highways, a minimal amount of involvement through Statutory Publi Hearings could have secured some design improvements, which would enable them to continue with their life and livelihoods, and yet ensure highway development.  Such opportunities seem lost in the present scheme.  Consequently there are increasing reports of unnecessary disturbance of local ecology and livelihood systems.

 

Further amending the EIA Notification on 13 June 2002, the Ministry of Environment and Forests has exempted certain high impact industries and infrastructural developments from following the full environmental clearance procedure, if their investment is below Rs. 100 crores.  It has also extended similar reliefs for upgradation of existing irrigation projects.  The only progressive feature of this amendment is that it has not made it mandatory for projects requiring environmental clearance to also provide the Environment Impact Assessment for public review, a provision that has been secured after much struggle across the country. 

 

It thus appears that Public Involvement in Decision-Making is not necessarily a major goal of the evolving environmental law in the country.  The penchant seems to be to clear projects fast and more often than not the axe of detailed procedure falls on public involvement possibilities.  It is likely that such movements in law could create needless conflicts and controversies, as was the instance in the Hiriyur firing case in Chitradurga.  Here the proposal was to develop a 23 MW biomass based  power plant. The project developers took exemption from the need for public review as their investment was below Rs. 50 crores (which limit has now been increased to Rs. 100 crores following the 13 June amendment to the EIA Notification).  The local population perceived this project would cause debilitating impacts on their life and livelihood systems and the local environment, and decided to resist this project.  Over 4,000 people decided to storm the facility, and the police resorted to firing on the crowd resulting the deaths of two persons and injuries to several.  Clearly this is an instance how, perceptions of environmental impacts cannot be based on financial limits.  It may be argued that the scope for pollution from a Rs. 5 crore chemical facility could easily exceed that of a Rs. 500 crore facility. 

 

Environmental review should rise above such bureaucratic and technical impressions, and endear itself to fully appreciating impacts qualitatively and quantitatively.  Judiciary has a crucial role to play in ensuring that the legitimate Right of the public to involve in decision-making is secured.  Care for detail in procedural review of environmental clearance will go a long way in ensuring the quality of our life and environment is ensured for posterity.

 

 

 

 



[1] Presented at a workshop on “Judicial Enforcement of Environmental Law in Karnataka” organised by Karnataka Judicial Academy, Environment Support Group and Environmental Law Institute, 3-4 August 2002

[2] The author is Coordinator of Environment Support Group ®, a non-profit public interest research, training and advocacy initiative.  Environment Support Group, S-3, Rajashree Apts., 18/57, 1st Main, SRK Gardens,

[3] Writ Petition 28651 of 1996 in the High Court of Karnataka

[4] Ground III in Writ Petition 28651 of 1996 in the High Court of Karnataka

[5] Environment Impact Assessment  Notification, 1994 as amended on 4 May 1994.

[6] Per Clause III (a) of the Notification, the “Impact Assessment Agency would be the Union Ministry of Environment and Forests”

[7] This would be Delhi.

[8] At the time the judgement was being shaped, the Ministry of Environment and Forests amended the EIA Notification.  In the 10 April 1997 amendment, Environmental Public Hearings were made mandatory for a scheduled list of high impact projects, and this included thermal power plants.  The Janajagriti Samithi case was decided by the High Court of Karnataka on 29 August 1997 and later upheld by the Supreme Court.   

[9] Adopted by the U. N. Conference on Environment and Development (UNCED) at Rio de Janeiro, 13 June 1992.  U.N. Doc. A/CONF.151/26(vol.I) (1992), 31 I.L.M. 874 (1992)

[10] Dams and Development – A New Framework for Decision-Making, The Report of the World Commission on Dams, Earthscan Publications Ltd., November 2000 (Pp. 176-178)

[11] More details about this case are available online at http://web.estart.com/~esg 

 

[12] Sec 6 of the Karnataka Town and Country Planning Act requires planning authorities to display maps and information of schemes developed in public and invite suggestions.  The power of public review is amplified in Rule 46 of the Act, which even mandates that newspaper advertisements should be released, and the public given two months to comment.

[13] Writ Petition No 22063/2000 in the High Court of Karnataka; Shri Doreswamy and another vs Karnataka State Pollution Control Board