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 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:
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.
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.
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.
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.
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