Whose Environment Is It Anyway!

“Under the guise of ‘ease of doing business’, the mockery being made of existing environmental regulations threatens the ecology of the nation and makes the people more vulnerable to unforeseen environmental disasters”[1] read a statement by National Alliance of People’s Movement (NAPM) as a critique to new draft of the Environmental Impact Assessment (EIA) notified by the Ministry of Environment, Forests and Climate Change (MoEFCC).

During the lockdown period the MoEFCC panels have cleared or discussed 30 projects in bio diverse forests[2]. The projects include a coal mining project in Dehing Patkai Elephant reserve in Assam, a highway through Bhagwan Mahavir Wildlife Sanctuary in Goa, a limestone mine in eco-sensitive zone of Gir National Park and a geotechnical investigation in the Shravathi Lion-Tailed Macaque Sanctuary in Karnataka


680 projects in protected areas given wildlife clearance in 5 years

Assam: Minutes of a National Wildlife Board (NBWL) have revealed that Coal India Limited mined approximately 73.2 hectares of land in Asssam’s Dehing Patkai Elephant Reserve without environmental clearance of any sort. The Board had been considering the opening up of 95.59 hectares to North-Eastern Coal Field, a Coal India Limited Division. CIL, along with the Assam government, had been asked to submit a report detailing plans for mine reclamation in the area, as well as a feasibility report about underground mining, so as to ensure that biodiversity in the area remained unaffected. The National Green Tribunal also left the matter at the Guwahati High Court’s jurisdiction, refusing to entertain a plea challenging the approval of the NBWL’s Standing Committee for the aforementioned opening up of 95.59 hectares to North-Eastern Coal Field. (Sources: The New Indian Express, Hindustan Times)

Goa: Stating ‘irreparable damage’ several environmentalists have written a letter to the Central Empowered Committee asking for a stay on the widening of a highway that would run directly through the Bhagwan Mahaveer Sanctuary and Mollem National Park in Goa. The constructing bodies - the National Highway Authority of India and the Public Works Department of Goa - had previously filed for clearance of 90 hectares of forest land for the project. As of October 5th, Environment Minister Javadekar has assured the citizens of Mollem that he will ‘study’ the memorandum that he has received. Lastly, the National Tiger Conservation Authority has not been approached for any sort of approval; though this could be a result of the failure to declare these regions as protected tiger reserves, it would be remiss to ignore the proposals that have been filed for the same (Sources: The Hindu, Times of India, The Leaflet).

Gujarat: An Ecologically Sensitive Zone isn’t a protected region in itself, but serves as a buffer for them. Large stretches of the Gir National Park classify as such areas, but are also placed close to lucrative coal mines; recently, the Environment Ministry recently gave approval to begin mining in the region. However, international and domestic NGOs have called for a stay on this action, as they believe these projects are also likely to have adverse effects on the lives of indigenous people who inhabit the area (Sources: The New Indian Express, The Hindu).

Karnataka: Despite stiff opposition to the project, the Environment Ministry gave the nod for a 2000 MW Hydroelectric Project, that would fall within the area of the Sharavathi Lion Tailed Macaque Sanctuary. In a development as recent as September 10, the Karnataka High Court issued a notice to the State and Union government regarding a PIL that had been filed raising questions about permissions granted for the project, which involved drilling as many as 12 holes within the sanctuary to set up the project. The petition also alleged that the permission had been granted without carrying out a prior biological impact assessment study, which rendered the permission null and void (Source: The Hindu)

One of the proposed sites include the ecologically and culturally rich Dibang valley where the building of a 3,097 MW Etalin dam is under consideration. Several concerns were raised as the project was brought up for green clearance during a virtual conference held on 23rd April 2020 by the Forest Advisory Committee (FAC) in the middle on the COVID-19 lockdown which is in sharp contrast to what the FAC had stated in 2017. The FAC in 2017 had stated that “the land in which the project is proposed is in pristine forests with riverine growth that once cut cannot be replaced.” Further, a report in The Hindu quoted a meeting participant as saying, “In a virtual conference, it’s difficult to scrutinise maps that show the location of the proposed projects. There was also no occasion to ask questions of officials for clarifications.” [3]

When the minutes of the Dibang meeting were released a week later, on 12th May, a group of 291 scientists and allied conservation professionals wrote to the Environment Minister, Prakash Javadekar, about the manner in which forest and environment clearances were being granted across India during the lockdown, and requested the Ministry to carry out its intended mandate, “which is the protection of India’s forests, wildlife and natural heritage and not fast-track clearance of projects.”[4] The letter stated that site inspections are “a crucial component of project evaluation” and they are difficult to conduct during a pandemic and asked the minister to hold such activities in abeyance till the pandemic is over.

Recent ‘mining, blasting and quarry activities’ in the Dibang valley region, owing to the activities of the General Reserve Engineering Force in pursuit of the Etalin dam project, have caused landslides and other disruptions in the area. The consequent blockage of roads recently played a role in the death of a patient from the village of Etalin, who could not receive adequate medical attention in time (Source: Arunachal Times). There have also been rising concerns about the impact of the proposed project on the population of tigers in the region. A member of the Andhra Pradesh Wildlife Advisory Board mentioned that should the area be demarcated as a tiger conservatory, it should be done after consulting the locals. They also stated that if the environment ministry had genuine concern about the local tiger population, projects that were potentially harmful for them would not be taken up for consideration (Source: The Print).

Maharashtra: The Mumbai Metro project, which has been in the works for years now, had received intense criticism from environmental groups for the construction of the metro car shed, which was to take place in the Aarey forest, one of the few green patches in the city. After months of protesting and opposition from the then-opposition party Shiv Sena, the same party that is now in power, has finalised the shift of the car shed from the Aarey forest to Kanjurmarg. In addition to this positive development, nearly 800 acres of land have also been demarcated as ‘forest area’ - a first, in terms of forests existing within city limits anywhere in the world (Source: The Hindu).

Andhra Pradesh: In collaboration with the Andhra Pradesh Maritime Board, the Andhra Pradesh government recently announced plans to construct a port in Srikakulam district’s Bhavanapadu area. This decision was reportedly unilateral, taken without paying heed to statutory compliances. EAS Sarma, the former Union Energy Secretary has written a letter to the Centre, urging them to reconsider their decision. He claims that the delicate location of the project is likely to impact the biodiversity in the region, as well as affect the means of earning livelihood for local communities. Finally, he also states that intense erosion in the region has already rendered it a poor choice to build a port, and should be rolled back immediately (Source: The New Indian Express).

Assam: In April 2020, Oil India Limited (OIL) was granted permission to set up an oil exploration expansion project the Maguri Motapung wetlands and Dibru Saikhowa National Park in Assam. Recent allegations levelled against them claim that the company was not in compliance with environmental precautions when applying for this permit - this was done by ignoring the Supreme Court order mandating a bio-diversity assessment survey as well as refusing to subject the project to public hearings. In early October 2020, the Central and State governments, along with OIL, the forest department and the pollution control board have been served notices by the Guwahati High Court; this was a result of a PIL that had been filed inquiring about the clearances given to OIL for seven such projects that involved drilling and mining oil in the Tinsukia district of Assam (Sources: News Click, The Sentinel).  

Kerala: The Kerala government, in early October 2020, launched the Kozhikode-Wayanad subterranean tunnel project, which they aim to complete in 3 years’ time. However, environmental activists are wary of the tunnel, which will be the 3rd longest one in the country on completion. Amid claims that the government is yet to seek an Environmental and a Sociological Impact Assessment, activists have also been vocal about the ‘adverse ecological impact’ on areas in the Western Ghats, which are susceptible ecological damage, especially in the form of landslides. Lastly, the project also runs through elephant corridors near the Nilgiri hills, and there are concerns that this might adversely impact wildlife sustainability in the area (Source: Times Now News, Indian Express).

Gujarat: The first seaplane project in Gujarat, one end of which lies in Ahmedabad, was inaugurated on September 13, while awaiting clearance from the Environment Ministry. Neither has this project been listed in the Schedule to the EIA notification of 2006, nor has a public hearing taken place. Despite these shortcomings, the service is set to commence on October 31. However, these developments, coupled with dam project currently being undertaken by the Sardar Sarovar Naramada Nigam Limited, fails to account for the areas inhabited by the Tadvis, an indigenous tribe that has lived in the region for centuries, but are now being labelled encroachers on their own land. Additionally, the projects fail to account for the potential impact on water quality, water levels and soil erosion. 

The Scientists further point out to the new draft of EIA, which they allege violates guidelines laid down by the Supreme Court in the case of Lafarge Umiam Mining v. Union of India and others[5]. The draft is still at the stage of public comments.

The United Nations Environment Programme (UNEP) defines Environment Impact Assessment (EIA) as a tool used to identify the environmental, socio and economic impacts of a project prior to decision making. EIA in India is statutorily backed by the Environment Protection Act (EPA), 1986 which contains various provisions on EIA methodology and processes. [6]

On 27th January 1994, the then Union Ministry of environment and Forests, Under the EPA, promulgated an EIA notification making Environmental Clearance (EC) mandatory for expansion or modernisation of any activity or for  up new projects listed in schedule 1 of the notification.

In September 2006 The MoEFCC notified new EIA legislation. The notification made it mandatory for various projects such as mining, thermal power plants, river valley infrastructure (road, highway, ports, harbours and airports) to get environmental clearances. [7]

The new draft (2020) proposes a mechanism to legitimise some actions currently listed as violations. Some key changes being proposed are as follow:

·       The industrial project that has violated environmental rules will have right to seek approval for it as long as that project is permissible in that area.

·       Public consultation is exempted for projects including modernisation of irrigation    projects, all building, construction and area development projects, expansion or widening of modern highways, all projects concerning national defence and security etc.

·       A mining project can get environment clearance for a period of up to 50 years in the beginning itself, which in the 2006 version of EIA was up to 30 years only.

·       Linear projects like pipelines and highways in border areas are exempted from public hearing.

·       As per the new draft project owners are to submit environmental compliance reports (after getting clearance) every year which under the 2006 EIA notification was every six months.

This new draft has caused surprise and mild disapproval as it has been seen as a way to avoid all major decisions of the NGT over the past few years and the group of  scientists and allied professionals have expressed their serious concerns[8] about the lack of due diligence for environmental and forest clearances, especially during the pandemic.

The point regarding public consultations has drawn attention. The 2006 notification defined public consultation as “the process by which the concerns of local affected persons and others who have a plausible stake in the environmental impacts of the project or activity are ascertained to take into account all the material concerns in the project or activity design as appropriate”. The new notification requires that the public hearing process be completed in 40 days – compared to 45 days under the 2006 notification. In the Samarth Trust Case[9], the Delhi high court noted that the public hearing may not be meaningful enough if adequate time is not given for the preparation of views, comments and suggestions to those participating in the public hearing. The court also considered EIAs “a part of participatory justice in which the voice is given to the voiceless and it is like a jun sunwai, where the community is the jury”. The court also explained the public consultation process in the above case.[10]

Government is also moving forward with ex post facto EC but the Supreme Court had in the case of Alembic Pharmaceuticals ltd. v. Rohit Prajapati and others[11] held that the “concept of ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence”. The Court further observed that “Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC”.[12]

The other disputable issue involves the Land Banks which are being created across the country to woo companies moving out of China[13]. According to Mr. Pranab Ranjan Chowdhary, convener of the Centre for Land Governance[14] , land banks have evolved as “bypass institutional measures” and “smart instruments” to make land expeditiously and adequately available, as part of ease of doing business. According to him land from such land banks is acquired forcibly from small farmers at a nominal value, provided under the harsh land acquisition laws. If a land remains unused for five years after it is acquired, it either be returned to the original owner or be included in the states’ land banks under the provisions of the Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act). But in most cases, it is included in land banks by the states.

As per a report[15] released by the Land Conflict Watch (LCW), on average, at least 10600 people are affected by each ongoing land dispute in India. The report said that land banks act as a bypass mechanism to deny the rights of tribal and other communities. As a matter of fact, in many cases, common lands over which communities had traditional rights have been set aside as part of land banks, and once that is done it becomes even more difficult for communities to claim rights over it under certain laws including the Forest Rights Act (FRA).

There have also been instances where the local population has carried out illegal activities during lockdown. The forest is being cleared by the farmers[16] as they want more land for farming. This not only affects the biodiversity but also the tribal population inhabiting these forests who play an important role as they have superior knowledge about the flora and fauna and help in preserving the same[17]. With reference to the International Treaty on Convention on Biological Diversity[18] a legally binding framework for the conservation of biodiversity is provided and the chopping of trees resulting in eradicating the biodiversity[19] can be protected.

Illegal sand mining is another major environmental problem. There have been reported cases of illegal sand mining in Maharashtra and the state has been alleged of providing the requisite environmental clearances even when it goes against the orders of the Honourable High Court[23]. One such incident was reported from Maharashtra where the local police raided an illegal sand mining site after disguising their vehicles so as to look like a part of wedding procession. [24]

Mining requires a forest land to be cleared which means cutting thousands of trees that are vital in fighting climate change. These Forests and trees play a major role in mitigating the effects of cyclones and they also provide livelihood to tribal population.[25] These trees are also important if India wishes to fulfil its international obligations under the Montreal Protocol[26] which aims at reducing the consumption and production of Ozone Depleting Substances (ODS) and was adopted by India in September 1992. The ramification of all these activities was recently witnessed by the state of West Bengal and Maharashtra as they were hit by cyclones Amphan and Nisargha respectively. In fact, Maharashtra witnessed its first cyclone in 72 years[27].

Furthermore, a Right to Information (RTI) Act response received by environmental group Vanashakti has revealed[28] that the Kolhapur regional office of the Maharashtra Pollution Control Board has renewed an iron ore mining licence at Kalne village in the contentious Dodamarg-Sawantwadi belt. This renewal is in direct violation of 2013 order of the Bombay High Court in which the court directed the Union environment ministry and state government to ensure that the corridor is protected as an ecologically sensitive zone (ESZ)[29]. This stance of the court was reiterated in a later order[30].

India is a signatory to many International agreements concerning the management of the environment. One such agreement is the United Nations Framework on Convention on Climate Change (UNFCCC) under which the Paris agreement[31] was signed by India in 2015, committing to participate in multilateral negotiations under the UNFCCC is one important agreement which is absent given the fact that the anxious developments when the India is unfolding to be one of the worst hit by the Covid-19 pandemic. 

A group of civil society organisations, activists, researchers, and experts working with tribal and forest dwelling communities has submitted a report[22] to the Ministry of Tribal Affairs (MOTA) highlighting the socio-economic distress situation arising out of the pandemic as well as the consequences which the communities will have to face due to the environmental decisions. Some key findings of the preliminary assessment report are listed below:

1. Forest Land Diversion: Diversion of forest land without the consent of Gram Sabha in violation of the FRA continues even during the lockdown. It is a matter of concern that the MoEF has been clearing forest diversion proposals at this time and has issued new guidelines relaxing forest and environmental clearance norms for mining by new leases.

2. Compensatory Afforestation: There are reports of compensatory afforestation (CA) plantations being carried out on forest land used by tribals and other traditional forest dwellers, including by fencing of such areas accessed for community rights. These actions are not only in direct violation of their rights under the FRA, but also are causing severe distress to the tribals and forest dwellers in the present situation by impacting their livelihoods and destroying agro-biodiversity.

3. EIA Amendments: The EIA amendment has diluted the provision to obtain written consent of Gram Sabha under FRA. Moreover, attempts at pushing for post facto environment clearance for projects that already started defying environmental norms are also being made during this period. 

The Report has also listed suggestions to the government, some of which are as follows:

1.     Compensatory Afforestation, forest diversion and displacement- MoTA should request the MOEF to release the huge compensatory afforestation fund available with it to the Gran Sabha constituted under the FRA to support community forest management. The MoTA should also proactively review ongoing forest land diversions and mining to ensure that FRA is not violated.

2.     Ensuring effective implementation of Forest Rights Act- The MoTA should work with the state tribal departments to develop more effective mechanisms for implementation of FRA. Gram Sabhas must be provided support and resources to protect and conserve their CFRs for sustainable use.

3.     Ensuring support to communities living in protected areas- Tribals and forest dwellers living in the wildlife sanctuaries, national parks and tiger reserves have been facing problems in exercising their livelihoods rights. The MoTA should request MoEFCC to modify the advisory on Pas to ensure that the rights and livelihoods activities of communities living in and around PAs are not restricted due to the lockdown and to ensure the communities be provided with food, income, and other essentials.

 While so much is happening we must lay emphasis on the catena of decisions of the Supreme court which was one of the first Courts to develop the concept of right to 'healthy environment' as part of the right to "life" under Article 21 of our Constitution and embody green future for a healthy life. [ See Bandhua Mukti Morcha Vs. Union of India ( 1984(3) SCC 161)] 


[1] National Alliance of People’s Movement, NAPM Demands Immediate Withdrawal of Draft Environmental Impact Assessment Notification (EIA) 2020; available at-

https://napmindia.wordpress.com/2020/04/30/napm-demands-immediate-withdrawal-of-draft-environmental-impact-assessment-notification-eia-2020/

[2] Nandini Velho, During Lockdown MoEFCC panels cleared or discussed 30 projects in biodiverse forests, The Hindu; available at-

https://www.thehindu.com/sci-tech/energy-and-environment/during-lockdown-moefcc-panels-cleared-or-discussed-30-projects-in-biodiverse-forests/article31649606.ece

[3] Ibid.

[4] Ibid.

[5] Lafarge Umiam Mining (P) Ltd. v. Union of India and Others, (2011) 7 SCC 338, para no. 122

[6] To the Point, Paper 3, Environment Impact Assessment, Drishti IAS; available at-

https:// www.drishtiias.com/to-the-points/paper3/environmental-impact-assessment-1

[7] Ibid.

[8] Mrityunjay Bose, Withhold forest, environmental clearances during COVID-19 lockdown: Environmentalists; available at-

https://www.deccanherald.com/science-and-environment/withhold-forest-environmental-clearances-during-covid-19-lockdown-environmentalists-837041.html

[9] Samarth Trust and Another v. Union of India Ministry of Environment and Forests & Others, 2010 SCC OnLine Del 2127

[10] Ibid.

[11] Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, 2020 SCC OnLine SC 347, para no. 27

[12] Ibid.

[13] Mayank Aggarwal, Land Banks to Help Economy Post Lockdown Could Threaten Poor Communities, MONGABAY; available at-

https://india.mongabay.com/2020/05/land-banks-to-help-economy-post-covod-19-lockdown-could-threaten-poor-communities/

[14] Centre for Land Governance; available at-

https://centerforland.org/

[15] Thomas Worsdell & Kumar Sambhav, Locating the Breach (2020), Land Conflict Watch; available at-

https://www.landconflictwatch.org/publications/all-publications

[16] Sarola forest being robbed during lockdown, TIMES OF INDIA; available at-

https://timesofindia.indiatimes.com/city/aurangabad/sarola-forest-being-robbed-during-lockdown/articleshow/75259112.cms

[17] Caritas India, Tribal People have a Crucial Role in Environment Conservation; available at-

https:// www.caritasindia.org/tribal-people-have-a-crucial-role-in-environment-conservation/#:~:text=Tribal%20people%20have%20a%20crucial%20role%20in%20environment%20conservation,cultivable%20lands%20for%20many%20generations.

[18] United Nations, Convention on Biological Diversity, 1992; available at-

https://www.cbd.int/doc/legal/cbd-en.pdf

[19] Rhett A. Butler, Consequences of Deforestation, MONGABAY; available at-

https://rainforests.mongabay.com/09-consequences-of-deforestation.html

[20] Badri Chatterjee, Drone mapping of forest violations during lockdown begins at SGNP, HINDUSTAN TIMES; available at-

https://www.hindustantimes.com/mumbai-news/drone-mapping-of-forest-violations-during-lockdown-begins-at-sgnp/story-ikKgMUN8LZEbh5hfPzi9hP.html

[21] Badri Chatterjee, Encroachers are moving into Aarey during lockdown, HINDUSTAN TIMES; available at-

https://www.hindustantimes.com/mumbai-news/encroachers-are-moving-into-aarey-during-lockdown/story-eu5ubryabdftmn2fc2oo1L.html

[22] Campaign for Survival and Dignity Coal., IMPACT OF COVID-19 Outbreak AND LOCKDOWN MEASURES ON TRIBAL AND FOREST DWELLERS.

[23] Badri Chatterjee, Despite Bombay HC’s order, licence for mining in Maharashtra’s green zone renewed: RTI, HINDUSTAN TIMES; available at-

 https://www.hindustantimes.com/mumbai-news/despite-hc-s-order-licence-for-mining-in-green-zone-renewed-rti/story-22UBSKqEQyAwZKwhoFpZRM.html?fbclid=IwAR1252iFXaZ2NTow9FL75IJVyn8Pz8-xjc5QzfTfKlK4Nhsglb8pFybhDWY

[24] Press Trust of India, Maharashtra Cops Raid Sand Mining Site In Disguise Of Marriage Party; available at-

https://www.ndtv.com/india-news/maharashtra-cops-raid-sand-mining-site-in-guise-of-marriage-party-2191655

[25] Hermann M. Fritz & Chris Blount, Role of Forests and Trees In Protecting Coastal Areas Against Cyclones, available at-

https://www.fao.org/3/AG127E07.htm

[26] UN Environment Programme, The Montreal Protocol on Substances that Deplete the Ozone Layer, TREATIES; available at-

https://ozone.unep.org/treaties/montreal-protocol

[27] Mumbai on edge as first cyclone in 72 years makes landfall; trains rescheduled, thousands evacuated, HINDUSTAN TIMES, available at-

https://www.hindustantimes.com/mumbai-news/mumbai-on-edge-as-first-cyclone-in-72-years-makes-landfall-trains-rescheduled-thousands-evacuated/story-DkoZn4igD9gLvL0FhUfm1J.html

 

[29] Badri Chatterjee, Despite Bombay HC’s order, licence for mining in Maharashtra’s green zone renewed: RTI, HINDUSTAN TIMES; available at-

https://www.hindustantimes.com/mumbai-news/despite-hc-s-order-licence-for-mining-in-green-zone-renewed-rti/story-22UBSKqEQyAwZKwhoFpZRM.html?fbclid=IwAR1252iFXaZ2NTow9FL75IJVyn8Pz8-xjc5QzfTfKlK4Nhsglb8pFybhDWY

[30] Vanshakti v. Union of India, 2018 SCC Online BOM 16633

[31] United Nations Climate Change, The Paris Agreement, PROCESS AND MEETINGS; available at-

https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement