Discontent

This is a story about the environmental clearance mechanism in India. Arguably legally strong, it fails in implementation. The project proponent looks upon the mechanism as a hurdle; for the administrator, it is mere routine. For affected communities, there is only one hope: the public hearing process. But it always fails them, in the end. So where does this mechanism go wrong? What changes are needed? kushal pal singh yadav looks for answers

 
Last Updated: Sunday 07 June 2015 | 21:11:47 PM

Discontent

-- More than 150 villagers -- from Sanu, Ragva and Joga villages in tehsil Ramgarh in Jaisalmer district-- have gathered here. More wanted to come, but could not, for the meeting is being held more than 60 km from the project area and so from the villages the project already affects (a mine already exists) and will affect (a new one is to come up). Only one bus is available daily from the project area to the public hearing venue. So many arrived the day before and camped in Jaisalmer, to attend the hearing.

They do not want the hearing to take place. They weren't informed of it in advance, nor was a copy of the project's environmental impact assessment report (eia) shared with them in time. The villagers have a clear agenda: give us more time to understand the report and fulfill all the promises you made in the past but have conveniently forgotten. rsmml's agenda, too, is clear: get the hearing over with; after all, it is just another hurdle in the way of getting the go-ahead from the Union ministry of environment and forests (m o ef). Just as preparing an eia report was, or making it available to affected people and gram panchayats, or publishing notices of the public hearing. Too many hurdles.

The public hearing starts at 11 am. Outside the rsmml office, tents accommodate the gathered villagers. The actual venue is an air-conditioned room inside, in which only 30 people can fit. The villagers are requested to select a few among them to represent them, so that the hearing can begin, but they refuse. All of them have come a long way; all want to be heard. Now they cannot be denied simply because the room isn't big enough; so rsmml officials request the public hearing panel to step outside, into the tent. They do, and rsmml officials leave behind the power point presentation they wanted the panel to see, about how good the project is.

Ignored for 20 years
For 20 years, villagers have seen how bad the project is. For 20 years, rsmml has been mining steel grade limestone in their area, and now wants a) the old lease -- Sanu i, measuring 1,000 hectares (ha) -- renewed; and b) a new lease granted -- Sanu ii, all of 998.4 ha. Both leases are at Sanu village, but the mining activity affects Ragva and Joga too. For the last two years villagers have made countless complaints to rsmml officials, and the local administration, about the effects of mining, in vain. "Dust levels are so high that a large number of people in the village now suffer from respiratory diseases. They have completely destroyed our khadins (traditional water harvesting structures)," says Kamla Kanwar, sarpanch, gram panchayat, Sanu. Villagers have lost count of their animals that have fallen in the mines and died. Not a single person has been compensated till date. rsmml hasn't levelled the mined areas; thus, villagers say, rainwater does not reach their agricultural land.

The complete apathy led villagers to approach Mine Labour Protection Campaign (mlpc), a non-governmental organisation that works in the area. "We helped the villagers who worked in rsmml form a union," says Rana Sengupta, head of mlpc. These workers, with villagers' support, went on a hunger strike in May this year, to no avail. The brewing resentment got further fuelled when the news of renewal and an additional 998.4 ha being dug out reached them; villagers pledged to fight it out.

As per eia rules, a project proponent has to publish a notice announcing the public hearing's venue and date, at least a month in advance, in two major regional dailies. At least one of these should be a vernacular paper. " rsmml did publish the notice, but in two obscure newspapers which do not even reach the affected area," says Sengupta. Also, the eia report has to be made available a month before the hearing at five designated sites such as the district collector's office, district industries centre (dic) and the regional office of the state pollution control board (spcb). In this case, panchayat members visited the sub-divisional magistrate's office and the dic on June 27, but no copy of the eia report was available. On June 30, Sengupta went to the regional spcb at Jodhpur and was shown a copy. But T S Ranavat, the regional officer, refused to part with it, reasoning that the law only mandated the report's inspection.

That very night, rsmml officials presented copies of the executive summary of the detailed project report and the eia to panchayat members. rsmml had already guessed the villagers' mood. On July 1 they approached Sengupta, asking him to help convince villagers to let the public hearing proceed; they promised to resolve all issues. But the villagers were not convinced.

Finally, an opportunity to be heard
There are 10 people in the public hearing panel: six representatives, including panchayat members, from affected villages and four government representatives. The hearing begins. A register is passed around, for the panel and the rest to sign in their attendance. The villagers smell something fishy. Local members of the panel then raise their concerns and read out their demands. They object to the public hearing being held in the premises of the project proponent and more than 60 km away from the project site and affected area. They say the eia was not made available to them in time; they are thus not aware about project details. They demand the public hearing be postponed by six months; in this time rsmml should address all long-standing grievances.

Then the local members walk out. The rest of the villagers boycott the hearing. But the "public hearing" continues for another 90 minutes and no one knows what transpires in it.

Within the next 10 days, the gram panchayats of Sanu, Ragva and Ramgarh call a gram sabha meeting. It passes a resolution: no more mining in their area till all their demands are met. It wishes another public hearing; without their consent, no final clearance can be issued.

The gram panchayats have submitted their objections to the local authorities and the spcb. It is not known whether a report of the hearing, to be forwarded to moef as mandated, has been prepared. Villagers have met the sdm who's assured them he has, as yet, not received any report, and that he will inform them as soon as he does.

It is likely the final environmental clearance will be issued without villagers knowing of it. They will be left to fight it out in a forum where their application will be rejected because it would have been filed late. Late, only because they never came to know in time about the final clearance being issued. In this way, another new project will begin. Another crisis.

The clearance process

-- It was in 1994 that the Union ministry of environment and forests (moef) came out with a notification on environmental impact assessment (eia). The assessment became mandatory for certain kinds of industrial and developmental activities to obtain environmental clearance from the Central government.

This was a progressive step. The idea was to evaluate the potential impacts -- environmental and social -- of projects, to ascertain likely 'costs' and whether projected benefits justified these costs. The entire exercise sought to minimise environmental and social damages, or mitigate such effects in the ones that could not be avoided. The 1994 notification laid out a process through which these objectives could be attained. A 1997 amendment mandated a public hearing for a project (except in cases where exempted) before final clearance. A July 2004 amendment brought new construction projects and new industrial estates, beyond a certain size and type, within the purview of the eia notification.

The amendments are controversial. So is the actual implementation of the environmental clearance process. Project proponents have enough loopholes; they have become free to treat a regulatory process as pure hassle.

A process gone awry
Problems start with the site clearance itself. "It is unscientific that the eia notification requires only eight types of projects to obtain site clearance when, in most cases, the location of the project is of utmost importance to keep environmental and social impacts to a minimum," write Kohli and Menon. Sites are selected without informing the people likely to be affected; they thus have no say, from the very beginning.

Next comes the commissioning and preparation of the eia report. As per rules, a project proponent can commission it through any agency. The agency becomes a client of the proponent. Immediately, a conflict of interest arises. "When someone pays you to prepare a report, will you give a verdict against them?" asks Souparno Lahiri of Delhi Forum, an ngo. Most times, the agency does not even bother to collect data on its own, as the rules require. They accept data provided by the project proponent. The eia report for the Karcham-Wangtoo hydroelectric power project (hep) in Himachal Pradesh exemplifies this. "In this eia report, prepared by the Natio-nal Environmental Engineering Research Institute (neeri), Nagpur, the source of information is a report of the project proponent. There has been no attempt to verify or cross-check this information," says Himanshu Thakkar, of the South Asia Network on Dams, Rivers and People, an ngo.

"The way the information is presented," Thakkar adds, "shows the bias of the agency towards the project proponent." The report praises the latter as a "leading engineering company" that "specialises in execution of heps". On page 9.1, the report says, "In the background of the comprehensive environmental impact assessment studies, public consultation and information campaign has been organised at the earliest stage of the project to dispel misgivings about the project and to successfully overcome the problem, if any, of non-acceptability". Thakkar considers this clinching evidence of non-impartiality: "It is precisely not the role of an eia agency to dispel misgivings or tackle non-acceptability."

A question of quality
Numerous cases have come to light where eia reports have been completely plagiarised, contain fudged data or conceal facts and figures (see graphic: Will moef revoke clearance?). A shocking case is the eia report prepared for the Dandeli Mini-hydel Project in Karnataka. "The Rapid eia that Ernst & Young did for this project was a totally plagiarised version of the eia for the Tattihalla Augmentation Scheme of Karnataka Power Corporation Limited, prepared by Institute for Catchment Studies and Environmental Management, Bangalore and bass Pollution Control Systems Limited. Just compare pages 4-65 of the former with pages 2.2-8.5 of the latter," says Saldanha. Lamely counters an official in moef's eia cell: "We know that there are problems with quality. We have encountered many such fraudulent reports and we have asked the proponent for clarifications."

Industry gets away
eia reports of industries, too, are a problem. For instance, the type of technology being installed is never considered an important parameter. Clearances are granted to companies who, at best, install decade-old technologies. The global best practice for water consumption in an integrated iron and steel company, for instance, ranges between 5-10 metre cube per tonne of final product. But all the recent clearances granted to iron and steel companies in India -- including one to expand the Jindal Steel and Power Limited plant in Chhattisgarh -- are allowed water consumption in the range of 20-25 metre cube per tonne of final product. In a country like India, where the regulatory mechanism for industrial pollution is weak, the best way to reduce industrial pollution is by allowing only state of the art technologies. The eia process fails to take this into account.

Many industries handle large volumes of material that is physically transported. This has a significant social and environmental impact. But the eia process completely ignores this aspect.

Moreover, eia has been mandated only for 32 industrial sectors considered highly polluting, or with high impact on the environment and people. The selection criteria do not consider industries whose supply chain, or the product, creates environmental burden. The bottled water and soft drink industry, for instance, depends on extracting groundwater; its impact on the surroundings is huge. But, currently, this sector does not require environmental clearance. Why? Even the food processing industry, a major source of organic pollution, has been left out of the eia ambit.

Hear, don't participate
In the entire environmental clearance process, there is but one stage that mandates public participation: the public hearing. This is also a stage that has been completely abused (see table: Unheard).

The public hearing process begins with its announcement. Notice of it should be issued at least 30 days before it happens. The summary of the eia, and the complete report, have to be made available at five designated places for people to go through. In most cases, this procedure is not followed. "In the case of expansion of the Jindal Steel and Power Limited plant in Chhattisgarh, for instance, the local administration did not issue a proper notice of public hearing. eia copies and summary were available only at three places, as against the mandated five," says Ramesh Agarwal of Raigarh Jila Bachao Sangharsh Morcha, Raigarh, Chhattisgarh.

Also, the venue of public hearing is mostly a district headquarter that, usually, is far away from the affected area. This hampers participation of affected people. On many occasions, the public hearing is held in the office of the project proponent, affecting neutrality.

Project proponents are known to 'arrange' a large attendance to hijack the process and muzzle dissent. For example, when the public hearing for expansion of Atul Limited in Valsad district, Gujarat, was held, protesting ngo representatives were manhandled by company people. The public hearing held at Patancheru in Andhra Pradesh, earlier this year, for an industrial cluster, was hijacked by industry representatives. When some social workers tried to raise issues, a scuffle broke out.

What next?
After the hearing is over, the state pollution control board prepares a report of the hearing, collating all the issues raised during the hearing. This is sent to moef. Affected people have no way of knowing whether their concerns are included, for this report is not made public.

moef's expert committee has to take into account this report before issuing final clearance. But it is not bound by law to do so. Therefore, even when a public hearing report is adverse to the project -- itself rare -- moef can grant final clearance. This is what happened with the Parbati iii and Chamera iii hydroelectric projects in Himachal Pradesh. "In both cases, the public hearings violated eia norms and public hearing notifications," says Thakkar. Moreover, despite no clearance from the state government, moef cleared the Chamera iii on March 10 and Parbati iii on April 16. Angered, the state government shot off a letter to moef . "...it is the state government and inhabitants of the area who have to directly bear the brunt of environment related problems. Moreover, the role of the state government and the state pollution control board as enunciated in the eia Notification (and related clarifications) and enshrined in Article 48 a of the Constitution of India has been apparently overlooked," wrote the state's secretary (science and technology) to secretary, moef. "Both clearances...omit to mention very important conditions for preventing environmental degradation," the letter goes on.

The project proponent in both cases is the National Hydroelectric Development Corporation (nhpc), a public sector undertaking (psu). moef officials explain that, as per a circular issued on August 20, 2002 by the ministry, when a psu is involved, a project needn't be routed through a state government. This happens only when a private party is involved. Though environmental implications of such projects remain the same, irrespective of who is the project proponent, moef says psus need consideration.

No monitoring
The composition of moef's expert committees that grant final clearance, has also been criticised (see box: Hide bound). Clearance is issued subject to conditions the project proponent has to meet, and to implementing an Environment Management Plan (emp). moef is supposed to monitor both. The proponent has to submit half-yearly progress reports to moef. But in reality, such monitoring hardly happens.

An example of this is the Teesta v hydroelectric project in Sikkim. "By April 2005 this project had already violated a number of conditions that were laid out at the time of project clearance," says Ritwick Dutta, a Supreme Court advocate. The half-yearly reports nhpc, the project proponent, submitted say the company's meeting most of the conditions while building the project. But reality is completely different: nhpc's project violations include deviation from the environmental management plan in siting project components, additional non-forest land leased for project work without environmental clearance and muck disposal on undiverted forest land.

Unheard
Different public hearings and their outcome

Project Issues and demands of people Outcome
Karcham Wangtoo   Hydroelectric project (HEP) Himachal Pradesh    EIA report had number of problems. Local people demanded certain changes in the EMP Himachal Pradesh government intervened. Public hearing held thrice. Changes made in EMP Clearance still pending
Athirapaplly HEP Kerala Huge opposition from local people due to environmental and livelihood issues. Case filed in high court Court orders fresh EIA and public hearing. Done, but problems persist. But, clearance granted
Sethusamudram Shipping canal project Opposition from local people due to environmental and livelihood issues. Public hearing held amidst huge protests and boycott. Prime minister office also points out lacunae in the EIA Clearance granted
Taking note of this, the divisional forest officer, territorial division, east district, government of Sikkim, has filed a case against nhpc before the district judge at Gangtok. Defendants also include Jai Prakash Industries, Gammon India Limited and the secretary, moef. In perhaps the first case of its kind department has sought damages worth Rs 14,98,71,966 for carrying out illegal activities in the forest area and causing damages.

No redressal
For individuals or groups unsatisfied with the clearance, a redressal mechanism is available in the form of the National Environment Appellate Authority (neaa), which was formed in 1997 to deal with grievances related to environmental clearance. The authority comprises a chairperson (a retired chief justice of the high court or a retired judge of the Supreme Court), a vice-chairperson (a secretary-level officer) and three technical members. But for the last five years, this authority has had no head. There have been no technical members for the last two years. The term of vice-chair ended in July leaving neaa without any chair or members.

Between 1998-2003, only 15 cases were filed before it but none resulted in a ruling against a clearance. In 2004, no cases were filed. This year five cases were filed, all by Dutta. "Out of these, four were rejected because they missed the 30-day deadline," says Dutta. The aggrieved party has to file a case within 30 days of the clearance or within 90 days, if it can explain the delay in filing. "Affected people from remote areas are not able to meet this deadline," says Lahiri. "Often even we do not even get to know when the clearance letter is issued. By the time the news reached us it's too late." Lahiri gives the instance of the Teesta iv project: "The clearance was given on March 31. The clearance notice was published in the local newspaper only on April 18. This left affected people with just 12 days to prepare a brief, contact a lawyer, come to Delhi and file the case. Impossible."

Moreover, there is no body/agency to explain the process or the highly technical issues documents like the eia reports have. This role is mostly played by ngos, but only in a few places. The regulatory body does not come into play at all. Thus lacunae are exploited, and strong points remain utilised. For example, an eia notification clause reads: "Concealing factual data or submission of false, misleading data/reports, decisions or recommendations would lead to the project being rejected. Approval, if granted earlier on the basis of false data, would also be revoked". But moef has never used it.

Retrograde reforms
In August 2004, moef proposed an entirely new clearance process (see flowchart: Proposed process). Work was divided between the Central and state governments for environmental clearance of projects. The proposals angered several state governments. Recently, moef made a proposal to the prime minister. After approval it will be put on its website for public comments.

The proposed changes fail to address the primary reason the process is so ineffective: the quality of the eia report the proponent submits. The data provided is invariably inadequate. The pressure to approve is such that the ministry ends saying yes without adequate information. Then comes the quality of eia / emp, which is typically poor. Cumbersome procedures at moef and spcbs add to delays.

moef expert committees clear a large number of projects in a short duration, compromising the assessment quality. Here's an example: moef's expert committee on industry is scheduled to meet on August 30, 2005. In one day, experts will review, discuss and decide on 12 plants from sectors as varied as cement and distillery to bulk drugs and iron/steel. The plants are spread out across the country: from the Himalaya to the Thar desert to the Eastern Ghats. On an average, the committee has 45 minutes to spend on each proposal. And it meets only once a month.

Things aren't too different for the mining expert committee as well. From August 10-12, 2005, the committee took decisions on 21 mines, which averages to 68.57 minutes of deliberation per mine.

The changes proposed don't address such inadequacies. They only seek to reduce the duration for clearance by diluting the clearance process. Several social groups have protested these 'reforms'. "Guided almost entirely by the Govindarajan Committee on Investment Reforms... and proposals of the World Bank-funded Environmental Management Capacity Building Programme, the process of "reengineering" has the explicit objective of mainly promoting speedy clearance mechanisms to assist investors. When the objective must have been to use the deep and varied experiences over the past decade to strengthen public involvement and review of environmental decisions, it is instead intent on seriously watering down the existing provisions, which are already weak," reads their protest letter.

A comprehensive eia takes one year to generate all-season data. The proposed changes require only a Rapid eia, which takes 4-6 months. This will further weaken the quality of data reaching the expert committees. Moreover, the objective of routing decision-making through a democratic process now stands defeated: the public hearing process is handed over entirely to the project proponent.

The proposed changes advocate decentralisation of the process by assigning the clearance of certain types of projects to the state government. This is a real need, but has been worngly conceptualised. Decentralisation in decision-making must accompany capacity-building. Without building capacities at the state level (say, in spcbs), making them responsible even for so-called low impact projects makes no sense.

Indeed, most of the proposed modifications in the ec process are ill-designed, aimed at only saving time. They further reduce the effectiveness of an already ineffective and badly administered system.

Clearing it up

-- It begins at the very root, with the authorities that handle the entire process. mo font class='UCASE'>ef can continue to be the apex body for the entire exercise, but most procedural functions need to be delegated to a state-level environment impact assessment authority (seiaa). seiaa could be an independent body, or part of the state pollution control board. Such a body requires proper capacity building, for it will tackle highly technical issues; this must be provided (see flowchart: The way to do it).

A project proponent should submit a proposal to both moef and seiaa. The proposal should not only justify the project but also detail out alternatives as well as a 'no-project scenario'; the environmental impact assessment (eia) manual moef has prepared suggests these, but nowadays it is never done. 'Alternatives' means the proposal should look at alternatives to the selected site and explain why the selected site is the best; it should provide alternatives to the project and also to the process technology used. For instance, many micro-hydel schemes in a river basin is a better alternative than a big dam. In scenarios where alternatives are a better option, they must be preferred over the proposed project.

After vetting the proposal and the alternatives, the seiaa must tackle the question of site clearance. It should be made clear that site clearance should only be limited for eia study and cannot imply clearance to the project. If required, seiaa members can also visit the proposed site.

Restricting site clearance for a few site-specific projects defeats the purpose of impact assessment. Site clearance has to be made mandatory for all projects, irrespective of size, that are likely to have environmental and social impacts in the areas where they come up. The definition of environmental impact should not be restricted to 'pollution load' or 'submergence area'. It has to include the impact borne out of resource use (for example, groundwater extraction), overall impact on natural resources in the region and the impact of project ancillary activities.

Scoping & awarding
seiaa should carry out the scoping and awarding exercise for the eia. The proponent should be asked to deposit a fee, specified as per the scale or type of the project, to conduct the eia. The seiaa should then appoint any agency it finds suitable to conduct a completely independent eia. This still leaves scope for manipulation, but note that the eia agency is directly accountable to the regulator. If an agency is found to submit an eia of poor quality, or a fraudulent report, it should be immediately blacklisted and given no work in future.

A standard format should be prepared to conduct the eia and the kind of data that ought to be collected. All important environmental and social indicators must be a part of this format. Currently, agencies omit social impact assessment of proposed projects. A large number of projects displace people, completely transforming their socio-cultural settings. Whether such people can adapt to a new socio-cultural environment is questionable. Therefore, a social impact assessment should compulsorily be made a part of the eia process.

The seiaa should ensure some local people who will be affected by a project are informed about it; they must be part of the eia process. The eia agency must regularly interact with them while doing the eia. Once the eia is submitted and vetted by the regulator, it should immediately be made available to the public. Copies of the eia report -- translated into the local language -- should also be made available at appropriate places in the project area, including the gram panchayat office.

Ensure people participate
The seiaa should ensure the notice of a public hearing is published in two top-most circulated newspapers in the region, including one in the vernacular. A notice should also be sent to each gram panchayat in the affected area, at least 30 days in advance. The venue of the public hearing should ideally be in a village the project is sure to affect.

Often, a single public hearing is not enough. So, the public hearing process can be held in phases, enabling all from the affected area to have their say.

The public hearing panel should be headed by the sarpanch of the panchayat; an seiaa official should oversee the entire proceedings. At least half the representatives in the panel should be from the local area, including ngos and prominent citizens. It must be ensured that all comments and concerns are collected and collated in the report of the public hearing. This report, after preparation by seiaa, should be immediately made public.

Based on these inputs, the seiaa should then prepare a report that provisionally clears a project or rejects it. seiaa should invite a few representatives, including ngos, from affected areas during its decision-making meetings. The final report should then be forwarded to the moef.

Reconstitute
All the current expert groups at moef should be reconstituted, and should be sector-specific. Such groups must have experts from all technical areas the eia process covers. Civil society groups that engage with the issue of environmental clearance must be a part of such committees. These expert committees should review the report and decisions the seiaa has taken. If there is a dispute, the moef team can do a site visit and re-examine the entire issue. Again, it must be ensured local people are involved at this juncture.

Proceedings of all such meetings should be made publicly available. As soon as clearance is issued, the seiaa must be intimated of it immediately; such intimations must also appear in newspapers and in letters to the gram panchayat s and ngos that participated in the project clearance process.

seiaa should make public the conditions for clearance and the Environment Management Plan (emp); these must also be sent to panchayat offices in the affected area.

Redress
The 30-day deadline for filing appeals in the National Environment Appellate Authority (neaa) should be increased to at least 60 days. Also, the regulator has to ensure all vacancies in neaa are filled, especially those of technical experts.

For post-clearance, monitoring teams can be formed with representation from the seiaa and a few members from the affected area. This team can inspect the project site once every six months to ensure the project proponent is implementing all the conditions and the emp. If the conditions are not met and emp not implemented, clearance for the project should be immediately suspended, till all conditions are met.

Exempting certain activities from the clearance process based on their size and investment should be completely done away with. The cumulative impacts of such small projects will be the same as of one big one. The kind of project, and impacts, should be the only criteria for inclusion in the clearance process; not the size of the project.

Currently the cumulative impacts of projects in a specific area are not considered. For example, several hydroelectric projects have come up in the Sutlej and other river basins in Himachal Pradesh. What the cumulative impacts of all these schemes will be on the river basin is never studied. Such studies should become a mandatory part of the entire eia exercise.

Transparency at each step must be ensured. The basic premise of the entire clearance process cannot be 'time-bound clearance'. It must be whether a project is worth it, on environmental and social grounds, or not. Only then will the clearance process attain its objectives.

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