The clearance process

Today, it has become a complete caricature of progressive intentions

Published: Thursday 15 September 2005

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 . " 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.

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.

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