Tag: environmental law

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Litigation Specialised

Behind the pipeline – legal strategies to combat unknown sources of water pollution

CommunitiesAndLegalAction_KanchiKohliIt was a hot summer afternoon in central India. Four of us had spent all morning taking a close look at an underground coalmine, its housing colonies, roads, transportation area, and other support infrastructure. We stopped to chat with workers at a local teashop. Even though we were fascinated and moved by their stories, we had to move on.

We had come to this place to understand how an important river had been polluted and the impact of this pollution. For many villages, this river and its feeder streams were important sources of water for drinking and for irrigation.

Across the road from the boundary wall of the mine, visible under a muddy patch of the road where we stood, was the mouth of a metal pipe. It was discharging thick black slurry. The slurry was heading straight into a stream flowing along the road. It was difficult to ascertain the source of the slurry in the pipe. Instead of following the pipe, we decided to follow the slurry.

After walking along the stream till it was not possible to trek any further, we met a resident of the area. “This polluted stream meets our river”, he said. “We are not able to use water from the river confidently any more. We are not even sure if it is fit for cattle. We have no clue what the black slurry is bringing with it.”

It was true. When we drove down towards the main river, we saw that it had been contaminated. There was no way to tell whether the water was poisonous or not. But it was clear that the discharge from the pipeline had been collecting on the river bed and blocking the easy flow of the river. Other residents of the area told us that the water flow is much stronger on some days.

Picture courtesy Kanchi Kohli

Picture courtesy Kanchi Kohli

To me, the veracity of their apprehension was just as big a question as whether the discharge should have been allowed in the first place. Since no one really knew who was responsible for constructing the pipeline and getting away with the effluent discharge, we had to understand the possible legal options for two scenarios – one where we knew who was responsible for the effluent discharge and one where that was not the case.

Almost all industries, mines and infrastructure activities where there is possibility of water extraction or water contamination are regulated at least by two laws: the Environment Protection Act, 1986 (“EPA”) and the Water (Prevention and Control of Pollution) Act, 1974 (“Water Act”). These industrial activities or processes would have also had to take approval under the Environment Impact Assessment Notification, 2006 (“EIA notification”) and seek consent under the Water Act.

When the source of pollution is known

If formal or informal sources indicated that the underground mine was indeed the source of the pollution, the course of action would be to immediately collect copies of the permissions granted under the EIA notification and the consent to operate letter from the relevant pollution control board.

Both the EIA-related permission (“environment clearance”) and the “consent to operate” are likely to have conditions related to how the polluted water to should be treated and where it should be discharged.

For instance, an environment clearance letter would say: “Mine water discharge and/or any wastewater should be properly treated to conform to the prescribed standards before reuse/discharge”. If this was mentioned in the approval given to the underground mine, then the discharge of the slurry into the stream would constitute a legal violation.

Sections 25 and 26 of the Water Act would also specifically be applicable to the underground mine. The project owners would have had to seek an approval from the Pollution Control Board clearly indicating the quantum and place of discharge. In their “consent to operate” letter, it is likely that the Pollution Control Board would have mentioned that coal waste should not be released into the neighbouring stream.

Environment clearance is a one-time permission given either by the Ministry of Environment, Forests and Climate Change or a state environment impact assessment authority. On the other hand, the consent to operate needs to be renewed every year by the relevant pollution control board, in charge of checking water pollution. For industries, the validity of the approval is five years to initiate the operations. No renewals are required thereafter. It is these pollution control boards or their regional offices, which also monitor whether these conditions are being followed.

When the source of pollution is not known

“But, there is no way we can find out the source of the pipeline. Only the discharge point is visible to us. However, we know that every 10-12 days, the discharge is much heavier than other days and the river is dark. Is there anyone we can complain to about this? , a teenaged schoolgirl, who had been overhearing our conversation, asked.

The Water Act has a clear objective of “prevention and control of water pollution and the maintaining or restoring of wholesomeness of water”. Pollution control boards (“PCBs”) set up under this law, have the responsibility for ensuring this. In fact, since 1974, these PCBs have been empowered by Section 17 (a) of the law to “to plan a comprehensive programme for the prevention, control or abatement of pollution of streams and wells”

Section 24 of the Water Act relates to prohibition of the use of a stream or a well for the disposal of polluting matter, by anyone. It did not really matter therefore, if we did not know the source of pollution. The PCB or its regional office could be asked to take action. People could meet the relevant officials or, as environmental groups or people with the help of civil society organisations have often done, file a written complaint.

Not surprisingly, my explanation was dismissed by a few in the group. “Why should we take the headache of going through all this paperwork when it is the responsibility of the government”, said one of them who seemed to be visiting his village from the neighbouring town. “No one cares about our place, or river”, another remarked.

I did not have any strong reason to disagree with the second remark. It is true that many regulatory procedures related to the environment are yet to be implemented to their true potential. Close to forty years of water pollution law in India and our rivers are still being polluted.

But I responded to the former remark. There is much to be desired from our regulatory institutions and  they hide behind the excuses of lack of personnel and “pressures” leading to inaction. The filing of complaints before them however, remains an option for those who are affected. By not filing any complaints, are we not accepting the inaction? Perhaps an increase in evidence-based complaints can push the institutions to respond?

The extent to which affected people are willing to take their chances is a big question.

Kanchi Kohli is a researcher working on law, environment justice, and community empowerment.

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Human Rights

The National Green Tribunal has restricted access to justice

PrashantReddyAmong the many tribunals established during the last decade, the National Green Tribunal (“NGT”) is the one that is most often in the news these days. Set up in 2010 by the National Green Tribunal Act, 2010, its main purpose was to provide for the effective and expeditious disposal of cases related to the environment.

After several initial hiccups, lack of infrastructure, and constitutional challenges (which remain pending), the NGT has become rather active over the last couple of years. Many of its orders, including the one banning vehicles that are more than 15 years old, have a massive impact on society, both in terms of employment losses and pollution control.

Like most other tribunals constituted over the last decade, the NGT too is poorly designed and there is enough evidence to believe that it may be doing more harm than good. One of the many reasons for questioning the effectiveness of the NGT is the fact that its jurisdiction, both territorial and subject-matter, fails to properly ensure affordable access to justice for citizens across India.

The seat of the NGT is the first issue. According to the website of the NGT, “New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four place of sitting of the Tribunal.” This is quite pathetic given that the subject matter jurisdiction of the NGT covers environmental law across a country so vast that it is classified as a sub-continent.

NationalGreenTribunal

The National Green Tribunal at Delhi

When the Law Commission originally studied the issue of ‘Environmental Courts’ in its 186th Report, it had recommended having one environmental court in every state and had counselled against the “Government’s proposal of a single appellate Court at Delhi, which will be beyond the reach of affected parties.” For reasons that are not clear, the government completely ignored this and focussed the resources of the newly created NGT to Delhi, with a promise to allocate resources to four more locations.

The NGT’s subject matter of jurisdiction is another issue. As of now, the NGT has both appellate powers and original powers. Its appellate powers are exercised against orders passed by statutory authorities under various environmental legislation such as the Air Act and the Water Act. In pursuance of its original powers, the NGT can award damages for death or injury to any person or property if the same has resulted from “an accident or the adverse impact of an activity or operation or process”, under any of the special environmental legislation specified in Schedule I of the NGT Act. While consolidating the appellate power in the tribunal is not per se problematic, concentrating all powers to grant damages under environmental legislation with the NGT alone is a recipe for throttling access to justice because Section 29(2) of the NGT Act, 2010 completely bars the jurisdiction of civil courts in all such matters. In its report, the Law Commission had very rightly argued against such an approach.

The plaintiff should have the option of choosing between an ordinary civil court or a specialist forums such as the environmental court, the Law Commisson had argued. “As of now, for example, if a chimney in a neighbour’s house is releasing polluted air or a small sewage channel from one house or land is creating pollution to a neighbour’s house or land, parties in villages are able to approach the nearest munsif Courts which are quite accessible to these villages. If we oust the jurisdiction of these Courts, villagers cannot be expected to go all the way to the seat of the Environment Court for each adjournment and contest the same.”

Not only did the Central Government not accept the Law Commission’s first recommendation of having environmental courts in each state, it also ignored the second recommendation of allowing citizens to choose between civil courts and a specialist court. As a result we have a situation today where the jurisdiction over environmental matters, which was previously spread across the high courts and the civil courts in the country, is now concentrated with a single tribunal, one that is barely able to sit in five different cities across the entire country.

A corollary of such an arrangement is that environmental jurisprudence is now concentrated with just seven judges. This is not necessarily good news because such an arrangement vests too much judicial power in the hands of only a few judges.

The NGT is a perfect example of how the executive has botched up yet another tribunal and how the Supreme Court has done little to step in and remedy the situation.

(Prashant Reddy is a Delhi-based intellectual property lawyer.)

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Human Rights

A company came to buy land for compensatory afforestation. Here’s how one woman learnt to respond.

CommunitiesAndLegalAction_KanchiKohli“I know the Divisional Forest Officer of my area well. I will speak to him and get back to you”, Kavita said to the company representative. “I cannot understand why have you come 200 kilometers away from where you are building a dam to tell me that you want to buy land to plant trees in my village. If you are cutting trees for the construction in one area should you not be planting them right there?”

Kavita had recently been elected the Sarpanch of the Village Panchayat (elected representative of the village local help government). The man she was addressing represented a contracting company building a 2000 MW hydropower project. He tried to explain, “You see, the problem is that we have got the first level permission to start constructing our dam, but we can’t do much till we fulfill this painful condition of compensatory afforestation. The local forest and revenue offices tell us that they can’t give us land in the same place, so we are having to move around all over the place looking for land.”

“So”, Kavita responded, “you want the land that people of this village own to compensate for the lakhs of trees you are cutting or the acres of land you are using. The 50 hectares you want is not going to be enough for this.” He was also speaking to some other villages to negotiate similar deals. But Kavita was not fully convinced and she did not want to engage with the man till she had more information. She sought some more time and told him that she would respond to him only after she had fully understood what it meant and all that it implied.

The next morning, Kavita decided to visit the Divisional Forest Officer (“DFO”) of her area. She had not sought a prior appointment and had taken the risk of not finding him at his seat. Unfortunately, she caught him just as he was leaving for a surprise inspection to a forest nearby. Since he was in a rush, he asked her to come back in the evening.

When he returned, he found Kavita waiting for him right where he had left her. She had spent the day talking to forest rangers over cups of tea and trying to understand the reasons why other citizens were visiting the forest department’s office. Some were there for seeking compensation damages to crops caused by wildlife, others were trying to get offences written off, and some others had come to enquire about new proposals for forest diversion in the area.

Photograph by Kanchi Kohli.

Photograph by Kanchi Kohli.

But Kavita’s mind kept drifting. Why did the company want to buy  land in her village to plant trees to compensate for damage or loss that was taking place really far away from where she lived? After hearing her questions, the DFO smiled and assured her that he might have most of the answers about what this meant, legally and administratively.

Diversion under the Forest Conservation Act

He first explained to her that since 1980, every state government has had to take prior permission from the Ministry of Environment, Forests and Climate Change (“MoEFCC”) before diverting forest land for non-forest use, de-reserve a forest, or allow for the felling of trees. This happened with the promulgation of the Forest Conservation Act. “For the sake of our conversation”, he said, “lets call all these instances as diversions of forest land.”

Now, when a DFO like him, who is also called the Deputy Conservator of Forests in some places, prepares a proposal for the diversion of forest land on behalf of a user agency, it is also his job to add the details of the compensatory afforestation scheme. This has to be done in accordance with the format provided in Part II of the Forest Conservation Rules, 2003. He decided to start by explaining how compensatory afforestation really worked.

Compensating for the change of land use

Each time forest land is diverted, the change of land use has to be compensated for. The requirement for compensatory afforestation is considered one of the most important conditions stipulated when forests are ‘diverted’ for non-forest use, or when the felling of trees needs to be done, or when forests are to be de-reserved. It is part of almost every Stage I approval granted by the MoEFCC, be it for a dam, mine, industry, road, railway line, or even a rubber plantation. Only when compensatory afforestation and other conditions are complied with is Stage II approval is granted by the ministry.  In most cases compliance means identification of the land in preparation for the afforestation scheme. Only after all this is done can an order issued by the state government granting the permission for diversion, dereservation, or felling of trees, under Section 2 of the Forest Conservation Act, 1980, come into effect.

The current legal regime requires compensatory aforestation to be carried out over an equivalent area of non-forest land. For example, for 200 hectares ‘lost’ to a non-forest purpose, another 200 hectares of non-forest land has to be afforested. If non-forest land is not available, compensatory afforestation needs to be carried out on double the amount of degraded forest land, which is being used for a non-forest purpose. “There are some exceptions which are part of the Compensatory Afforestation Guidelines. But this thumb rule is what you should remember”, said the DFO.

Usually, the DFO alerted Kavita, an effort is made to identify land which is contiguous to or in the proximity of an existing reserved forest or protected forest. This is to enable the Forest Department officials to to effectively manage the “newly planted area”. Looking for a distant site for afforestation outside the district or state should be done only if land in that particular state or district is not available. There are clear guidelines issued by the MoEFCC in relation to this requirement and user agencies and forest departments need to follow them.

“Perhaps the neighbouring district does not have non forest land or degraded forest land to give for compensatory afforestation. It appears like the user agency, which is a dam construction company in this case, is looking to get this condition ticked off so that they can move the government offices for the next steps of the approval. They might want to buy your land and hand it over for compensatory afforestation”, he explained. Perhaps all the degraded forest land has already been earmaked for compensatory afforestation related to other instances of non-forest use, so even that is not available.

He looked at the Range Forest Officer (“RFO”) working under him. Was buying land and then handing it over to the government for compensatory afforestation becoming a trend with new industries and builders, he wondered aloud. The RFO returned a thoughtful glance. He had heard about some enquiries from villagers who farmed and used forest land for specific produce but he was not sure.

Poor quality of afforestation

A compensatory afforestation site in Kutch, Gujarat. Photograph by Kanchi Kohli.

A compensatory afforestation site in Kutch, Gujarat. Photograph by Kanchi Kohli.

The conversation turned to a larger question as the DFO asked for some chai. What might appear to be a simple administrative practice, the DFO told Kavita, had become one of the important policy issues of our time. While we have approved diversions, the practice of compensatory afforestation has hugely suffered. Land is often unavailable and where it is available, the quality of the afforestation has been dismal. At the same time several user agencies had not paid up all that they had to, for carrying out the compensatory afforestation. He told her not to quote him on what he was saying and Kavita agreed.

He asked the RFO to bring out the report of the Comptroller and Auditor General (“CAG”) on compensatory afforestation. Since 1998, several audited reports had pointed to the lacunae in the utilisation of the funds for carrying out compensatory afforestation. The latest, a report from 2013, brought out fresh figures.

Kavita was baffled. “Why has no one taken this to court?”, she asked. Well there had been some discussion in court, the RFO said. The Supreme Court’s resolution of the issue, informed by the recommendations of its Central Empowered Committee, was to direct the setting up of a Compensatory Afforestation Fund Management and Planning Authority (“CAMPA”) in 2002. It was finally notified in 2004 but actually began to function only in 2009 and that too as an ad hoc authority.

Following this, state governments now submit plans to the CAMPA and get the money released for compensatory afforestation as well as other conservation activities related to the payment of an amount of money, that is called the NPV. He was deliberately not telling her more about NPV, he said, as it would confuse her. There was news that not all the money for compensatory afforestation and NPV had been paid up and there remained huge problems with the quality of the plantations and that there had also been mis-ultilisation of funds. In September 2014, he said, the Union Minister for Environment, Forests, and Climate Change even said that his ministry was keen on releasing the Rs. 33,000 crore accumulated in the CAMPA to state governments.

While all this seemed like too much information, Kavita understood one thing – even if she and other villagers decide to sell their her land with the good intention of recreating a forest, such a forest might never set the light of day. Maybe she was better off doing her own farming and ensuring that some part of her land adjoining forests remained uncultivated so that there could be some natural regeneration there.

Leaving the forest department’s office, she was ready to face the representative of the dam building company. “Go looking for land elsewhere, sir”, she smiled and thought to herself, “ours is not available to fulfill your administrative formality.”

(Kanchi Kohli (kanchikohli@gmail.com) is an independent researcher and writer.)

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Human Rights

“Under which law?” – A village responds when the gram sabha’s consent is sought for a mining project

CommunitiesAndLegalAction_KanchiKohliLate in the morning on an autumn day, a group of villagers had gathered under the shade of huge Mahua tree for a meeting called by Hemant, a community extension worker associated with a local NGO who had developed a great rapport with the villagers over the years. He was there to discuss the latest set of government schemes that had been declared specifically for tribal areas.  Tea and biscuits arrived and he spelt out the details.

He was a bit confused. Otherwise a vibrant and spirited gathering, the villagers were pensive today. Keeping his papers aside, he asked if there was a problem. After a few murmurs, Laxmi, who was usually a quiet one, spoke up. The Sub Divisional Magistrate (“SDM”) had visited their village yesterday with a representative from a large mining company and other government officials from the revenue and forest departments.

“So”, asked Hemant, “what did they say, why were they here”? Restless, Laxmi got up from his seat and said, “Brother do you see that Jhirmiri hill range? Remember we have climbed it so many times to reach the origin of the Jhirmiri stream? Where we have eaten so many wild foods? The SDM said the mining company had received a contract to extract iron ore from there and that we need to call for a gram sabha (village assembly) to give our consent.”

What is a gram sabha?

Hemant was puzzled and asked if the government officials had told them why they want the gram sabha to be called and if they had given any documents to explain the circumstances. Kishore promptly got on to the cycle and rode off to the panchayat office located about ten minutes away to get the document. While waiting for Kishore to return, Hemant began to explain what he knew from his understanding of the legal procedures.

Under the Constitution of India, a gram sabha is a “a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of a Panchayat at the village level.” He added that the tribal hamlet they were all part of was one of five hamlets that were part of the village panchayat, that is, the local self government.

In fact, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (“FRA”) elaborates the definition of the gram sabha. It is “a village assembly which shall consist of all adult members of a village and in case of States having no Panchayats, Padas, Tolas and other traditional village institutions and elected village committees, with full and unrestricted participation of women.” So the full gram sabha of the panchayat is actually all the people who belong to that panchayat, including the hamlets, which are called by different names, like padas or tolas, in different parts of the country.

(Left) A hillock in Orissa where mining has been proposed and (right) a meeting, similar to the one described in the article, is in progress . Both photographs are by Kanchi Kohli.

(Left) A hillock in Orissa where mining has been proposed and (right) a meeting, similar to the one described in the article, in progress. Both photographs are by Kanchi Kohli.

Why was the gram sabha being called?

In recent years, the role of the gram sabha has been recognised under different laws, which have a bearing on the transfer of land for a mining operation, industry, or an infrastructure project. “It needs to be understood”, Hemant explained, “under what law the gram sabha is being called”. The villagers were clueless.

He knew at least three critical laws under which the consent of the gram sabha is prescribed. The SDM may have come to the village to satisfy any of these processes.

The first, he said, was the Panchayat Extension to Scheduled Areas Act, 1996 (“PESA Act”). The Jhirmiri Hills are among the tribal areas that have been defined as Scheduled Areas under Clause (1) of Article 244 of the Constitution. In addition to the environment, forest, and land acquisition related safeguards prescribed under specific laws, these areas have specific constitutional protections. Under Section 4(i) of the PESA Act, the gram sabha needs to be consulted “before making the acquisition of land in the Scheduled Areas for development projects and before re-settling or rehabilitating persons affected by such projects in the Scheduled Areas.”

“But Hemant bhai”, remarked Kusum, “the SDM was mentioning something about a consent. He did not use the word consultation. So are you sure it would be under the PESA?” Even as Hemant was thinking about explaining the requirements under the FRA, Kishore returned with the sheet of paper, which the SDM had brought with him. A loud reading of this hand written notice revealed that the government officials and the mining company representatives had come to the village hamlet asking the residents to call for gram sabha to give their consent for the diversion of forest land for mining purposes.

“Ah!”, sighed Hemant, “this is how they are implementing the circular of the Ministry of Environment, Forests and Climate Change dated August 3, 2009.” He explained that the FRA is a law through which individual and community rights of people over an area of forest has been recognised. The process of diversion of the same forest land for a non-forest use such as mining however, is determined under another law, the Forest Conservation Act, 1980. While the FRA is implemented under the Ministry of Tribal Affairs, the Ministry of Environment, Forests and Climate Change is the holder of the FCA and the August 3, 2009 circular.

“The SDM had come to you because your forest rights are still under process and the 2009 circular clearly states that the forest land cannot be given to this company till the process of recognition is complete and the gram sabha consent has been received.” “Oh Ho!”, said Kusum, she signaling to the hillock in the backdrop. “Looks like the hand written letter that they have given us is to reduce the consent process to a mere administrative tick off for Jhirmiri hills! This is totally unacceptable, Hemant Bhai”, she added.

So how should the village respond?

“Yes. It is important for all of you together across the main revenue village and the five hamlets to understand the repercussions of this before you call the gram sabha.” He also told the villagers that the requirement for consent was also part of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 which was recently diluted through an ordinance awaiting parliamentary approval.

While this law did not mention gram sabha, it had required the consent of seventy to eighty per cent of the affected people in the case of acquisition of land for public-private partnership projects and private sector projects respectively. He promised that he would explain that procedure to everyone the next time he was in the village. However, he left behind the photocopies of the bare text of the law with Kusum, Laxmi, and Kishore who promised to try and read it.

All the villagers gathered there realised that the gram sabha was being called by the SDM to ensure that he can send a report to the MoEFCC, stating that the villagers have no objection for the mine to start, that they either stake no rights or claims on the forests or that would be agreeable to receive ‘compensation’ in return.

They were now clear what to say to the SDM when he returned the next day. None of them wanted to give up their thriving agricultural practice and the livelihoods dependent on the Jhirmiri Hills. Moreover, “this was home”, as Kusum said. “Why would I want to just get up and leave just because someone want to dig underneath and around? Consent can’t be constructed like this!”

Hemant heard the discussion, smiled and decided to leave. The bag full of forms meant for a loan subsidy scheme did not seem to matter today. He knew he had a target to achieve, and would come back in a couple of days when the mood was different. Today, the people of Jondhia Pada of Kaskala Panchayat living around the Jhirmiri Hills had a different engagement with the state.  When larger questions of constitutional powers, rights related to consent, and questions around displacement were at stake, an income generation scheme could surely wait.

Kanchi Kohli (kanchikohli@gmail.com) is an independent researcher and writer.

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Uncategorized

What do recent changes to the environmental clearance process mean for us?

CommunitiesAndLegalAction_KanchiKohliWhile many statutes are brought into existence through legislative processes, some, such as notifications, come about through executive action that does not require legislative approval. Notifications are designed to issued and later modified and clarified through executive action alone, with public input or without. One significant notification lays out the procedure for what is popularly known as “environment clearance”. This is the Environment Impact Assessment Notification, 2006 (“the EIA notification”), which has for long been in the eye of storm in the discussions around “balancing” environment and development.

Soon after the new government took office in May 2014, it announced a series of changes to the environment and forest regulations, some of which had already been rolled out during the previous regime. Since June 2014, there have been a quick series of draft amendments, internal ministerial notes, circulars, and office memoranda bringing in important changes to the EIA notification.

Legal basis of the EIA notification

The government of India first issued this notification in 1994, exercising its power under Sections 3(1) and 3(2)(v) of The Environment (Protection) Act, 1986 (“EPA”). The latter provision gives powers to the central government to place “restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards.”

EIAnotification_fourstages_environmentalimpactassessment

Previously in this series of posts on Communities and Legal Action, I have dealt with public hearings and the steps that an affected community can take once an approval is granted for a project. Now, let us take a close look at the changes that have been made to the EIA notification and those that have been proposed. These will have a bearing on the applicability of this important piece of the regulatory structure.

They include the delegation of powers to state governments to make decisions, the creation of exceptions for project approvals, procedural relaxations, and adding new projects to the list of projects that require approval. All the circulars and changes described in this post are available here.

Projects that requiring environmental clearance – additions and clarifications

A public hearing underway for integrated facilities at the Kandla Port. Photo credit: Bharat Patel
A public hearing underway for integrated facilities at the Kandla Port. Photo credit: Bharat Patel

Some projects, such as coal tar projects, will now need to go through an “environment clearance” process, from which they had previously been exempt. Irrigation projects with a command area between 2000 and 10000 hectares will now need approval from the State Environment Impact Assessment Agency (“SEIAA”) and all irrigation projects above 10000 hectares will require approval from the Ministry of Environment, Forests, and Climate Change (“MoEFCC”), that is under Category A. Clearly, this means that all irrigation projects of capacity up to 2000 hectares of culturable command area are now exempt from an environmental clearance process, including any public consultation. River valley projects between 25 and 50 MW and with a command are between 2000 and 10000 hectares will now be appraised by the MoEFCC if the project falls in more then two states. It would have otherwise been the SEIAA’s responsibility.

Exemptions from any environmental clearance process or public consultation

A significant area of focus of the changes has been to exempt some types of projects from any environmental clearance and this has implications on sectors such as irrigation projects and coal mining projects. Coal mining projects that require a one-time capacity expansion with the production capacity exceeding 16 MTPA have for example been exempted from any public consultation (Office Memorandum dated July 28, 2014). After  clarification (Office Memorandum dated September 2, 2014) was issued, this exemption will now apply to coal mining projects with production capacity exceeding 20 MTPA, provided the ceiling of the expansion is towards mining for an additional production up to 6 MTPA and if the transportation of coal proposed is by means of a conveyor or rails. However in both these instances, the Expert Appraisal Committee has to apply “due diligence” and it needs to be subject to “satisfactory compliance with environmental clearance(s) issued in the past as judged by the EAC.”

Restricting powers for appraisal at scoping stage

InfrastructureLawAn Office Memorandum dated October 7, 2014 restricting the powers of appraisal at the scoping stage is also crucial. It indicates that the Expert Appraisal Committees (“EACs”) while reviewing the applications for environment clearance should only ask comprehensive sets of questions and studies at the time of issuing Terms of Reference for an EIA report to the project authority. The EACs review all documents related to the project including impact assessment submissions, videos recorded during the public consultation phase, and project reports and have to either recommend or reject approvals. They can ask project authorities to clarify issues, respond to queries raised at the public hearings, as well as carry out additional assessments.

With this clarification however, additional studies, especially “fresh issues”, need to be added at the appraisal stage only if the EAC can clearly justify that these are  inevitable and why they need to added at a later stage. These have to be stated unambiguously in the minutes. The purpose of this to address the complaints of project authorities that too many questions at the appraisal stage are causing delays. The very purpose of public scrutiny however, is to seek essential feedback to and address impact issues. Curtailing the powers of appraisal committees goes completely against the spirit of appraisal, which requires the EACs to do a “detailed scrutiny”.

Delegation to State Environment Impact Assessment Authority

More projects have come within the jurisdiction of the SEIAA, that is, approvals at the state level. These include all biomass-based thermal power projects and synthetic organic chemicals industries if located outside a notified industrial area or estate, with specific caveats.

The most important manner which this delegation has happened however, is by limiting the applicability of the General Condition of the EIA notification. With this change, only those Category B projects (to be approved at state level ordinarily) located within five kilometres of a national park, sanctuary, critically polluted area, ecologically sensitive area or an inter-state boundary would need to approved by MoEFCC. Prior to the amendment, this was 10 kilometres. So now, if a thermal power plant is coming up within 8 kilometres of a national park, it will only need to be appraised at the state level.

Other changes proposed to the EIA notification – linear projects, non-irrigation projects, and building and construction

Many more changes are proposed to the EIA notification but in these cases, public opinion has been sought on whether such amendments should be introduced. On September 30, 2014, a draft notification was issued proposing some critical changes, including doing away with public consultations for “all linear projects such as Highways, pipelines, etc., in border States.” It is not clear whether this includes inter-state borders.InfrastructureLaw

The draft notification also proposed the addition of non-irrigation projects such as drinking water supply projects to the purview of the EIA notification. These projects do not require environment clearance at this point of time. Projects less than 5000 hectares of submergence area have been proposed as Category B projects. Projects equal to and greater than 5000 hectares submergence area would need to be considered as Category A under the July 25, 2014 notification.

Under a September 11, 2014 draft notification, building and construction projects which cover an area greater than or equal to 20000 square metres and having a built-up area greater than1, 50,000 square metres of built-up area need approval from the SEIAA. The same goes for townships and area development projects covering an area greater than or equal to 50 hectares and or having a built-up area of greater than or equal to 1,50,000 square metres. No other building or township projects need to get environment clearance.

Catching up with the notification

The EIA notification now has to be read in line with all the clarifications and amendments, which are routinely put forward MoEFCC. It is far from easy to read the notification along with all the “ifs” and “buts” which play up when it needs to be ascertained whether an act is legal under the notification. Unraveling all of it can leave many people gasping. For affected communities, this legalese still remains distant, even as they engage with this process, counting on the hooks within the law and the support groups standing besides them and pointing their attention to it.

Kanchi Kohli (kanchikohli@gmail.com) is an independent researcher and writer.