Tag: environmental law

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Human Rights

What communities can do to arrest biopiracy under the Biological Diversity Act

CommunitiesAndLegalAction_KanchiKohli“I am a traveler, just looking for a good hike up the mountains”, the foreign-looking man said, and then to a bunch of local boys sitting at the village teashop, “Will one of you be able to come along? I’ll pay you for your time. You would know these mountains better. I am a fascinated by high-altitude mushrooms but I can’t figure out which ones are edible.” Two of them readily agreed.

Off they went the next morning. They would have to walk up the steep hill for half a day and perhaps camp for the night before going further. During the journey, the traveller kept pulling out strange implements from his backpack and enquiring about various mushrooms, their uses in medicine and food, and how the poisonous ones can be identified. He collected mushrooms in small bottles and labeled them with precise geographical information. He also took pictures and notes.

Shrooms
Image above is from Raj’s photostream on Flickr. CC BY 2.0 https://creativecommons.org/licenses/by/2.0/

The two boys were beginning to get frustrated. The traveller seemed in no hurry and was completely focused on the mushrooms. At night, over some chhang (a fermented millet drink), they questioned him about this. “Is nothing else in our home important?” He evaded many of the questions and just said that he had been obsessed with mushrooms since he was a child. This collection, he said, was to show his wife, the mysterious lives of mushrooms. The boys were not convinced. While they did not say much immediately, they sent a message from a friend’s house to the local forest department office where there was a friendly range officer. The third day, when they descended, the ranger was waiting at the teashop.

As a forest department officer, this ranger was empowered to file complaints under Section 61 of the Biological Diversity Act, 2002 (“BD Act”) read with Notification S.O. 120(E) dated January 17, 2009 from the Ministry of Environment and Forests. He had complete authority to ask the traveller about his “collection”, why he was collecting it, and whether he had necessary permissions.

Flustered, the traveller said he had permission from the Divisional Forest Officer (“DFO”) to enter the forest for research, but not to collect mushrooms. On further enquiry, he revealed that he was not aware that a foreigner needed permission from the National Biodiversity Authority (“NBA”) set up under the BD Act and based in Chennai, to collect mushrooms for research. Section 3(1) of the Act is clear. No non-citizen individual or company or research institution can “obtain any biological resource occurring in India or knowledge associated thereto for research or for commercial utilization or for bio‑survey and bio‑utilization.”

The traveller was jittery. If booked under the BD Act, the punishment is imprisonment up to five years or fine up to ten lakh rupees and where the damage exceeds that amount, the fine will be equal to the damage caused. He did not know what had hit him. He feigned ignorance of the law, pleaded not guilty, and finally persuaded the range officer and the two young boys to let him go. He handed over the mushrooms he had collected, deleted all the photographs, and requested that he be let off with a warning.

The range officer conceded but the young boys were not satisfied with the action taken. Feeling empowered by their partial understanding of the law, he asked the range officer some more questions.

What can communities do?

“What if the traveller decides to go to the neighbouring block and collect the same mushrooms? We can’t be sure he is an honest researcher and might take the mushrooms for commercial use.”

The ranger took out a little booklet explaining the law. Sure the researcher can get the mushrooms from somewhere else, he said, and we should be vigilant. Before accessing any biological material, resource, or related knowledge, a foreigner needs to take the NBA’s permission and an Indian can inform the relevant state biodiversity board. But a foreigner may front an Indian person or company for circumventing the requirement of NBA permission. Unfortunately, much of the disclosure depends on what is claimed in the application form. “We are currently not fully equipped to regulate this”, the ranger said, “and therefore need vigilant communities to assist the government, just like how you informed me.”

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“Its confusing” said the two boys, “but we want to know more. Especially because we have people coming to our village all the time wanting to collect plants, understand our medicinal practices, take away insects, and so on. As hosts, we just don’t ask them questions. What could we have done if we did not know you or anyone authorised to take action? What could we have done as people living in the area without your intervention?”

Form a BMC and charge for access

The range officer explained that the boys could have helped in two ways. If the community had a Biodiversity Management Committee (“BMC”) under the law, they could have levied a fee from the researcher for access. This is after the researcher ha taken permission from the NBA and the NBA mandatorily reaching out to the village BMC for a consultation. This is a necessary requirement before the permission is granted.

Become a benefit claimer

“The only other way is if you call yourself a ‘benefit claimer’”. So when no permission has been sought, as in this case, the members of the community are authorised to take cognizance of the offence just like the ranger did. “You can file a case before the National Green Tribunal closest to you.” Of course, this is a long and tedious process. ‘Benefit claimers’ are conservers of biological resources and their byproducts and creators and holders of knowledge and information relating to the use of such biological resources, innovations, and practices associated with such use and application.

Questions around functional BMCs

The BD Act became fully operational in 2004 when the rules made under it were notified. Such cases, often called “biopiracy”, are prevalent all across the country. It has been difficult for regulatory bodies to track offences, especially since communities or local self government institutions are not full empowered to check on offences and illegalities. Functional BMCs remain a distant dream, especially because many communities don’t find it particularly empowering to set up new committees. The Biological Diversity Rules, 2004 don’t actually give BMCs too many powers except around creating biodiversity databases and levying access charges. At the same time the state biodiversity boards and the NBA, in spite their best efforts, have not been able to establish many strong village-level institutions. The strength of every law lies both in its design and administrative implementation. With the BDA, both institutions and communities are finding the hike long and tedious.

(Kanchi Kohli (kanchikohli@gmail.com) is an independent researcher and writer. This article relies on the work carried out by the author along with Shalini Bhutani as part of the Campaign for Conservation and Community Control over Biodiversity. See also on this subject, two booklets – Frequently Asked Questions on BMCs and a booklet on offences, disputes, and remedies under the BD Act, available here.)

Categories
Supreme Court of India

“The membership of the National Board for Wildlife did not conform to the Wildlife Protection Act”

SanjayUpadhyay_EnvironmentalLawyerTwo days ago, the Supreme Court of India restrained the National Board for Wildlife (“the Board”) from implementing its decisions. The order was particularly significant because the Standing Committee of the Board had very recently cleared more than 140 projects that had been awaiting its approval. The approval of the Board is a requirement under Section 29 of the Act, that has to be fulfilled before any such activity can proceed in national parks and wildlife sanctuaries.

The Court had found prima facie that the constitution of the Board violated the provisions of the Wildlife Protection Act, 1972 (“the Act”). Sanjay Upadhyay, the environmental lawyer who is representing the petitioner in this matter, explained the illegalities highlighted in the petition.

He said that Section 5A of the Act envisages that the Board should have ten independent experts including environmentalists, environmental experts, and ecologists, and five non-governmental organisations. A notification issued on July 22, 2014, however, only talks about two experts – “a retired forester from Gujarat and the other is a retired scientist from the Indian Institute of Science in Bangalore”.

“Without going into the merits of who they are, the fact is that there were supposed to be ten of them but there are only two.” Secondly, there is only one NGO, the GEER Foundation from Gujarat, headed by the Chief Minister of Gujarat. “It is fairly well known that it is a government controlled NGO.” Further, ten states had to be appointed but only five were.

The view taken by the petitioners therefore is that the membership of the National Board for Wildlife that has been notified does not conform to the Wildlife Protection Act, 1972. “Prima facie, the Court has decided that the constitution of the National Board for Wildlife is not in accordance with the Section 5A of the Act. The second part of the order is that the Board may function but they may not give effect to any decision of the Board until the next date of hearing.”

TheNationalBoardforWildlife_WildlifeProtectionAct

Categories
Human Rights

Reacting to an environmental clearance – four essential steps

CommunitiesAndLegalAction_KanchiKohliOne winter morning, news arrived that environmental clearance had been granted for a steel plant that had been contested for nine and half years. After the change of guard at the Ministry of Environment and Forests (“MoEF”) ahead of the general elections, newswires had been abuzz that India’s largest foreign direct investment would finally come in. Now, the grinding sounds of iron being converted to steel would soon replace thriving agricultural and fishing economies in ecologically fragile coastal Odisha.

Questions fluttered to all quarters. The movement resisting the plant had no access to the formal documents based on which the Minister had granted approvals and support groups began to put their minds to the next step.

Being up to speed on where and how fast files move within a regulatory agency is a test that community groups and interested individuals face all the time. Public disclosure is subject to the technical acumen of website managers, regular tracking through Right to Information applications, or simply through tip-offs from informal sources. But for all the actors who feel the impact of the grant of an environment clearance or who seek to legally challenge it in courts, the clock starts ticking once the approval has been granted.

Veerappa_Moily
Several projects, including Posco’s USD 12 billion steel plant in Orissa, received environmental clearances during Veerappa Moily’s brief stint as the Union Minister for Environment and Forests.

What does this permission really mean? Environment clearance is the approval that a wide range of industries, mines, dams, or infrastructure projects receive after a process listed out under the Environment Impact Assessment Notification, 2006 (“EIA notification”) is completed. The MoEF is the granting authority for a set of Category A projects and for Category B projects, it is the State Environment Impact Assessment Authorities (“SEIAAs”). No construction activity can be initiated unless an environment clearance letter has been procured.

More often than not, social movements and civil society groups who have either been objecting to the grant of this permission or would like to do so at the time of the clearance, have to put together a lot of paperwork and information, if they are to stand any chance in a court of law. First of all, they have to access the clearance letter itself. Case law now requires that the environmental clearance is not just made available to the relevant panchayat and relevant information published in two newspapers, project authorities now need to publish the full clearance letter in newspapers.

Once there is access to the letter, it needs to be backed up with hard evidence and analysis to help prepare the legal grounds of challenge. Who faltered and how? Why would anyone be aggrieved? Did the regulatory agencies play the part they were mandated to? Across the country, there are a range of experiences of how people go about gathering the necessary evidence or file in the required documents. The process starts from the time they lay their hands on the Environment Impact Assessment document to finding out what transpired at public hearings and how expert bodies reviewed baseline data presented in EIAs and independent critiques of EIA documents. The journey of many project clearances in the country is often a closely observed narrative. Unfortunately, they do not always stand up to robust judicial scrutiny.

Challenging an environmental clearance in a court or a tribunal requires covering a few basic grounds. The peculiarities of any specific case aside, the following are essential to understand whether ‘there is a case’ for aggrieved persons to challenge an environmental clearance.

Chronology of facts

InfrastructureLawThe first is the bare chronology of facts from the time the project authority submits the application form (Form 1 or Form 1 A) under the EIA notification. Trace the trajectory of the environment clearance paperwork and events. When were the Terms of Reference (“ToR”) for the EIA report approved and granted by MoEF or SEIAA? Did it match the draft ToR provided by the project proponent or was a model ToR used? When was the public hearing held? Finally, how did the file move within the regulatory agency, especially with the Expert Appraisal Committees (“EACs”) reviewing the project?

One critical component of this chronology is the file notings and notesheets of the MoEF or the SEIAA indicating the process of decision-making. Sometimes, the remarks made by a minister or a higher-level official approving or rejecting the project at any given stage can prove to be an important piece of evidence. Increasingly with inter-ministerial differences, officials and ministers have recorded their dissenting notes, to approve or reject a project’s environmental clearance.

Clear set of critiques of three documents

It is also important to prepare a clear set of critiques and analysis of three crucial documents that need to be reviewed, by themselves and in comparison to each other. They are (a) the application form (Form I and IA), (b) the ToR for the EIA, and (c) the EIA itself. For instance, is the baseline data in the application form correct and do the ToR do justice to the scope of the project? Does the EIA conform to both the application form and the ToR at the very least? A full critique of the EIA itself has stood many legal challenges in good stead. For instance, whether the EIA is a copy-paste of another and whether it hides or suppresses facts is an important basis to argue about the lack of rigour in the impact assessment.

Scrutiny of public hearings

PoscoPublic hearings and other related submissions also require complete scrutiny. This third phase of an environment clearance, where the law requires a free, fair, and transparent process, usually leaves much to be desired. The EIA notification mandates that a public hearing of the project be carried out in such a way that it ensures maximum amount of participation. To start with, some key questions that can be asked include whether or not the minutes of the public hearing reflect the actual objections that arose during the public hearing. For this, the law mandates a proper video recording of the public hearing. In many important decisions, the judicial body has asked for fresh public hearings if procedural lacunae are proved.

In an ideal scenario, it would be critical to record any objection to faulty minutes or process around the time the public hearing is held and bring it to the notice of the regulatory authority and any expert committee. It may not guarantee immediate redressal, but it would push the Expert Appraisal Committee (“EAC”) to acknowledge these issues and ask the project authority to respond to them.

Track EAC proceedings

The fourth set of proceedings to track is what transpired in the meetings of the Expert Appraisal Committees (“EAC”), both at the Union and the state when they appraised the application, the ToR, the EIA, the public hearing objections, and any other written submissions.  At present there are nine thematic EACs for Category A projects and each SEIAA constitutes a separate State Level EAC (“SEAC”) that appraises all documents, ascertains their impact, and takes a decision on whether or not to approve a project. If a project is approved, the EAC recommendations contain a list of conditions that the project authorities have to comply with during construction or operation of the project.  There is clear case law emerging from the Southern Zone bench of the National Green Tribunal that EACs need to respond to all objections raised at the public hearing and record reasons for agreeing or disagreeing with them. How the EAC conducted itself and what they based their decision on, are important pieces of evidence in questioning the application of mind of this expert body, when a matter lands up in litigation.

A farmer works in a betel leaf garden.
A farmer works in a betel leaf garden.

When the courts or the NGT resume work each morning, many of the words referred to here, including ‘appraisal’, ‘public’, ‘impact’, and ‘scrutiny’, will be stated and redefined by judicial interpretations. These interpretations will establish an entirely new jurisprudence around EIAs and the notification that guides it. The fate of the farmers of small plots of paan kheti (beetle vine farming), which the Union Minister for Environment and Forests sought to seal on a winter morning, now hangs in the balance before the Delhi bench of the NGT.

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

Categories
Uncategorized

Proposed changes to environmental clearance rules are a mixed bag

OLYMPUS DIGITAL CAMERAIndustries need to seek a range of approvals from the Ministry of Environment and Forests (“MOEF”) before starting up their operations. In the last few months, the Union government has prepared a detailed outline of proposed amendments to the Environmental Impact Assessment Notification, 2006 (“EIA notification”), to put in place a new process for granting environmental clearances for various development projects. Kanchi Kohli, a researcher and writer, spoke about these changes.

“It was anticipated that the new government would be bringing in a lot of changes to the earlier laws, but one didn’t know that these changes would be in so soon.” Though she found it “interesting” that the process intends to delegate more powers to the state-level Environment Impact Assessment authorities (“SEIAA”), Ms. Kohli asserted that, “people are wondering whether that would mean…[that] clearance would be less”.

The proposed amendments

The EIA notification had categorised all projects into two categories, A and B. Category A projects were to be appraised by the MoEF while Category B projects were appraised by the SEIAA. Ms. Kohli said about the changes that many projects would now invariably be administered and appraised at the state level.

The proposed amendments want certain sectors like mining and other industrial sectors to be included in the state’s purview. “The most controversial proposal dated the 28th of July”, as she called it, on the insistence of the Ministry of Coal, would permit state authorities to clear projects up to about 16 million tonnes per annum (“MTPA”) one-time capacity. The SEIAA can, upon applying due diligence, even clear projects without without public hearings “which are a really important part of environmental clearance process”.

Miss the mark?

Prakash Javadekar, the Union Minister of State with independent charge of the Ministry of Environment and Forests.
Prakash Javadekar, the Union Minister of State with independent charge of the Ministry of Environment and Forests.

The other significant change Kohli mentions is the new system of online submission of applications, which has been put in place by the MOEF for both the environmental clearance applications as well as for forest clearance related applications under the Forest (Conservation) Act, 1980. She remained skeptical about “this new system” as it “is yet to be tested” and it has been debated whether actual verification can take place through an online system as it is aimed at bringing “efficiency in the system”.

“You know, looking at the documents it doesn’t seem like the efficiency is mostly at the level of the bureaucracy and authorities”. On the other hand, the “core issues” where the impact of projects are really felt, were not part of this efficient system.” The amendments have missed their mark because they did not take into account issues of what really plays out when approvals are granted and which is where most of the conflicts around clearances are located today.

Another controversy caused by the proposed amendments, according to Kohli, is regarding the role of the National Green Tribunal (“Tribunal”). There has always been controversy between the MOEF and the Tribunal and the MOEF has even been summoned before the Tribunal. But, for the lack of information available right now, Ms. Kohli referred to news reports “which indicate that the powers of the Green Tribunal are likely to be clipped from becoming an administrative tribunal from a judicial tribunal.” She said that this issue was likely to emerge more clearly only in the next few months as “it is going to be debated publicly as well as in parliament itself”.

Ms. Kohli concluded that the proposed amendments were “a mixed bag of changes” with a few positive inclusions and some delegation of powers to the state governments and some reduction of public participation in certain cases. While she is not sure how it will really play out on the ground, she is firm in her belief that a “speedier, faster, more efficient system” will not necessarily address the problems of the clearance processes.

Categories
Human Rights

Environmental Impact Assessment: The problem with public hearings

CommunitiesAndLegalAction_KanchiKohliA stage with five chairs was set up some distance from an area where the crowd could assemble. A bamboo barricade demarcated the ‘official’ and ‘public’ spaces. Anyone from this crowd could address the five dignitaries who would preside over the events of the next few hours using a microphone set up near the barricade on the side of the public. Police functionaries surrounded this tented arrangement and a clerk was parked at an adjoining table on the official side. People could approach him through a fenced route and hand over their documents and other submissions.

Soon, men of stature filled the chairs on the stage. The member of legislative assembly (“MLA”) of the region and the District Magistrate (“DM”) sat next to each other. Two men, who seemed to be ones with a sense of purpose, joined them. One of them wore a well-creased shirt and another carried a bulky set of reports and maps. These two also looked the most stressed. Finally, there was a representative from the state pollution control board, who wore a very visible “been there, done that” expression.

EnvLaw-GIFAfter the DM opened the proceedings, the MLA took the mike. He declared that the proposed hydropower project was not just a progressive step for the economic development of the people of his constituency; it also allowed them to participate in a national drive for  energy generation. He declared in no uncertain terms that he is an ally of the proponent of the project, who would be explaining their project design to all present at this public hearing.

Soon after, two trucks arrived, filled with people who walked straight to the clerk. With thumb impressions and signatures, they not only marked their presence but also recorded their approval for a large dam and powerhouse to be built around their homes, fields, and forests. This happened even before the man in the creased shirt had initiated an explanation of how much land the project would acquire, how much forest would be cut, and whether the homes and livelihoods of people will be displaced.

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

But eventually, their presentation did get underway. It was followed by objections and suggestions from around fifty people. Some raised issues of displacement, others said they did receive documents in time, and many others were concerned about the cultural pollution that would be caused by an influx of labour. After about four hours, the DM called the meeting to a close, without reading out the minutes of what had transpired, something he was required to do.

This story is familiar to anyone who has attended a public hearing under the Environment Impact Assessment Notification, 2006 (“the EIA notification”). Public hearings such as this one are a mandatory third step of the procedure for dams, mines, industries, and ports to receive environment clearance. It is part of a larger process of public consultation , which includes both written submissions and such face-to-face deliberation with the authorities, project proponents, and consultants.

Violations of procedure

The public hearing I have described was ridden with violations of the legal procedure required by Appendix IV of the EIA notification. Community-based organisations, legal researchers, lawyers, and activists have been pointing out these concerns ever since this process was first introduced by an amendment to the 1994 EIA notification in 1997. Today, public hearings are to be conducted “in a systematic, time bound and transparent manner ensuring widest possible public participation” (Section 1 of Appendix IV). Barricading the public hearing space, the MLA making opening remarks in favour of the project, and the presence of police are all intimidating to say the least and clearly deter people from openly speaking their mind. There are also, as I have stated above, clear violations of the legal procedure.

The MLA sitting on the dais, for instance, violates the requirement in Section 4 of Appendix IV that the panel of the public hearing will comprise only of the DM or their representative along with someone from the Pollution Control Board. The MLA’s presence therefore, is reason enough for the illegality of the public hearing.

Another problem with the events described above is that people indicated their consent for the project even before the project authorities had presented a description of the project and a summary of the EIA report. It was as if none of the people who arrived in the trucks were even interested in understanding the impact of the project. It will not surprise those who know how public hearings are conducted across the country that they had been possibly “brought in” to record their attendance in favour of the project. The DM allowed people to sign their consent and leave without really engaging with the project proponents, consultants, or government representatives, which is what the spirit of the public hearing and the procedure laid out in Appendix IV require.

Opportunity to review the draft EIA report

A public hearing underway for the Nalway sponge iron plant. Photo credit: Kanchi Kohli
A public hearing underway for the Nalway sponge iron plant. Photo credit: Kanchi Kohli

Among the fifty people who opposed the project, one had highlighted the problem that the project documents were not available the public hearing. The EIA notification (Section 2.2 of Appendix IV) requires that both hard and soft copies of the draft EIA report have to be available at designated locations – the offices of the DM, the Zila Parishad or the Municipal Corporation, the District Industries Office, and the regional office of the Ministry of Environment and Forests – thirty days before the public hearing takes place. A summary of the EIA has to be made available, both in English and in the local language of the place where the project is being set up.

This brings us to a fundamental flaw in the design of the public hearing process after 2006 when the EIA notification was amended. During this one-time event, people only have access to a draft EIA report. In the minds of regulators and project proponents therefore, the responses from people are to be used merely to finalise the EIA document. The only relevant comments are those that can be filtered into the final document, or are technical enough for the expert committee to take on board. Based on that they can ask project authorities for additional studies or clarifications.

Restricting the opposition to projects

By restricting itself to ascertaining the “concerns of locally affected people” and those with a “plausible stake in the environmental aspects of the project” (Section III (ii) of the EIA notification), the presiding panel restricts the speaking of anyone who is not local. NGOs, scientists, and activists are often told to make written submissions only. People have of course found creative ways to deal with this problem, with the local community backing them as representatives on technical and legal aspects. Often however, it is up to the DM whether to allow such an intervention or not.

Often, concerns that go beyond being purely “environmental”, go out of the window. When the project comes for appraisal to the MoEF, the reasons that the Minster may record for granting the approval would include the strategic, political, and energy needs of the country. The law however, lands up restricting people’s voices on these very issues.

Public hearings remain one of the most talked about spaces for law in discussions on environment and development. Despite their limitations and despite often being sham events, public hearings make the project authority visible to the community affected by the project. There have been demands that there be more than one hearing, one before the EIA is finalised, and one after. Policy researchers and activists have also demanded that the public hearings be given more teeth. Today, even complete opposition to a project at a public hearing is not decisive. That power lies, with a bunch of technical experts for their recommendation and finally with the minister himself.

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