Ministry of Environment and Forests

A railway line through a forest belt – environmental impact assessments and forest rights

Sarita tai was worried about the construction of a railway line between the iron ore mine and the railhead located 30 kilometres from the village she worked at. At least 15 kilometres of this railway line would cut through an important part of the central forest belt. She called me with many questions: What was the process for taking permissions for using forestland for railway lines? Had this process been completed? What was the role of the gram sabha? What if the forest rights of people had not been fully recognised yet?

Some of these answers came easy but the others required the study of some recent circulars and directions of the environment ministry, the tribal affairs ministry, and the National Green Tribunal (“NGT”).

EIAs for railway lines

Surprising as it may seem, the railway line and its related infrastructure are not in the list of projects that need to go through the procedure laid out in the EIA Notification, 2006 issued under the Environment Protection Act, 1986. We have long tried to find the logic behind it, but without success. Railway projects simply do not require an environment impact assessment and a public consultation for an environmental clearance.

If the railway line is separated from the other components of the project like it was in the case of the mine that Sarita tai was worried about, it could easily avoid the environment impact assessment process. The mine had been up and running for the last year and the proposal for the railway line was only mooted much after the environment clearance was procured for the mine.

Forest diversion and the felling of trees

All non-forest use requires the user agency to seek prior approval under the Forest Conservation Act, 1980. There is a detailed procedure under Section 2, which remains away from public eye and only within negotiations between forest department officials; the Ministry of Environment, Forests and Climate Change (“MoEFCC”); and the user agency.

Until recently, no activity related to a project could be carried out for any non-forest use until the entire procedure, which includes a two-stage approval by the MoEFCC and an order by the government of the state where the forest is located, was completed. Felling trees would be illegal without it.

But during the last year, the MoEFCC has allowed the felling of trees to be carried out after a project receives “Stage 1 approval”, that is, the approval of the MoEFCC. This approval often contains conditions including additional studies related to hydrology, impact on wildlife, identification of compensatory afforestation land and others that have a bearing on whether the forest diversion should be approved or not. But in the case of linear projects such as railways, highways or transmission lines, the MoEFCC has attempted to be create a “simplified procedure.”

In a set of guidelines issued on May 7, 2015 and subsequently updated on August 28, 2015, the ministry said that to allow for the speedy execution of these projects, the in-principle approval will be enough to allow for both tree cutting and commencement of work if all “compensatory levies” and a wildlife conservation plan are ready.

Sarita tai was livid. The last time she had seen an in-principle approval, it listed 27 important conditions including that of redoing some important assessments. What is the point going through the remaining procedure for this project if the work can commence and trees can be cut, she asked. It defeats the entire purpose of any safeguards or conditions levied.

I agreed and told her that these guidelines had been challenged before the NGT. In January 2015, the NGT first restrained the felling of trees after Stage 1 approval, but subsequently reviewed the order in the light of an affidavit submitted by the MoEFCC. In its direction, the NGT concluded that the while tree felling and commencement of work might be allowed for linear projects it would be treated as an order under Section 2 of the FCA and therefore can be challenged before the NGT. This is important to understand because the NGT had previously ordered that only those orders issued finally by state governments activating forest diversions could be brought before it. Till then no commencement of work or tree felling could be allowed.

The MoEF’s May 7 and August 28, 2015 guidelines lay down that while the “simplified” procedure for the speedy execution of linear projects remains in place an “aggrieved person” now has the option to approach the NGT with an appeal against this order.

Forest rights and linear projects

I knew that Sarita tai would also ask about the recognition of the rights of forest dwelling communities who have historically either lived or used the forest that is sought to be diverted. The Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006 mandates the recognition of individual and community forest rights of tribal and other forest dwelling communities.

On August 3, 2009, the MoEFCC issued an important circular, which, among other things, clarified that no diversion of forest land for non-forest use would take effect unless the process of recognition of rights had been completed. It also said that the consent of the gram sabhas would be required before the diversion process can be given effect. This has also been re-iterated and confirmed by the Ministry of Tribal Affairs (“MoTA”), which oversees the implementation of the FRA.

In the villages that Savita tai was working in, several of the community forest rights claims were still pending final approval and the grant of individual rights had been contentious as people had only received rights over a part of the forest land that had been claimed. In their view, their rights over the forests were yet to be recognised. So the first question that came to our mind was whether the forest diversion and tree cutting could have come into affect if the recognition of rights was pending. The gram sabha (village assembly) had confirmed that their consent had not been sought.

This issue had been a bone of contention between the MoTA and the MoEFCC since 2013. While the MoEFCC had claimed through their February 5, 2013 circular that the requirement of the gram sabha consent could be dispensed for linear projects, the MoTA, the nodal ministry, said that the MoEFCC had no authority to make such an interpretation. All projects, linear or non-linear, had to be treated equally regarding forest diversions and consent provisions.

These different interpretations continue to operate and the MoEFCC has been approving proposals for forest diversion and allowing for tree felling for linear projects, interpreting that a gram sabha nod was not required, especially in cases where there has been an assurance from the state government that either the rights under FRA have been recognised or are in the process of being so.

A worrying scenario

Thus, with no requirement of EIAs once a railway line is segregated from other aspects of a project; tree felling permitted after in-principle approvals; and tentative interpretations for gram sabha consent; the situation did not seem very encouraging to Sarita tai and the affected people that she was working with. They could however, still petition the concerned ministries. No doubt, the fate of the project and the forest dependent people could still lie in bureaucratic interpretations and the application of mind by expert committees.

With no court action on the anvil immediately and the affected communities clearly aligned to question both the FCA guidelines and the dilution of the consent provisions; its anyone’s guess whether the railway line will be built or not. But it once again raises questions about why any project, which has a far-reaching impact on forests, wildlife, and people, should be granted exemptions from basic environmental scrutiny and stringent safeguards. Meanwhile, people like Sarita tai have to grapple with many interpretations of the law on a case-by-case basis.

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

After the de-allocations – What happens to the clearances given to coal blocks, now up for auction again?

It made news last year when the Supreme Court of India “de-allocated” 214 coal blocks. The process of the allocation, the Court held, was illegal and arbitrary. Not all of them were operational, but where they were, the owners had to stop operations. While 42 of them got a six-month reprieve and four were “saved”, the remainder had to halt any mining operations with immediate effect.

All but 4 of the de-allocated ones have, as on April 1, 2015, entered into a process of auctions where either the current lease holders or someone else could emerge the highest bidder. Following the passing of the Coal Mines (Special Provisions) Act, 2015 in March 2015, the Ministry of Coal had published the details of the auction process. All these coal blocks may soon have new owners.

Given the changed circumstances, there is doubt among communities and activists about what is likely to happen next and how they should prepare for it. For example, for those who had prepared a legal challenge on environmental irregularities, where do remedies now lie? How should they prepare? To the affected communities, the impacts, unresolved illegalities, and the environmental and social liabilities of the coal blocks that are up for auction remain just as relevant.

Questions asked about clearances to coal blocks

Many of these coal blocks, whether or not they had started operations, had received “clearances” from the Ministry of Environment, Forests and Climate Change (“MoEFCC”) after completing the necessary procedures. These approvals were challenged in courts, on the streets, and through petitions before the executive. For instance, when the Supreme Court delivered its judgment, a challenge to the forest clearance granted to the Mahan coal block in Madhya Pradesh was pending before the National Green Tribunal.

Similarly, the public hearing of the Parsa coal block in Chhattisgarh had been completed in the face of stiff opposition. Questions had also been raised about whether due process had been followed for impact assessment and public hearings. The NGT had quashed the approval for forest diversion given to the the neighbouring coal bloc in Parsa East Kanta Besan and had sent the matter back to the MoEFCC for re-examination. The stay on the mining and transportation of the already dug up area was lifted by the Supreme Court soon after.

The affected villagers and campaign groups had also pointed out that the presence of an elephant habitat near the mining site was not disclosed and that the mandatory site inspection was done in a casual manner. Questions were also raised about the circumstances under which the environment ministry had, under directions from the empowered group of ministers, approved the project.

What happens to the matters before the Green Tribunal?

Mahan and a few other coal blocks, whose environment or forest diversion approvals had been challenged before the National Green Tribunal (“NGT”), were included in the Supreme Court’s de-allocation list. What did this mean? Did the appeals become infructuous? The NGT on September 26, 2014, while hearing the two cases filed against the Mahan coal block (Appeal No.18 of 2014 and Appeal No.34 of 2014) and also the PEKB coal block, held “the cause of action raised by the Appellant does not subsist any longer.” They also held that that the rights and contentions in relation to the “forest clearance” would be transferred to the third party who would get the coal block.

While dismissing another case challenging the environment clearance given to a BALCO coal block (Appeal No. 46 of 2012), on October 9, 2014, the NGT upheld the right of appeal in accordance with law. This meant that if the environmental clearance is transferred to another allottee, it does not take away the right of a legal challenge both on procedural lacunae and on the merits of assessment. This is yet to be tested before the tribunal but the order is in place.

MoEFCC Clarification

Both the EIA Notification and the process laid out under the Forest Conservation Act, 1980 for forest diversion allow for transferring the approval to another project authority, during the course of assessment or even after approvals are granted. For instance Section 11 of the EIA notification says, “A prior environmental clearance granted for a specific project or activity to an applicant may be transferred during its validity to another legal person entitled to undertake the project or activity on application by the transferor, or by the transferee with a written “no objection” by the transferor, to, and by the regulatory authority concerned, on the same terms and conditions under which the prior environmental clearance was initially granted, and for the same validity period. No reference to the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned is necessary in such cases.”

On March 23, 2015, there was an additional clarification to Section 11 of EIA notification through an amendment. This allowed for the transfer of environment clearance on the terms above, in case “an allocation of coal block is cancelled in any legal proceeding; or by the Government in accordance with law”.

As on date, the environment clearances of 29 coal blocks have been transferred. Some of these are for approvals granted as far back as in 2000. The approval for the captive underground coalmine village of Milupara Kondkel in Raigarh, Chhattisgarh is one such. It now stands transferred from Monnet Ispat to Hindalco. The most recently granted environmental approval that has been transferred is for the Ganeshpur Opencase mine in Latehar in Jharkhand. Here, the transfer is from Tata Steel to GMR Chhatisgarh Energy Ltd. Tata Steel had received the approval in January 2014, about seven months before the Supreme Court ruling.

For any affected community and for any of us working on the environment or the social and environmental impacts of coal blocks, this is an important space to watch. Many coal blocks where approvals are pending or where mining operations have not been initiated, are not yet on the radar of re-allocations and other revised regulatory approvals. A lot is likely to be tested in and outside of courts where communities and community-based organisations are involved in legal action.

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