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International and NationalCase LawsUNIT 7 INTERNATIONAL AND

NATIONAL CASE LAWSStructure7.1 Introduction

7.1.1 Environmental Clearance in India: Brief Background

7.2 A Few Case Studies

7.3 Conclusion

7.4 Summary

7.5 Terminal Questions

7.6 Answers and Hints

7.7 References and Suggested Readings

7.1 INTRODUCTIONThe integration of public participation/involvement of stakeholders inEnvironmental Impact Statement (EIS) Review is very important in terms of itsimplication for sound decision making and the sustainability of developmentactivities. In this regard, the EIA procedures in our country provide for theinvolvement of stake holders in the assessment and review of proposedundertakings. This is achieved through a number of mechanisms, particularly theholding of public hearings.

Involvement of the public is one of the fundamental principles of a successfulEIA process. It not only provides an opportunity to those directly affected by aproject to express their views on the environmental and social impacts of theproposal but also brings about transparency in the environmental clearance system.Nearly all EIA systems make some sort of provision for public involvement. Thiscould be in the form of public consultation (or dialogue) or public participation(which is a more interactive and intensive process of stakeholder engagement).

Most EIA processes are undertaken through public consultation rather thanparticipation. Public consultation refers to the process by which the concerns ofthe local people regarding the adverse impacts of a project are ascertained andtaken into account in the EIA study. This concept was legally introduced in Indiain the form of ‘public hearing’ in 1997. Since then the public hearing process hasbeen conducted as a mandatory step of environmental clearance for most projectsand activities.

The public consultation process ensures an equitable and fair decision-makingprocess resulting in better environmental outcomes. The type of consultation,whom to consult during EIA activities, when and how to do so and who should doit all vary significantly from project to project. This depends on the needs of theproject. However, it is an important component for all kinds of project. This isbecause public consultations help allay the concerns of the local community, andreduce inaccurate information in the EIA report.

Ideally public consultation should start from when the idea of the project isconceived and continue throughout the course of the EIA. The five main stageswhen public involvement can take place in the EIA process are screening, scoping,

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Environmental PublicHearing

impact analysis and mitigation, review of EIA quality, and implementation andfollow up.

In India, the role of the public in the entire environment clearance process is quitelimited. Public consultation happens at a very late stage when the EIA report isalready prepared and the proponent is about to present it to the review committeefor clearance. This means that the EIA study is unable to take into account theconcerns and issues important to public. Even if the members of the communityraise certain issues in the public hearing process, they have no means of knowingif it actually gets addressed in the final EIA report as they have no access to it.There are several weaknesses in the public hearing process as it exists now. Insteadof becoming a participatory forum it has become a mere procedure.

There was a chance to address some of these weaknesses in the new notificationand give more teeth to the entire public hearing process. However, there is verylittle improvement in the new notification; instead it has now added a provisionwhich makes it possible to completely forego the public hearing process if thesituation is not conducive for conducting hearing as felt by the local administration.This provision can be misused to further limit the role of the public in the entireprocess.

7.1.1 Environmental Clearance in India: Brief Background

The environmental clearance after EIA study was started in 1978 as a directive ofPlanning Commission for Government of India funding. This was to be done byNational Committee on Environmental Planning and Coordination (NCEPC) underDepartment of Science and Technology, Govt. of India. After formation ofDepartment of Environment (DE) 1980 the same job has been transferred toDepartment of Environment from DST. In the country Environmental clearanceand EIA has become mandatory only in 1994 for selected projects whether theyare executed with State funds or private funds. Infrastructure developmentcommenced by both public and private sector are to obtain environmentalclearances and get EIA done. This position stands affirmed even after the newnotification in 2006 was issued for the EIA.

EIA is a planning tool that is now generally accepted as an integral component ofsound decision-making. The objective of EIA is to foresee and address potentialenvironmental problems/concerns at an early stage of project planning and design.EIA/EMP should assist planners and government authorities in the decision makingprocess by identifying the key impacts/issues and formulating mitigation measures.Ministry had issued sectoral guidelines some time ago.

EIA of any infrastructure covers the whole gamut of issues like regulatoryrequirements, baseline studies, and identification of key issues and considerationof alternatives, impact analysis and remedial measures in a systematic way. Italso involves the process of reviewing the adequacy of EIA and EMP reports andpost-project monitoring.

The infrastructure projects to be cleared are subjected to an appraisal byEnvironment Appraisal Committee (EAC). The projects requiring forest/wildlifeclearance are cleared for environmental clearance only after these are obtained.The projects requiring environmental clearance are also required to obtain NOCfrom the respective State Pollution Control Board under Water and Air Acts, Landand Water Availability approvals from State Government.

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International and NationalCase Laws

National Environment Appellate Authority Act, 1997

The environmental clearance so given under Environment (Protection) Act, 1986could be appealed to National Environmental Appellate Authority constitutedas per the National Environment Appellate Authority Act, 1997.

The National Environment Appellate Authority Act came into force in 1997. Itaims to provide for the establishment of a National Environment AppellateAuthority to hear appeals with respect to restrictions of areas in which anyindustries, operations or processes shall not be carried out or shall be carried outsubject to certain safeguards under the Environment (Protection) Act, 1986 andfor matters connected therewith or incidental there to.

As per this Act any person aggrieved by the order of granting environmentalclearance for industry process in the prohibited areas or granted any conditionalclearance, may approach authority within 30 days from the date of such order asper the procedure and form prescribed. The authority however has the discretionto entertain such appeal even after 30 days but not after 90 days from the date oforder/clearance, provided they are satisfied there is sufficient ground for filingthe appeal.

The authority shall dispose the petition within 90 days from the date of filing theappeal. The authority while processing or hearing the petition shall be guided byprinciples of natural justice and subject to the provisions of the Act and rulesmade Central Government could be there is a bar of Jurisdiction that no civilCourt or other authority not to entertain any appeal on this matter, the interestedparties have rarely preferred public interest litigation’s over appeal to this authority.

Reflection

The irregularities in India’s environmental clearance process are not surprising.Scuttling the norms in the Environment Impact Assessment (EIA) Notificationhas itself become the norm. It is intriguing, however, that the project developersas well as the authorities seem to have an endless number of innovative ways forexpediting approvals for questionable projects, each with an elegant way ofcircumventing the law. In the following sections, we shall study about some recentinstances where mega industries were being set-up against the wishes of the localcommunities, by providing false information and even by circumventing the law.

7.2 A FEW CASE STUDIESThere have been several cases in the past that have shown that how the publichearing process has either helped or failed to meet its objective of effectivelyinvolving people in the clearance process. Most often than not, several meanshave been devised to keep the public away such as poor circulation of notice,politics, etc. Some case studies are presented below:

1) Narmada Dam Project

Post-1947, investigations were carried out to evaluate mechanisms in utilisingwater from the Narmada river. Due to inter-state differences in implementingschemes and sharing of water, the Narmada Water Disputes Tribunal wasconstituted by the Governmnet of India on 6th October 1969, to adjudicate overthe water disputes. This Tribunal investigated the matters referred to it andresponded after more than 10 years. On 12 December 1979, the decision as given

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by the Tribunal, with all the parties at dispute binding to it, was released by theIndian Government.

As per the Tribunal’s decision, 30 major, 135 medium, and 3000 small dams,were granted approval for construction including raising the height of the SardarSarover Dam.

In 1984, work began on the first of two giant dams that would harness the watersof the Narmada for irrigation and electricity. Amongst the 30 large dams plannedfor the Narmada, the Sardar Sarovar dam is the largest.

The damming of the Narmada has aroused huge controversy, in India and in theWest. The basic issue of controversy is the displacement of a large number oftribal people who have lived near the project site since generations. An organisationnamed Narmada Bachao Andolan is a non-governmental organisation (NGO) wasinvolved in this matter. It originally focused on the environmental issues relatedto trees that would be submerged under the dam water. However, later on it re-focused with the aim to enable the poor citizens especially the oustees to get thefull rehabilitation facilities from the government.

In 1985, the activists noticed that the project work being shelved due to an orderby the MoEF. The reasons for this was cited as “non-fulfillment of basicenvironmental conditions and the lack of completion of crucial studies and plans”.The activists alleged that the people who were going to be affected were given noinformation, but for the offer for rehabilitation. Due to this, the villagers hadmany questions right from why their permission was not taken to whether a goodassessment on the ensuing destruction was taken. Furthermore, the officials relatedto the project had no answers to their questions. It was also alleged that the projectwas not sanctioned at all, and that the officials had overlooked the post-projectproblems.

Narmada Bachao Andolan, led by Medha Patkar, filed a writ petition1 with theSupreme Court, seeking stoppage of construction on the Sardar Sarovar dam.The court initially ruled the decision in the Andolan’s favour thereby effecting animmediate stoppage of work at the dam and directing the concerned states to firstcomplete the rehabilitation and replacement process.

One of the real issues before the court was whether in 1987, when the MoEF hadfirst granted the environmental clearance to build dam (subject to certainconditions), was the clearance granted without proper application of mind. Thecourt probed into the issue whether clearance was made in haste, without givingproper regard the environmental and social impacts of the project or taking theviews of public into account with aid of a proper public participation mechanism.

The Supreme Court deliberated on this issue further for several years. Finally, itupheld the Tribunal Award and allowed the construction to proceed, subject toconditions. The court introduced a mechanism to monitor the progress ofresettlement pari passu with the raising of the height of the dam through theGrievance Redressal Authorities (GRA) in each of the party states. The court’sdecision given in the year 2000 after seven years of deliberations, has paved theway for completing the project to attain full envisaged benefits. The court’s finalline of the order states, “Every endeavour shall be made to see that the project iscompleted as expeditiously as possible”.

1 Narmada Bachao Andolan v. Union of India & Others, SC 319 of 1994, 18 Oct. 2000

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2) Teesta Low Dam Project - III & IV

The Teesta descends from a height of about 6,200 m. at its source in Sikkim to thecoast of Bangladesh in the course of its 414 km. journey to the sea. This descentoffers huge potential for hydro power generation, especially before it deboucheson the terai plains at Sevoke. The slope of the river in this stretch varies between4 to 35 m./ km. and the velocity is about 6 m./second. The NHPC had proposedthe establishment of eight hydro power stations in Sikkim and West Bengal.

The Project Proponent, NHPC had declared that the two proposed dams, stage IIIat Samco ropeway and stage IV at Coronation bridge are ‘low and run-of-the-river dams’. However, as per some sources, the dam heights are 32.5 and 30metres. The globally accepted definition framed by the International Commissionon Large Dams (ICOLD), categorises dams above 15 meters as large. Damsbetween 5-15 m. with a storage capacity of more than three million cubic metresare also considered to be large dams.

TLDP III will produce 132 MW and TLDP IV will generate 160 MW of power. .It is called a ‘run of the river’ project even when reservoirs will impound waterand submerge several hundred hectares of forest land.

TLDP - III

On November 14, 2002 West Bengal Pollution Control Board (WBPCB)issued the Public hearing notification for TLDP-III. The notification carriesno mention of the EIA, and said only the Executive summary of the DPR willbe available for public scrutiny.

After 10 days from the date of the publication of the notification — theRegional Office of the WBPCB could not show the Executive Summary.

The Executive Summary of the Project was not available in Nepali-the majorlocal language-till December 6, 2002.

The Section 10.4 of the Summary clearly says that the ‘environmentalimpacts…. is being studied’. The EIA was not complete, and the EIA was notfinalised till the date of the compilation of the DPR, and the subsequent PublicHearing notification.

After organisations such as NESPON challenged the legality of the PublicHearing and the EIA process for TLDP stage-III, The NHPC authorities-andnot the WBPCB-sent a copy of the EIA to the PCB Siliguri Regional Officeon the evening of December 09, 2002, just 10 days before the hearing and 20days after the publication of the Hearing notification! The EIA was availableonly in English.

Alleged suppression of facts in the EIA: Important information was allegedlysuppressed, in particular, from the ‘Report on the geological and geotechnicalinvestigations’ carried out by the Geological Survey of India, Kolkata, as part ofthe EIA. The EIA was assumed to not only exclude vital information but insubsection 8.5 said there will be ‘no land environment impact during theoperational phase’ of the project. The Entire Section 8 of the EIA (titled ‘summaryof environmental impacts’) contained no information on geological/geomorphologic impacts, as if such impacts do not exist).

The Environment Management Plan or EMP was not available for study beforethe Public Hearing.

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Alleged Violations in the Public Hearing process

The Public Hearing (PH) was conducted not at the project site or the affectedvillages but around 8 kms from the site at Deorali.

A large number of people from the project affected villages and adjoiningareas attended the Hearing, but they had neither any information about theproject nor any idea about the EIA conducted. In spite of a mass petition(signed by 84 community representatives present at the Hearing venue)demanding postponement of the PH till the EIA report was available in locallanguage the Hearing was conducted.

The Hearing opened with a speech from the NHPC representative in praiseof the project. After that, two panel members called upon the participants notto oppose the project.

The Chief Engineer of WBPCB admitted that that they could not make thenecessary documents available during the first notification (14.11.2002) andapologized for it. Complete project documents were not available even at thetime of the subsequent notification (13.12.2002), and moreover, the secondnotification did not give a fresh 30-day period for filing objections.

The available documents were left to be copied at a huge cost to the people.

TLDP-III was given environmental clearance on JULY 16, 2003. NESPON, inthe National Environmental Appellate challenged the Clearance on October 2003.The Appellate dismissed the petition not on merit but because of a one-day delayin filing the affidavit.

TLDP - IV

The Public Hearing was notified on August 8, 2004.

The Siliguri Regional Office of WBPCB, and the Siliguri District IndustriesCenter where the EIA and other documents are supposed to be availableinformed that they would not be able to show the documents before 16thAugust.

Many organisations like NESPON, SANDRP, Delhi Forum, Disha, etc demandedthat the MoEF intervene in this matter and take necessary measures to postponethe illegal Public Hearing for TLDP stage IV. Several other civil societyorganisations from across the country also protested against the flagrant violationsof EIA norms in the TLDP-IV, filed objections and protested against public hearingviolations. However, the project was given environmental clearance by the MOEF.on 31.03.2004.

National forum of Forest People and Forest workers (North Bengal RegionalCommittee) filed a petition to the National Appellate Authority against theclearance which is pending since June 2005.

3) Farakka Barrage

The Farakka Barrage inside India, 18 km upstream of the international border(Indo-Bangladeshi border), became operational in 1975.

Before its inception, experts of Bangladesh and India warned that the project maycause serious environmental degradation. A massive campaign in both the countrieswas also waged against the proposed project (before its inception).

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It is alleged that since the barrage’s operation, it has been diverting a substantialamount of dry season flow of the Ganges River through the Hoogly River and hasthus initiated an irreversible process of deterioration of the Gorai River flow (amajor distributary of the Ganges River).

It was alleged that vested interests like those of the construction industry, engineersand others, including politicians, has prompted Indian government to go aheadwith the proposed plan. The Bangladeshis also alleged that in the Farakka BarrageEIA, Indians identified the effects on the Ganges only right down to as far as theBarrage, and no further. Bangladesh was of the opinion that the EIA conductedon the project site was manipulated in India’s favour. It says that the EIA did nottake into account the effects or impacts on the project on Bangladesh and merelyconcluded with the extent of the Ganges River flowing through India.

Bangladesh is alleging that the Farakka barrage is slowing down the flow of sweetwater and affecting the Sundarbans, where the largest mangrove forests in theworld are located. It is feared the increased salinity will affect the rich biodiversityof the mangroves.

Major issues involving EIA

Technology and knowledge: A purely technical solution to the loss of navigabilityin Kolkata Port was provided by the building the Farakka Barrage. AnEnvironmental Impact Assessment (EIA) combined with a transboundary impactassessment was not seen as needed in the context of existing knowledge in themid-1970s.

Opinion of Public not taken into account: No proper public hearing wasconducted

Neglect of environmental value of water: The allocation of water in the basinfor various uses such as agriculture, industry, domestic, navigation, etc. has notincluded ecosystem function. It is important to keep the rivers alive to supportaquatic ecosystems and the coastal mangroves, which are dependent on the balancebetween fresh and saltwater. This goal requires adequate basinwide EIA andmonitoring. Generally, it is the case in most developing countries that EIAs areinadequate or side-stepped.

Improper pricing policies: Investment costs in the irrigation sector in both Indiaand Bangladesh are rarely recovered. This may be responsible for the overuse ofwater by the farmers, and for the shift to water-intensive crops.

Lack of good governance at the national level: Water-resources managementin all the co-riparian countries is fragmented among many agencies and needs tobe integrated. Water Resources Councils have been established in all the threecountries involved, namely, India, Nepal and Bangladesh, but they appear not tofunction, except in Bangladesh. Environmental laws and dependence on largeengineering interventions have delayed solutions to pressing problems. There is aneed for more transparency, inclusion, and sharing of information amongstakeholders. Focus can shift to small impoundments like ponds and tanks so thatthe major impacts of large diversions can be avoided.

Lack of good governance at the international level: There is no mechanismfor monitoring hydrological information and ensuring the use of accurate data byall the co-riparian states. The Indo-Nepal Treaty (1996) has not progressed muchbecause of differences in perspective about the respective water rights and also

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about the area to be submerged if a dam is built. Until 1996, the Farakka projectwas a subject of contention between India and Bangladesh. The 1996 treatyattempts to apportion the water resources at Farakka in an equitable manner butalso refers to best utilisation of the resource. Since the GBM region encompassesmany rivers, the treaty provides a good example for considering the sharing ofthe waters of the other rivers.

Due to all the reasons mentioned above, the Farakka barrage is a major matter ofcontroversy between India and Bangladesh.

4) Tehri Hydro Development Project

The Tehri dam project was approved in 1972 and construction was started in1978. The Tehri Hydro Development Corporation was constituted in 1989 tosupervise the construction of the dam. The main dam of the project is built nearthe old Tehri town that lies at the confluence of the rivers Bhagirathi, (one of themajor tributary of the river Ganga) and Bhilangana.

The main dam is set to produce 2000 MW of electricity when completed. However,only the Phase-I with capacity of 1000 MW is approved at present. There is anothersmaller dam 14 km downstream at Koteshwar that will produce 400 MW ofelectricity. The main reservoir comprises an area of 42 km2. This has now floodedthe old Tehri town and 112 villages around the town, thereby displacing morethan 100,000 people. The town of New Tehri, on the hillside above the dam, hasbeen built as a result.

A writ petition2 was filed praying directions restraining the Union of India, Stateof UP (as Tehri was in UP initially) and the Tehri Hydro Development Corporationfrom constructing and implementing the Tehri Hydro Power project. The maincontention against the construction of the dam was on the basis that the plan forthe Tehri project had not considered the safety aspect of the dam and seriousthreat existed due to this construction, as north India is prone to earthquakes.Proper EIA, specially public consultation was not conducted and EIA was presentonly on paper. The design of the dam was on a site which was prone to seismicactivity hence posing grave danger to the people residing in that area.

Base on the fact and circumstances of the case, the Court came to the conclusionthat the Union of India had considered the question of safety of the project invarious details more than once and that it had taken into account the reports ofexperts on various aspects. The safety aspect was clearly envisaged in the reportat the time of its environmental clearance. In the circumstances, the court heldthat it was not possible to hold that the Union of India had not applied its mind orhad not considered the relevant aspects of safety of the dam.

The court dismissed the petition and said that there was no evidence that theconstruction was not following environmental guidelines. The verdict was passeddown by three judges who voted two-to-one against the petitioners.

5) Sethusamudram Canal Project

Sethu Samudram is the sea that separates Tamil Nadu, India from Sri Lanka. Itencompasses the Gulf of Mannar the Palk Strait, a shoal of islands and bays thatseparate them called Adam’s Bridge. The sea is quite shallow, with a depth of lessthan 10 meters across most of its extent. Much of its seabed consists of limestone

2 Tehri Bandh Virodhi Sangharsh Samiti v. State of UP and Others, 1990 (2) SCALE 1003

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rock. It formed part of a land bridge that joined Sri Lanka to the continent of Asiaduring the last ice age.

The coastline of India does not have a continuous navigation channel connectingthe east and west coasts. Currently the ships coming from the west coast of Indiaand other western countries with destination in the east coast of India and also inBangladesh, China etc. have to navigate around Srilankan coast. The existingwater way is shallow and not sufficient for the movement of ships. This is due tothe presence of a shallow region known as Adam’s bridge, located southeast ofRameswaram near Pamban, which connects the Talimannar Coast of Srilanka. Inorder to reduce the distance between the East and West Coast of India and toimprove the navigation within territorial waters of India, a navigation channelconnecting the Gulf of Mannar and Palk Bay through north of Adam’s Bridgewas proposed, which is known as the Sethusamudram Shipping Canal Project(SSCP).

The SSCP proposes linking the Palk Bay and the Gulf of Mannar between Indiaand Sri Lanka by creating a shipping canal. Under the proposed project, twochannels are to be created — one across north of Adam’s Bridge (the chain ofislets and shallows linking India with Sri Lanka) South-east of Pamban Islandand another through the shallows of Palk Bay, deepening the Palk straits.

In 1997, Ministry of Surface Transport made Tuticorin Port Trust (TPT) the NodalAgency for this project. The Initial Environmental Exam of the project was doneby National Environmental Engineering Research Institute (NEERI), Nagpur (aCentral Government Agency), in 1998, as directed by the TPT. NEERIrecommended securing a major marine project and a full scale, ‘EnvironmentalImpact Assessment’.

The Initial Environment Examination (IEE) of the project prepared by NEERIindicated that the project is environmentally safe with negligible effect on theecosystem and the Marine National Park of the Gulf of Mannar. The report alsorecommended a particular alignment of the canal cutting the Pamban Island, eastof Kodandaramasamy temple, which would cause least damage to the biologicaldata and the environment. As concluded in the IEE study, the SethusamudramShip Channal Project falls under category ‘A’ of the World Bank Classificationrequiring full scale Environment Assessment.

NEERI submitted their first report on Rapid EIA in October 2002 on existingstatus of Environment suggesting a viable of the Channel. NEERI have alsoprojected a fresh scenario of dredging the Channel to only 7m depth with itseconomic gains, number of transit per annum etc. worked out by the shippingCorporation of India. The rough cost for dredging to 7m depth was indicated byNEERI as Rs. 200 crores resulting in a saving of Rs. 68 crores in bunkering andship time per annum. NEERI presented the 7-m depth scenario with the Channelalignment further shifted eastwards to cut the Adam’s Bridge to start with andsuggesting to take up the project in phases.

The provisional executive summary of EIA was submitted by NEERI in May2004 to the Nodal Agency, TPT along with a techno-economic feasibility report.A Detailed Project Report (DPR) was also submitted in 2004 by Larsen and Toubroof India and Rampaul of Denmark, the fixed contractors of SSCP.

Environmentalists fear that there are two ways in which the plying of ships couldendanger the ecology. Dredged spoil dumped in the vicinity of the islands could

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cause mass, suspended sedimentation. The canal would cause a change in themagnitude and direction of currents in the Gulf of Mannar because it will be 300metres wide, and the changed currents will flow towards the 21 islands. If thecanal is excavated, it will slice through the Gulf of Mannar and the Palk Bay, bothof which are closed marine systems, and cause irreversible damage to a variety ofmarine life there. The Gulf of Mannar and the Palk Bay are akin to large lagoons,undisturbed by ship traffic because of their shallow waters. They are home to awide variety of marine ecosystems. The Gulf of Mannar alone boasts 3,268 speciesof flora and fauna, including 377 species that are endemic to the region. Theregion provides livelihood to the families of several lakhs of fishermen in 140coastal villages in Ramanathapuram and Tuticorin districts of Tamil Nadu.

The EIA report acknowledges that the Gulf of Mannar and the Palk Bay, covering10,500 sq km, “are biologically rich and rated among the most highly productiveseas of the world”. Their biodiversity is considered globally significant. The Gulfof Mannar has been categorised as a Biosphere Reserve and its 21 islands havebeen declared National Marine Parks. What has alarmed environmentalists is theEIA report's observation that “there is apprehension that hard strata will beencountered in the Palk Bay/Palk Strait area” and “if the bottom strata turn out tobe rock... blasting might be required”. If the hard rock is blasted, the shock waveswill kill the entire fish population in the area. The dolphins, whales and dugongsthat reside in the area are sensitive to sound and they depend on echolocation forcapturing food and for navigation. The sound produced by the blasting will drivethem away.

According to environmentalists, there are many coral beds in the region. Thecoral beds, which are sensitive biological entities, contribute to the fishery wealth.Destruction of the coral reefs will have an impact on fishery. The NEERI reportclaims that “the canal may facilitate the movement of fishes and other biota fromthe Bay of Bengal to the Indian Ocean and vice versa. By this way, the entry ofoceanic and alien species into the Palk Bay and the Gulf of Mannar, as also thedispersal of endemic species outside the Palk Bay and the Gulf of Mannar couldoccur.” About this, the environmentalists say that such a claim has not beensupported by any scientific data. From one ecological niche to another ecologicalniche, fish cannot and will not migrate. Hence changes in their habitat will killthem. Environmentalists also find it odd that Ministry for Shipping is backing theproject by comparing it with the Suez Canal or the Panama Canal. They point outthat the Suez Canal was cut in a desert. Neither biodiversity nor coral reefs norfisheries were affected. It is a different ball game here, they say.

Other major issues that pertain specifically to the EIA report are:

The Presence of Corals along the proposed ship canal alignment in Adam’s Bridgearea has not been observed.

It is also intimating us that ecological important species along the proposedalignment is not significant.

The report has not assessed the affected population on Land Acquisition andResettlements.

6 Km2 areas in the sea floor of Adam’s Bridge will be permanently lost.

Report instruct to control over marine pollution.

Dispersal could occur to alien rare species in proposed alignment.

Dhanushkody areas traditional fishing will be totally affected.

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It is also estimated that, 84.5 million cubic meter of sand and spoil would bedredged from the project area. Out of this, a small quantity will be discharged inPamban Island and the remaining in Bay of Bengal. Here we want to know, a)whether Neeri has worked out the ‘under current’ of sea water on the excavationarea as well in discharging area. b) It is also not mentioned the exact location,where the dredged materials going to be discharged in Bay of Bengal.

In the EIA report, under 6.1, ‘construction phase’, it is said that the dredged sandand spoil will be discharged in Pamban and Bay of Bengal. Contradictory to thisstatement, in the same EIA report, in 6.2, ‘operational phase’, it is reporting thatdredged materials will be mostly silt and clay and will not be disposal in sea.

NEERI asking a strict vigilance of crude oil tankers to avoid oil spill in the sea. Ifoil spill happened due to unavoidable circumstance, the agency has not suggestedany remedial measure.

The Agency suggesting that a trained pilot or environmental watcher should beboard in the ship to watch marine mammals. Is this suggestion is possible inpractical day-to-day life. Say for e.g., if a vessel sail during night or in rainy or indark cloudy day, this suggestion will be a meaningless one.

The most important criticism to the entire project is that the EIA study did notconsult a main stakeholder, Sri Lanka. Hence, the EIA is fundamentally flawed. Ithas also been pointed out that NEERI has not considered the most importantinternational instruments, UN Law of Sea Convention 1982 and its 2 protocolsanywhere in its report.

It is argued that the studies carried out for a project of such magnitude is minimal.The EIA was conducted in a hurried fashion and was of a nature of rapidassessment. Any oceanographic modeling carried out has been after the EIA wascompleted. Hence, the studies are incomplete and inadequate. On the other hand,defenders of the project have argued that the SSCP will have only minimal effectson the ecology of the region as environmental viability of different canal alignmentshas been looked into and the most viable route has been chosen. Only then wasthe techno-economic feasibility report finalised.

Experts also claim that the project would violate the UN Law of Seas Convention,1982. Some Articles of the Convention that may be deemed violated are:

Part II, Section2, Article 6 deals with Reefs, Article 9 tells on Mouths ofRivers, Article 10 speaks about Bays.

Part V, Article 61 - Conservation of the living resources, Article 64 - HighlyMigratory species.

Part V, Article - 65 and Part VII, Section 2, Article 120 also speaks on MarineMammals.

Part VII, Section 2, Article 116 speaks on fishing rights.

Part XI, Section 2, Article 145 and Article 237 emphasizing that protection ofMarine Environment is obligatory. In the same part Article 146 urges theneed for protecting the Human life, Article 149 and Part XVI, Article 303both deals with Archaeological and historical objects.

Part XIII, Section 3, Article 254 dealt with Rights of neighbouring land-lockedand geographically disadvantaged States.

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PILs Filed against the Project:

Coastal Action Network (CAN), an umbrella group of NGOs had gone to court in2006 saying the canal would disrupt their lives. The CAN Co-Convener, OasieFernandes field the plea stating that the SSCP was based on a study that wasscientifically incomplete and that it was being pushed by parties having a role inthe stability of the ruling coalition at the Centre.

The First Writ Petition was filed in the high court seeking the Public HearingProcess that was going on in the later part of 2004 be quashed since:

The committee was not appointed based on knowledge

The Public hearings conducted with the Sethu Samudram Shipping CanalProject in Tuticorin, Thanjavur, Thiruvarur, Nagapattinam, Pudukottai andRamanathapuram districts on several dates to be ineffective and not incompliance with the requirements of law. The petitioner had stated that suchpublic hearings would become meaningful only after a comprehensiveEnvironmental Impact Assessment Report on SSCP is made ready.

Lack of Information.

The fishing community to register their protest stopped the public hearing in allthe six districts during the first round, during the second round the public hearingwas allowed in four districts.

The High Court declined the Stay on 17th Dec 2004 to the PIL filed on the groundthat as regards the project, public hearings are going on and cause of action arisesonly when an adverse order has been passed or some action adversely affectingsomeone’s right is taken. It was rejected on the other grounds that since no adverseorders have been passed nor action taken against anyone, there is no need toentertain the writ petition at this stage.

Coastal Action Network went to the court with another writ in April 2005.

The MoEF gave clearance to proceed with Sethusamudram Shipping Canal Projecton 31st March 2005 based on NEERI report on EIA. The PIL had the followingobjection to the clearance:

1) The EIA done was not proper. It was a rapid EIA and not comprehensive.

2) The Impact on the fishing community was not taken into account. It isunscientific.

3) The order was passed by the authority concerned without taking intoconsideration the impact, that the project will have, on the environment andwithout following the guidelines issued by the Ministry of Environment forclearing such projects. And that No Objection Certificate was not obtainedfrom the Tamil Nadu Pollution Control Board and that therefore, the orderdated 31st March 2005 giving environmental clearance under the EnvironmentImpact Assessment Notification is bad in law.

When the matter was taken up for hearing senior counsel for the petitioner VPrakash, submitted that the rapid Environment Impact Assessment reportconducted by the National Environment Engineering Research Institute (NEERI)and the public hearings on the issue were incomplete.

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The Madras High Court on 30th June 2005 declined to stay any of theSethusamudram Ship Canal Project and said “NGOs can appeal to Environmentauthority”. The PIL was dismissed on technical grounds. The Arguments on Meritwas not taken. The Court directed the Centre to appoint a Chairperson for thestatutory National Environment Appellate Authority within three months.

Disposing of a petition field by the Coastal Action Network (CAN) seeking toquash the March 31 EIA clearance given to the project, a Division benchcomprising Justice N. Dhinakar and Justice M. Chockalingam, gave liberty to thepetitioner to file an appeal before the Authority against the project.

The Court thus asked the Coastal Action Network to approach the NationalEnvironment Tribunal. But the post of Justice in the Tribunal was not been filledfrom 2000 to 2005. The High Court directed the post be filled within 30 days.

The Coastal Action Network then filled a petition in the Supreme Court to staythe project. According to the group, the March 31 environmental clearance wasgranted “without application of mind”. Sri Lanka, which was not consulted aboutthe canal, also has voiced concerns that it would disadvantage its port in Colombo,presently south Asia's most successful hub for sea traffic.

There also have been a number of demonstrations demanding that the Centregive up the implementation of the Sethusamudram Shipping Canal Project (SSCP).The demonstrators said that the project would affect the marine life, coastalresources and biodiversity and the fishermen community. A large number offishermen women and members of the fishing people’s movements from variousparts of Tamil Nadu took part. The protesters tried to venture into the sea infiberglass boats to block the dredging about 50 km off Vedaranyam coast, butwere prevented by the police. The Indian Navy also threatened to shoot if thefishermen ventured to stop the dredging activities.

There have been numerous protests by the fishermen against the project.

6) Polavaram Dam Project

The Polavaram Dam project was conceived during the colonial rule in India. TheBritish conducted a survey on the Godavari and identified Polavaram as the bestpoint for tapping the mighty river. The then chief secretary of the Madras State(of which Andhra Pradesh was a part) Sonti Ramamurthy named the project“Sriramapada Sagar” keeping in mind that the reservoir of the project wouldextend up to the feet of Lord Rama at Bhadrachalam. After a few years the projectwas renamed as Sri Sitaramapada Sagar. The project, however, did not take off atthat time.

In 1980, the project was revived again and was called “Polavaram Project”,Polavaram, being a closest town in West Godavari district of Andhra Pradesh.There were several other attempts later on to change the project name by variouspolitical leaders by naming it as “Godavari Srujala Sravanti Project” and the “IndiraSagar Project”.

The Polavaram dam project is located in the northern part of Andhra Pradesh,straddling portions of the adjoining states of Chhattisgarh and Orissa. After therevival of the project in 1982, the project was finally given green signal in 2002by the then state government. However, the project, which was now proposed tobe implemented with certain modifications had outdated design and did not fullytake into consideration the damage likely to be caused to the ecology, environment,

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wild life and human habitations and many changes that have taken place in thesociety over the years since it was conceived.

Under the Environment Protection Act, 1986, all major projects, in sectors suchas hydroelectric, mega power and mining, have to get an environmental clearance,which is based on an environmental impact assessment. Environment clearancefor the project was granted by MoEF (Ministry of Environment and Forests) inOctober 2005.

The people of the project area are divided into two violent groups, one forimplementation of the project as it provides irrigation facilities and power supplyfor their development and the other affected people opposing the project, as theyfeel that they are being forced into inhuman conditions, depriving them of motherearth, their traditions and culture and peaceful way of life.

Several NGOs and peoples organisations have resisted the dam since mid eightieson ecological, economic and social grounds. It is feared that the project will bringmisery to more than 1.5 lakh people, by submerging and displacing 276 villages,predominantly tribal villages in an area of about one lakh acres including forestland. Experst estimate that the proposed displacement of such huge populationby uprooting them from their traditional and natural habitats is likely to causedegeneration in their lives as they will be forced to become migrant labourers andurban slum dwellers.

The Polavaram Project EIA Report was prepared way back in 1986 after whichthe project was stalled till 2006 due to some political reasons. The report statedthat about 1,50,697 people are expected to be displaced from 226 villages.However, since then the population has grown considerably. The data containedin executive summery of EIA report made available regarding number of villagesand population to be displaced also does not tally with 2001 censes figures and isfar from ground realities. Some experts also state that the present EIA Reportdoes not appear to be comprehensive and contains inadequate or misleading data;the authenticity of the report is questionable and needs to be put to a thoroughscrutiny.

A petition was filed on these grounds by Legal Initiative for Forest andEnvironment, a non-profit agency based in Delhi, challenging the environmentministry clearance of the project. The project had also been opposed by of Orissaand Chhattisgarh right from the beginning as they felt that they will not be benefitedby the project at all. They had also filed a suit in 2006 in the Supreme Court,petitioning that work on the project be stopped.

An appeal against the clearance (by MoEF) was filed by Academy for MountainEnvironics. The National Environment Appellate Authority (NEAA) is the onlycompetent authority set up by Parliament through an Act to hear appeals fromaggrieved/affected persons against the grant of environmental clearances by theMoEF to different projects across the country. Hence the matter came intoconsideration of NEAA (the statutory body empowered to hear appeals challengingenvironmental clearances).

The project was opposed on grounds of inadequate EIA; also, no public hearingwas conducted in the states of Orissa and Chattisgarh despite the fact that 3000families were to be affected by the proposed construction. During the hearingboth the states contended that environmental clearance was granted by MoEFwithout considering the opinion of the states, though they were affected.

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By its order dated December 19, 2007, the NEAA quashed the environmentalclearance granted by the MoEF to the Polavaram Multipurpose project. NEAAmaintained that the clearance given by the Union environment ministry was donewithout giving an adequate hearing to all the people likely to be displaced andhence it was unacceptable and improper. The authority observed that theenvironment ministry clearance was given without giving a public hearing to thepeople residing in the affected areas of Orissa and Chhattisgarh was a violationthe “principles of natural justice”. The NEAA order passed by a bench comprisingof Dr I.V Manivannan, JC Kala, and Kaushlendra Prasad, stated that, “Neitherdid the affected persons have any access to the executive summary of the projectin the notified place, nor did they have any opportunity to participate in the publichearings… the question here is not one of majority or minority but it relates to theissue of enabling all the affected people to express their views, whether theyreside in one particular state or two or more states,” the order stated.

NEAA in its order states, “The appeal is partially allowed to the extent that theimpugned Environment Clearance order No J-12011/74/2005-IA I dated 25-10-2005 issued by Respondent 1 (MoEF, Government of India) is quashed on thegrounds that the impugned order was passed without taking into considerationthe public hearing which by itself was incomplete as it was not conducted in theaffected areas of Orissa and Chhattisgarh resulting in denial of access toinformation and opportunities to the affected people to express their views/opinionetc. on the environmental impact of the project and consequential violation ofprinciples of natural justice”.

7) Subansiri Hydro Electric Project

River Subansiri originates in the south of the Po Rom peak (Mount Pororu)(5059 m high). Po Rom peak is hardly 30 km from the Tsangpo and near 5 kmfrom Tarlung Chu (a tributary of Tsangpo). Subansiri is called Lokong Chu (TsariChu) at its source. River Subansiri is the major tributary of River Bramaputra. Itcontributes 10% of the flow of River Brahmaputra calculated at Pandu. Drainagearea up to its confluence of River Brahmaputra is 37,000 sq. km. of which 10,000sq. km. lies in Assam and 19,199 sq. km in Arunachal Pradesh. Its length up to theconfluence of River Brahmaputra is 520 km. The Northeast of India has beenidentified as India’s ‘future powerhouse’. According to a 2001 study of the CentralElectricity Authority (CEA) of India, out of the identified 168 large hydro projects,a potential of 63.328 MW have been identified in the Brahmaputra river basinalone. This includes 22 projects having potential of 15,191 MW in the Subansiririver basin.

The 200 MW Lower Subansiri hydel project, proposed to come up at Gerukamukhon the Assam-Arunachal border, is the first large project to be taken up in theSubansiri basin. During the clearance and now implementation phase of the project,a number of critical issues of concern have come up. Some of the main issueshave been summarized below:

Poor environmental and social impact assessment–

One of the main concerns raised about the project since 2001 has been the poorquality of the environmental impact assessment (EIA) report.

Downstream impacts–

There maybe social and ecological impacts on the downstream areas in Assam.Many feel that the clearance report doesn’t address such issues in detail. Similarly,

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the impact on downstream riverine ecology and critically endangered river dolphinpopulation in places such as Khabolu-Noali finds no mention. The minimumwater flows calculated have not been informed by a comprehensive understandingof downstream needs since downstream studies have been minimal.

Biodiversity–

The project is a region, which has been recognized as a global biodiversity hotspotand will involve the use of 4000 hectares of forests. It lies in the midst of contiguousforests comprising Kakoi, Dulung and Subansiri Reserved Forests (RFs) in Assamand Tale Valley Sanctuary, Tale RF and Panir RF of Arunachal Pradesh. The Dulungand Subansiri RFs together constitute the Subansiri important Bird Area, a site ofglobal significance for bird conservation identified as per international criteriadeveloped by Birdlife International. The river Subansiri has rich fish diversityand is one of the important rivers in India for the long-term conservation of thegolden mahseer. In spite of this location, the experts allege that one the weakestsections in the EIA report is the one on biodiversity.

Environmental risks–

According to experts who have conducted a critical review of EIA report, in theeastern Himalayan region, the importance of environmental risk assessment studiescannot be underestimated. There are critical gaps in the environmental riskassessment aspects covered in documents on the Lower Subansiri project. Forexample, while a dam break analysis study is done to gauge the scenario in theevent of a dam break, there are several more common yet potentially dangerousrisks that do not even find a mention.

These are risks both to ecology and the hydropower project itself. For example,landslide induced dams and subsequent flash floods upstream of a hydropowerdam can pose a significant risk to the project as well as magnify the threat todownstream areas due to simultaneous release of waters from the hydropowerreservoir to protect the dam structure from the flash flood (called dam-inducedfloods). There are also other associated risks with seismic activity, such as landslideinduced dams and heavy sedimentation affecting the economic life of a reservoir.Major knowledge gaps exist on risks due to factors such as: hydrological impactof seismic activity, impact of climate changes on the glacial activity, and have noteven been attempted to be addressed in this project.

Flood control issues–

The Lower Subansiri hydel project claims that a flood cushion of 15 m will beprovided in the monsoon months but even as per NHPC’s own claims this onlyachieve partial flood moderation. According to them flood moderation can beachieved by the integrated operation of Upper Subansiri, Middle Subansiri andLower Subansiri mega projects. Even if one were to keep aside the serious concernsabout the efficacy and desirability of large dams in achieving flood managementIn the Subansiri basin, NHPC cannot materialise its claimed flood managementstrategy. This is because the Lower Subansiri project has received clearance onthe condition that no dams will be built upstream on the Subansiri River. Thiscondition was imposed by the IBWL and is now a part of a Supreme Court orderdated April 19, 2004.

Ministry of Environment and Forest (MoEF) clearances–

Several organisations from the Northeast and around the country have repeatedly

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written to the MoEF about the serious problems in the clearance process of theLower Subansiri hydel project. Some of the permissions the Lower Subansiridam required were environment clearance under the EIA notification 1994: forestclearance under FCA 1980 and clearance from the IBWL since a portion of TaleValley Sanctuary is be submerged. The additional biodiversity studies done onthe recommendation of the IBWL were presented to the Standing Committee ofthe IBWL on May 6, 2003. Several members highlighted the fact that the studiesdid not fulfil the IBWL expert committee recommendations and moreover werepoor in quality. They argued that clearance could not be granted in this case.

June 24, 2003 the MoEF granted final forest clearance to the project. Theseclearances were challenged in the SC in August 2003. The SC appointed theCentral Empowered Committee (CEC) which held that this clearance was illegal.MoEF hence withdraw this clearance on July 2, 2004 but the same was reinstatedby an April 2004 order of the SC. Ministry subsequently reissued the final clearancein October 2004, after the conditions have supposedly been met.

Issues regarding the Public Consultation–

The public hearing for Lower Subansiri in Assam was held on September 4, 2001,by the Assam Pollution Control Board (APCB). This aspect was challenged incourt as allegedly the Executive Summary of the project, the document that wasmade available to citizens at that point, had absolutely nothing about theenvironmental impacts of the project, and the EIA report had not been made public.Further allegations stated that NHPC and their EIA consultants made presentationsabout the project in English and Hindi but not in any of the local languages. Thepublic hearing panel was incomplete as per the requirements of Schedule IV ofthe EIA notification. No representative from the department of Environment(Assam) was present.

Many local groups repeatedly demanded that a fresh hearing be held but this wasnot done. Poor public hearing at Gerukamukh was also highlighted in petitionfiled in the Supreme Court in August 2003.

It was also alleged that NHPC erected a long fence in the surrounding SubansiriReserved Forests encroaching an established elephant corridor that existeddownstream of the dam site at Gerukamukh. The fence was removed by May2004 after the Assam Forest Department had served the company a notice.

Monitoring–

A multi-disciplinary committee is to be set up to oversee the effectiveimplementation of the environmental clearance granted to the project in July 2003.This committee was set up in April 2004 and its members were from NHPC,MoEF regional office (Shillong) scientists and forest officers from ArunachalPradesh, one national level NGO with a regional office in Guwahati (Centre forEnvironment Education (CEE), NE regional office).

Subansiri Lower Hydroelectric Project is the biggest hydroelectric project beingundertaken in India to date. It is a run of the river scheme on the Subansiri River.This project is located near north Lakhimpur on the border of Assam and ArunachalPradesh. It is estimated that the annual energy generation from this project will be7,421 MUs in a 90% dependable year. The project is scheduled to be commissionedin December 2012.

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8) Maroli-Umbergaon Project, Gujarat, 2000

Maroli-Umbergaon is a coastal area in the South-Western part of the state ofGujarat, India. The majority of the residents of the Umbergaon Taluka (district)depend on fishing and agriculture for their livelihood. Many diverse communitiescurrently coexist in Umbergaon. Mostly they are Adivasis, or tribals. The coast ofUmbergaon consists of highly fertile khasans-or tidal mud-flats-which serve as aspawning ground and nursery for a large variety of marine life. The coastal forestshave been recognised as essential as a habitat for wildlife and for protection againsterosion of the surrounding rich agricultural land.

In early 1999 the people of Maroli-Umbergaon learned, through a third partyabout the Gujarat Maritime Board’s plan to construct a mega-port in the UmbergaonTaluka with the involvement of the large corporations NATELCO and UNOCAL.An organisation called Kinara Bachao Sangharsh Samiti (KBSS), consisting oflocal villagers, began to organise resistance against the plan. They requested theIndian People’s Tribunal on Environment and Human Rights (IPT) to investigateinto the proposed Umbergaon Port Project, and report back on its social, economic,and environmental implications.

Issues highlighted in Public Hearing

Impact on livelihood pattern

Destruction of mangrove weltand

Ruining of forest spawning and breeding ground of fishes

Destruction of historical village of Sanjan where the Parsis first settled inIndia

9) OPG Power Gujarat Private Limited case

The most recent example comes from the ecologically fragile coastal stretch ofMundra in Gujarat’s Kutch district. The area had the best mangroves, intertidalmudflats, creeks and estuaries and grasslands. Each of the ecosystems in thisregion was deeply connected with the fishing, salt panning, agriculture and grazing-related livelihoods of the people living here.

During the last decade, the area has been under severe stress from rapidindustrialisation. Large tracts of land have already been diverted for the SpecialEconomic Zones, power plants and other industrial operations.

On 29 May 2009, OPG , a Chennai based company, disclosed its proposal to setup a 300 MW thermal power plant in Bhadreshwar village of Mundra taluka. TheExecutive Summary of the environment impact assessment report for the project,prepared for the OPG group by Detox Corporation Private Limited, set the tonefor the need for a thermal power plant. Locating itself within the burgeoningindustrialisation of the Kutch region, the report began with a clear justificationfor the need for the project.

The EIA report clearly stated the urgent need to set up OPG’s 300 MW powerplant as the the power project is being set up in Kutch would meet the risingdemand in the region. It is also expected to service large industrial consumerslike Arvind Mills, Shah Alloys etc.

The Machimar Adhikar Sangharsh Samiti (MASS), an organisation working onlivelihood and environment issues in the Mundra region, carried out a detailed

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study of the EIA report, and found several lacunae. According to MASS, at thepublic hearing, the company had failed to respond to any of the issues raised bythe local villagers or address the discrepancies that were pointed to in the EIAreport. It stated that the officially recorded minutes were in complete contrast towhat really took place at the hearing and that the whole process of public hearingin this particular environmental clearance matter had been mis-represented.

A closer look at the site location by representatives of MASS allegedly revealedto them that the power plant would have a severe impact on the Randh Bander atBhadreshwar, the second largest fish production centre on the Kutch coast. Nearly6000 fisherfolk from Bhadreshwar, Luni, Tuna and Sangad villages had beenusing the Bander for traditional fishing for over 200 years.

Issues contended:

The application for environment clearance for this 300 MW power plant waspending with the Gujarat State Environment Impact Assessment Authorities(SEIAA) and its appraissal committee. As per the EIA notification 2006, thermalpower projects under 500 MW are termed as ‘Category B’ and need to takepermission at the state level. If over 500 MW, whether a new operation orexpansion, then approvals will be considered by the MoEF. These projects arebranded as ‘Category A’. In its letter dated 11th March, 2010 the Gujarat StateExpert Appraisal Committee (SEAC) had informed the OPG Group that theenvironmental clearance for the 300 MW power project would be consideredonly after the company responded in detail to the issues raised by the localcommunities.

However, certain issues came to light:

Expansion plan before clearence

On 3 December 2009, OPG had submitted an application to the MoEF forestablishing the Terms of Reference (ToR) to prepare an EIA report for theexpansion of the plant from 300 to 2600 MW. This allegedly was done evenbefore environmental clearance for the 300 MW plant was obtained. MASSactivitists filed a Right to Information application and sought out the details. Aletter (dated 26 February 2010) was also sent to MoEF seeking intervention. Ithighlighted that the OPG group had deliberately tried to mislead the concernedauthorities, and therefore the proposal was liable to rejection, as well cancellationof the smaller plant too. MASS pointed to Section 8 (vi) of the EIA Notification,2006 which stated, “Deliberate concealment and/or submission of false ormisleading information or data which is material to screening or scoping orappraisal or decision on the application shall make the application liable forrejection, and cancellation of prior environmental clearance granted on that basis.Rejection of an application or cancellation of a prior environmental clearancealready granted, on such ground, shall be decided by the regulatory authority,after giving a personal hearing to the applicant, and following the principles ofnatural justice.”

Attempts at construction before clearance

OPG began preparations for establishing the plant in the area even as all thiscontroversy was going on. OPG’s preparations had led to violence between localcommunity representatives and the company’s security guards, which resulted inthe arrest of 30 fisherfolk leaders for over 3 months. Activists alleged in their 26February 2010 letter to MoEF, that the fisherfolk had been falsely implicated in

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criminal cases to put pressure on the local community to withdraw their oppositionto the OPG power plant.

Issues to be solved

The most important issue is whether a proper public hearing has been conductedor not and whether in future, any measures will be taken to involve the participationof public. Basic question in everybody’s mind is that where will the fisherfolk,salt pan workers, graziers, and farmers find themselves if OPG wins this battle.There is no doubt that the power plant will change the ecological landscape of theregion but how and to what extent would it impact the livelihoods of thousandsof people and what corrective measures can be taken for the same, is a matter thatstill needs to be addressed.

10) Silent Valley Project

In the late 70’s, the Silent Valley project in India became a major ‘environmentversus development’ controversy. The proposed project was to construct damover the Kuntipuzha River in Kerala’s Palghat district. As it flows through thevalley, the river drops 857 meters, making the valley attractive for generatingelectricity. Those promoting the project claimed that it would produce 240 MWof power, irrigate 10,000 hectares of land and provide over 2000 jobs.Environmentalists, on the other hand, asserted that as home to one of the fewremaining rain forests in the Western Ghats, the valley ought to remain pristine.They further contended that silent valley was one of the world’s richest biologicaland genetic heritages.

The adverse effects from the conversion of the Silent Valley into a hydroelectricproject were first, the deforestation was bound to affect the climatic conditions inthe state and even outside, by depriving the state of its legitimate share of rainduring the monsoon; Second the preservation of the forests was needed forconducting research in medicine, pest control, breeding of economic plants and avariety of purposes, and third that deforestation was bound to interfere with thebalance of nature, as between the forest land on the one side and arable and otherstypes of lands on the other.

No other environmental issue has raised more heat and dust in the country thansilent valley. One reason is the very elemental nature of the controversy: whetheror not to preserve this tropical forest belt, one of the few uninhabited areas in theentire country, for the future benefit of mankind. Legal strategies played animportant role in saving Silent valley. The success of the Environmentalists wasdue to a combination of several factors, including the grass-root campaign led bythe Kerala Sastra Sahitya Parishad (KSSP); intense lobbying by several non-governmental organisations and influential environmentalists within and outsidegovernment; and international pressure exerted on then Prime Minister Mrs. IndiraGandhi.

The National Committee on Environmental Planning and Coordination (NCEPC),appointed in 1976, was working on the ecological planning of the Western Ghats.This team was apparently under the impression that Silent Valley multi-purposeproject, then expected to cost Rupees twenty five crores, was practically a faitaccompli (fact accomplished that cannt be undone). This triggered off an enormousrow, the echoes of which have by no means died down. The two main opponentswere KSSP and the Friends of the Trees. These two organisations got their moraland material support from a ‘save silent valley’ committee in Bombay, backed by

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individuals from the WWF, Bombay Natural History Society (BNHS), and thesave Bombay committee. Various international bodies were consulted and someof the important ones were the International Union for Conservation of Natureand Natural Resources in Switzerland, which at its conference in Ashkabad inUSSR in September 1978, called upon the Kerala government to abandon theproject. Before the NCEPC could provide recommendations, the Keralagovernment received a go-ahead for the project from the central government.Thereafter the debate grew really hot- on public platforms, where both KSSP andKSEB members spoke in the press. At this juncture, keeping in view, the publicopinion on the issue, the Central Government appointed a task force headed byDr. M.S.Swaminathan, which recommended that the project should be scrappedand the entire area of Silent Valley to be converted into a rain forest BiosphereReserve.

11) Dahanu Thermal Power Project

North of Bombay, on the west coast of India lies Dahanu, an ecologically sensitiveregion with a thriving agrarian economy. This place is best known for its chinosfruit, guava and coconut. It supplies fodder, rice, milk and poultry to thesurrounding regions and Bombay metropolitan area. Fishermen reap a rich harvestof fish, crab and shrimp. According to DTEWA (Dahanu Taluka EnvironmentWelfare Association) nearly half of the sub-district is under forest cover. About65% of the Dahanu population is comprised of tribals who are engaged incultivating their land and working on orchards. The DTEWA vigorouslycampaigned against the despoliation of this area when in the late 1980s, theBombay Suburban Electric Supply Company (BSES) decided to establish a 500MW coal-fired thermal power station at Dahanu. BSES engaged a consultingfirm to locate a suitable site for the power station to supply electricity to Bombay.Out of the nine sites investigated only one was found technically viable. Howeverthis site, Bassein was discarded because it fell within the Bombay Metropolitanregion and would add to the existing high level of pollution in the area. Eventually,the authorities approved the site Dahanu as the suitable one to set up the powerstation.

The location of any thermal power station, which depends on seawater to cool itsturbines, is bound to cause an effect on the marine environment. The warm waterdischarged could affect the marine life because some creatures thrive in warmwater whilst some may not survive. There was also a fear that the Sulphur dioxidedischarged from the proposed coal-fired plants would affect the crops. The disposalof ash in the wetlands and the creek areas was another problem. The DTEWA andthe Bombay Environmental Action Group (BEAG) urged the court to stall theproject based on the following allegations:

i) The Central Government had issued environmental clearance contrary to theopinion of its appraisal committee of its MoEF.

ii) The project was being set up within 500 meters of the High Tide Line (HTL)mark, contrary to the guidelines and condition imposed by the MoEF.

iii) The discharge of the warm water would increase the sea temperature andadversely affect marine life.

A division bench of the Bombay High Court rejected the petitions finding that thesite offered several advantages. The land was barren, no tree would be felled, andthere was no habitation at the site and therefore no relocation. It was also felt that

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the use of marine water would help conserve scarce fresh water resources.Accepting the stand of the state government and BSES that the 500 meters distancefrom the HTL would be maintained, the court found that the concerned authoritieshad considered relevant features and had imposed stringent safeguards and hencethere was no justification for interfering with the project under Article 226 of theConstitution.

On 20 June 1991, the MoEF declared Dahanu as an ecologically fragile area, andimposed restrictions on the establishment of industries under Section 3(2)(v) ofthe Environment (Protection) Act of 1986 (EPA). This notification lists theindustries that are permitted and prohibited in Dahanu and also required the stategovernment to prepare within a year a regional plan based on the existing landuse in the region. The state was asked to clearly demarcate on the plan the existinggreen areas, orchards, tribal areas and other environmentally sensitive areas. TheDahanu notification prohibited a change in land use and confined industrial activityin the Taluka to a maximum of 500 acres within designated industrial estates. Thenotification proved as a triumph for the environmental groups which had longcampaigned to preserve Dahanu’s natural heritage.

In 1994, the environmental groups filed a writ petition under Article 32 of theconstitution before the Supreme Court complaining that despite the 1991notification, the state government and the local authorities have been permittingunchecked industrial growth, which was irreversibly harming Dahanu. Theprincipal grievance was that the state government had failed to prepare a regionalplan within a year under the terms of the notification.

In March 1996, the MoEF approved the regional plan for Dahanu. According tothe environmentalists, this plan violated the Dahanu notification and at their requeston 24 September1996, the Supreme Court directed the NEERI, Nagpur to studythe plan and report on whether it confirmed to the Dahanu Notification and CoastalRegulatory Zone (CRZ) notification of 1991. NEERI, in October reported thatthe plan breached the notification and it was also ecologically and environmentallyunviable. With specific reference to BSES plant, the report observed that thethermal power station was located on wetlands in violation of the CRZ.

By an order dated 31 October 1996 the Supreme Court directed the Stategovernment to implement the regional plan subject to the conditions imposed byMoEF. The State was also asked to implement all the recommendations of theNEERI as reproduced in Supreme Court order. In its report to the Supreme Court,NEERI found that between October 1991 and October 1996, the ecology of theDahanu Creek, where the BSES hot water discharges occurred had dramaticallychanged and there was a steep decline in the biomass. The number of fish andprawn varieties had decreased within five years of the commissioning of thethermal power plant. There was a drop in the salinity and this was the majorreason for the change in the aquatic fauna.

NEERI also observed that there was a decrease in the wetlands and the naturaldrains, which functioned as breeding grounds for aquatic fauna, which aidednutrient recycling, and erosion control was disappearing. On December 19th 1996,the MoEF constituted the Dahanu Taluka Environment Protection Authoritychaired by Justice C.S.Dharmadikari, a retired judge of Bombay High Court. Theauthority was charged with protection of the ecologically fragile areas of Dahanuwhilst having regard to the ‘precautionary principle’ and the ‘polluter paysprinciple’ as enunciated by the Supreme Court.

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The State Government later issued a letter of intent on February 17th 1997 to theIndian subsidiary of P&O Ports, Australia for establishing a giant port at Vadhavan,Dahanu. The State wanted to build a major port facility in North Maharashtra forthe purpose of handling coal, hazardous chemicals and other international cargo.The special geographical feature of Vadhavan, the natural rock strata attracted theP&O Ports and this was also to save the company substantial costs when buildingthe port facilities. This project was vehemently opposed by political and socialrepresentatives of the fishermen, agriculturists, and tribals because they fearedthat the port would harm their community and disrupt and deplete the naturalresources, on which they depended completely. Based on inputs from the public,in April 1998, the Dahanu authority restrained the government and the P&O Portsfrom proceeding further in the matter until the authority finally decided the questionrelating to the feasibility of the Vadhavan Port. In September 1998, the Authorityruled that the proposed port would breach the CRZ Regulations of 1991 and theregional plan for Dahanu. The P&O Ports or the state government had notchallenged the order of the authority and project appeared to have been shelved.

Self Assessment Question

1) There are a number of major projects in India that were under controversydue to their environmental impacts, such as the Silent Valley Project, theTehri dam, the Narmada Valley Project and others. Following are fewinstances of Judicial Interventions and some remarkable judgments. Findout about these and various such projects related to developments in thearea of environmental economics, such as Vehicular pollution, Industrialpollution, Ecology etc. as well as issues related to public participation ineach instance:

Kudremukh Iron Ore Company Ltd. (KIOCL)

Three Hydro Development Projects in Kullu (Himachal Pradesh)

Taj Trapezium case: M.C. Mehta v. UOI. (dated 12/30/1996)

Olga Tellis Case

Konkan Railway Case

7.3 CONCLUSIONAn effective public participation programme does not happen by accident; it mustbe carefully planned. The case studies coupled with the earlier analyses at thebeginning of the chapter, demonstrate that substantive, early investments (duringthe scoping phase itself) in public participation can benefit the project proponent,the public and the final plan. As the case studies show, a proactive effort will leadto a more effective process and outcome than a reactive, minimalist approach topublic involvement.

Here are some suggestions for improving public participation programmes inEIA:

First, public involvement needs to begin before project planning and decision-making are too far along to be influenced. The decision to participate must begenuine. Otherwise, public participation becomes a procedural exercise ratherthan a substantive democratic process.

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Second, public involvement can be used to create a project that is more suitableto, and accepted by, the public. Suitability should depend on public opinionsand needs (rather than the technical feasibility of the project).

Third, public input can be a crucial and valuable source of expertise before,during and after project planning and decision-making.

Moreover, based on the case study experiences it can be seen that the EIAlegislation must be more explicit in defining the affected area according to potentialsocio-economic impacts. Only the authority competent in evaluating socio-economic effects should be given the responsibility.

7.4 SUMMARYPublic Participation in EIA has a critical role to play in helping to integrateeconomic, social and environmental objectives, i.e. move towards more sustainabledevelopment by acting as a device to strengthen and increase public awarenessof the delicate balance between economic and environmental trade-offs. Importantpoints to remember about the Public Participation process are as follows:

It safeguards against bad or politically motivated decisions

It helps in minimising or avoiding public controversy, confrontation and delay,and can make a positive contribution to the EIA process

While rights of involvement in many countries are limited to opportunitiesfor viewing and commenting on finalised reports, in principle, publicconsultation and participation should ideally occur at every stage in the EIAprocess.

Formal opportunities for public participation in EIA are defined in thelegislation in every country.

The statutory authority shall dispose the petition within 90 days from the dateof filing the appeal.

The authority while processing or hearing the petition shall be guided byprinciples of natural justice and subject to the provisions of the Act and rules

EIA’s are controversial in India because of little participatory democracy in theformulation and implementation of environmental legislation. There have beencases where, more than one EIA for the project has been approved by an authorizedagency and subsequently revoked by judicial action initiated by public interestlitigations. A fresh outlook at the EIA requirement is essential, especially a publicreview, which would help in the development of a sound normative frameworkfor guiding the entire process.

7.5 TERMINAL QUESTIONS1) What is the role and benefits of participation in environmental decision

making?

2) Based on actual case studies, what according to you is the reality ofeffectiveness of Public participation in India?

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International and NationalCase Laws7.6 ANSWERS AND HINTS

1) Principle 10 of the Declaration of the United Nations Conference onEnvironment and Development (UNCED) in Rio de Janeiro (Brazil, 1992)emphasises that environmental issues are best handled with the participationof all concerned citizens, at the relevant level. Agenda 21 adopted by UNCEDrecognised the important role of public participation in environmental impactassessment (EIA) in achieving sustainable development (item 23.2 of Agenda21). The World Summit on Sustainable Development in Johannesburg (SouthAfrica, 2002) developed further these provisions.

When governments enable the public to participate in decision-making, theyhelp meet society’s goal of sustainable and environmentally sounddevelopment. Public participation in environmental decision-making and, inparticular, in EIA, may lead to some benefits in these processes. As a result ofpublic participation, the process of decision-making, up to and including thefinal decision, becomes more transparent and legitimate. Public debate onproposed activities among all interested groups at an early stage of decision-making may prevent or mitigate conflicts and adverse environmentalconsequences of the decisions with national or transboundary impacts.

2) In reality, public participation in India occurs too late in the decision-makingprocess and at this stage it is not possible to influence any of the characteristicsof the project (like type, size or location). Though the public is involved atthe hearing stage, here it is merely a formality as by this time the projectproponent more or less has decided to go ahead with the project. The objectiveof public involvement at this stage may be just to defend a decision that hasalready been made. So far, citizen involvement in India has been limited topublic hearing stage, legal action to halt the project or to force the inclusionof mitigation measures (see the case studies). Later the public participationoccurs in the EIA process, the higher the risk that public comments will onlyminimally influence the final decision. Secondly, public participation isextremely limited and takes place before project implementation. But theproject planning and implementation requires continuous involvement of thepublic during various stages. Several studies have revealed serious deficienciesin the hearing process too. To add to this problem, information available onthe EIA process could assist people in understanding the purpose andobjectives of EIA is scant and not user friendly because the summarydocuments are written in technical language without providing a glossary ofkey terms.

Even for projects that have already received their no objection certificatesthe public does not have access to EIA project reports and environmentalmanagement plans. In regard to the hearings themselves, there is no indicationprior to the hearings of what procedure was going to be followed or how thehearing panel was chosen. Assistance for members of the public on how toparticipate, e.g., how to prepare a brief report or how to make a presentationis also not made available. There is no background information too providedon what an environmental impact study should contain or how to critiquesuch a document. Obtaining expert assistance was not promoted in any wayand funding is also not available to public participants. Finally, there is noindication of how public input provided at the hearings is going to be used inthe decision making process.

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Environmental PublicHearing 7.7 REFERENCES AND SUGGESTED READINGS

1) Banham, W. and D. Brew (1996). ‘A review of the development ofenvironmental impact Assessment in India.’ Project Appraisal 11(3): 195-202.

2) Divan, Shyam and Rosencranz, Armin (2001) ‘Environmental Law and Policyin India’, Oxford University Press, New Delhi.

3) Dwivedi, O. P. (1997). ‘India’s Environmental Policies, Programmes andStewardship’. New York, St. Martin’s Press.

4) Gelhorn, E. (1971) ‘Public participation in administrative proceedings’, YaleLaw Journal, 81, pp. 359-387.

5) Grima, A. P. (1985) ‘Participatory rites: integrating public involvement inenvironmental impact assessment’, in: J.B.R. Whitney & V.W. Maclaren (Eds)Environmental Impact Assessment: The Canadian Experience (Toronto,University of Toronto).

6) Kohli, Kanchi and Menon, Manju (2002) ‘Environmental Impacts-BiasedAssessments’, The Survey of the Environment, The Hindu.

7) Krimsky, S. & Plough, A. (1988) Environmental Hazards: CommunicatingRisks as a Social Process Dover, MA, Auburn House.

8) Mazumdar, Madhusree (2000) ‘Environmental Impact Assessment in India’,Journal of Social and Economic Development, Vol III, No 1, Jan-June

9) Olokesusi, Femi (1998) ‘Legal and Institutional Framework of EnvironmentalImpact Assessment in Nigeria: An Initial Impact Assessment’, EnvironmentalImpact Assessment Review Vol 18: 159-174.

10) Palerm, J (1999a) ‘Public Participation in EIA in Hungary: An Analysisthrough three Case Studies’, Environmental Impact Assessment Review Vol.19: 201-220.

11) Palerm, J (1999b) ‘Public Participation in EIA in Spain: An assessment ofthe national, the Catalan and the Balearic Legislation, Impact Assessmentand Project Appraisal’, 17(4): 259-271.

12) Palerm, Juan R., (2000) ‘An Empirical - Theoretical framework for PublicParticipation in the Environmental Impact Assessment’, Journal ofEnvironmental Planning and Management. Vol 43, Issue 5.

13) Pardo, Mercedes (1997) ‘Environmental Impact Assessment: Myth or Reality?Lessons from Spain’, Environmental Impact Assessment Review Vol. 17: 123-142.

14) Parenteau, R. (1988) ‘Public Participation in Environmental Decision-Making’ (Ottawa, Canada, Minister of Supply and Services).

15) Pearce, D. W., Edwards, L. & Beuret, G. (1979) ‘Decision-making for EnergyFutures: A Case Study of the Windscale Inquiry’ (London, Macmillan, inassociation with the SSRC).

16) Portney, K. E. (1991) ‘Public environmental policy decision-making: citizenroles, in: R.A. Chechile & S. Carlisle (Eds) Environmental Decision-making:A Multidisciplinary Perspective’ (New York, Van Nostrand Reinhold).

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17) Rajan, S.C (1997) ‘Impact Assessments Fundamentally Flawed’, The Surveyof the Environment ‘The Hindu’.

18) Shepherd, Anne and Bowler, Christi (1997) ‘Beyond the Requirements:Improving Public Participation’, Journal of Environment Planning andManagement Vol 40(6): 725-739.

19) Sinclair.J and Diduck.A (1999) ‘Public Involvement in Hydro Developmentin Kullu District, Himachal Pradesh, India’ Shastri Project on UrbanDevelopment and Environmental Impacts in a Mountain Context TechnicalReport No. 13.

20) Strong, A. L., Mandelker, D. R. & Kelly, E. D. (1996) ‘Property rights andTakings’, Journal of the American Planning Association, 62(1): 5-16.

21) Thakur, K. (1997). ‘Environmental Protection Law and Policy in India’. NewDelhi, Deep and Deep Publications.

22) UNEP (1988) ‘Environment Impact Assessment: Basic Procedures forDeveloping Countries’ (Nairobi, UNEP office for Asia and the Pacific).

23) Webler, Thomas., Kastenholz, Hans., and Renn, Ortwin (1995) ‘PublicParticipation in Impact Assessment: A Social Learning Perspective’,Environmental Impact Assessment Review Vol 15 pp 443-463.

24) Webler,T., Kastenholz, H. & Renn, O. (1995) ‘Public participation in impactassessment: a social learning perspective’, Environmental Impact AssessmentReview, 15, pp. 443-463.

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