SC directive a green light to violations

Governance Now, Sept 16-30

Approaching it only after all statutory clearances have been given will result in ‘fait accompli’


Chief justice of India S H Kapadia has set a new norm for approaching the ‘green bench’ of the supreme court that he heads. “In short, we want all statutory clearances from statutory authorities in place henceforth. After this only will it (environmental dispute) come to the supreme court. Henceforth this is the norm,” the bench noted.

At first glance, it may seem to be quite logical as the court also explained that this norm is aimed at preventing a situation in which parties obtain an environment clearance from the apex court in the initial stages, later fail to satisfy statutory norms and then start a “second round of litigation”.

But it isn’t really so logical because of the way the ministry of environment and forests (MoEF) functions and grants its clearances. The court’s directive has come in connection with Mayawati’s Noida park memorial. The MoEF has been changing its position before the apex court – saying at times that the project needs no environment impact assessment (EIA) study and at other times, that it does. While the litigation is on, construction of the memorial is complete, save for the final touches. All the trees that needed to be felled, have been felled. The statues have been installed and the damage to the environment (it is next to the Okhla bird sanctuary) already done. For all practical purposes, the memorial is a ‘fait accompli’.

Let us take another example, say the Niyamgiri project of Vedanta which was in news recently and in which Justice Kapadia’s bench played a role – by granting ‘in-principle’ forest clearance on August 8, 2008 for mining the Niyamgiri.
The ministry’s records show this project, which involved a smelting plant in Jharsuguda, a refinery in Lanjigarh and mining of the Niyamgiri, got a series of clearances at different points of time, starting from September 2004 to December 2008. The only one pending was that of the ‘final’ forest clearance, which the MoEF denied last month.

Let us say, Vedanta moves the apex court now, as indeed it might. The ground reality today is this: The smelting plant started its operation in 2008. The refinery started operation in 2007. Expansion of the refinery is 60 percent complete. A conveyor belt to the mining site is partially built. So is the case with a ‘mining access road’. All these violate environment, forest and tribal laws. What can the apex court do now? Can it undo the smelting plant, the refinery or the expansion of the refinery?

As MoEF confesses now, it gave environment clearance to the refinery in 2004 which was not only based on a faulty EIA study but on an EIA which was different from the one on the basis of which the public hearing was conducted! And that this involved forest land for which no clearance was sought or given. The plant became operational in 2007. Can the supreme court undo the damage?

There were similar charges with the smelting plant also, which was given clearance in 2007 and became operational in 2008. In the case of French company Lafarge’s mining of the Khasi hills in Meghalaya for limestone, the mining started in 2006 after MoEF gave all clearances. Violations were “detected” only
after that. The supreme court ordered a stay in February this year. What can it do
beyond compounding the offence by way of compensatory afforestation and other
financial burden for local development? Sooner than later, it will have to lift its stay.

The real problem lies with the MoEF’s faulty policy of granting environment and forest clearances, which are not only given separately but also in various stages involving a time span of several years. In the meanwhile, the projects are allowed to proceed and by the time final clearance comes, the projects are already a ‘fait accompli’.

When the laws are followed mostly in their breach, Justice Kapadia’s new norm is an open invitation to indulge in more of the same. What will happen when challenging a project in the initial stage is denied? Won’t it encourage violations?
The solution might lie in replacing piecemeal clearances with time-bound, one-shot clearances. But there is neither political nor corporate motivation for such a change in policy. As long as the government keeps giving clearances in fits and starts it does seem like unsound logic to insist that justice is available only once.