Written in June, 2014 when Javadekar was making big noises about green clearances
It is alright to have 60-day, e-window green
clearances for industrial and infrastructure projects, as the new environment
and forests minister Prakash Javadekar has promised, but these are mere
cosmetic changes that would do little to take projects off the ground. And that
is because the real problem is not the delay but irregular clearances and
flawed policies that govern the process of green clearances. The moment such
clearances are challenged in the court, the cookie crumbles and the projects
get stuck.
Look at some of the better known and big-ticket
projects which are still stuck and have hit the headlines repeatedly in the
recent years because of illegal and irregular green clearances – Posco’s steel
plant and Vedanta’s bauxite mining in Odisha and Polavaram multi-purpose
project on river Godavari in Andhra Pradesh – and have become victims of their
own excesses.
The 2013 supreme court-mandated referendum has
rendered mining of the Niyamgiri hills impossible for Vedanta’s Lanjigarh
alumina plant. Posco’s clearances are stuck with the National Green Tribunal
(NGT). And the green clearances to the Polavaram project are pending in the Supreme
Court. It is difficult to imagine that these projects will clear the legal infirmities.
First the Niyamgiri saga. When Vedanta came up with
its project to make metallurgical grade alumina in early 2000, it sought and
received separate green clearances (environment and forest) for three
components – smelting plant in Jharsuguda, refinery in Lanjigrh and mining of
the Niyamgiri hills – all on the basis of flawed EIA (environment impact
assessment) reports – by 2009. The smelting plant and refinery became ‘fait
accompli’ because while the legal battle was on these became operational. The bauxite
mining got stuck because suddenly, in 2010, Jairam Ramesh, the then environment
and forests minister, discovered an opportunity to make Rahul Gandhi a “sipahi”
of the tribals and withdrew ‘final’ forest clearance that his ministry had
granted in 2009. The Odish government challenged this and the apex court asked
for a referendum, which PESA mandated but had been bypassed. The referendum
said the obvious – a big ‘no’ – and now Vedanta is stuck.
It is a separate issue that the alumina and smelting
plants were set up and become operational, or allowed to be, without any source
of bauxite and without which refinery and smelting plants make no sense. The
purpose, of course, was to make mining of Niyamgiri a ‘fait accompli’ too, but
the court intervened.
In the case of Posco, again, all green clearances (both
forest and environment clearances) had been granted by 2009. Again, these
clearances were illegal and based on half-truths and untruths. When people’s
protests and legal hurdles came in the way, MoEF issued a ‘stop work’ order in
2010. That order was reversed earlier this year. But the clearance has now been
challenged in NGT. Given the flawed EIA, non-settlement of Forest Rights,
non-adherence to PESA (adverse resolutions of the gram sabhas ignored) – all of
which call for cancellation of the green clearances - NGT is unlikely to give
it a go-ahead. What about supply of iron ore which would be needed for making
steel? Well, after a legal tangle, the proposal is pending with MoEF now. This iron
ore mining, like in the case of Vedanta’s bauxite, wasn’t part of the green
clearances!
The Polavaram’s case is equally bizarre. The green
clearances of 2010 were based on flawed EIA and violated both PESA and FRA.
Odisha and Chhattisgarh challenged it in the apex court because though a part
of their territory will be affected their concurrences had not been taken. Nor
the mandatory approval of gram sabhas. Notwithstanding ‘national project’
status to it, and pressures from the newly constituted government of
Chandrababu Naidu, the Polavaram can’t clear the legal hurdle easily.
The moot point is that the legal hurdles these
projects face today are the creation of flawed processes and policies of giving
the green clearances. Unless that is understood and fixed everything else is
meaningless.
What are these flaws? First, the processes.
(i) Green clearances on the basis of ‘partial’,
‘rapid’ and ‘draft’ EIAs – which was the case with all the three projects
cited.
(ii) Separate clearances to different components
integral to one project. Also, stop giving separate clearance for environment
and forest – again, common to all the three cases cited.
(iii) ‘Conditional’ clearances, pending compliance
with PESA, FRA and other ‘mandatory’ or ‘binding’ guidelines, which is quite a
routine affair with MoEF – again, common to all three cases cited.
(iv) Multiplicity of expert bodies and agencies
working under MoEF to clear various aspects of a single project and bring
transparency and accountability into their decision-making process - again,
common to all three cases cited.
(v) Clearances on the basis of ‘assurances’ by the
state government or the project proponent – again, common to all three cases
cited.
(vi) MoUs that project proponents sign with the
state government are not part of the clearance process and so, all the
components of a project are not fully known and evaluated.
(vii) Clearances knowing that gross and criminal
irregularities have been committed – as in the cases of Posco and Vedanta – and
making projects ‘fait accompli’ and
(viii) No public consultations, as required under
EIA Notification of 2006.
Now, the flawed policies.
1.EIA, on the basis of which environment and forest
clearances are given, are a self-certifying exercise.
This means, the promoter is asked to prepare an EIA
report. This EIA is then taken at a face value and cleared, without an
independent agency verifying the promoter’s claims. Claims in EIAs of all the
three cases have been found to carry half-truths and untruths. For example,
Vedanta’s refinery in Lanjigarh claimed no forest land was involved and hence,
no forest clearance was sought. Later, this was found to be wrong.
Secondly, ‘partial’, ‘rapid’ and ‘partial’ EIAs are
allowed, directly or indirectly, in the EIA Notification of 2006. Posco took
advantage, presented a single-season environment impact study for 4 MT plants,
while it is actually a 12 MT plant, and a 400 MW power plant, side-stepping a
township, a port, a water pipeline project and road and rail linkages. It
claimed only 471 families will be affected, which is grossly under-estimated.
It presented a separate EIA for the port.
Therefore, EIAs should be ‘comprehensive’, prepared
by a registered body, which should then be evaluated and cleared by a national
authority.
2. EIA
Notification of 2006 should be amended to make it meaningful for discovering an
alternative to the ones being proposed. The EIA application form has two
columns that seek alternative ‘site’ and ‘technology’, which are meaningless.
By the time a project is presented for clearance, the site is already chosen or
is in the process of being acquired. Resistance to the Posco plant could have
been avoided by shifting the site by a few km south, but that never figured.
And why should a project proponent give an alternative technology option? These
are mere formalities that don’t count.
3. MoUs of projects requiring public or private land
and national resources like mines, water etc should be made mandatory part of
the policies governing the clearance process. Land acquisition is de-linked
unless forest land is involved. And when forest land is involved, a separate
clearance process is initiated, which is handled by a separate department. Both
environment and forest clearances should be integrated and take into
consideration allocations of national resources like mines, which need green
clearances too. What is the point of having an alumina refinery operating at a
fraction of its installed capacity in absence of bauxite mining clearance? Or
Posco having to fight a constant battle for land and waiting indefinitely for
clearance for an iron ore mine?
4. The EIA Notification of 2006 should be further
amended to remove the option “to skip” public consultation on flimsy ground –
if, “it isn’t possible to conduct the public hearing in a manner which will
enable the views of the local persons to be freely expressed”. The 73rd and
74th constitutional amendments and PESA and FRA give wide-ranging powers to the
local bodies and tribals to plan and approve development projects. PESA and FRA
override all other legal provisions and are mandatory. But these are not part
of the policy governing the green clearances. Which must be the case. It is
because these were not taken into consideration that now Vedanta finds itself
without a mine (as the apex court-mandated referendum negated the green
clearances to mine the Niyamgiri hills, for which it had obtained green
clearances way back in 2009.
5. Transparency in the decision making should be
made mandatory. The decisions and proceedings of the Central Water Commission
(CWC) that clears irrigation projects like Polavaram are not subject to public
scrutiny. The project underwent a drastic change mid-way through the clearance
process – adding construction of 30-km-long, 10- m- high embankments on either
side of two rivers, Sileru and Sabri, to avoid submergence of villages in
Odisha and Chhattisgarh. These embankments would cost Rs 600 crore, as against
a rehabilitation cost estimated to be Rs 60 crore. This was added to overcome the problem of
getting approval of gram sabhas in the tribal areas, as mandated by PESA.
Absurdity apart, the Andhra Pradesh government forgot, even embankments would
need approval of the very same gram sabhas.
The proposed changes are meant only for general
infrastructure and industrial projects. Projects like river dams, hydropower
plants, mines and thermal plants require separate set of changes and calls for
another article.
