A dummy's guide to environmental clearances

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.