Rebooting Economy V: Why healthy environment is critical to fight COVID-19 pandemic

Multiple global studies show air pollution increases death rates from COVID-19 and other respiratory diseases, while destruction of forests and wildlife habitats unleashes more such diseases from animals to humans

Prasanna Mohanty | July 9, 2020 | Updated 22:48 IST

Air pollution not only makes humans more vulnerable to COVID-19 but also helps in spreading the virus and other microbial elements causing diseases through the air

MORE FROM THE AUTHOR

• 
  Rebooting Economy IV: Is govt using environmental laws to protect polluting industries?
• 
  Rebooting Economy III: All that's wrong with India's environmental governance

The COVID-19 pandemic, which claimed 5.47 lakh lives globally as of July 8 and is expected to shrink worldwide economic growth by 5.2% in 2020, costing global economy $9 trillion over the next two years, is a perfect example of how undermining the environment has a huge cost.

Studies show that air pollution makes people more vulnerable to COVID-19 disease and deforestation increases human-animal conflicts spreading zoonotic diseases like it to pandemic proportions.

Here are a few eye-opening findings.

Higher air pollution led to higher COVID-19 deaths in US

A Harvard study of more than 3,000 counties in the US, representing 98% of the population, found that a small increase in long-term exposure to air pollution (exposure to particulate matter PM2.5) leads to "a large increase COVID-19 death rate".

It noted that a single-unit increase in air pollution (by 1 microgram/m3) in PM2.5 increased death rates by 8%, after adjusting for socioeconomic, demographic, weather, behavioural, epidemic stage, and healthcare-related confounders (variables).

Also Read: Rebooting Economy IV: Is govt using environmental laws to protect polluting industries?

Dr. Francesca Dominici, a professor of biostatistics at the Harvard who led the study, has been quoted as saying: "This study provides evidence that countries that have more polluted air will experience higher risks of death for COVID-19."

The Harvard study points out that the link between exposure to PM2.5 and disease is well known. Short-term exposure leads to higher hospitalisation rate for influenza, pneumonia, and acute lower respiratory infections. Long-term air pollution exposures "tend to be stronger" on chronic disease outcomes.

That is why the Harvard researchers asked the US to impose air pollution regulations. The US President Donald Trump suspended enforcement of pollution laws on March 26 and allowed companies to break those during the COVID-19 pandemic.

Not just that, on July 7, 2020, The Guardian ran an investigative report: "Over 5,600 fossil fuel companies have taken at least $3bn in US COVID-19 aid". These companies included oil and gas drillers and coal mine operators, as per the data released by the Small Business Administration (SBA) under the US government.

The report further said, "The $3 billion is probably far less than the companies actually received. The SBA did not disclose the specific amounts of loans and instead listed ranges. On the high end, fossil fuel companies could have received up to $6.7billion."

Higher air pollution leads to higher SARS and H1N1 mortality

The Harvard study pointed out past studies on the H1N1 pandemic: "Studies found particulate matter exposure to be associated with mortality during the H1N1 influenza pandemic in 2009. Recent studies have even used historic data to show a relationship between air pollution from coal-burning and mortality in the 1918 Spanish influenza pandemic."

In 2003, during the time of the SARS outbreak in China, a US-China study, 'Air pollution and case fatality of SARS in the People's Republic of China: An Ecologic Study', found the areas with high and moderate long-term air pollution index (API) had higher SARS fatality rates at 126% and 71%, respectively, compared to areas with low API.

The index measures the concentration of particulate matter (PM2.5 and PM10), sulphur dioxide, nitrogen dioxide, carbon monoxide, and ground-level ozone. In India, it is named the air quality index (AQI).

Why are studies on the impact of air pollution on H1N1 and SARS episodes relevant to COVID-19?

The WHO says, the H1N1 virus that caused the 2009 pandemic originated from animal (swine) influenza virus that causes respiratory illness and is closely related to the COVID-19 virus. The SARS virus is called SARS-CoV and the COVID-19 virus SARS-CoV-2. Both viruses are suspected to have come from bats. SARS here stands for "Severe Acute Respiratory Syndrome".

Polluted northern Italy saw higher death rate from COVID-19

Another study on COVID-19 in Italy in March this year, 'Can atmospheric pollution be considered a co-factor in extremely high level of SARS-CoV-2 lethality in Northern Italy?', looked at the air pollution and COVID-19 deaths. Results published on March 24, 2020, found that the death rate reported in northern Italy was 12%, compared to 4.5% in the rest of Italy.

Also Read: Rebooting Economy III: All that's wrong with India's environmental governance

Northern Italy is one of Europe's most polluted areas.

The study explained how air pollution makes people vulnerable to COVID-19: "In conclusion, it is well known that pollution impairs the first line of defense of upper airways, namely cilia, thus a subject living in an area with high levels of pollutants is more prone to developing chronic respiratory conditions and suitable for any infective agent. Moreover, as we previously pointed out, a prolonged exposure to air pollution leads to a chronic inflammatory stimulus, even in young and healthy subjects."

Air pollution spreads COVID-19 through air

Air pollution not only makes humans more vulnerable to COVID-19 but also helps in spreading the virus and other microbial elements causing diseases through the air.

A 2004 study in China found that the large community outbreak of SARS, a coronavirus closely related to the one causing COVID-19, was because of airborne transmission.

That is, the polluting particulate matter in the air (PM2.5 and PM10) carried and spread the SARS virus.

There are more such studies.

One of those collected airborne PM2.5 and PM10 in Beijing over a period of 6 months in 2012 and 2013, including those from several historically severe smog events. It showed airborne particulate matter "accommodates rich and dynamic microbial communities, including a range of microbial elements (including bacteria and viruses) that are associated with potential health consequences".

On July 6 this year, 239 scientists from 32 countries wrote a letter, 'It is Time to Address Airborne Transmission of COVID-19', to the WHO saying that increasing evidence shows the coronavirus is airborne.

They wrote: "There is significant potential for inhalation exposure to viruses in microscopic respiratory droplets (micro-droplets) at short to medium distances (up to several meters, or room scale), and we are advocating for the use of preventive measures to mitigate this route of airborne transmission."

That is because the WHO says: "According to current evidence, the COVID-19 virus is primarily transmitted between people through respiratory droplets (droplet particles of >5-10 micro-metre in diameter) and contact routes. In an analysis of 75,465 COVID-19 cases in China, airborne transmission was not reported."

Respiratory droplets are more than 5-10 micro-metre in size. PM2.5 and PM10 are particulate matters of size 2.5 micro-metre or less and 10 micro-metre or less, respectively.

This is why these scientists asked the WHO to change its strategy to tackle COVID-19.

Deforestation spreading disease from animals to humans

There is another aspect to the environmental impact on COVID-19: transmission of diseases from animals to humans, called zoonotic diseases, as COVID-19 is suspected to be.

On July 6, 2020, the United Nations Environment Programme (UNEP) released a report. prepared by multiple universities, research institutions and multilateral agencies saying that zoonotic diseases are increasing and will continue to do so unless corrective measures are taken to improve ecosystems, prevent destruction of wildlife habitats and reduce climate change.

Also Read: Rebooting Economy II: What stock market boom means to people and economy

It says 60% of known infectious diseases in humans and 75% of all emerging infectious diseases are zoonotic, and that there have been at least six major outbreaks of novel coronaviruses in the last 100 years, all of which imposed high costs across several continents.

Ebola (bats), MERS (probably bats), SARS (bats), Zika (primates) virus and bird flu (wild waterfowl) all came to humans from animals. The SARS-CoV-2 virus that causes COVID-19 has "probably" come from bats. The only other time the WHO had declared a pandemic was in 2009 when H1N1 flue, found to have originated in pigs, spread.

The UNEP report says deforestation and fragmentation of ecosystems and wildlife habitats increase human-wildlife contact and conflict, leading to the spread of zoonotic diseases.

A WHO paper says most emerging infectious diseases, and almost all recent pandemics, originate in wildlife, and there is evidence that increasing human pressure on the natural environment may drive disease emergence. It, therefore, calls for greater protection of biodiversity and natural environment to reduce the risk of future outbreaks of other new diseases.

Climate change aiding COVID-19 spread

The UNEP report of July 6, 2020, also pointed at how climate change (global warming) is adding to the spread of COVID-19 and other zoonotic diseases.

It says, "Many zoonoses (zoonotic diseases) are climate-sensitive and a number of them will thrive in a warmer, wetter, more disaster-prone world foreseen in future scenarios", adding that there is some speculation that the COVID-2 virus (SARS-CoV-2) may survive better in cooler, drier conditions when outside the body.

The executive director of UNEP, Inger Andersen, writes in the foreword of the report: "The drivers of pandemics are often also the drivers of climate change and biodiversity loss - two long-term challenges that have not gone away during the pandemic."

In the meanwhile, the news of bubonic plague break out in China has hit the headlines.

The UNEP report mentions that originally the bubonic plague came from animal to human but had subsequently transmitted mainly from human to human. It goes on to add: "The true zoonotic bubonic plague or pest (Black Death caused by the bacteria Yersinia pestis) of the mid-fourteenth century killed millions in Eurasia and North Africa, wiping out a third of Europe's population".

Now here is some good news.

Before that, here is a brief backgrounder. "Climate change skeptics" or "climate change denialism" that was fostered in the US that later spread to rest of the world, undermine the impact of global warming and climate change and their devastating impact on lives and economies.

Also Read: Rebooting Economy I: Why stock market is booming when COVID-19-hit economy sinks

This is the handiwork of polluting industries seeking to evade and avoid paying for the huge social and environmental costs their operations impose. (For more read 'Deconstructing Neoliberalism II: How neoliberal ideas can wreak havoc on economies ')

As a result the "polluter pays" principle has been turned on its head. While polluting industries profiteer, social and environmental costs are borne by people, communities, and governments using taxpayers' money (for healthcare and other costs). The US government even bails them out with taxpayers' money as The Guardian's investigative report mentioned earlier reveals.

Environmental pollution leads to illness, incapacitates, reduces the ability of millions to earn their livelihood, and causes millions of deaths. Air pollution alone causes 7 million deaths globally every year, a study published in the medical journal Lancet in July 2019 shows. (For more read 'Unravelling GDP growth II: Why GDP measures output, not people's well-being ' for more).

Deforestation for mining of coal and other minerals and industrial activities leads to loss of livelihood of millions of tribals and other communities that depend on it.

COVID-19 crashes global carbon emissions

The good news is that the COVID-19 induced shutdown of polluting industries and activities (oil, gas and coal operations, vehicular traffic, etc.) have drastically reduced energy demand and carbon dioxide emissions that cause global warming.

Various studies estimate the reduction variously.

The Global Carbon Project (GCP), a global body of scientists set up in 2001, projects the fall in carbon dioxide emissions in the range of (-) 4 to (-) 7%, from the mean level of 2019.

Also Read: Nitin Gadkari calls Environment Ministry guidelines outdated, hindrances to growth

The title of the study, 'Temporary reduction in daily global CO2 emissions during the COVID-19 forced confinement', makes it clear that it is a temporary change.

According to the International Energy Agency (IEA), a multinational body set up in 1974, the decline would be by (-) 8% from the 2019 level.

The BBC combined these data with that of the Carbon Dioxide Information Analysis Centre (CDIAC) of the US Department of Energy (DOE) to map carbon dioxide emissions (in billion tons) since 1990.

The map is reproduced below.

The map is all the more interesting because it traces the impact of several major events in the past 120 years, starting with the Spanish flue of 1918 to 2019 Great Depression, World War I & II, oil shocks of the 1970s, 2007-08 Great Recession to the COVID-19 shutdown. It says the current one is the "biggest carbon crash" of all.

For India, the Global Carbon Project (GCP) data shows how carbon dioxide emissions (median value) have fallen from January 1 to June 11, 2020.

A 2018 UN panel on climate change warned that if carbon emissions are not reduced to keep global warming at 1.5 degrees Celsius above the pre-industrial level by 2030, many of the catastrophic events foreseen at 2 degrees Celsius rise would be unleashed with catastrophic consequences.

For that to happen by 2030, carbon dioxide emissions would have to fall by about 45% from the 2010 level, which was about 32 billion tons per day.

Rebooting Economy IV: Is govt using environmental laws to protect polluting industries?

The draft EIA (Environmental Impact Assessment) of 2020 being pushed through by the central government seeks to undermine checks and balances on pollution of air, water, and soil and depletion of forests that impose heavy costs on the economy by spreading illness, deaths and loss of livelihoods of millions of people

Prasanna Mohanty | July 8, 2020 | Updated 20:27 IST

The practice of providing retrospective environmental clearances began in 1998, during the NDA-I regime when the green ministry first issued such a circular

MORE FROM THE AUTHOR

• 
  Rebooting Economy V: Why healthy environment is critical to fight COVID-19 pandemic
• 
  Rebooting Economy III: All that's wrong with India's environmental governance

The Environment Impact Assessment (EIA) study has been an important tool of environmental governance in India since 1994. It provides a basic fact-sheet of costs and supposed benefits (not exactly a cost-benefit analysis) of projects like dams, mines and industries that have high potential to damage the environment and local communities.

In 1997, an important and mandatory component was added: pubic consultations before EIA could be finalised and presented for green clearances. The EIA of 1994 was replaced with the EIA of 2006, which specified a four-stage process of green approval: screening, scoping, public consultation and appraisal by expert committees.

Screening is to identify if a project needs an EIA study; scoping sets up the terms of reference (TOR) for EIA study; public consultation or hearing to invite objections and facilitate dialogue with local communities and experts before government approval is sought.

The EIA is issued under Section 3 of the Environment (Protection) Act of 1986  for the purpose of protecting and improving environment and preventing pollution.

Section 3 (1) of the Environment (Protection) Act of 1986 Act reads: "Subject to the provisions of this Act, the Central government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing controlling and abating environmental pollution."

In March 2020, even as the COVID-19 pandemic spread, the Ministry of Environment, Forest and Climate Change (MoEF&CC) put out a draft EIA of 2020 to replace the EIA of 2006.

The draft EIA of 2020 seeks to achieve the opposite of the very raison d'etre of the EIA - protection, and promotion of environment and local communities.

Also Read: Rebooting Economy III: All that's wrong with India's environmental governance

Here is how.

Brings in retrospective green clearances declared illegal by the Supreme Court (SC)

The draft EIA of 2020 (clause 22) provides for "ex post facto" environmental clearance (EC) to projects (new or expansion and modernisation of old projects) which the SC struck down as "unsustainable in law" on April 1, 2020 in the Alembic Pharmaceuticals Ltd versus Rohit Prajapati & others case.

The draft says, in case of a project operating without the mandatory prior-environment clearances (prior-EC), would be asked to provide two plans - "remediation plan and natural and community resource augmentation plan", corresponding to 1.5 times the ecological damage assessed and economic benefit derived due to violation.

It also proposes a late fee of Rs 1,000 to Rs 10,000 per day on the violators. The amount may seem stiff not when the value of one day's mining of iron ore, coal, or even stones and sands is considered.

While ruling "ex post facto" environment clearance as illegal, the SC had, in its April 2020 judgement, explained the logic: "The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and an anathema to the EIA notification dated 27 January 1994..."

It added: "The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed."

It also pointed out that since the retrospective clearance is a "purely administrative decision", it "cannot override the Environment (Protection) Act of 1986" - which is the governing law.

The Pune bench of the National Green Tribunal (NGT) had earlier struck it down in January 2016. Ruling on a ministerial circular of May 14, 2002 which sought to grant retrospective green clearances, the NGT ruled that the circular "is void, ab initio and ought to be struck down" because it has no legal basis.

The practice of providing retrospective clearance began in 1998, during the NDA-I regime, when the green ministry first issued such a circular. The 2002 circular was the third one and was supposed to be the "final" opportunity for polluting projects running without green clearances.

The practice resumed during the NDA-II regime. At least two more such circulars were issued on March 14, 2017 and March 8, 2018.  

Now this has been made a part of the EIA.

It is not a revelation that pollution of air, water and soil imposes a heavy cost on people living nearby by spreading illness and deaths. Depletion of forests not only causes global warming and climate change but deprives millions of people surviving on forests of their source of livelihood too.

The SC has played a big role in allowing retrospective green clearance.

The April 2020 ruling cited above did declare it illegal ("unsustainable in law") and yet overturned it in the same judgement by expounding the "principle of proportionality".

What the court meant by the "principle of proportionality" is this: the polluting industries in question operating without prior legal authorisation (a) had been operating for many years and "have made infrastructural investments and employed significant numbers of workers" (b) obtained ECs in 2002 and 2003 (even though retrospectively) and (c) in similar cases of violations in the past, the apex court had not revoked their clearances or ordered their closure as the NGT ruling of 2016 did.

In effect, the apex court overruled its own rule declaring "ex post facto" green clearance illegal.

Also Read: Rebooting Economy II: What stock market boom means to people and economy

Denying citizens' right to complain against green violations

The draft EIA of 2020 denies people's right to object or complain against violations of environmental laws by denying them a platform (public hearing while finalising EIA), thereby striking out transparency and accountability from the green clearances.

The draft lists four ways (clause 22) in which a violation of environmental laws can be taken "cognizance" of (i) suo motu application from the violating project (ii) reporting by any government authority (iii) detected by appraisal committee (giving green clearances), and (iv) detected by the regulatory authority.

This makes environmental violations a strictly government-to-industry business. There is no role for communities that bear the cost of pollution or experts and civil society.

Here is food for thought.

In December 2018, the medical journal Lancet published a study saying India lost 1.27 million lives in 2017 (12.5% of total deaths that year) to air pollution. The life expectancy of Indians would have been higher by 1.7 years had the air quality been good, it added.

What would be the cost of lives lost and the healthcare cost of millions of others who fell sick from air pollution?

Exemptions from green clearances, EIA study, and public consultations

The draft EIA of 2020 exempts a wide range of projects and activities from prior environment clearance, EIA studies, and public consultations - all key safeguards for local communities and environment.

All projects have been categorised into A, B1 and B2 on the basis of their potential social and environmental impact and spatial extent of these implications.

B2 projects are completely out of EIA coverage and public consultations. They don't even need environment clearance (EC); instead they will get "environment permission (EP)" without requiring assessment of the Expert Appraisal Committee.

These projects include all inland waterways, expansion of national and express highways up to 100 km; up to 25 megawatts hydroelectric power; irrigation projects irrigating 2,000 to 10,000 ha land; small and medium cement plants; MSMEs making bulk drugs, synthetic rubber, organic chemicals, paints and construction projects with build-up area up to 1.5 lakh sqm, etc.

All they need is to present the Environment Management Plan (EMP), which would be a self-declaration of the project without the green ministry's involvement.

No public consultation would be required (clause 14) for projects declared as important for defence, security, or strategic purposes by the central government. In such cases, no information would be placed in public domain (clause 5(7)) either.

How a project would be defined thus has not been spelt out.

Further, no public consultation would be required for any oil, gas and slurry (coal and other ores) pipelines "passing through national parks or national sanctuaries or coral reefs or ecologically sensitive areas" or in border areas; highways/expressways/ring roads/multi-modal corridors in border areas (clause 14; items 31 and 38 of the Schedule).

Centralisation of power

Just as the central government has done with inter-state water disputes and dam safety, here too states are short-changed.

In the existing EIA of 2006, the central government is required to set up decision making and regulatory bodies at the state level "in consultation" with respective state governments.

Also Read: Rebooting Economy I: Why stock market is booming when COVID-19-hit economy sinks

Not so in the draft EIA of 2020. "In consultation" does not figure either in setting up a decision-making a state and union territory-level Expert Appraisal Committee (SEAC or UTSEAC) or regulatory body Environment Impact Assessment Authority (SEIAA or UTEIAA). The states and union territories would merely forward names.

Doesn't address flaws in existing EIA framework

The EIA of 2006 is full of holes, none of which is filled by the draft EIA of 2020.

The CAG's performance audit report of 2016  on 'Environment Clearance and Post-clearance Monitoring' pointed out: "No penalty was imposed by the Ministry for violating conditions of Environmental Clearance in the last two years".

It said, in 25% cases the EIA studies did not comply with the terms and conditions set; cumulative impact study/assessment lacking and the SC's 2011 directive to appoint a regulator at the national level "to carry out an independent, objective and transparent appraisal and approval of the projects for environmental clearances and to monitor the implementation of the conditions laid down in the environmental clearance" has not been implemented.

There are plenty of other problems.

Firstly, the EIA study is a self-certifying exercise. Just as corporate entities appoint and pay for auditing of their accounts (leading to massive frauds in the Satyam Computers and IL&FS, for example, which went undetected ), the EIA studies are done by agencies hired and paid for by those setting up the project.

The fallout is evident.

The Vedanta's alumina project in Odisha's Lanjigarh (for which it needed to mine the Niyamgiri hills for bauxite) went into production after carrying out a partial and rapid EIA study in the rainy season, which is expressly prohibited.

The EIA that was presented for public consultation was different from the one presented for environment clearance and yet green clearances were granted.

In the case of French company Lafarge's limestone mining in Meghalaya's Khasi hills for its cement plant in Bangladesh, the EIA report said the mining area was "wasteland" and "covered with rocks". After production started in 2006 (mining had broken up 21.44 ha forest land by then), the hills turned out to be "natural and virgin forests" with rich flora and fauna.

In 2011, the Supreme Court acknowledged the wrongdoings but used "doctrine of proportionality" to let the legions of central and state government officials and pollution control agencies involved off the hook.

Secondly, exempting EIA studies for small mining, thermal or hydro-electric projects have devastating impacts when allowed in clusters and industrial estates. For example, small sand mining projects in the Aravali hills, iron ore mining in Bellary, and bauxite mining in Andhra Pradesh have caused havoc with their environment.

Also Read: Nitin Gadkari calls Environment Ministry guidelines outdated, hindrances to growth

Clusters of small thermal plants and multiple small hydro-electrical projects in a single river basin present big environmental threats, which have been acknowledged by governments and courts but went unaddressed in the EIA of 2020.

Monitoring of projects for environmental mitigation is another major concern.

The CAG report of 2016 said there wasn't even a data base for complaints received from states; the MoEF&CC itself hadn't set up a separate monitoring cell as the apex court had asked for and third-party independent monitoring was virtually non-existent.

Non-compliance with pollution mitigation conditions ranged from 5% to 57% in the samples it examined.

What does the draft EIA of 2020 propose to do about it?

It has made compliance self-certifying.

That is, the polluting industries themselves would file annual "compliance reports" about the environmental mitigation, making mockery of the Environment (Protection) Act of 1986 and other such laws.

Environment protection law to protect polluting industry

Instead of carrying out meaningful dialogue and debate, the MoEF&CC sought to rush the draft EIA of 2020 through during the pandemic lockdown.

Despite strong protests from experts, the window for filing objections was limited to June 30. The Delhi High Court intervened on the same day to extend the deadline to August 11, and later asked for the draft EIA of 2020 to be translated into all 22 languages listed in the Constitution (instead of just English and Hindi) and uploaded on the websites of all central and state environment ministries and pollution control boards for wider reach.

The rush to notify the new EIA is to speed up clearances to projects that impose heavy social and environmental costs on the economy.

Ironically, the EIA is an instrument that draws its power from Section 3 of the Environment (Protection) Act of 1986 that aims at "protecting and improving the quality of the environment and preventing controlling and abating environmental pollution".

Economic historian Prof. Dirk Philipsen of Duke University wrote about what China found when it tried to calculate the social and environmental cost of polluting industries in 2004. He said a study was published in 2006 which found the cost "devastating".  

In his 2015 book, 'The Little Big Number: How GDP Came to Rule the World and What to Do About It', Philipsen wrote that 20% of China's GDP was found directly based on depletion of resources and degradation of the environment and in several provinces, pollution-adjusted growth rates turned out to be "negative".

Here is about the depletion of forests in India.

According to a study by a Columbia University scholar, in six years between 2014 and 2020, forest land nearly equal to the size of Nagaland has already been approved for non-forest use or is pending approval.

During this period, 14,822 sq km of forest land has been diverted, while during the previous 39 years between 1975 and 2014, the diverted forest land stood at 21,632.5 sq km.

India's first National Forest Policy of 1988 aimed to raise forest cover from 23% to 33% (geographical area).  In December 2019, the MoEF&CC released its report on forest cover stating that India was far behind its target at the current forest cover of 24.56%.

Rebooting Economy III: All that's wrong with India's environmental governance

Supreme Court judgements have allowed violations of environment laws being condoned through "ex post facto" green clearances, thereby presenting people with a "fait accompli"

Prasanna Mohanty | July 6, 2020 | Updated 20:14 IST

About the 2002 circular, the Pune bench of the National Green Tribunal (NGT) first held in January 2016, that it "is illegal, void and inoperative"

MORE FROM THE AUTHOR

• 
  Rebooting Economy V: Why healthy environment is critical to fight COVID-19 pandemic
• 
  Rebooting Economy IV: Is govt using environmental laws to protect polluting industries?

Amidst the COVID-19 pandemic induced shutdown, few noticed a significant Supreme Court (SC) judgement of April 1, 2020, relating to environmental governance and climate change mitigation.

The case involves a May 14, 2002 circular issued by the Ministry of Environment and Forests (MoEF) allowing "ex post facto" (retrospective) environmental clearances (ECs) to polluting industries. (The MoEF was renamed as Ministry of Environment, Forests and Climate Change or MoEF&CC in short, in 2014.)

The 2002 circular read: "...it has been decided to extend the deadline up to March 2003 so that defaulting units could avail of this last and final opportunity to obtain ex-post-facto environmental clearance. This would apply to all such units, which had commenced construction activities/operations without obtaining prior environmental clearance in violation of the EIA Notification of 27 January 1994."

The MoEF first issued such a circular in 1998, which went unchallenged in court, unlike this one. A large number of polluting industries ignored the circular and continued to operate illegally, polluting air, water and soil.

The 2002 circular extended the time limit for the third time (second in 1999) to seek retrospective green clearances for the last time.

The Environment Impact Assessment (EIA) notification of 1994 mentioned in the circular provides for detailed study of social and environmental impacts of certain projects and is mandatory for green clearances. It was replaced with the EIA of 2006, which is now proposed to be replaced with the EIA of 2020.

Also Read: Rebooting Economy I: Why stock market is booming when COVID-19-hit economy sinks

Retrospective green clearance "unsustainable in law"

About the 2002 circular, the Pune bench of the National Green Tribunal (NGT)  first held in January 2016, that it "is illegal, void and inoperative".

It ordered (i) revocation of environment clearances to the polluting industries in question (ii) immediate closure of all industrial activities without valid EC and (iii) imposed a penalty of Rs 10 lakh each for damaging environment on the industries in question.

The MoEF and the affected industries challenged the NGT order in the SC.

The top court's April 2020 order upheld the NGT's ruling that the circular granting ex post facto environment clearance is "unsustainable in law".

It explained: "The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and an anathema to the EIA notification dated 27 January 1994...The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issue of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment."

The NGT had said, "This circular does not show by which provisions, the power is provided in the Environment (Protection) Act, 1986, to allow 'ex-post facto' EC. This circular itself is void ab initio and ought to be struck down."

The NGT had also described it as "illegal, void and inoperative".

In effect, the NGT questioned the very legal basis of the circular and asserted that it "cannot override the provisions of the Environment (Protection) Act of 1986". The Environment (Protection) Act of 1986 is the law that governs environment clearance for which the EIA report is a pre-requisite.

The MoEF later told the apex court that the circular was an "administrative decision", meaning it has no legal basis.

Since this case reflects everything that is wrong with India's environmental governance, including climate change mitigation, it needs to be scrutinised thoroughly.

The case is also relevant for two more reasons.

One, to understand why polluting industries which impose huge social and environmental costs on the economy - pollution of air, water and soil spreading illness and death; forest depletion damaging environment and taking away livelihood of tribals and other communities dependent on forests for survival - continue to flourish. (For more on this, read: Unravelling GDP growth II: Why GDP measures output, not people's well-being.)

Second, how the proposed EIA of 2020 will impact the environmental governance.

Apex court's green signal to retrospective clearances

The apex court declaring "ex post facto" environment clearance illegal is just one part of its order.

Also Read: Rebooting Economy II: What stock market boom means to people and economy

It struck down two other key orders of the NGT: (i) revocation of green clearances and (ii) immediate closure of the polluting industries (three pharmaceutical companies operating in Gujarat).

Why? It said: "The directions of the NGT for the revocation of the ECs and for closure of the units do not accord with the principle of proportionality."

What is the "principle of proportionality"?

The court explained pointing out that (a) these polluting industries had been operating for many years and "have made infrastructural investments and employed significant numbers of workers" (b) these industries had, after all, obtained ECs in 2002 and 2003 (even though retrospective) and (c) that in similar cases of violations of the environmental laws in the past the apex court had not revoked clearances or ordered closure of polluting industries.

The top court relied on Article 142 of the Constitution, which grants it discretionary power to issue any order to do complete justice in a case, for these rulings.

The apex court famously invoked this constitutional provision in November 2019 to decide the Ayodhya case.

This apex court judgement is quite ironic.

While ruling that ex post facto environment clearance is "unsustainable in law" and "in derogation of the fundamental principles of environmental jurisprudence", it used the logic of "principle of proportionality" to overturn it and hand over the polluting industries as a 'fait accompli' - a phrase with environmentalists are quite familiar with - to the people of India.

"Doctrine of proportionality" for clean chits

In presenting this 'fait accompli' the apex court order invoked two previous judgements, one of which is famously known as the Lafarge case of July 2011.

The Lafarge verdict used "doctrine of proportionality" in a way that led to "margin of appreciation" and ended in giving clean chits to the MoEF and other government agencies for their countless transgressions and undermining of all the environmental laws of the land. (The "principle of proportionality" was used in the April 2020 judgement to let the three polluting industries off the hook.)

The Lafarge case is even more instructive and needs to be retold.

The details of the case are from the apex court's order of July 2011 in the Lafarge Umiam Mining Private Limited vs Union of India case.

The tale goes like this.

French company Lafarge set up a cement plant in Bangladesh for which limestone was to be mined from Meghalaya's Khasi hills. The project was given the environment clearance by the MoEF in 2001 on the basis of a (rapid) EIA report which said the proposed mining area (100 ha) was a "wasteland", "covered with rocks" with "low botanical and floral diversity" and "no likelihood of any wildlife presence". (A rapid EIA is a limited exercise conducting environmental impact measurements in a single season.)

Therefore, no forest clearance (FC) under the Forest (Conservation) Act of 1980 and no clearance under the Wildlife (Protection) Act of 1972 were sought.

Mining began and the plant went into production in 2006.

Something very interesting happened later that year.

A senior forest officer, chief conservator of forests Khazan Singh, visited the mining site and wrote to the MoFE that the mining area was actually a "natural and virgin forest" with "thick natural vegetation cover with sizeable number of tall trees".

He said trees had been felled to clear space for mining without forest clearance (FC) under the Forest (Conservation) Act of 1980 and sought necessary remedial action.

Khazan Singh's finding would be confirmed multiple times by a stream of fact-finding teams over the next four years.

Khazan Singh's report also said Lafarge had broken up 21.4 ha (of the 100 ha of mining lease area) and fell a large number of trees. When counted in 2010, a High-Level Committee (HLC) said the clearing involved felling of 9,345 trees, of which 1,200 had already been felled.

Lafarge sought ex post facto forest clearance under the Forest Conservation Act of 1980 and went to the apex court in 2007 to expedite this clearance.

The apex court knew everything in 2007 but mining continued for the next three years as the MoEF presented it as a fait accompli to the court, giving a variety of reasons: this being an operation involving a neighbouring country (Bangladesh), stopping it would damage bilateral relations, harm investment; Lafarge's promise of compensatory foresting, financial and other benefits to the local villagers of Meghalaya from the project.

That the mining continued nonstop was confirmed by a study by North-Easter Hills University (NEHU) in 2010. Its report said the broken up (forest area cleared) and mined area stood at 38.089 ha - up from 21.4 ha that Khazan Singh had reported in 2006.

The apex court took three years to put a stay on mining in 2010. This stay was meant to facilitate ex post facto clearances and work out Lafarge's remedial steps for allowing it to continue mining. One of the proposals negotiated in presence of the apex court was for the MoEF to grant revise ex post facto green clearances to divert not 100 ha, as was the case originally, but 116 ha of forest land to Lafarge mining. (No reason has been mentioned for this largesse.)

In April 2010, the MoEF issued revised EC and FC. There was no mention of clearance under the Wildlife (Protection) Act of 1972.

The apex court upheld these ex post facto clearances and allowed Lafarge to continue mining on July 6, 2011.

In doing so, it granted a clean chit to all involved in the massive fraud.

No questions were asked how "rocky" and "wasteland" with "no likelihood of any wildlife presence" turned out to be actually a "natural and virgin forest" rich in wildlife.

No questions were asked about how all the checks and balances failed: the amended and strengthened EIA of 2006 regime which had replaced the EIA of 1994; public hearings; multiple MoEF experts' committees which examined, assessed and monitored green clearances; multiple central and state agencies regulating air, water, and soil pollution; central and state forest officials and those of the wildlife board who cleared diversion of forests for limestone mining.

With one stroke, the apex court presented the Lafarge mining 'fait accompli'.

While doing so it forwarded an interesting concept, "doctrine of proportionality", which the April 2020 order used to justify its own legalisation of ex post facto environment clearances to three polluting pharmaceuticals.

Note the difference in the wordings with "proportionality".

"Doctrine of Proportionality" that legalises violations of law

While the "principle of proportionality" was used in the April 2020 judgement to let the polluting industries to continue their operations and validate an apparently illegal retrospective green clearance, the Lafarge verdict used the "doctrine of proportionality" to give clean chits to the MoEF and other government agencies for their countless transgressions and undermining of environmental laws.

The Lafarge order was written by the then Chief Justice of India SH Kapadia while speaking for a three-judge bench.

Also Read: Nitin Gadkari calls Environment Ministry guidelines outdated, hindrances to growth

Here is the part on the "doctrine of proportionality" that the April 2020 order quoted (broken up for ease of reading):

"The time has come for us to apply the constitutional "doctrine of proportionality" to the matters concerning environment as a part of the process of judicial review in contradistinction to merit review. It cannot be gainsaid that utilisation of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity, but balancing of these equities may entail policy choices.

"In the circumstances, barring exceptions, decisions relating to utilization of natural resources have to be tested on the anvil of the well-recognised principles of judicial review. Have all the relevant factors been taken into account? Have any extraneous factors influenced the decision? Is the decision strictly in accordance with the legislative policy underlying the law (if any) that governs the field? Is the decision consistent with the principles of sustainable development in the sense that has the decision-maker taken into account the said principle and, on the basis of relevant considerations, arrived at a balanced decision?

"Thus, the Court should review the decision-making process to ensure that the decision of MoEF is fair and fully informed, based on the correct principles, and free from any bias or restraint. Once this is ensured, then the doctrine of "margin of appreciation" in favour of the decision-maker would come into play."

Tough to read and understand. In short, all the wrongdoings of the legions of government agencies, including the MoEF, were condoned to allow the Lafarge project.

Pharma companies' illegal operations and damage to environment

Turning back to Gujarat's polluting industries, it needs to be pointed out that the apex court did find the three pharmaceutical companies "operated without valid ECs for several years after the EIA notification of 1994", they "have been operating in an unregulated and in defiance of the law" and that some of the environmental damages they caused "would be irreversible".

Moreover, they did not have the requisite authorisation under the laws governing air, water and hazardous wastes even before the EIA notification of 1994 (operating without legal authorisation).

As for the retrospective environment clearances given in 2002 and 2003, which the court cited to justify its balancing act, these were not even scrutinised to see if due processes had been followed.

The NGT did.

The NGT order revealed that for the public hearing (added to the EIA in 1997) mandated for these industries, the local villagers were not given any EIA report.

It blamed the five government agencies involved in the public hearing: MoEF, Gujarat government, GPCB, and Collectors of Bharuch and Panchmahal - for not making the EIA reports available.

Since the EIA provides details of a project's possible impact on communities and environment, public hearing without it is meaningless and legally invalid.

The NGT order also said: "Public hearing was held in a hotel, in one case and in Gram Vikas Kendra in another case." Such hearings should happen at project sites to enable participation of the local communities.

While the NGT order does not mention when public hearings happened, the order did record the complainants telling that those were held in 2013 (held by the MoEF) - 10 to 11 years after the retrospective ECs were granted and 11 years after the 2002 circular was issued.

The SC dealt with this mandatory provision of public hearing (in EIA) in a bizarre manner.

It relied on the past apex court judgements to dismiss its significance and said: "The Court while deciding the consequence of granting an EC without public hearing did not direct closure..."

As for the environmental damages by the three drugmakers, the apex court noted that the Ankleshwar industrial area in Gujarat where they operated had "critical level of pollution" for years.
 It cited the Comprehensive Environmental Pollution Index (CEPI) reports of the Central Pollution Control Board (CPCB) for 2009-10, 2013 and 2018 to drive home the point. These reports measured pollution of air, water and soil.

How did the court award a fine of Rs 10 crore each to these industries for damaging the environment? It didn't say.

Was there any scientific assessment? Is it commensurate to the damages caused? Were the costs of illness and death that air, water and soil pollution cause taken into consideration? Is Rs 10 crore a deterrent?

No answer was sought, nor provided.