Constitutional Conduct Group; and Mayank Aggarwal & Sahana Ghosh

Letter On Need To Recast Altogether The Environment Impact Assessment Policy 2020

Constitutional Conduct Group, 12 July 2020

Honourable Prime Minister of India, Shri Narendra Modi,

Honourable Minister for Environment, Forests and Climate Change, Shri Prakash Javadekar

As former civil servants of the All-India and Central Services, we have been commenting from time to time on the rapid deterioration of constitutional and fundamental human values in public policy and governance. While this decline cannot be attributed to the present government alone, the current arbitrariness in policy making, and the complete disregard for institutions and processes which act as a check on such arbitrariness, has been unprecedented.

A particularly glaring example is the way in which issues concerning forests, biodiversity and the environment are presently being handled. Hundreds of projects which threaten the environment and our precious natural resources have been cleared in unseemly haste, after shoddy and superficial scrutiny, disregarding comprehensive long term impact analysis. Even during the current period of Covid-19 lockdown, full and partial, several score more project proposals are listed for appraisal by the various expert committees This is regardless of the fact that during this time it is neither possible to make field visits to the project sites nor ascertain local concerns through public hearings. While physical meetings of the expert committees cannot be held, the proposals are sought to be cleared through video conferencing.

As one of the 17 mega-biodiverse countries in the world and as a signatory to the Convention on Biological Diversity, India has a special responsibility to see that its wealth of flora and fauna is not destroyed through unthinking action. A significant part of this biodiversity is found in India’s pristine forests. Yet, in recent times, the MOEFCC has given a spate of approvals to projects in protected areas. Notable among these are the approval for extension of coal mining in the Dehing Patkai rainforest of Assam, the largest tropical evergreen rainforest in north-east India, part of an elephant reserve and home to endangered species such as the Malaysian sun bear, the hoolock gibbon and other animals; the laying of transmission lines, broadening of highways and doubling of a railway line by diverting extensive areas of forest land in the largest protected area in Goa, (viz. the Bhagwan Mahavir Wildlife Sanctuary and the Mollem National Park) again known to be rich in wildlife; and the diversion of 778 acres in the biodiversity rich Rajaji National Park, in Uttarakhand, to create facilities for pilgrims who will gather for the Kumbh Mela festival at Haridwar, in early 2021.

In the past, some efforts had been made to protect these biodiversity rich forest areas, at least from extractive industries. For instance, in 2010, forests were divided into ‘go’ and ‘no go’ areas, with no coal mining being permitted in ‘no go’ areas. This was done in consultation with Coal India, knowing well that 30 % of the coal mines were located within these densely forested ‘no go’ areas. Unfortunately, the MoEFCC has decided to change all this. There will no longer be any ‘no go’ areas. Instead forests will be classified into high, medium, and low conservation areas, and it will be left to the Ministry’s discretion whether or not to clear a project in a ‘high conservation’ area. Nothing will be totally out of bounds.

It is well known that the many zoonotic diseases which have created pandemics in the world and posed a serious threat to human health – SARS and MERS, Ebola, the Nipah virus and the current Covid-19, are the result of disturbing the forest habitat of several endemic species. Experts predict that more such diseases, caused by greater human-animal interaction, are likely to arise in the future. Yet, in India, no serious thought seems to be given to entering into more and more pristine forest areas.

But by far the most serious and long lasting blow to protection of the environment is the proposed modification of the EIA policy of 2006. The EIA Policy is framed under the Environmental Protection Act, 1986. Section 3(1) of the Act states that “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.” The new EIA policy does nothing of the kind. It purports to impose ‘certain restrictions and prohibition’ on development projects and to make the process of granting environment clearance ‘more transparent and expedient’. However, it is clear that what the amended policy really intends to do is to considerably dilute the existing process of granting environment clearances and to prevent any public scrutiny of the project proponents’ actions. Many of the changes have, in fact, been proposed to circumvent the past decisions of the National Green Tribunal and the Courts. Some of the more serious changes that the proposed EIA policy contemplates are: (a) grant of post facto approval to projects which may have started, or increased in size, without prior environmental clearance, on payment of a penalty. This makes nonsense of the requirement of prior clearance; (b) reclassifying projects and activities to put several polluting ones such as thermal power, cement and chemical fertilizer plants into a category (B2) which require minimal scrutiny; (c) excluding the need for public consultation for a number of projects where such consultation was earlier necessary – this includes all building, construction and area development projects, and anything declared ‘strategic’ by the government; (d) where such consultation is still necessary, reducing the time available to the public to make objections; (e) specifying that no reports regarding violation of the conditions of environmental clearance will be entertained from anyone other than the project proponent or a government authority.

That the government was not really interested in getting responses from the public on the draft EIA Policy 2020, or acting on them, is obvious from the fact that the draft notification was available only in English and Hindi and was only on the Ministry’s website until 30 June, and, despite requests that more time should be given for responses, due to the ongoing pandemic, no heed was paid to such requests. It was only when the Court stepped in that the last date for receiving responses was extended from 30 June to 11 August 2020 and the draft policy was directed to be made available in 22 languages.

The model of development the government wishes to follow has little to do with the principles of sustainable development. Development has come to mean a manic frenzy of activity, resulting in the depletion and pollution of rivers and water bodies, ravaging of oceans and coasts, and the wanton cutting down of forests; Local bodies and those whose very survival depend on such forests, oceans, coasts and natural wealth are rarely consulted. This perverse growth has been fuelled by a nexus between governments, both at the Centre and the States, political parties, big corporates and the contracting oligarchs. It is becoming increasingly evident that safeguarding the interests of this nexus is more important than conserving our natural heritage.

Honourable Prime Minister and Environment Minister, may we point out that the government is not the owner of our natural resources that it can do whatever it wants with them. It is a trustee on behalf of the people whose ‘commons’ these resources are. The right to a clean, green and healthy environment is a part of our Fundamental Rights under Article 21 of the Constitution; and the dilution of regulations, policies and procedures aimed at protecting the environment contravenes these rights. Protecting the environment is also a part of the Directive Principles of State Policy under Article 48-A and the Fundamental Duties of all citizens under Article 51-A(g). We, therefore, request you to be more sensitive to these constitutional obligations by placing ecological and environmental priorities higher than rapacious and exploitative ‘development’.

We urge you to withdraw the proposed EIA Policy 2020 altogether and replace it with a more sensitive policy, which is people and habitat friendly.

Yours sincerely,

Constitutional Conduct Group

(63 signatories)

(Constitutional Conduct Group is a group of former senior bureaucrats with the government of India. Most of them were IAS, and include IPS, IRS, IFS officials. They include top former Secretaries, DGPs and even RAW officials. The full list of signatories to this letter is available on https://constitutionalconduct.com.)

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While Everyone was in Lockdown, India Cleared Infrastructure Projects in Protected Areas

Mayank Aggarwal & Sahana Ghosh

There is a common thread between Dehing Patkai Elephant Reserve in Assam, Rajaji National Park in Uttarakhand, Bhagwan Mahavir Wildlife Sanctuary and Mollem National Park in Goa. While India stayed home during the lockdown, these protected areas were either being slowly unlocked or prepared to be unlocked for human activities and development projects. A safe haven for biodiversity and wildlife, India’s protected areas are losing to the environment ministry’s clearance spree where coal mining, road construction, and other projects are being approved within these ecologically sensitive areas.

Dehing Patkai

For instance, the Dehing Patkai Elephant Reserve rainforest in Assam, which includes the Dehing Patkai Wildlife Sanctuary, was recently at the centre of a controversy over illegal coal mining in a section of the reserve that has a sizable population of elephants. The controversy sparked viral virtual movements on social media under hashtags #SaveDehingPatkai and #ImDehingPatkai bolstered by art and music. Raging protests have temporarily stalled mining operations but its future remains uncertain.

The elephant reserve spreads over 575 sq km of forest areas stretches across Tinsukia, Dibrugarh and Sivasagar districts of Assam. The Dehing Patkai Wildlife Sanctuary spans 111.19 sq km of the rainforest. The reserve also includes the Saleki Proposed Reserve Forest and other patches. The rainforest is home to several endangered and rare species such as the Malaysian sun bear, Hoolock gibbon, and pig-tailed macaques among others. The proposed area is on a steep hill slope that is part of the Dehing Patkai Elephant reserve adjoining good forest area in the neighbouring state of Arunachal Pradesh which includes Deomali Elephant Reserve with a sizeable population of elephants.

In April , during the Covid-19 lockdown, the standing committee of the National Board of Wildlife, chaired by Environment Minister Prakash Javadekar, recommended that a portion of the Proposed Reserve Forest – 98.59 hectares – be used for open cast coal mining by North Eastern Coalfields, a unit of Coal India Limited in Assam. Although the mining was already on in 57 hectares of the reserve forest, the April recommendation paved the way for open cast mining in an additional 41 hectares, which, the proposal said, was “unbroken.”

However, information obtained under the Right to Information by activist Rohit Choudhury, reveals that mining was already being carried out in the claimed “unbroken” 41 hectares. The November 25, 2019, site inspection report accessed under the RTI by Choudhury states that “nine hectares area of 41 hectares has already been broken up and operated and another seven hectares area has been cleared up.”

According to the site inspection report, a four-square-mile or 1,036-hectares area was leased out to Coal India Limited from 1973 to 2003. The 98.59 hectares forest land being discussed in this case is part of that lease area. On expiry of the lease, Coal India Limited applied for renewal of lease/diversion in 2012. Prior to the site visit, Coal India Limited officials asserted that “they have already broken up and are still carrying out coal mining operations in 57.20 hectares” of the total project area – 98.59 hectares – “without obtaining mandatory prior approval from the Centre under the Forest Conservation (1980) Act (FCA) for the project,” noted the inspection report.

The state government was aware that the operations and coal mining were carried out in gross violation of Assam Forest Regulation, 1981, and the FCA, the site inspection report said. “Illegal coal mining has been going since 2003. The Assam government/forest department has totally failed in protecting the natural resources of the state. How can it have gone on for 16 years?” Choudhury told Mongabay-India.

“We have to reduce our dependency on coal mining for the livelihood of the communities that are in the elephant reserve. As much as possible we must maintain large forest areas, especially for species such as elephants that need large tracts for movement. Priority must be given to large forest tracts but instead what happens is we fragment habitats and then we think of corridors to connect,” ecologist Udayan Borthakur of NGO Aaranyak told Mongabay-India.

Dehing Patkai rainforest is the largest tropical evergreen rainforest in northeast India and is often referred to as “Amazon of the East” with its large area and the thick forests. In Northeast India, rainforests are found in the Assam Valley, the foothills of the Eastern Himalayas, the lower parts of the Naga Hills, Meghalaya, Mizoram, and Manipur, where the rainfall exceeds 2,300 millimetres per annum. Both tropical evergreen and semi-evergreen types of rainforests occur in this region. The rainforests of Assam were subjected to large-scale commercial timber collection from the colonial period until the early 20th century that resulted in the shrinkage of the forests.

Close on the heels of the outrage over Dehing Patkai coal mining, comes another controversy and protest movement over the proposal to denotify a section of the Vedanthangal Bird Sanctuary, which is the oldest breeding waterbird reserve in Southern India, located 85 km South West of Chennai city in Tamil Nadu. It is an old heronry that dates back to two centuries, where, as many as 17 species of colonial waterbirds breed annually. This mass colonial breeding attracts a lot of avian predators, and as many as 11 species of raptors have been recorded at this site.

Natural reserves in Goa

In India, there are 870 protected areas including wildlife sanctuaries, national parks, conservation reserves, and community reserves together accounting for 5.02% of India’s total geographical area.

The case of Dehing Patkai is, however, not a lone case of protected areas being opened up. In the same April 2020 meeting and earlier in the December 2019 meeting, the standing committee of the National Board of Wildlife cleared three projects which sought diversion of forest land from the Bhagwan Mahavir Wildlife Sanctuary and Mollem National Park, which together constitute the largest protected area in Goa.

In the April 2020 meeting, the board’s standing committee cleared a proposal for use of 85.50 hectares land within the protected area for laying of power transmission line and 32.085 hectares of forest land for widening of existing National Highway 4A from the Bhagwan Mahavir Wildlife Sanctuary and Mollem National Park. Prior to this, in December 2019, the committee had cleared a proposal for diverting 16.514 hectares of forest land from this area for doubling of the existing railway line from Kulem to Madgoan.

The Bhagwan Mahavir Wildlife Sanctuary is located in Mollem, Goa, and is spread across the area of 240 sq km or 24,000 hectares. It is the largest of Goa’s four protected wildlife areas and contains within it the Mollem National Park. This protected area has “thick forest-clad slopes of the Western Ghats” that are considered “rich in wildlife and a paradise for bird watchers.”

Following these clearances, on June 4, a group of 149 scientists, academicians, conservationists, artists, allied professionals as well as concerned citizens wrote to India’s Environment Minister Prakash Javadekar stating that the Bhagwan Mahaveer Wildlife Sanctuary and Mollem National Park in Goa together is a “treasure trove of flora and fauna, and is part of a larger contiguous forest and an important tiger corridor between Goa and the adjoining Kali Tiger Reserve in Karnataka.”

They expressed their concerns about the planned projects and stated that the two protected areas together constitute the largest protected area in Goa. They stressed that all three projects require diversion of forest land from this single protected area where direct sightings and camera trapping by the forest department have revealed the presence of protected species like tiger, dhole, mouse deer, pangolin, small-clawed otters and four-horned antelope. They said that the protected area is also home to more than 721 plant species, 235 bird species, 219 butterfly species, 80 odonate species, 70 mammal species, 75 ant species, 45 reptile species, 44 fish species, 43 fungi species, 27 amphibian species, 24 orchid species, and 18 species of lichens.

“Tree cavity-nesting birds such as hornbills such as the great hornbill which is classified as vulnerable and Malabar pied hornbill which is classified as near threatened are also found here. In addition, there are 18 bird species that are endemic to the Western Ghats and seven bird species that are of high conservation concern found here [according to the State of India’s Birds, 2020 report],” the letter said.

The group said in the letter that besides the flora and fauna, these forests have freshwater streams that feed the main rivers including Goa’s lifeline, river Mandovi. They stressed that these projects will increase disturbance to the wildlife and damage these protected areas irreversibly.

“The road and the railway track will create stark barriers that may lead to a rise in wild animal mortality. Movement of arboreal mammals, reptiles, fish, and amphibians is likely to be hindered by these barriers. The laying of the transmission line would need the felling of large old-growth trees along its course. These forests that have existed for thousands of years are irreplaceable. Direct loss of biodiversity and the far-reaching impacts of habitat fragmentation will reduce ecosystem stability and decrease forest resilience,” said the activists and urged Javadekar to “reconsider these approvals” to safeguard Goa’s biodiversity and ecological security.

Nandini Velho, an independent researcher, and one of the signatories of the letter to Javadekar, said, “In my home state of Goa three infrastructure projects in one protected area sums up a wide-spread concern for the entire country.”

“A virtual meeting at the [National Board of Wildlife] where members said they couldn’t access maps while making decisions, but it was considered tweet-worthy by the country’s environment minister, is a telling tale of the level of importance given to wildlife areas,” Velho told Mongabay-India, referring to the social media post by Javadekar where he announced giving wildlife clearance to a number of projects.

Chintan Sheth, another independent researcher, said with India’s poor handling of ecologically sensitive areas “we are not only putting our future in danger but we are also losing out on our past in the form of the rich geological history.”

“Whether it is Nagarjunsagar-Srisailam in Andhra Pradesh, Amrabad tiger reserve in Telangana or the coal-bearing areas of central India, there are many sites that are important from a geological perspective. By losing them and not protecting them we are losing our landscapes with rich paleontological and archaeological history. We are losing our heritage,” Sheth told Mongabay-India, adding that there is now a pattern to the practice of the union environment ministry allowing developmental projects in protected areas. “This has happened in the past and they continue to put the protected areas under huge anthropological pressure.”

Covid-19, an eye-opener

During the lockdown, the pressure for clearance on human activities in protected areas did not seem to reduce. For instance, for the Kumbh festival scheduled to take place in Haridwar, Uttarakhand, from January 2021, the Uttarakhand government is eyeing to temporarily use at least 778 hectares area of the Rajaji National Park, home to rich biodiversity.

Even during Covid-19 lockdown, while field visits and other required activities were not possible, the environment ministry’s expert panels on wildlife, forest and environment met via video conferencing and gave environmental clearance for projects. In some cases, the expert panels considered a project for approval or rejection in less than 10 minutes.

“The Covid-19 pandemic has opened people’s eyes to the human-induced threats to nature and how these threats are connected to pandemics. Social media has helped mobilised protests and a large section of people are aware of the extent of degradation of nature and the consequences of opening up wildlife habitats for human activities,” said Udayan Borthakur.

For instance, in April 2020, when the expert forest panel of the environment ministry was considering giving forest clearance to diverting pristine forests in Arunachal Pradesh for Etalin hydropower project, experts, scientists, environmentalists and activists from across the country opposed the project.

For Etalin, 26 scientists from 14 institutions across India peer-reviewed the Wildlife Conservation Plan, prepared by the Wildlife Institute of India, and found considerable deficiencies. The clearance to the project was deferred for the time.

Subsequently, a group of 291 scientists, experts, environmentalists, activists and former members of the standing committee of the National Board of Wildlife had written to Javadekar expressing concern over the forest, wildlife and environment clearances being recommended by ministry’s expert panels in their meetings via video conference during the Covid-19 lockdown.

(Courtesy: Mongabay. Mongabay-India is a conservation and environment news and features service. Mayank Aggarwal and Sahana Ghosh are contributing editors at Mongabay.)