Campaign for Environmental Justice – India appeals for your immediate support in sending representations to the Indian Ministry of Environment and Forests (MoEF) to withhold a comprehensive amendment to the Environment Impact Assessment Notification.
MoEF is likely to legislate the amendments before 15 September 2006, even though this is in direct contravention of the Environment Protection Act, the opinion of the Parliamentary Standing Committee on Science Technology, Environment and Forests and the concerns of the wide public.
Detailed below you can find a little background, a copy of the representation already sent by CEJI and all contact details required to send it. You may use the same representation or write one of your own. Please send this representation on your organisational letter head or individually, by mail and/or email and fax and as soon as possible. We request that you mark a copy of the representation to the MoEF Secretary, Dr. Pradipto Ghosh. Please also mark a copy to CEJI at the addresses of Kalpavriksh or Environment Support Group (given below).
The unsatisfactory context in the eastern Himalayan region of India
In the middle of the sustained public outcry against numerous “forced mega-projects in the region, and the proposed 1500 MW Tipaimukh Dam mega-project and Imphal Capitol Complex project in Manipur, to be executed for the benefit of the indigenous peoples and for national industrial growth with the huge financial assistance from public treasury, the recent backdoor attempt by the Indian Union Ministry of Environment and Forests to considerably dilute the existing statute for the safeguarding of our environment and people’s interests is both undemocratic and insulting to the people of a free and sovereign democracy.
The economically and environmentally unviable Tipaimukh Dam to be constructed in Manipur will do grave and irreversible harm to the indigenous communities and their lands then bring direct or indirect sustainable benefits. One-third of the total area of the small indigenous populated province of Manipur in the eastern Himalayan region of India will be directly or indirectly adversely affected if this project is to be implemented. The project is also yet to get environmental and forest clearances required under Indian law. While great efforts have been exerted by the project implementers to solicit international tenders for engineering, procurement and construction works in total violation of the EIA Notification of 1994 that specifies that no construction works, including preliminary activities can be undertaken without the final clearances.
The mandatory Public Hearing required before the clearance of these projects in Manipur cannot be held still due to the public protests and boycotts, and similar Public Hearings held elsewhere have poised a serious impediment to mega-project plans. Public Hearings held in the region, in Arunachal Pradesh, Asom (e.g., 2000 MW Lower Subansiri HEP, Middle Siang HEP, Ranganadi Phase II, Dikrong HEP and Mizoram (Tipaimukh HEP), over the past recent years, connected with mega-dam hydro-projects have been very negative despite every underhand attempt to subvert the process by legal and illegal means.
The Indian government is now determinedly embarked upon a malevolent plot to “change the goalposts. The new conspiracy against the people, in a nutshell, is too severely curtail the peoples” rights and freedoms guaranteed by the Constitution, to shut the people out of the only small window of opportunity provided by law in decision making and to give the sweeping executive powers to local governments to finalise environmental clearance for these projects.
The Environment Impact Assessment Notification was first enacted by MoEF in 1994 conforming to India’s acceptance of Agenda 21 of the Declaration of the United Nations Conference on Environment and Development held in 1992. This notification is the only provision in the entire body of law that requires high impact industrial projects (E.g. Refineries, fertiliser plants, highly polluting industries, etc.) and infrastructure developments (E.g. highways, dams, power plants, etc.) to be approved, only after a detailed examination of impacts on the basis of comprehensive Environment and Social Impact Assessments, Statutory Environmental Public Hearings and review by State Pollution Control Boards and MoEF. In short, the idea of this notification was to ensure development caused minimum impacts on the environment and peoples lives and livelihoods. Significantly, the EIA Notification made it possible for the very first time for direct and statutory involvement of the affected communities and the wide public in shaping the decisions, in expanding the scope for transparent decision making and also in ensuring that environmental regulation of projects was accountable to the local public.
On 15 September 2005, MoEF issued a new draft of the EIA Notification for public comments, by putting out an English only version on its website. This draft proposed comprehensive amendments to the EIA Notification with the intent to make environmental clearances quick and easy for large industrial and infrastructure investments. This seriously diminishes the capacity to carefully consider options for development based on the Precautionary Principle, particularly with the objective of mitigating adverse impacts on the environment and peoples livelihoods.
The proposed amendment is not guided by any considered study on the efficacy or failure of the existing provisions of the EIA Notification. Rather, it is primarily guided by the Govindarajan Committee on Investment Reforms which noted that environmental clearance procedures need to be reengineered so that investment decisions are not unnecessarily delayed. What this implies is that comprehensive environmental and social impact assessments would be replaced by rapid evaluations and investors can hope to obtain quick clearances for exploiting resources, industrialization, and infrastructure development.
The proposed changes also include a direct role for the State Governments in granting environmental clearance, in comparison with the present norms that completely bypass them. However, such seemingly well-meaning decentralisation measures are likely to erode the possibility of protecting the environment and peoples livelihoods as no operational framework or budgetary support is provided to build capacities of regional regulatory institutions. Considering that State Governments are competing with each other in soliciting investments, they are unlikely to reject projects on environmental grounds. This would surely be a recipe for a disastrous pattern of development as in China. Internal statutory audits by the National Audit Office in China have led to very serious indictments and downgrading of Chinese dam building corporation majors (Sinohydro, China Guodian Corp. and China Datang Corp. – all power generation and dam building companies) for shoddy construction work and very poor record of safety, accidents, pollution and other environmental damages including irregular financial practices.
Another significant amendment provides for the cancellation of the Statutory Public Hearings based exclusively on the assumption of the Government that owing to the local situation, it is not possible to conduct the public hearing in a manner which will enable the views of the concerned local persons to be freely expressed. This gives the Government discretionary powers in holding Statutory Public Hearings thus undermining the process of democratic decision-making.
Such a provision is similar to offering Government authorities the discretionary executive power to assume that owing to the local situation, and as free and fair elections are assessed to be not possible; therefore, peoples elections are to be cancelled as not necessary for further decision making! Such powers to be divested from the people to the Executive will, of course, lead to no elections at all…EVER.
The existing EIA Notification allowed for bureaucratic discretion to hold Public Hearings when first enacted in 1994. Not surprisingly no Public Hearings were held across the country until it was made mandatory by an amendment in 1997. Seen in this context, the proposed is a retrograde step taking India back to the pre-1997 position. It may also be noted that even information access was severely compromised until the 2002 amendment made it mandatory for releasing the Environment Impact Assessment to the public prior to the Hearing, rather than the ongoing practice of providing access only to an Executive Summary that contained no credible information.
It is evident that the existing Notification needs to be closely reexamined and in a very transparent manner. Its provisions need to be strengthened to meet the objectives for which it was enacted. A long awaited need has also been to integrate various provisions in several laws and rules governing environmental clearance, under a common set of Rules relating to environmental and social impact assessments. If MoEF was keen on pursuing such reforms it could easily have found wide support and a diversity of approaches to achieve such result even as it would secured our environment without unnecessarily hindering industrial and infrastructure growth. Instead it has adopted a myopic view to scoping environmental and social impacts, with the particular intent of speeding up environmental clearance decisions. Such rapid clearances are bound to bypass several environmental safeguards that have been built into considered impact assessment processes.
It is interesting to note that a foreign consultant (ERM) was hired for the task of re-engineering the notification. ERM completed this task with minimal consultations and as part of the Environmental Management Capacity Building Programme of MoEF financed by the World Bank. In gross contravention of the procedure laid down in the Environment Protection Act, of which MoEF is the prime custodian, the finalization of the notification has been undertaken in utter secrecy and without even consulting the Parliament or the States. The opinion of local governments and the wide public was not even solicited actively. However, certain Industry Associations were repeatedly consulted in the process of finalizing the draft amendment, and much after the due consideration time for commenting on the proposed reforms had expired.
Those found to be responsible for this attempt at a serious breach of democracy and its institutions enshrined by the Constitution of India must be booked, shamed and removed from office. We appeal to you to immediately respond to halt this new threat to the rights of citizens to democratic participation and voice in decision making in development as a serious breach of the trust and confidence reposed on to the government of India by its citizens.
II. Copy of representation to CEJI
F A C S I M I L E
Shri A. Raja
Union Minister for Environment and Forests
Government of India
CGO Complex, Lodi Road
Subject: Request to put on hold proposed amendment to the EIA Notification
07 September 2006
Dear Shri. Raja,
We are writing to you as a constituent of the Campaign for Environmental Justice – India (CEJI) from the North Eastern region of India. Representatives of CEJI met with you on 9th August 2006 with a request that the proposed comprehensive amendment to the Environment Impact Assessment Notification must be put on hold till such time extensive consultations have been held across the country with State and Local Governments, environmental groups and networks, mass movements, etc. The basis of this demand was that the EIA Notification is the only available means of information access and participation in decision making that anticipates the environmental and social impacts of large industrial or infrastructure projects, and highly polluting facilities. While the present notification has many problems, and needs to be reviewed, the process by which the Ministry of Environment and Forests set about amending this notification has hardly been inclusive.
Admittedly, during the 60 day commenting period starting 15 September 2005 when the draft proposed EIA Notification was located on the Ministrys website (in English), only select consultations have been held with State Government representatives and environmental groups. The Parliament has not been consulted either during the commenting period or at any time thereafter. State Governments who have expressed their views have not been consulted in the process of finalisation of the draft. The opinion of several environmental groups, researchers, mass movements, etc. has hardly been considered in the process of re-drafting the proposed amendment. Our State government or representative civil society organisations working in the area of environment and social issues have not been consulted.
We in Manipur are deeply dismayed by this undemocratic and clearly anti-people development mainly at the behest of the present Secretary, MoEF. Our experience with the implementation of Public Hearing procedures in Manipur has been dismal. The Public Hearings necessary as stipulated by the effective EIA Notification for two highly controversial projects in Manipur against the will and interests of the local population and communities, the Tipaimukh Multipurpose Hydroelectric project and the Imphal Capitol Complex project are under a cloud of bitter controversy as the government has totally failed to hold them according to the statute, and many serious procedural violations have been brought before the concerned authorities including your Ministry.
We are shocked to learn that it has been confirmed in response to Right to Information applications filed on behalf of CEJI, that the Ministry has mainly consulted certain industry associations in the finalisation of the draft notification.
When these concerns were brought to the attention of the Parliamentary Standing Committee on Science, Technology, Environment and Forests, the Chairman of the Committee, Shri. P. G. Narayanan, MP, thought it fit to immediately write to the Prime Minister and yourself (in his letter dated 1st September 2006) that he was:
shocked to learn that the Ministry has been working on redrafting this critical notification for over a year now. Unfortunately no consultation has been sought with the Parliamentary Standing Committee….. I am deeply worried by the far reaching consequences of the proposed notification as it undermines the federal character of our polity, given that the finalisation is driven merely by the concerns of Industry Associations, at the neglect of States. The Union of States has to be consulted and their views sought before any major changes are effected before finalising the proposed revision of Environment Impact Assessment Notification. Also we need to appreciate the widespread concerns of peoples of India who have sought our intervention in ensuring this draft notification is issued only after meaningful consultations.
Shri. Sitaram Yechury, MP and Leader CPI (M) Group has urged you in his letter dated 31 August 2006 to hold extensive consultations by organising zonal workshops involving the State Governments, Zilla Parishads, Panchayats, mass organisations and NGOs on the proposed EIA Notification.
Shri. Yechury has further stressed that: there should also be a full discussion on this issue in the Winter session of the Parliament. I hereby request you to withhold the finalisation of the EIA Notification till such extensive discussions and parliamentary debate take place on the issue.
Such consultations Shri. Yechury feels are important as: this notification will have a big impact on the life of local people living in resource rich areas and it is therefore essential that their concerns are adequately addressed and their voices heard. For this it is also important that the draft of the Notification is discussed and debated in the Parliament.
Shri. Ramji Lal Suman, MP and Member of the same Parliamentary Committee has also written to the PM with an equally forceful appeal (in his letter dated 01 September 2006) and stated that: it is a matter of great concern that the Parliament, Standing Committees, and the people of India have not been taken into confidence in proposing this notification which has serious implications on our environmental security. This indicates that suggestions of certain industry associations are being incorporated to promote their profits.
Clearly taking a stand against the Ministrys move to amend the EIA Notification in such manner, Shri. Suman urges the PM: that any notification should be put on hold in securing the interests of our federal democracy, especially when such notifications cannot be justified at any cost
Dr. S. Ramadoss, Founder Leader of Pattali Makkal Katchi (PMK) has written to you in his letter date 2nd September 2006 stating that: (t)he EIA Notification will have a bearing on the lives and livelihoods of millions of already marginalised communities such as small and marginal farmers, Dalits, adivasis and fisherfolk. It could aggravate the problem of development-induced displacement and lead to widespread outrage among communities.
On this ground he has also articulated that (t)he EIA Notification has such far-ranging implications that it should not be a mere Notification. I humbly request that the process of democracy not be derailed, and seek your intervention to ensure widespread face-to-face consultations are held with MPs, elected Local Government leaders, trade unions, community groups and public interest organisations.
He has further stressed the fact that MoEF has technically opened up consultations only to the industry after the 60-day consultation period and recirculating amended notifications to them after the comments is tantamount to reissuing the notification without providing for public consultation.
Your Cabinet colleague, Shri. Mani Shankar Iyer has also forwarded the concerns of CEJI to you for due consideration.
Sir, in light of these considered opinions of the Parliamentary Standing Committee and Parliamentarians, particularly their demand that the proposed amendment to the EIA Notification should not be acted upon in these circumstances, it would have been appropriate for the Secretary MoEF to respect their wishes. Yet, he has gone on record to state that
All consultations are over (Times of India, 01 September 2006).
In effect this suggests that he intends to proceed with the comprehensive amendment to the EIA notification.
As you are aware, the Departmentally Related Parliamentary Standing Committees is a path-breaking endeavour of the Parliamentary surveillance over administration. With the emphasis of their functioning to concentrate on long-term plans, policies and the philosophies guiding the working of the Executive, these Committees will be in a very privileged position to provide necessary direction, guidance and inputs for broad policy formulations and in achievement of the long-term national perspective of the Executive. (Source: http://www.parliamentofindia.nic.in/ls/intro/p21.htm)
It is clear from this that it is the task of the Executive wing of the governance system of our country to seek necessary direction, guidance and inputs for broad policy formulations in cognizance of the Parliamentary Committees role of surveillance over administration. Clearly, the manner in which the Secretary, MoEF has proceeded to issue the draft notification for consultation, and the skewed and partial manner of the consultations held in finalising the notification, mainly with industry associations, presents a scenario where the Executive division of the Ministry has not respected the privileged position of the Parliamentary Standing Committee.
From this perspective, in serving the cause of federalism, meaningful implementation of the rule of law and in fulfilling the objective of Section 3 of the Environment Protection Act, it would be in the best interest of all concerned and the country as a whole, if the proposed notification is kept in abeyance till such time the demands articulated by the Parliamentary Standing Committee, Parliamentarians, and mass movements, environmental networks, etc. are met with fully and meaningfully. This would also ensure that there is no violation of the Environment Protection Act in amending the EIA Notification.
Keeping all these issues in view, we hope you will take action as requested and with due dispatch. All the aforementioned letters are enclosed for your perusal and records.
Dr Debabrata Roy Laifungbam
Shri. A. Raja
Union Minister for Environment and Forests
Government of India
CGO Complex, Lodi Road
New Delhi 110003
Dr. Pradipto Ghosh, IAS
Ministry for Environment and Forests
Government of India
CGO Complex, Lodi Road
New Delhi 110003
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Environment Support Group
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