ABSTRACT
India has been working to achieve its ambitious sustainable development goals by undertaking multiple infrastructure projects. However, as evident from the recent troubles the Government of India has run into, these projects can lead to serious environmental concerns such as felling of thousands of trees, loss of habitat of native species and consequent loss of the species, displacement of local and tribal communities, disasters like flash flooding, increased pollution and water shortages among others. This paper delineates the categories of infrastructure projects on the basis of the reasons for which they are undertaken. This paper delves into the role of Environmental Impact Assessments [EIAs] as important tools to maintain the tenuous and intricate balance between such environmental concerns and increasing infrastructure projects, using case studies to highlight the problems that can occur if the EIAs are not conducted responsibly, and also suggests ways that the process can be bolstered.
KEYWORDS
Environment, infrastructure, global commitments, laws, environmental impact assessment, sustainable development
INTRODUCTION
Not long ago, someone would claim that for the greater good of the country which was what they claimed was a stronger economy, we would have to pay the seemingly smaller price which they believed was our environment. However, we have come a long way from those times, and stand at a juncture where, as Justice Kuldeep Singh once said, development and ecology no longer stand opposed to another. This was possible due to the concept of Sustainable Development which has been defined as the development that meets the needs of the present generation without compromising the ability of the future generations to meet their own needs. In recent times, however, environmental litigation has reached a complex point where infrastructure meant to serve the interest of sustainable development seems to be causing damage to its surrounding ecology. On the other hand, India’s ambitious projects meant to augment the socio-economic growth of its people and strengthen its geopolitical position to counter China’s growing influence in the Indian Ocean Region, has been flagged for its potential adverse consequences that include displacement of indigenous tribes, loss of biodiversity and ecological destruction among others. The question that arises is whether we can balance both the protection of our environment and the interests and commitments of our country. This paper answers this question by focusing on fixing the existing lacunae and strengthening the current tools and frameworks to tackle this conundrum which are not being employed to their fullest capacity.
RESEARCH METHODOLOGY
This research paper aims to elaborate upon the reasons for which various infrastructure projects using case studies of recent judgments and projects to highlight the increasing complexity of environmental legal disputes. The paper undertakes descriptive examination of various research papers, journals, judgments, commentaries and newspaper reports to delve into the critical role of the Environmental Impact Assessment, the flaws in its regulatory framework and suggest ways to fill the existing lacunae and bolster the process.
REVIEW OF LITERATURE
Existing studies on the topic include Environmental Impact Assessment of Infrastructure projects: A Governance Perspective by Cheryl S.F. Chi, Inkeri Ruuska and Jianhua Xu published in the Journal of Environmental Planning and Management; Integrating Sustainability and Environmental Impact Assessment by David P. Lawrence published on ResearchGate; Strategic Environmental Assessment to Improve Infrastructure Impact Assessments in Brazil by Isabel Silva Dutra de Oliveira, Marcelo Montano and Marcelo Pereira de Souza published in the Journal of Environmental Protection, 2013; Transport Infrastructure Investment and Environmental Impact Assessment in Sweden: Public Involvement or Exclusion? by Rolf Lidskog and Linda Soneryd published in the Sage Journal, 2000 among many others.
THE THREE CATEGORIES OF DEVELOPMENT
To understand the problem we must first understand the three types of development that cause environmental degradation. The first kind includes the ilk of industries which do not take appropriate measures to mitigate the impact of their waste products by following due process. Such cases are relatively easier to tackle. For instance, the Tamil Nadu Tanneries case, where the Vellore Citizens Welfare Forum had filed a case against tanneries and industries that were causing pollution by discharging massive amounts of untreated effluent in Tamil Nadu. Here the case was rather simple, the environmental pollution caused by these industries could be offset by the setting up of common effluent treatment plants as directed by the Supreme Court on the basis of the polluter pays principle and the precautionary principle (Vellore Citizen’s Welfare Forum v. Union of India, AIR 1996 SC 2715)
The Taj Trapezium case is another one where chemical and hazardous and refineries at Mathura were polluting the air around the Taj Mahal. This had caused the monument’s white marble walls to appear black in certain areas. The Supreme Court held that development of India could not come at the expense of its environment and ecosystem and ordered the neighboring businesses to either move to natural gas to shut down the operations (M.C. Mehta v. Union of India, AIR 1977 2 SCC 353)
These cases originate from lack of measures undertaken by industry or plant owners which are fairly easier to deal with since the solutions are usually present but only not implemented.
However, it is the second and third category of cases that pose a complex quandary to lawmakers and adjudicators alike. The cases encapsulated within the second category are those which entail the global commitments of India that work toward goals that are seemingly in harmony with each other but can end up working against their objectives.
The third and last category includes projects which are undertaken for reasons such as security, tourism, geopolitical issues, and connectivity among others.
INDIA’S GLOBAL COMMITMENTS
India’s global commitments entail the Indian dedication to protection and preservation of environment and its natural flora and fauna through among others reduction greenhouse gas emissions, moving away from fossil fuels and investing in renewable energy resources. India has been an active participant in the Kyoto Protocol, an international agreement governed under United Nations Framework Convention on Climate Change [UNFCCC], which came into force on February 16, 2005 (M.K. Ranjitsinh v. Union of India, [2024] INSC 280). The Protocol drives industrialized countries and developing economies to commit to reducing greenhouse gas emissions by setting individual targets (Kyoto Protocol Website). India is also party to the Paris Agreement, which it ratified in 2016, wherein it signed the new Climate Change Agreement. In the build-up to the Paris Agreement, all participating countries had been asked to submit their Nationally Determined Contribution [NDC] to the UNFCCC. The Paris Agreement mandates that every country that is party to the agreement must communicate its NDC every five years (M.K. Ranjitsinh v. Union of India, [2024] INSC 280). India’s NDC’s main elements include reducing emissions by forty-five percent below 2005 level; achieving fifty percent cumulative electric power installed capacity from non-fossil fuel-based energy resources and creation of a carbon sink of 2.5 to 3 gigatons of CO2 warming equivalent through additional and tree cover. And India has set 2030 as the year it plans to achieve the elements delineated above (Climate Action Tracker). At COP 27 in Sharm El Sheikh, India formally stated its net zero goal which is to be achieved by 2070. To its credit, India has worked towards its commitments. As of September 2022, India’s installed renewable electricity generation capacity was 165 GW. This accounts for forty percent of the country’s total electricity generation capacity. Solar energy, hydropower and wind energy account for thirty seven percent, twenty eight percent and twenty five percent of this capacity respectively.
Nexus between Increasing Infrastructure and Environmental Degradation
Protection and preservation of our ecosystem has been planned to be achieved through the installation of multiple infrastructure projects. However, their installation requires spaces big enough to accommodate the huge solar panels or mills or plants that need to be established. This translates to felling of the existing forest cover, displacement of people living in those places, loss of biodiversity native to those spaces, among others. If not to increase renewable energy capacity, the other reasons for which major infrastructure projects are undertaken include geopolitical issues, security of nation, connectivity, tourism, among others. A brilliant case in point for the former case where the projects undertaken to tackle and resolve environmental problems end up causing other sorts of environmental problems is the M.K. Ranjitsinh v. Union of India and a case in point for the latter where the infrastructure is undertaken for other substantial reasons is the Great Nicobar Mega Project both of which have been elaborated upon in great detail as respective case studies below. Other such infrastructure projects that have harmed or will severely harm their surrounding ecological system and the residing local communities include the Joshimath Sinking Crisis, the Lavasa Hill City Project, the Sardar Sarovar Dam Project and the Polavaram Dam project among others.
M.K. Ranjitsinh v. Union of India: A Case Study
The Indian State of Rajasthan has been assessed to have the solar generation potential of 142 GW and stands as one of the top solar states of the country. As part of its Solar Energy Policy, 2019, the States aims to achieve a target of 30,000 MW solar power projects up to 2024-2025. To achieve this ambitious target, the State requires a strong transmission and distribution network for renewable energy (Rajasthan Solar Energy Policy, 2019). At the same time, the state of Rajasthan is home to a majority of the critically endangered avian species called the Great Indian Bustard [GIB]. The Thar Desert has certain dry areas which are the natural habitat of the GIBs. These areas also happen to be where huge renewable energy infrastructure has been established. This has caused the construction of a lot of overhead power lines which have, in turn, led to the death of the GIBs since these birds lack frontal vision (Ajoy Sinha Karpuram, How Supreme Court is Overseeing Conservation of the Great Indian Bustard, The Indian Express, [2024]).
The petitioners of the case had filed a writ petition for the protection of the Great Indian Bustard and the Lesser Florican. Both are on the verge of extinction.
The Supreme Court, in 2021, had directed the undergrounding of the high voltage power lines, however, modifications to the judgment were sought on the grounds that include the potential impact on India’s energy transition to renewable energy sources, India’s international commitments under various agreements such as the Paris Agreement and that undergrounding of the voltage lines was not technically possible (M.K. Ranjitsinh v. Union of India).
The case witnessed the learned Attorney General of India list many measures that have been undertaken by the Union Government of India as well as the concerned state governments. The said measures included financial and technical assistance being provided to the state governments for the conservation of the habitat of the GIBs under the centrally sponsored scheme, “Development of Wildlife Habitats”, collaboration between states of Rajasthan, Maharashtra and Gujarat (all states to which the Great Indian Bustard is a native species of) for carrying out conservation breeding to build a captive population of the species which will be released later into the wild, a central government program titled, “Habitat Improvement and Conservation Breeding of Great Indian Bustard” in 2016 for in-situ conservation of the GIB being undertaken in collaboration with the state government of Rajasthan among others (M.K. Ranjitsinh v. Union of India).
But the fundamental questions that remain are: why were appropriate measures regarding the safety and conservation of this critically endangered species not assessed and undertaken beforehand and who was responsible for such an assessment? These interrogatives will be answered further in the paper when we discuss the role of the Environmental Impact Assessments. For now, it is clear that a lot of time, energy and resources could have been saved if the concerned infrastructure projects in the Thar had been planned keeping also in mind their impact on the surrounding environment and ecology.
The Great Nicobar Island Mega Project: A Case Study
The Great Nicobar Island is the southernmost and largest of the Nicobar Islands and has two national parks, a biosphere reserve and small populations of the Shompen and Nicobarese tribal peoples. It is part of a cluster of 386 islands collectively called the Andaman and Nicobar Islands. The Great Nicobar Island project, launched in 2021, is a seventy two thousand crore worth of a mega project. It is slated to be a major infrastructure upgrade for the island and will be implemented by the ANIIDCO [Andaman and Nicobar Islands Integrated Development Corporation]. The mega project will include an International Container Transshipment Terminal [ICTT], a township, a green field international airport with a peak hour capacity to handle four thousand passengers and a gas and solar based power plant which will be spread over sixteen thousand six hundred and ten hectares (Nikhil Ghanekar, Strategic imperative and environment concern in Great Nicobar Project, The Indian Express [2024]).
The proposed International Container Transshipment Terminal [ICTT] will be constructed at the Galathea Bay in the Great Nicobar Island. It aims at facilitating at the transshipment (the shipment of goods from one place to an intermediate destination and then to another destination) of containers between ports. It will deal with large cargo vessels and the ICTT has been planned to be strategically constructed near a major Indian Ocean chokepoint which is a major international sea route that hosts about twenty to twenty five percent of global sea trade and thirty five percent of world oil supplies, therefore proving to be a lucrative trade route for India. This terminal will also serve India’s geopolitical interests in the region. The green field airport will bolster the island’s connectivity with the Indian mainland and with the rest of the world. The project is also envisioned to bring in revenue through tourism which will help the island’s economic development and is said to eventually lead to the socio-economic growth of the local populace (Understanding the Great Nicobar Development Project, 2023).
However, crucial aspects pertinent to the region’s geographical location and ecological significance have been overlooked. The Great Nicobar Island is close to the epicenter of the 2004 Sumatra earthquake which had caused a permanent uplift of five feet in regard to the Andaman Islands and a permanent subsidence of fifteen feet in regard to the Nicobar Islands. Hence the region is a disaster prone area. Another problem with the project is that the Galathea Bay where the port has been planned to be constructed is the nesting spot for Giant Leatherback Turtles as also identified by the National Marine turtle Action Plan in 2021. In an RTI filed with regard to the tribal communities that inhabit the Island, no clear response was received from any of the three authorities, namely NITI Aayog, Ministry of Tribal Affairs and Ministry of Home Affairs responsible for the implementation of the project. The wildlife sanctuary status of the Galathea Bay was also taken away in 2021 (Understanding the Great Nicobar Development Project, 2023).
It is quite evident from the present facts that not only does this mega project endanger the local ecology and biodiversity of the region while also risking harm to the region’s indigenous tribal population but it also comes across as economically unsound considering how volatile the region has been in the past and its vulnerability to disasters. The questions that beg to be asked are that why despite having these glaring lacunae in the planning of this mega project, it has been given a go-ahead from all departments. Why have the obvious flaws not been assessed and fixed? Why has proper research not been carried out to ensure not the only economic viability of the project but also its ecological soundness?
Role of Environmental Impact Assessments [EIAs]
Infrastructure projects such has dams, highways, energy projects can significantly alter the lives of those that reside in the concerned areas. These alterations can be positive and uplifting; however, they can also severely degrade the environment including displacement, loss of livelihood, and loss of biodiversity among others. Therefore, it is imperative that the potential consequences of such projects are carefully evaluated. Environmental Impact Assessments [EIAs] serve as an important tool which can be used to assess the potential impact of such infrastructure projects. They also help in figuring out solutions to mitigate the impact of the potential negative consequences of such projects.
In India, the EIAs are conducted by the Ministry of Environment, Forest and Climate Change [MoEFCC]. The EIAs are seven step regulatory frameworks that include screening, scoping, baseline data collection, impact assessment, preparation of report, public consultation and appraisal. They require certain commercial projects to obtain a prior Environmental Clearance (‘EC’) or Environmental Permission (‘EP’). However, there have been contentions that the MoEFCC has been lax in its environmental clearance process. They have been criticized for not conducting proper public consultations with the local communities.
If we consider our first case study, the areas in the Thar Desert which serve as the native habitat to the GIBs should have been assessed by the MoEFCC through the EIA before the infrastructure projects commenced. The idea of using bird diverters being used to take care of the GIBs should have been thought of prior to the building and implementation of any project. If the EIA was dutifully conducted and such glaring pieces of evidences were found, why did the MoEFCC issue an environmental clearance to these projects before such measures were implemented for the GIBs by the stakeholders of the project? If we consider the second case study, the severe impact of the mega project on the ecology and the Island’s indigenous surely must have caught the attention of those conducting the EIA, however, the project was given all environmental clearances and more alarmingly, status of a wildlife sanctuary was removed. In both cases, it was incumbent upon the EIA to ensure the ecological vitality of the aforementioned projects.
There have been many other cases where the MoEFCC has cleared controversial infrastructure projects that have later met with a lot of public resistance and criticism. One such incident occurred in 2020, when the MoEFCC issued a public draft EIA notification regarding the construction of a coastal road in Mumbai, perceived as major threat to marine life and the livelihood of fishermen and fisherwomen by environmentalists. Other instances include the Karnataka Government giving clearance to the Hubbali-Ankola railway line. The railway line was cutting through major biodiversity hotspots in the Western Ghats. (James and Udayashankar, SLR Journal, 2020). The MoEFCC has also been under fire for not taking a stand against projects such as the Polavaram dam in Andhra Pradesh and the Ken-Betwa River linking project in Madhya Pradesh, both of which cause significant damage to their surrounding ecology and displacement of the local communities.
Flaws in the EIA framework
Under the Environment Protection Act, 1986 [the EPA], the EIA is simply a notification, hence only a subordinate legislation which is has not been brought about by a legislative decision but rather at the will of an executive decision. Therefore, the entire EIA process is without the power of a statutory law. Instead of using ‘notification’ as the legal instrument to bring about the EIA process, the instrument of ‘rules’ should have been used to give it the EIA process a stronger position in the environmental governance of India (James and Udayashankar, SLR Journal, 2020). Hence, the process is inherently quite powerless. The first EIA notification came into effect in 1994 and was criticized on the basis that it left many industries out of the scope of impact assessment. Thereafter, another notification came in 2006 that amended and significantly diluted the notification of 1994 (James and Udayashankar, SLR Journal, 2020).
Another major contention regarding the EIA framework is that there is a lack of transparency in the clearance process. There have been barely any public consultations and the decision-making criteria are not always made public. After the 2020 EIA notification, the public consultation was also diluted to a great extent. It has reduced the time for public hearing from forty five days to forty days, removed the provision that required authorities to widely publicize the draft EIA Report, and added several exemptions to the public consultations such as projects that fall within the category of defense, industrial estates and chemical industries among others. (James and Udayashankar, SLR Journal, 2020)
Lastly, the EIA process seems to be incongruous with other environmental laws. It has not integrated them within its framework. For instance, the local communities and their rights have been recognized in the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. It has also been recognized in other acts such as the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which made consent a mandatory pre-requisite for land acquisition, the Panchayats (Extension to Scheduled Areas) Act, 1996 and Panchayati Raj Acts, all of which work to integrate the local governments and the local communities as primary stakeholders of the broader environmental governance. The EIA, on the other hand, has only ignored these communities and their right to participate in the decision-making process. It has also not taken the valuable input of committees formed under the Biological Diversity Act, 2002 and the Forests Rights Act, 2006.
Suggestions and Conclusion
It can be understood that there are many loopholes in the Environmental Impact Assessment that need to be assessed and fixed in order to bolster the process. It will not only imbue the Indian environmental governance with a renewed sense of justice and action but also help India reach its sustainable development goals in a more efficient and holistic manner. Following are some ways we can fortify the EIAs:
- The EIA must be given more statutory powers by upgrading its status from ‘notification’ to ‘Rules’ under the EPA. Section 26 of the EPA provides that ‘Rules’ to the Act can be brought before the Parliament. This would ensure that the MoEFCC conducts the EIAs in a more serious and responsible manner as they would be answerable in the Parliament for it.
- The 2020 notification had amended the 2006 notification to include that the MoEFFC need not conduct a public hearing of the draft EIA if it is not possible to do so in a manner that allows all local stakeholders to be able to express their views freely. This must be amended to make the EIAs mandatory and they must not be subject to the discretion of the agencies in charge. EIAs have been made mandatory in developing countries such as the UK, France, USA, Ireland and Luxembourg, and although it is true that India’s needs as a developing nation look different, involving local communities as part of the decision-making process is necessary for any nation’s growth.
- The local governments, such as the Panchayats, can serve as a powerful medium for conducting the public consultations and must be made involved in the process.
All in all, we can understand the complexity of the conundrum before us and how effectively conducting the EIAs can significantly resolve many of the problems. Sustainable development can be achieved through robust and ecologically sound planning so that the ambitious projects of India do not end up doing more harm than good.
LIST OF REFERENCES
- Ajoy Sinha Karpuram, How Supreme Court is Overseeing Conservation of the Great Indian Bustard, The Indian Express (IE), [March 27, 2024], https://indianexpress.com/article/explained/explained-law/supreme-court-conservation-great-indian-bustard-9234896/
- Climate Action Tracker, https://climateactiontracker.org/countries/india/#:~:text=An%20emissions%2Dintensity%20target%20of,and%20tree%20cover%20by%202030, 4 December 2023
- Draft EIA Notification 2020, paragraph 14(8); EIA Notification 2006, paragraph 2 (III) (v)
- Hifza Haq, Assessing the Environmental Impact of Infrastructure Projects, Indian Journal of Projects, Infrastructure and Energy Law (IJPIEL), 10 April 2023, https://ijpiel.com/index.php/2023/04/10/assessing-the-environmental-impact-of-infrastructure projects/#:~:text=Infrastructure%20projects%20such%20as%20hydropower,leading%20to%20severe%20environmental%20consequences
- Kaushik Deb, Pranati Chestha Kohli, Center on Global Energy Policy, 8 December 2022 https://www.energypolicy.columbia.edu/publications/assessing-india-s-ambitious-climate-commitments/,
- M.K. Ranjitsinh v. Union of India, [2024] INSC 280
- M.C. Mehta v. Union of India, AIR 1977 2 SCC 353
- Nizami Abdul-Sattar, Comparative Analysis of the EIA System of Developed and Developing Countries: Cases of Hydroelectric Power Plants, Chalmers University of Technology, 2007
- Nikhil Ghanekar, Strategic imperative and environment concern in Great Nicobar Project, The Indian Express (IE), 18 June, 2024, https://indianexpress.com/article/explained/great-nicobar-project-concern-9400418/
- Rajasthan Solar Energy Policy, Energy Department, Government of Rajasthan, 2019 (India)
- Stella James, Nayana Udayashankar, From 2006 to 2020: The Ongoing Problems of the EIA, Socio-Legal Review, National Law School of India University, 13 August, 2020. https://www.sociolegalreview.com/post/from-2006-to-2020-the-ongoing-problems-of-the-eia
- Sustainable Development Commission, What is Sustainable Development, https://www.sd-commission.org.uk/pages/what-is-sustainable-development.html
- Understanding the Great Nicobar Development Project, Centre for Financial Accountability, February 2023, https://www.cenfa.org/wp-content/uploads/2023/03/Understanding-the-Great-Nicobar-Development-Project.pdf
- Vellore Citizen’s Welfare Forum v. Union of India, AIR 1996 SC 2715
SHREE GUPTA
RAJIV GANDHI NATIONAL UNIVERSITY OF LAW