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Environment Rule of Law

SC sets aside NGT order shutting down factories operating without Environmental Clearance

Does this set a harmful precedent where manufacturing units can be established without following procedure and then be allowed to continue operating due to economic concerns?

Sabrangindia 19 Apr 2022

NGTImage: Live Law

On March 25, 2022, the Supreme Court set aside an order by the National Green Tribunal (NGT) that had directed closure of some 15 manufacturing units which were permitted to operate without prior Environmental Clearance (EC) by the Haryana state government.

The SC held that the manufacturing units which are generating employment for about 8,000 people and contributing to the economy, and cannot be shut down because of technical irregularity of not obtaining an EC prior to commencing operations, if such manufacturing units comply with environmental norms.

It is well known that it is mandatory to obtain EC as per the law, but in the present case the state government appears to have erred in its assessment of the manufacturing units and contending that they did not require EC.

A brief history of how Environmental Clearance became mandatory

The Central Government issued an Environmental Impact Assessment (EIA) Notification dated January 27, 1994 directing that on and from the date of publication of the said notification in the Official Gazette, expansion or modernisation of any activity or a new project listed in Schedule I to the said notification shall not be undertaken in any part of India, unless it has been accorded EC by the Central Government in accordance with the procedures specified in the said notification.

Meanwhile Central Government has delegated powers to the respective State Pollution Control Boards/Committees to issue directions to any industry or any other authority to prevent violation of the Environment (Protection) Rules, 1986, vide notification dated April 10, 2001.

The Central Government again issued a notification dated September 14, 2006, being Notification S.O. 1533 (E) requiring prior environmental clearance from the Central Government or as the case may be, by the State-Level Environment Assessment Authority, duly constituted by the Central Government. According to this notification, the process of environmental clearance for new projects was to comprise of a maximum of four stages, all of which might not apply to particular cases. The stages were (1) Screening, (2) Scoping, (3) Public Consultation and (4) Appraisal.

The case of the 15 factories

The manufacturing units associated with the case, manufactures the basic organic chemicals, namely, Formaldehyde. The Haryana State Pollution Control Board (HSPCB) has given its Consent To Operate (CTO) to 15 such units without obtaining the mandatory EC. The HSPCB totally misinterpreted the categories of such units for which the EC is mandatory. Upon realising the fact that these units are required to have prior EC, it revoked the CTO issued earlier to these units.

Some of these units approached the Government with the chaotic situation created by the HSPCB. They asked the government for some time to obtain the mandatory EC from the competent authority, which will take six months to one year of time, and also sought permission to operate the units with all pollution control measures.

Upon considering the fact, the competent authority decided to allowed them to continue to operate for a period of six months without prejudice to any legal action taken against the violations committed by them, by the competent authorities. The condition of immediate application for the EC and also to provide the proof of the same within 60 days from issuance of this communication to Environment and Climate Change Department and to Haryana State Pollution Control Board was put forth.

The State of Haryana passed an Order dated November 10, 2020, which allows formaldehyde manufacturers [which requires prior Environmental Clearance (EC)] to operate without prior EC for six months, subject to making application for EC within 60 days.

State Government Order

The Department of Environment and Climate Change of the Government of Haryana issued an Order dated November 10, 2020, which is extracted below:

“Whereas the process of manufacturing of Formaldehyde is covered under the provisions of 5(f) of Schedule of Environment Impact Assessment Notification (EIA), 2006 of Government of India, and requires the prior Environmental Clearance (EC) from the competent authority State Environment Impact Assessment Authority (SEIAA)/Ministry of Environment, Forest and Climate Change, Government of India, before establishment and operation of such units, besides other mandatory clearance, as applicable;

Whereas, it has come to the notice of Government that around 15 such units have been permitted to establish/operate in the State of Haryana, without obtaining the necessary Prior Environmental Clearances, but with the Consent of the Haryana State Pollution Control Bureau (HSPCB), which misinterpreted the category of such units and on realising the requirement of EC in these cases, has revoked its consents issued earlier to these units recently;

Whereas, some of these units approached the Government explaining their hardship due to such sudden revocation of their consents and have sought time for obtaining the necessary EC from the competent authority as the process is likely to take a minimum of 6 months to one year period, and to allow them to operate with all pollution control measures, following the pollution control norms applicable, and,

Whereas, the Government has carefully considered their request and the competent authority has decided that these units shall be allowed to continue their operations for a period of six months, without prejudice to any legal action taken against the violations committed by them, by the competent authorities, with the conditions that they will immediately apply for Environmental Clearance from the competent authority and provide the proof of such application within 60 days from the issuance of this communication to Environment and Climate Change Department and to Haryana State Pollution Control Board.

Therefore, it is Ordered accordingly.”

Background of Case before National Green Tribunal

The Application was filed by Dastak NGO against Synochem Organics Pvt. Ltd. in the Court of National Green Tribunal (NGT) in December 03,2020 (Dastak N.G.O. V/s. Synochem Organics Pvt. Ltd. & Ors. – O.A. No. 287/2020).

The Application sought the Order dated November 10, 2020, of State of Haryana to be quashed. The Department of Environment and Climate Change of the Government of Haryana issued the above Order on November 10, 2020.

The Applicant submits to the Court that the requirement of prior EC is mandatory. The State has no jurisdiction to exempt the companies from the basic requirement of acquiring prior EC. Accordingly the State Pollution Control Board passed a closure order for the 15 units manufacturing units. But the State government of Haryana had passed the above Order allowing the 15 units to operate for six months with the required condition.

The Application before the National Green Tribunal was filed by Dastak NGO to quash the above Haryana State government Order. The application further states that the industries are using an approximate amount of six Lakhs litres per day without requisite permission of the Ground Water Authority.

It further states there is also non-compliance of Manufacture, Storage and Import of Hazardous Chemical rules, 1989. These units are dumping their untreated effluents into the ground water using reverse borewells which is leading to underground water damage further damaging the quality of soil and crops. No adequate compensation is granted for the dame caused by their wastage disposal. “The Department of Environment and Climate Change of the Government of Haryana issued an Order dated November 10, 2020,” the application stated.

The Application further went to add that the excess steam which is a result of the condensation process is discharged into the air using chimney which leads to air pollution. “There is no mechanism to check leaching of methanol from underground tanks. This is one of the causes of cancer,” stated the Application.

Order of National Green Tribunal

The State through its EIA notification dated September 14, 2006 cleared its stand on the requirement of prior EC for setting up and functioning of these units. Hence there is no justification to permit function of such units in violation of mandate of law.

According to provision 5(f) of the Environment Impact Assessment (EIA) Notification 2006, the Environmental Clearance is mandatory for the establishment and operation of manufacturing units of formaldehyde.

The 5- Judge Division Bench of the Tribunal gave its final Order on June 3, 2021. The Tribunal held that the units cannot be allowed to operate without prior EC and also the State acted ‘ultra vires’ (out of authority) to permit the units to operate without prior EC.

The Order quoted, “We thus hold that without prior EC the units cannot be allowed to operate. The State has no power to exempt the requirement of prior EC or to allow the units to function without EC on payment of compensation.”

On June 3, 2021, the Tribunal while concluding its Order disposed off the application and stated, “For past violations, the concerned authorities are free to take appropriate action in accordance with polluter pays principle, following due process.”

The NGT Order may be read here: 

Supreme Court Appeal

A Civil Appeal (M/S Pahwa Plastics Pvt. Ltd. & Anr. v/s. Dastak NGO & Ors. - Civil Appeal no. 4795/2021) against Dastak NGO along with some of the companies was filed on August 23, 2021 in Supreme Court of India.

The Civil Appeal came to be filed against the NGT Order dated June 03, 2021 which was listed for admission on September 30, 2021 along with an interim application which prays for the order permitting the Appellants to operate their units during the pendency of the Appeal.  

The question of law raised in this appeal was, whether an establishment employing about 8,000 workers, which has been set up pursuant to Consent to Establish (CTE) and Consent to Operate (CTO) from the concerned statutory authority and has applied for ex post facto EC can be closed down pending issuance of EC, even though it may not cause pollution and/or may be found to comply with the required pollution norms.

Judgment

Supreme Court presided by Single-Judge Justice Indira Banerjee pronounced its Judgment on March 25, 2022 regarding this Appeal challenging the NGT Order.

The Judgment stated that the manufacturing units which are generating employment of about 8,000 employees, providing them livelihood and also contributing a lot in the economy of the country cannot be shut down because of technical irregularity of not obtaining prior EC, if such manufacturing units comply with environmental norms.

The Judgment said, “The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.” It further said, “It is reiterated that the 1986 Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible.”

The court directed, “The Respondent shall take a decision on the applications of the Appellants for EC in accordance with law within one month from date. Pending decision, the operation of the Pahwa Yamuna Nagar Unit and the Apcolite Yamuna Nagar Unit, in respect of which consents have been granted and even public hearing held in connection with grant of EC, shall not be interfered with.”

The Judgment further states, “The Appellants will be allowed to operate the units. Electricity, if disconnected, shall be restored subject to payment of charges, if any. If the application for EC is rejected on the ground of any contravention on the part of the Appellants, it will be open to the Respondents to disconnect the supply of electricity.”

Concluding the Judgment, Justice Indira Banerjee gave three weeks to the concerned authority to take a decision on the application of the Appellants EC.

The Judgment may be read here:

 

Previous Judiciary Pronouncements

Samatha vs State Of Andhra Pradesh And Ors

Court: Supreme Court of India

Judgment dated: July 11, 1997

Bench: Justice K. Ramaswamy, Justice S. Saghir Ahmad and Justice G.B. Pattanaik

About the Case

In the late 1980s, the social advocacy organisation named ‘Samatha’ was established to work with impoverished Adivasi communities facing land alienation in the Eastern Ghats hill range of northeastern Andhra Pradesh.  In the early 1990s, villagers approached Samatha when a subsidiary of the Birla Group wanted to mine calcite in their village. As the mining plans were believed to violate the ‘Andhra Pradesh Scheduled Areas Land Transfer Regulation 1959,’ that bans the sale or transfer of land from a tribal to a non-tribal person. This case came to be known as ‘Samatha case’.

Judgment

The Supreme Court presided by Division Bench, delivered the judgment in the Samatha case in July 1997. The Bench stated, “The Constitutional scheme which is sought to be enforced through Regulations is that the property of the Scheduled Tribe or the immovable property situated in Agency Tracts may be protected and be not frittered away and further that they may retain their original character and may continue to belong to members of the Scheduled Tribe or their Co-operative Societies, or that if the property belongs to a non-tribal, it may not be transferred to a non-tribal and may be transferred to a tribal alone.” 

The Bench further said, “The Fifth Schedule including Para 5 thereof as also the Regulations made thereunder by the Governor of Andhra Pradesh clearly seek to implement the national policy that the custom, culture, life-style and properties of the Scheduled Tribes in the Agency Tracts and other immovable properties situate therein shall be protected. The Government being under a legal constraint to deal with the property situated in the Agency Tracts only in the manner indicated above, cannot itself act beyond the scope of the Regulations by saying that it is free to dispose of its own properties in any manner it likes. If the Government was allowed to transfer or dispose of its own land in favour of non-tribals, it would completely destroy the legal and constitutional fabric made to protect the Scheduled Tribes. The prohibition, so to say, disqualifies non-tribals as a class from acquiring or getting property on transfer.”

The Goa Foundation & Anr v/s. The Conservator Of Forests & Ors

Court: Bombay High Court

Judgment dated: October 16, 1998

Bench: Justice A Desai and Justice R Batta.

About the Case.

The Petitioners are a registered society and are working in the field of environment with the object to maintain ecological balance. The petitioners are public spirited body and for the purpose of preservation of environment have approached this Court by way of this petition. The petitioners challenge the developmental activity being carried out by respondent No. 9 Tata Housing Development Co. Ltd., in Survey No. 69/4 of village Penha de Franca of Bardez Taluka and seek to challenge various permissions granted for the said developmental activity which is contrary to the provisions of the Forest (Conservation) Act, 1980.

The case is about; the Survey No. 69/4 is 'forest' and non-forest activity therein is not permissible unless prior permission is taken from the Central Government under the F.C.A. 1980. The petitioners also challenge alteration of Survey No. 69/4 from A-1 (Agricultural and Orchard (Natural Reserve) Zone and A-2 (Agricultural and Natural Reserve Zone) to S-2 (Settlement Zone) for planning purpose in the Outline Development Plan prepared under the Goa, Daman and Diu Town & Country Planning Act, 1974, (hereinafter called the 1974 Act). The Bench passed the Judgement on October 16, 1998.

Judgment

The Bench noted that, “The Sarpanch, Village Panchayat, Penha de Franca, vide letter dated 21-11-96 informed Anand Bandiye, Power of Attorney Holder of Levin Da Costa, partner of respondent No. 11 of the said condition that natural cover/landscape formed by trees as seen from river Mandovi shall not be disturbed in any fashion while carrying out the development/construction.”

The Bench also noted that, “The Chief Town Planner vide letter dated 7-5-97 informed Sarpanch, Village Panchayat that the matter had been carefully examined and the building blocks located along the average line of 35-36 contours on the southernmost side of the property should be cancelled as well as the proposed access road from the existing Betim-Alto Porvorim road should be cancelled and access to the property should be taken from the northern side of the property. The development permission issued earlier for the two rows of building blocks of D/G and A and D/G and B are withdrawn as indicated in red in the enclosed layout plan and the area with green hatching should be treated as "no construction" Zone.”

The Bench further held, “It is not understood as to how the Conservator of Forests could grant permission for cutting of the trees vide order dated 9-1-97 which would have the effect of clearly violating the said additional condition, imposed wide letter dated 21-11-96 of the Village Panchayat. Rather than taking action for violation of the said additional condition by removal of natural cover/landscape formed by trees as seen from river Mandovi which was directed not to be disturbed in any fashion while carrying out the development/construction, the Chief Town Planner/Government chose to condone the same by adding special condition to put back the landscape.”

The Bench concluded by stating, “There has been thus violation of the said additional condition of the licence and the project which will come up after violating the said additional condition would be an eyesore in the green belt of the hillock towards river Mandovi. Moreover, Survey No. 69/4 being a forest land section 2(ii) of the Forest (Conservation) Act, 1980 requires prior approval of the Central Government for use of forest land or any portion thereof for non-forest purpose which approval has not been obtained. We further direct removal of all developmental work done in Survey No. 69/4 in the area of 11275 sq. meters which is subject matter of this petition and restore the hill to its original vegetation. Consequently, all further developments, constructions and any further activity shall be stopped forthwith.”

M.C. Mehta vs Union Of India & Ors on March 18, 2004

Court: Supreme Court of India

Judgment dated: March 18, 2004

Bench: Justice Y.K. Sabharwal and Justice H.K. Sema.

About the Case.

The Haryana Pollution Control Board (HPCB) was directed by orders of this Court dated November 20, 1995 to inspect and ascertain the impact of mining operation on the Badkal Lake and Surajkund - ecologically sensitive area falling within the State of Haryana. In the report that was submitted, it was stated that explosives are being used for rock blasting for the purpose of mining; unscientific mining operation was resulting in lying of overburden materials (topsoil and murum remain) haphazardly; and deep mining for extracting silica sand lumps is causing ecological disaster as these mines lie unreclaimed and abandoned.

It was, inter alia, recommended that the Environmental Management Plan (EMP) should be prepared by mine lease holders for their mines and actual mining operation made operative after obtaining approval from the State Departments of Environment or HPCB; the EMP should be implemented following a time bound action plan; land reclamation and afforestation programmes shall also be included in the EMP and must be implemented strictly by the implementing authorities. The report recommended stoppage of mining activities within a radius of 5 kms from Badkal Lake and Surajkund (tourist place).

The Application has been filed by the Delhi Ridge Management Board praying that the Government of Haryana be directed to stop all mining activities and pumping of ground water in and from area upto 5 kms from Delhi-Haryana border in the Haryana side of the Ridge, inter alia, stating that in the larger interest of maintaining the ecological balance of the environment and protecting the Asola Bhatti Wildlife Sanctuary and the ridge located in Delhi and adjoining Haryana, it is necessary to stop mining. In the application, it has been averred that the Asola Bhatti Wildlife Sanctuary is located on the southern ridge which is one of the oldest mountain ranges of the world and represents the biogeographical outer layer of the Aravalli mountain range which is one of the most protected areas in the country. 

Judgment

The Bench held that, “Our examination of the issues is confined to the effect on ecology of the mining activity carried on within an area of 5 Kms. of Delhi-Haryana Border on Haryana side in areas falling within the district of Faridabad and Gurgaon and in Aravalli Hills within Gurgaon District. The question is whether the mining activity deserves to be absolutely banned or permitted on compliance of stringent conditions and by monitoring it to prevent the environmental pollution.” The Bench noted that, “EPCA noticed mining sites very close to the roads and also very close to the ecologically sensitive area of Asola sanctuary near the Goodwill mine.”

It further noted, “On the impact on the groundwater reserves due to mining, the Board has found that its observation wells have shown an increase in groundwater levels in Anangpur, Mangar, after the mining has been stopped in May. Therefore, in spite of monsoon failure and continued abstraction of water, the observation wells have noted increased water levels within just 2 months of the mining being closed. The groundwater levels in a tube well monitored in Mewla Maharajpur during mid July and first week of August showed a rise of 0.18 metres, A higher rise - 0.71 to 0.78 metres was observed in the two tube wells near the Mangar mines and Pali mines in the two months since the mines were closed. This clearly points to the impact of mining on groundwater reserves.”

The Bench also noted, “Even the Haryana government's affidavit in court accepts that pumping of ground water is taking place, though it attempts to soften the issue by arguing that it is only being done in a few cases. Under this condition, mining is not allowed in the water table area. EPCA saw deep and extensive pits of mines with vast water bodies. EPCA also saw evidence of pumps and pipes being used to drain out the ground water so that mining could continue. Therefore, the miners are mining for silica, but also in the process, mining and destroying the ground water reserves of the areas. In times of such water stress and desperation, this water mining is nothing less than a gross act of wastage of a key resource… Therefore, it is observed that dewatering of mines in Aravalli hills has affected ground water regime of the mine area as well as buffer zone resulting in depletion of ground water resources.”

The Court quoted in its Judgment that, “The mining operation is hazardous in nature. It impairs ecology and people's right of natural resources. The entire process of setting up and functioning of mining operation require utmost good faith and honesty on the part of the intending entrepreneur. For carrying on any mining activity close to township which has tendency to degrade environment and are likely to effect air, water and soil and impair the quality of life of inhabitants of the area, there would be greater responsibility on the part of the entrepreneur. The fullest disclosures including the potential for increased burdens on the environment consequent upon possible increase in the quantum and degree of pollution, has to be made at the outset so that public and all those concerned including authorities may decide whether the permission can at all be granted for carrying on mining activity. The regulatory authorities have to act with utmost care in ensuring compliance of safeguards, norms and standards to be observed by such entrepreneurs.”

Environmental clearance – A scam?

The Union Minister of Environment, Forest and Climate Change (MoEFCC) had made a statement that it will rank the State Environment Impact Assessment (EIA) authorities on the basis of the speed at which the environmental approvals are given. It basically implies that all it cares is about the ‘clearance’ of projects and not the quality of the assessment or the ability of ensuring that the environmental impacts of development projects are mitigated.

Hindustan Times reported in December 2021, the statement of Union Environment Ministry: “The average time to grant environmental clearances in all sectors has reduced significantly from over 150 days in 2019 to less than 90 days in 2021. The clearance time is as low as 60 days in some sectors.”

But some experts say the reduction in clearance times was not benefitting conservation. “The environment regulation is being assessed through a perverse logic that considers rates and dates of approvals as measure of success. It is no longer about how much area has been protected from degradation or how much environmental damage has been remedied. Faster rates of clearance do not ensure financial viability or a project and neither does it ensure that proposals are ecologically wise and socially legitimate,” said Kanchi Kohli, legal researcher, Centre for Policy Research as reported by Hindustan Times.

In its report titled Odisha: Déjà Vu in Dhinkia as People Renew Protests Against Jindal's Steel Project, The Wire reported how the villagers opposing the Jindal’s proposed project of integrated steel plant are harassed. Prashant Paikray, the spokesperson for the Jindal Pratirodh Bheetamati Suraksha Samiti, told the publication that the protests began in Dhinkia on December 4, when police arrived at night in the midst of a raging cyclone to arrest Debendra Swain, a Samiti leader. “They tried to break the front door of Swain’s house and damaged it. When they did not find Swain they arrested his uncle Ayodhya and his daughter Lili,” he said.  

The report mentioned how the Odisha Panchayati Raj department launched disciplinary action against Swain, a member of the Dhinkia panchayat, and issued a show-cause to him. Swain submitted he could not appear for a hearing and on December 8, 2021 he was informed that he was removed as a panchayat member.  

Since December 5, the people of Dhinkia blockaded the entrance to the village which has been bifurcated into three new revenue villages – Dhinkia, Mahala and Patana. Using tactics similar to the ones they used against POSCO, the communities affected by the JUSL project erected bamboo gates and refused to allow the police or government officials and JSW staff. 

EIA Draft Notification 2020

Before colonisation, natural resources such as land, forests and water had been utilised collectively in a controlled manner by the local communities, ensuring that the resources are used sustainably. The radical change in the resource utilisation was associated with colonisation, after which there was major conflicts over natural resources being used by non-local actors. Colonisation transferred these common vital resources into commodities for generating profits and revenues.

After the end of colonial period, and till today, politically weak and socially disorganised communities whose survival is primarily dependent on the products of nature outside the market system are some of the worst affected. Along with the exploitation of the natural resources in India, the fundamental rights of the Adivasi (tribal) people are being side-tracked when huge forest lands are been used under the name of mineral exploration.

Earlier the draft of Environment Impact Assessment Notification, 2020 was criticised for attempting to strike out public consultations in the process of approval for certain projects, for the sake of easing business. The draft notification seeks to dilute the concept of public consultations, which is the core of the EIA process, for a large number of projects. According to the activists, the rights of scheduled tribes and other traditional forest dwellers guaranteed under Forest Rights Act (FRA), 2006 and the Panchayats (Extension to the Scheduled Areas) Act (PESA), 1996 will be compromised if certain projects are exempted from public hearing.

The Forest Rights Act, 2006 has a provision under its section 5 which grants power to Gram Sabhas to regulate access to community forest resources and to stop any activity which adversely affects the wild animals, forest and biodiversity. The PESA act empowers Gram Sabhas to prevent alienation of land and to approve plans and projects. It is mandatory to consult with a Gram Sabha before acquiring land for development projects. 

The draft notification, if comes into effect, is in violation with the rights guaranteed to Gram Sabhas under Schedule 5 and Schedule 6 of the Constitution of India. In order to safeguard the rights of indigenous populations, certain areas in the country are enlisted under Schedule 5 and Schedule 6 where communities belonging to Schedule Tribes have autonomy in the administration and control of land, forests, and natural resources. In order to guarantee the rights conferred upon populations living in areas listed under these two schedules, the Parliament had enacted the PESA Act in 1996.

Industrialisation degrading the environment

The intention of industrialisation is economic development of that region by providing employment opportunities to the people of the locality. While industrial development invariably creates more job opportunities, it also increases the adverse effects on the environment.

The industrial clusters are not only hazardous but had also caused irreparable damage to our ecology and environment. The industrial wastes have been accumulated in large scale while its utilisation has been neglected since long time. Accumulation of industrial solid wastes leads to land pollution and emission of wastes into water sources, mostly chemical wastes from the manufacturing units leads to water pollution. Gaseous wastes of the industrial units are released into air without filtering resulting in air pollution.

It was reported by Hindustan Times in February 2017, “E-waste concentration in the Indian soil is twice the global average. Delhi alone generates 15,000 tonnes per year in addition to the e-waste imported for recycling. High levels of tetra and penta PCB congeners were observed in soil samples from East Delhi.”

These industrial wastes mostly contribute in the environment pollution degrading its quality, consequences of which can be seen in current harsh climate change and also health issues in human beings.

Industrial development affecting Tribal communities

Tribal regions are more affected in this process of development. A significant number of displaced tribals have historically been dependent on natural and common resources. According to The Wire report, Chhattisgarh, Jharkhand and Odisha, for example, account for 70% of India’s coal reserves, 80% of its high-grade iron ore, 60% of its bauxite and almost 100% of its chromite reserves.

The developmental projects have forced the tribal community to move out of area where they lived for generations. The serious consequences of the displacement for the tribal people are both agricultural and homestead along with the loss of traditional occupation. On many occasions, they have even deprived of compensation and rehabilitation benefits as per the Land acquisition amended Act, 1984. Many a times, they do not possess any legal documents to prove their ownership rights of the land which they have occupied and earned their livelihood for years. Moreover, the rights over the resources of their habitat on which they are dependent are customary rights and not legal. Hence, they become vulnerable to lose their habitat and livelihood.

“In Andhra Pradesh, and in the newly formed state of Telangana, private sector mining is still unable to encroach on Adivasi lands, yet these lands are in great demand for many government projects seen as operating in the public interest, including coal mines and irrigation dams. Since 2005, new attempts have been made to exploit the bauxite ore in this region, even though the Samatha judgment is an accepted part of the legislation. The relevant project instead relies on a weakness of the Samatha judgment by using an Andhra Pradesh Government company to carry out the mining while the private investor, Jindal South West (JSW), which is financing the entire project, locates its associated refinery just outside of the Scheduled Areas, where private land ownership is allowed. A confident state government with a strong role to play in national politics, and the support of one of India’s major business families, at the time looked certain to be able to implement the project in this new form of public–private partnership, which in large part appeared to have been designed to circumvent the Samatha judgment. In 2013, however, the company confirmed in a newspaper interview that it had cancelled its investment because of the slow pace of implementation and a lack of government support,” as reported by JSTOR.

As per the report of JSTOR, “Land continues to be the most important productive asset for rural communities in India, and ownership of land is linked to a reduced incidence of poverty. The Samatha judgment has strengthened tribal rights to this crucial asset by preventing the development of several proposed mining projects. Yet the contested nature of its implementation, as well as continued attempts to mine the mountains, make it doubtful whether local people have been able to utilise these stronger rights for economic improvement. This is especially the case since private landholdings are still frequently denied to tribal farmers in forests controlled by the government. Because tribals have no security of tenure and live under the constant threat of eviction, they cannot invest in improving their land. Their poverty prevents them from planting tree crops that have long gestation periods, and the illegality of their position precludes their receiving loans from the government to make their agriculture more productive.”

The JSTOR paper named ‘Mining Conflicts in Liberalising India’ may be read here:

 

As per a report in The Quint, “Currently, up to 25,000 hectares of forests - 250 sq km, or more than twice Chandigarh’s area - are handed over every year for “non-forestry activities”, including defence projects, dams, mining, power plants, industries and roads, the government recently told parliament. The rate of “diversion”, as the process is called, varies across states.”

 

                                Table 1: Dam and Displacement of the Tribal People

Name of Project

State

Population displacement

Tribal people as percentage of displaced

Karjan

Gujarat

11,600

100

Sardar Sarovar

Gujarat

2,00,000

57.6

Maheshwar

Madhya Pradesh

20,000

60

Bodhghat

Madhya Pradeh

12,700

73.91

Icha

Bihar

30,800

80

Chandil

Bihar

37,600

87.92

Koel Karo

Bihar

66,000

88

Mahi Bajaj

Rajasthan

34,400

76.28

Polavaram

Andhra Pradesh

1,50,000

52.9

Maithon and Panchet

Bihar

93,874

56.46

Upper Indravati

Odisha

18,500

89.2

Pong Dam

Himachal Pradesh

80,000

56.25

Inchampalli

Andhra Pradesh & Maharashtra

38,100

76.28

Tultuli

Maharashtra

13,600

51.61

Daman Ganga

Gujarat

8,700

48.7

Bhakra Dam

Himachal Pradesh

36,000

34.016

Masan

Bihar

3,700

31


Tribal people’s life after Displacement

Due to the development projects, tribal communities are forced to move out from their traditional habitat, where they lived for generations, to an unfamiliar and potentially hostile environment. This involuntary displacement has led to increase their vulnerability towards exploitation and also pushing them to poverty, chronic malnourishment, starvation and ill health including psychological trauma.

Among the Tribals, community land and forests are not only their economic commodities but also the centre of their culture and identity. This system comes to an end and their life enters into total crisis when the resources are alienated from them without their consent leaving them with no other alternative.

Some of the reasons for the marginalisation of the Adivasis are land alienation, loss of access and control over forests, enforced displacement projects, lack of proper rehabilitation and indebtedness etc.

As the land was the only source of earning and feeding their families, after eviction they are forced to become migrant workers and work in abysmal conditions in urban and semi-urban areas from where they get stuck into vicious circle of poverty during which they often get exploited which is also known as “modern day slavery.”  

 

International Laws

Convention on Environmental Impact Assessment in a transboundary context

The Parties to the convention are aware of the inter-relationship between economic activities and their environmental consequences. There is a need to develop anticipatory policies and of preventing, mitigating and monitoring significant adverse environmental impact in general.

Being conscious of the need to give explicit consideration to environmental factors at an early stage in the decision-making process by applying Environmental Impact Assessment (EIA), at all appropriate administrative levels, as a necessary tool to improve the quality of information presented to the decision makers so that quality decisions can be made by taking into consideration - minimization of the adverse impact on environment.

International organisations can promote the use of EIA both at the national and international levels, and taking into account work on EIA.

 

ARTICLE 2:

  1. The Parties shall, either individually or jointly, take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities.
  2. Each Party shall take the necessary legal, administrative or other measures to implement the provisions of this Convention, including, with respect to proposed activities listed in Appendix I that are likely to cause significant adverse transboundary impact, the establishment of an environmental impact assessment procedure that permits public participation and preparation of the environmental impact assessment documentation described in Appendix II.
  3. The Party of origin shall ensure that in accordance with the provisions of this Convention an environmental impact assessment is undertaken prior to a decision to authorize or undertake a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.
  4. The Party of origin shall, consistent with the provisions of this Convention, ensure that affected Parties are notified of a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.
  5. Concerned Parties shall, at the initiative of any such Party, enter into discussions on whether one or more proposed activities not listed in Appendix I is or are likely to cause a significant adverse transboundary impact and thus should be treated as if it or they were so listed. Where those Parties so agree, the activity or activities shall be thus treated. General guidance for identifying criteria to determine significant adverse impact is set forth in Appendix III.

The Convention may be read here:

 

Related:

Kismatiya and Sukhdev free, but UP Police continue to harass villagers

URGENT ALERT: Adivasi Forest Movement leader Sukalo arrested

Forest Rights: A daughter awaits her father’s return in Sonbhadra’s Lilasi

Adivasi women forest workers allegedly assaulted by UP Police

 

 

 

 

SC sets aside NGT order shutting down factories operating without Environmental Clearance

Does this set a harmful precedent where manufacturing units can be established without following procedure and then be allowed to continue operating due to economic concerns?

NGTImage: Live Law

On March 25, 2022, the Supreme Court set aside an order by the National Green Tribunal (NGT) that had directed closure of some 15 manufacturing units which were permitted to operate without prior Environmental Clearance (EC) by the Haryana state government.

The SC held that the manufacturing units which are generating employment for about 8,000 people and contributing to the economy, and cannot be shut down because of technical irregularity of not obtaining an EC prior to commencing operations, if such manufacturing units comply with environmental norms.

It is well known that it is mandatory to obtain EC as per the law, but in the present case the state government appears to have erred in its assessment of the manufacturing units and contending that they did not require EC.

A brief history of how Environmental Clearance became mandatory

The Central Government issued an Environmental Impact Assessment (EIA) Notification dated January 27, 1994 directing that on and from the date of publication of the said notification in the Official Gazette, expansion or modernisation of any activity or a new project listed in Schedule I to the said notification shall not be undertaken in any part of India, unless it has been accorded EC by the Central Government in accordance with the procedures specified in the said notification.

Meanwhile Central Government has delegated powers to the respective State Pollution Control Boards/Committees to issue directions to any industry or any other authority to prevent violation of the Environment (Protection) Rules, 1986, vide notification dated April 10, 2001.

The Central Government again issued a notification dated September 14, 2006, being Notification S.O. 1533 (E) requiring prior environmental clearance from the Central Government or as the case may be, by the State-Level Environment Assessment Authority, duly constituted by the Central Government. According to this notification, the process of environmental clearance for new projects was to comprise of a maximum of four stages, all of which might not apply to particular cases. The stages were (1) Screening, (2) Scoping, (3) Public Consultation and (4) Appraisal.

The case of the 15 factories

The manufacturing units associated with the case, manufactures the basic organic chemicals, namely, Formaldehyde. The Haryana State Pollution Control Board (HSPCB) has given its Consent To Operate (CTO) to 15 such units without obtaining the mandatory EC. The HSPCB totally misinterpreted the categories of such units for which the EC is mandatory. Upon realising the fact that these units are required to have prior EC, it revoked the CTO issued earlier to these units.

Some of these units approached the Government with the chaotic situation created by the HSPCB. They asked the government for some time to obtain the mandatory EC from the competent authority, which will take six months to one year of time, and also sought permission to operate the units with all pollution control measures.

Upon considering the fact, the competent authority decided to allowed them to continue to operate for a period of six months without prejudice to any legal action taken against the violations committed by them, by the competent authorities. The condition of immediate application for the EC and also to provide the proof of the same within 60 days from issuance of this communication to Environment and Climate Change Department and to Haryana State Pollution Control Board was put forth.

The State of Haryana passed an Order dated November 10, 2020, which allows formaldehyde manufacturers [which requires prior Environmental Clearance (EC)] to operate without prior EC for six months, subject to making application for EC within 60 days.

State Government Order

The Department of Environment and Climate Change of the Government of Haryana issued an Order dated November 10, 2020, which is extracted below:

“Whereas the process of manufacturing of Formaldehyde is covered under the provisions of 5(f) of Schedule of Environment Impact Assessment Notification (EIA), 2006 of Government of India, and requires the prior Environmental Clearance (EC) from the competent authority State Environment Impact Assessment Authority (SEIAA)/Ministry of Environment, Forest and Climate Change, Government of India, before establishment and operation of such units, besides other mandatory clearance, as applicable;

Whereas, it has come to the notice of Government that around 15 such units have been permitted to establish/operate in the State of Haryana, without obtaining the necessary Prior Environmental Clearances, but with the Consent of the Haryana State Pollution Control Bureau (HSPCB), which misinterpreted the category of such units and on realising the requirement of EC in these cases, has revoked its consents issued earlier to these units recently;

Whereas, some of these units approached the Government explaining their hardship due to such sudden revocation of their consents and have sought time for obtaining the necessary EC from the competent authority as the process is likely to take a minimum of 6 months to one year period, and to allow them to operate with all pollution control measures, following the pollution control norms applicable, and,

Whereas, the Government has carefully considered their request and the competent authority has decided that these units shall be allowed to continue their operations for a period of six months, without prejudice to any legal action taken against the violations committed by them, by the competent authorities, with the conditions that they will immediately apply for Environmental Clearance from the competent authority and provide the proof of such application within 60 days from the issuance of this communication to Environment and Climate Change Department and to Haryana State Pollution Control Board.

Therefore, it is Ordered accordingly.”

Background of Case before National Green Tribunal

The Application was filed by Dastak NGO against Synochem Organics Pvt. Ltd. in the Court of National Green Tribunal (NGT) in December 03,2020 (Dastak N.G.O. V/s. Synochem Organics Pvt. Ltd. & Ors. – O.A. No. 287/2020).

The Application sought the Order dated November 10, 2020, of State of Haryana to be quashed. The Department of Environment and Climate Change of the Government of Haryana issued the above Order on November 10, 2020.

The Applicant submits to the Court that the requirement of prior EC is mandatory. The State has no jurisdiction to exempt the companies from the basic requirement of acquiring prior EC. Accordingly the State Pollution Control Board passed a closure order for the 15 units manufacturing units. But the State government of Haryana had passed the above Order allowing the 15 units to operate for six months with the required condition.

The Application before the National Green Tribunal was filed by Dastak NGO to quash the above Haryana State government Order. The application further states that the industries are using an approximate amount of six Lakhs litres per day without requisite permission of the Ground Water Authority.

It further states there is also non-compliance of Manufacture, Storage and Import of Hazardous Chemical rules, 1989. These units are dumping their untreated effluents into the ground water using reverse borewells which is leading to underground water damage further damaging the quality of soil and crops. No adequate compensation is granted for the dame caused by their wastage disposal. “The Department of Environment and Climate Change of the Government of Haryana issued an Order dated November 10, 2020,” the application stated.

The Application further went to add that the excess steam which is a result of the condensation process is discharged into the air using chimney which leads to air pollution. “There is no mechanism to check leaching of methanol from underground tanks. This is one of the causes of cancer,” stated the Application.

Order of National Green Tribunal

The State through its EIA notification dated September 14, 2006 cleared its stand on the requirement of prior EC for setting up and functioning of these units. Hence there is no justification to permit function of such units in violation of mandate of law.

According to provision 5(f) of the Environment Impact Assessment (EIA) Notification 2006, the Environmental Clearance is mandatory for the establishment and operation of manufacturing units of formaldehyde.

The 5- Judge Division Bench of the Tribunal gave its final Order on June 3, 2021. The Tribunal held that the units cannot be allowed to operate without prior EC and also the State acted ‘ultra vires’ (out of authority) to permit the units to operate without prior EC.

The Order quoted, “We thus hold that without prior EC the units cannot be allowed to operate. The State has no power to exempt the requirement of prior EC or to allow the units to function without EC on payment of compensation.”

On June 3, 2021, the Tribunal while concluding its Order disposed off the application and stated, “For past violations, the concerned authorities are free to take appropriate action in accordance with polluter pays principle, following due process.”

The NGT Order may be read here: 

Supreme Court Appeal

A Civil Appeal (M/S Pahwa Plastics Pvt. Ltd. & Anr. v/s. Dastak NGO & Ors. - Civil Appeal no. 4795/2021) against Dastak NGO along with some of the companies was filed on August 23, 2021 in Supreme Court of India.

The Civil Appeal came to be filed against the NGT Order dated June 03, 2021 which was listed for admission on September 30, 2021 along with an interim application which prays for the order permitting the Appellants to operate their units during the pendency of the Appeal.  

The question of law raised in this appeal was, whether an establishment employing about 8,000 workers, which has been set up pursuant to Consent to Establish (CTE) and Consent to Operate (CTO) from the concerned statutory authority and has applied for ex post facto EC can be closed down pending issuance of EC, even though it may not cause pollution and/or may be found to comply with the required pollution norms.

Judgment

Supreme Court presided by Single-Judge Justice Indira Banerjee pronounced its Judgment on March 25, 2022 regarding this Appeal challenging the NGT Order.

The Judgment stated that the manufacturing units which are generating employment of about 8,000 employees, providing them livelihood and also contributing a lot in the economy of the country cannot be shut down because of technical irregularity of not obtaining prior EC, if such manufacturing units comply with environmental norms.

The Judgment said, “The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.” It further said, “It is reiterated that the 1986 Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible.”

The court directed, “The Respondent shall take a decision on the applications of the Appellants for EC in accordance with law within one month from date. Pending decision, the operation of the Pahwa Yamuna Nagar Unit and the Apcolite Yamuna Nagar Unit, in respect of which consents have been granted and even public hearing held in connection with grant of EC, shall not be interfered with.”

The Judgment further states, “The Appellants will be allowed to operate the units. Electricity, if disconnected, shall be restored subject to payment of charges, if any. If the application for EC is rejected on the ground of any contravention on the part of the Appellants, it will be open to the Respondents to disconnect the supply of electricity.”

Concluding the Judgment, Justice Indira Banerjee gave three weeks to the concerned authority to take a decision on the application of the Appellants EC.

The Judgment may be read here:

 

Previous Judiciary Pronouncements

Samatha vs State Of Andhra Pradesh And Ors

Court: Supreme Court of India

Judgment dated: July 11, 1997

Bench: Justice K. Ramaswamy, Justice S. Saghir Ahmad and Justice G.B. Pattanaik

About the Case

In the late 1980s, the social advocacy organisation named ‘Samatha’ was established to work with impoverished Adivasi communities facing land alienation in the Eastern Ghats hill range of northeastern Andhra Pradesh.  In the early 1990s, villagers approached Samatha when a subsidiary of the Birla Group wanted to mine calcite in their village. As the mining plans were believed to violate the ‘Andhra Pradesh Scheduled Areas Land Transfer Regulation 1959,’ that bans the sale or transfer of land from a tribal to a non-tribal person. This case came to be known as ‘Samatha case’.

Judgment

The Supreme Court presided by Division Bench, delivered the judgment in the Samatha case in July 1997. The Bench stated, “The Constitutional scheme which is sought to be enforced through Regulations is that the property of the Scheduled Tribe or the immovable property situated in Agency Tracts may be protected and be not frittered away and further that they may retain their original character and may continue to belong to members of the Scheduled Tribe or their Co-operative Societies, or that if the property belongs to a non-tribal, it may not be transferred to a non-tribal and may be transferred to a tribal alone.” 

The Bench further said, “The Fifth Schedule including Para 5 thereof as also the Regulations made thereunder by the Governor of Andhra Pradesh clearly seek to implement the national policy that the custom, culture, life-style and properties of the Scheduled Tribes in the Agency Tracts and other immovable properties situate therein shall be protected. The Government being under a legal constraint to deal with the property situated in the Agency Tracts only in the manner indicated above, cannot itself act beyond the scope of the Regulations by saying that it is free to dispose of its own properties in any manner it likes. If the Government was allowed to transfer or dispose of its own land in favour of non-tribals, it would completely destroy the legal and constitutional fabric made to protect the Scheduled Tribes. The prohibition, so to say, disqualifies non-tribals as a class from acquiring or getting property on transfer.”

The Goa Foundation & Anr v/s. The Conservator Of Forests & Ors

Court: Bombay High Court

Judgment dated: October 16, 1998

Bench: Justice A Desai and Justice R Batta.

About the Case.

The Petitioners are a registered society and are working in the field of environment with the object to maintain ecological balance. The petitioners are public spirited body and for the purpose of preservation of environment have approached this Court by way of this petition. The petitioners challenge the developmental activity being carried out by respondent No. 9 Tata Housing Development Co. Ltd., in Survey No. 69/4 of village Penha de Franca of Bardez Taluka and seek to challenge various permissions granted for the said developmental activity which is contrary to the provisions of the Forest (Conservation) Act, 1980.

The case is about; the Survey No. 69/4 is 'forest' and non-forest activity therein is not permissible unless prior permission is taken from the Central Government under the F.C.A. 1980. The petitioners also challenge alteration of Survey No. 69/4 from A-1 (Agricultural and Orchard (Natural Reserve) Zone and A-2 (Agricultural and Natural Reserve Zone) to S-2 (Settlement Zone) for planning purpose in the Outline Development Plan prepared under the Goa, Daman and Diu Town & Country Planning Act, 1974, (hereinafter called the 1974 Act). The Bench passed the Judgement on October 16, 1998.

Judgment

The Bench noted that, “The Sarpanch, Village Panchayat, Penha de Franca, vide letter dated 21-11-96 informed Anand Bandiye, Power of Attorney Holder of Levin Da Costa, partner of respondent No. 11 of the said condition that natural cover/landscape formed by trees as seen from river Mandovi shall not be disturbed in any fashion while carrying out the development/construction.”

The Bench also noted that, “The Chief Town Planner vide letter dated 7-5-97 informed Sarpanch, Village Panchayat that the matter had been carefully examined and the building blocks located along the average line of 35-36 contours on the southernmost side of the property should be cancelled as well as the proposed access road from the existing Betim-Alto Porvorim road should be cancelled and access to the property should be taken from the northern side of the property. The development permission issued earlier for the two rows of building blocks of D/G and A and D/G and B are withdrawn as indicated in red in the enclosed layout plan and the area with green hatching should be treated as "no construction" Zone.”

The Bench further held, “It is not understood as to how the Conservator of Forests could grant permission for cutting of the trees vide order dated 9-1-97 which would have the effect of clearly violating the said additional condition, imposed wide letter dated 21-11-96 of the Village Panchayat. Rather than taking action for violation of the said additional condition by removal of natural cover/landscape formed by trees as seen from river Mandovi which was directed not to be disturbed in any fashion while carrying out the development/construction, the Chief Town Planner/Government chose to condone the same by adding special condition to put back the landscape.”

The Bench concluded by stating, “There has been thus violation of the said additional condition of the licence and the project which will come up after violating the said additional condition would be an eyesore in the green belt of the hillock towards river Mandovi. Moreover, Survey No. 69/4 being a forest land section 2(ii) of the Forest (Conservation) Act, 1980 requires prior approval of the Central Government for use of forest land or any portion thereof for non-forest purpose which approval has not been obtained. We further direct removal of all developmental work done in Survey No. 69/4 in the area of 11275 sq. meters which is subject matter of this petition and restore the hill to its original vegetation. Consequently, all further developments, constructions and any further activity shall be stopped forthwith.”

M.C. Mehta vs Union Of India & Ors on March 18, 2004

Court: Supreme Court of India

Judgment dated: March 18, 2004

Bench: Justice Y.K. Sabharwal and Justice H.K. Sema.

About the Case.

The Haryana Pollution Control Board (HPCB) was directed by orders of this Court dated November 20, 1995 to inspect and ascertain the impact of mining operation on the Badkal Lake and Surajkund - ecologically sensitive area falling within the State of Haryana. In the report that was submitted, it was stated that explosives are being used for rock blasting for the purpose of mining; unscientific mining operation was resulting in lying of overburden materials (topsoil and murum remain) haphazardly; and deep mining for extracting silica sand lumps is causing ecological disaster as these mines lie unreclaimed and abandoned.

It was, inter alia, recommended that the Environmental Management Plan (EMP) should be prepared by mine lease holders for their mines and actual mining operation made operative after obtaining approval from the State Departments of Environment or HPCB; the EMP should be implemented following a time bound action plan; land reclamation and afforestation programmes shall also be included in the EMP and must be implemented strictly by the implementing authorities. The report recommended stoppage of mining activities within a radius of 5 kms from Badkal Lake and Surajkund (tourist place).

The Application has been filed by the Delhi Ridge Management Board praying that the Government of Haryana be directed to stop all mining activities and pumping of ground water in and from area upto 5 kms from Delhi-Haryana border in the Haryana side of the Ridge, inter alia, stating that in the larger interest of maintaining the ecological balance of the environment and protecting the Asola Bhatti Wildlife Sanctuary and the ridge located in Delhi and adjoining Haryana, it is necessary to stop mining. In the application, it has been averred that the Asola Bhatti Wildlife Sanctuary is located on the southern ridge which is one of the oldest mountain ranges of the world and represents the biogeographical outer layer of the Aravalli mountain range which is one of the most protected areas in the country. 

Judgment

The Bench held that, “Our examination of the issues is confined to the effect on ecology of the mining activity carried on within an area of 5 Kms. of Delhi-Haryana Border on Haryana side in areas falling within the district of Faridabad and Gurgaon and in Aravalli Hills within Gurgaon District. The question is whether the mining activity deserves to be absolutely banned or permitted on compliance of stringent conditions and by monitoring it to prevent the environmental pollution.” The Bench noted that, “EPCA noticed mining sites very close to the roads and also very close to the ecologically sensitive area of Asola sanctuary near the Goodwill mine.”

It further noted, “On the impact on the groundwater reserves due to mining, the Board has found that its observation wells have shown an increase in groundwater levels in Anangpur, Mangar, after the mining has been stopped in May. Therefore, in spite of monsoon failure and continued abstraction of water, the observation wells have noted increased water levels within just 2 months of the mining being closed. The groundwater levels in a tube well monitored in Mewla Maharajpur during mid July and first week of August showed a rise of 0.18 metres, A higher rise - 0.71 to 0.78 metres was observed in the two tube wells near the Mangar mines and Pali mines in the two months since the mines were closed. This clearly points to the impact of mining on groundwater reserves.”

The Bench also noted, “Even the Haryana government's affidavit in court accepts that pumping of ground water is taking place, though it attempts to soften the issue by arguing that it is only being done in a few cases. Under this condition, mining is not allowed in the water table area. EPCA saw deep and extensive pits of mines with vast water bodies. EPCA also saw evidence of pumps and pipes being used to drain out the ground water so that mining could continue. Therefore, the miners are mining for silica, but also in the process, mining and destroying the ground water reserves of the areas. In times of such water stress and desperation, this water mining is nothing less than a gross act of wastage of a key resource… Therefore, it is observed that dewatering of mines in Aravalli hills has affected ground water regime of the mine area as well as buffer zone resulting in depletion of ground water resources.”

The Court quoted in its Judgment that, “The mining operation is hazardous in nature. It impairs ecology and people's right of natural resources. The entire process of setting up and functioning of mining operation require utmost good faith and honesty on the part of the intending entrepreneur. For carrying on any mining activity close to township which has tendency to degrade environment and are likely to effect air, water and soil and impair the quality of life of inhabitants of the area, there would be greater responsibility on the part of the entrepreneur. The fullest disclosures including the potential for increased burdens on the environment consequent upon possible increase in the quantum and degree of pollution, has to be made at the outset so that public and all those concerned including authorities may decide whether the permission can at all be granted for carrying on mining activity. The regulatory authorities have to act with utmost care in ensuring compliance of safeguards, norms and standards to be observed by such entrepreneurs.”

Environmental clearance – A scam?

The Union Minister of Environment, Forest and Climate Change (MoEFCC) had made a statement that it will rank the State Environment Impact Assessment (EIA) authorities on the basis of the speed at which the environmental approvals are given. It basically implies that all it cares is about the ‘clearance’ of projects and not the quality of the assessment or the ability of ensuring that the environmental impacts of development projects are mitigated.

Hindustan Times reported in December 2021, the statement of Union Environment Ministry: “The average time to grant environmental clearances in all sectors has reduced significantly from over 150 days in 2019 to less than 90 days in 2021. The clearance time is as low as 60 days in some sectors.”

But some experts say the reduction in clearance times was not benefitting conservation. “The environment regulation is being assessed through a perverse logic that considers rates and dates of approvals as measure of success. It is no longer about how much area has been protected from degradation or how much environmental damage has been remedied. Faster rates of clearance do not ensure financial viability or a project and neither does it ensure that proposals are ecologically wise and socially legitimate,” said Kanchi Kohli, legal researcher, Centre for Policy Research as reported by Hindustan Times.

In its report titled Odisha: Déjà Vu in Dhinkia as People Renew Protests Against Jindal's Steel Project, The Wire reported how the villagers opposing the Jindal’s proposed project of integrated steel plant are harassed. Prashant Paikray, the spokesperson for the Jindal Pratirodh Bheetamati Suraksha Samiti, told the publication that the protests began in Dhinkia on December 4, when police arrived at night in the midst of a raging cyclone to arrest Debendra Swain, a Samiti leader. “They tried to break the front door of Swain’s house and damaged it. When they did not find Swain they arrested his uncle Ayodhya and his daughter Lili,” he said.  

The report mentioned how the Odisha Panchayati Raj department launched disciplinary action against Swain, a member of the Dhinkia panchayat, and issued a show-cause to him. Swain submitted he could not appear for a hearing and on December 8, 2021 he was informed that he was removed as a panchayat member.  

Since December 5, the people of Dhinkia blockaded the entrance to the village which has been bifurcated into three new revenue villages – Dhinkia, Mahala and Patana. Using tactics similar to the ones they used against POSCO, the communities affected by the JUSL project erected bamboo gates and refused to allow the police or government officials and JSW staff. 

EIA Draft Notification 2020

Before colonisation, natural resources such as land, forests and water had been utilised collectively in a controlled manner by the local communities, ensuring that the resources are used sustainably. The radical change in the resource utilisation was associated with colonisation, after which there was major conflicts over natural resources being used by non-local actors. Colonisation transferred these common vital resources into commodities for generating profits and revenues.

After the end of colonial period, and till today, politically weak and socially disorganised communities whose survival is primarily dependent on the products of nature outside the market system are some of the worst affected. Along with the exploitation of the natural resources in India, the fundamental rights of the Adivasi (tribal) people are being side-tracked when huge forest lands are been used under the name of mineral exploration.

Earlier the draft of Environment Impact Assessment Notification, 2020 was criticised for attempting to strike out public consultations in the process of approval for certain projects, for the sake of easing business. The draft notification seeks to dilute the concept of public consultations, which is the core of the EIA process, for a large number of projects. According to the activists, the rights of scheduled tribes and other traditional forest dwellers guaranteed under Forest Rights Act (FRA), 2006 and the Panchayats (Extension to the Scheduled Areas) Act (PESA), 1996 will be compromised if certain projects are exempted from public hearing.

The Forest Rights Act, 2006 has a provision under its section 5 which grants power to Gram Sabhas to regulate access to community forest resources and to stop any activity which adversely affects the wild animals, forest and biodiversity. The PESA act empowers Gram Sabhas to prevent alienation of land and to approve plans and projects. It is mandatory to consult with a Gram Sabha before acquiring land for development projects. 

The draft notification, if comes into effect, is in violation with the rights guaranteed to Gram Sabhas under Schedule 5 and Schedule 6 of the Constitution of India. In order to safeguard the rights of indigenous populations, certain areas in the country are enlisted under Schedule 5 and Schedule 6 where communities belonging to Schedule Tribes have autonomy in the administration and control of land, forests, and natural resources. In order to guarantee the rights conferred upon populations living in areas listed under these two schedules, the Parliament had enacted the PESA Act in 1996.

Industrialisation degrading the environment

The intention of industrialisation is economic development of that region by providing employment opportunities to the people of the locality. While industrial development invariably creates more job opportunities, it also increases the adverse effects on the environment.

The industrial clusters are not only hazardous but had also caused irreparable damage to our ecology and environment. The industrial wastes have been accumulated in large scale while its utilisation has been neglected since long time. Accumulation of industrial solid wastes leads to land pollution and emission of wastes into water sources, mostly chemical wastes from the manufacturing units leads to water pollution. Gaseous wastes of the industrial units are released into air without filtering resulting in air pollution.

It was reported by Hindustan Times in February 2017, “E-waste concentration in the Indian soil is twice the global average. Delhi alone generates 15,000 tonnes per year in addition to the e-waste imported for recycling. High levels of tetra and penta PCB congeners were observed in soil samples from East Delhi.”

These industrial wastes mostly contribute in the environment pollution degrading its quality, consequences of which can be seen in current harsh climate change and also health issues in human beings.

Industrial development affecting Tribal communities

Tribal regions are more affected in this process of development. A significant number of displaced tribals have historically been dependent on natural and common resources. According to The Wire report, Chhattisgarh, Jharkhand and Odisha, for example, account for 70% of India’s coal reserves, 80% of its high-grade iron ore, 60% of its bauxite and almost 100% of its chromite reserves.

The developmental projects have forced the tribal community to move out of area where they lived for generations. The serious consequences of the displacement for the tribal people are both agricultural and homestead along with the loss of traditional occupation. On many occasions, they have even deprived of compensation and rehabilitation benefits as per the Land acquisition amended Act, 1984. Many a times, they do not possess any legal documents to prove their ownership rights of the land which they have occupied and earned their livelihood for years. Moreover, the rights over the resources of their habitat on which they are dependent are customary rights and not legal. Hence, they become vulnerable to lose their habitat and livelihood.

“In Andhra Pradesh, and in the newly formed state of Telangana, private sector mining is still unable to encroach on Adivasi lands, yet these lands are in great demand for many government projects seen as operating in the public interest, including coal mines and irrigation dams. Since 2005, new attempts have been made to exploit the bauxite ore in this region, even though the Samatha judgment is an accepted part of the legislation. The relevant project instead relies on a weakness of the Samatha judgment by using an Andhra Pradesh Government company to carry out the mining while the private investor, Jindal South West (JSW), which is financing the entire project, locates its associated refinery just outside of the Scheduled Areas, where private land ownership is allowed. A confident state government with a strong role to play in national politics, and the support of one of India’s major business families, at the time looked certain to be able to implement the project in this new form of public–private partnership, which in large part appeared to have been designed to circumvent the Samatha judgment. In 2013, however, the company confirmed in a newspaper interview that it had cancelled its investment because of the slow pace of implementation and a lack of government support,” as reported by JSTOR.

As per the report of JSTOR, “Land continues to be the most important productive asset for rural communities in India, and ownership of land is linked to a reduced incidence of poverty. The Samatha judgment has strengthened tribal rights to this crucial asset by preventing the development of several proposed mining projects. Yet the contested nature of its implementation, as well as continued attempts to mine the mountains, make it doubtful whether local people have been able to utilise these stronger rights for economic improvement. This is especially the case since private landholdings are still frequently denied to tribal farmers in forests controlled by the government. Because tribals have no security of tenure and live under the constant threat of eviction, they cannot invest in improving their land. Their poverty prevents them from planting tree crops that have long gestation periods, and the illegality of their position precludes their receiving loans from the government to make their agriculture more productive.”

The JSTOR paper named ‘Mining Conflicts in Liberalising India’ may be read here:

 

As per a report in The Quint, “Currently, up to 25,000 hectares of forests - 250 sq km, or more than twice Chandigarh’s area - are handed over every year for “non-forestry activities”, including defence projects, dams, mining, power plants, industries and roads, the government recently told parliament. The rate of “diversion”, as the process is called, varies across states.”

 

                                Table 1: Dam and Displacement of the Tribal People

Name of Project

State

Population displacement

Tribal people as percentage of displaced

Karjan

Gujarat

11,600

100

Sardar Sarovar

Gujarat

2,00,000

57.6

Maheshwar

Madhya Pradesh

20,000

60

Bodhghat

Madhya Pradeh

12,700

73.91

Icha

Bihar

30,800

80

Chandil

Bihar

37,600

87.92

Koel Karo

Bihar

66,000

88

Mahi Bajaj

Rajasthan

34,400

76.28

Polavaram

Andhra Pradesh

1,50,000

52.9

Maithon and Panchet

Bihar

93,874

56.46

Upper Indravati

Odisha

18,500

89.2

Pong Dam

Himachal Pradesh

80,000

56.25

Inchampalli

Andhra Pradesh & Maharashtra

38,100

76.28

Tultuli

Maharashtra

13,600

51.61

Daman Ganga

Gujarat

8,700

48.7

Bhakra Dam

Himachal Pradesh

36,000

34.016

Masan

Bihar

3,700

31


Tribal people’s life after Displacement

Due to the development projects, tribal communities are forced to move out from their traditional habitat, where they lived for generations, to an unfamiliar and potentially hostile environment. This involuntary displacement has led to increase their vulnerability towards exploitation and also pushing them to poverty, chronic malnourishment, starvation and ill health including psychological trauma.

Among the Tribals, community land and forests are not only their economic commodities but also the centre of their culture and identity. This system comes to an end and their life enters into total crisis when the resources are alienated from them without their consent leaving them with no other alternative.

Some of the reasons for the marginalisation of the Adivasis are land alienation, loss of access and control over forests, enforced displacement projects, lack of proper rehabilitation and indebtedness etc.

As the land was the only source of earning and feeding their families, after eviction they are forced to become migrant workers and work in abysmal conditions in urban and semi-urban areas from where they get stuck into vicious circle of poverty during which they often get exploited which is also known as “modern day slavery.”  

 

International Laws

Convention on Environmental Impact Assessment in a transboundary context

The Parties to the convention are aware of the inter-relationship between economic activities and their environmental consequences. There is a need to develop anticipatory policies and of preventing, mitigating and monitoring significant adverse environmental impact in general.

Being conscious of the need to give explicit consideration to environmental factors at an early stage in the decision-making process by applying Environmental Impact Assessment (EIA), at all appropriate administrative levels, as a necessary tool to improve the quality of information presented to the decision makers so that quality decisions can be made by taking into consideration - minimization of the adverse impact on environment.

International organisations can promote the use of EIA both at the national and international levels, and taking into account work on EIA.

 

ARTICLE 2:

  1. The Parties shall, either individually or jointly, take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities.
  2. Each Party shall take the necessary legal, administrative or other measures to implement the provisions of this Convention, including, with respect to proposed activities listed in Appendix I that are likely to cause significant adverse transboundary impact, the establishment of an environmental impact assessment procedure that permits public participation and preparation of the environmental impact assessment documentation described in Appendix II.
  3. The Party of origin shall ensure that in accordance with the provisions of this Convention an environmental impact assessment is undertaken prior to a decision to authorize or undertake a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.
  4. The Party of origin shall, consistent with the provisions of this Convention, ensure that affected Parties are notified of a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.
  5. Concerned Parties shall, at the initiative of any such Party, enter into discussions on whether one or more proposed activities not listed in Appendix I is or are likely to cause a significant adverse transboundary impact and thus should be treated as if it or they were so listed. Where those Parties so agree, the activity or activities shall be thus treated. General guidance for identifying criteria to determine significant adverse impact is set forth in Appendix III.

The Convention may be read here:

 

Related:

Kismatiya and Sukhdev free, but UP Police continue to harass villagers

URGENT ALERT: Adivasi Forest Movement leader Sukalo arrested

Forest Rights: A daughter awaits her father’s return in Sonbhadra’s Lilasi

Adivasi women forest workers allegedly assaulted by UP Police

 

 

 

 

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