The Expert Appraisal Committee (EAC) of the Ministry of Environment, Forests and Climate Change of Government of India has a very important responsibility. Under the EIA Notification 2006, it examines various projects and recommends to the Ministry whether these should be granted environmental clearance or not. There are different EACs for different categories of projects. One of the EACs is for River Valley and Hydroelectric projects (RVH).
The EAC for RVH has recently been reconstituted for a three year term, and in its first meeting held on 30th Dec 2016, has applied its “expertise” to a rather strange aspect – categorising the submissions it receives from various NGOs, civil society organisations and project affected communities, and has opined that these are anti-development. Moreover, in a touching display of sensitivity, the EAC has also felt that these representations have financial implications for the project developer in particular, and the nation in general.
Based on this “finding” the EAC-RVH has now decided that it will “not take any cognizance of such representations received from the any Civil Action Group during final appraisal.” (See Minutes of the 1st Meeting of EAC-RVH here)
|A hydropower project under construction in the Himalayas. File photo, for representation purpose only.|
In support of its decision, the EAC has put forth a weak justification couched as legal reasoning. It records in the Minutes:
“The EC process has four distinct steps. Screening; Scoping; Public Consultations; and Appraisal. The Step-3, “Public Consultations” has two parts. A public hearing at the project site is held for ascertaining concerns of the project affected persons and obtaining responses in writing from public at large. Procedure has been prescribed for conducting public consultations, and it has to be followed strictly.
“b) The stage of Appraisal starts only after the stage of “Public Consultations” has been completed. Therefore, once a project comes before the EAC, it has crossed the stage of “Public Consultations”, and the EAC should not go back in time, and should not reopen it, by entertaining unsubstantiated representations received from the people. The environmental rules allow, for inputs from the public, for which an opportunity is provided by way of “Public Consultations”. Any stakeholder, who wishes to make a representation, has to do so at the time of “Public Consultations” stage.”
However, this justification is a specious reasoning, and does not hold water. There are several reasons for this.
1. The law, including the EIA notification does not bar the EAC from accepting any representations or inputs at any stage. The public consultation stage is one stage where seeking public inputs is mandatory, but it does not exclude the space for other inputs if felt necessary. There are several instances when the public consultation as structured today does not provide opportunity for public input to the environmental clearance process.
2. There are issues considered by the EAC where there is no place for public consultations. For example, the EAC is considering and approving detailed Basin Studies for many river basins. These basin studies are to form the basis for giving clearance to projects within the basins. However, there is no public consultation phase when preparing these basin studies. So how can the public give their inputs if not send them to the EAC?
3. In several cases, the process after public consultations is also long drawn and new facts, new developments are emerging. Under such circumstances, how can EAC refuse to look at comments on such new developments?
In fact, in many projects, developers themselves come back to the EAC to request amendment to the clearance due to some changes in project parameters, external situation etc. In such cases, there should be an opportunity for the people to give their comments on the new developments.
Another situation is when the project developer comes back to the EAC to seek extension of the clearance which has lapsed due project not moving ahead for many years. In such cases, how can the comments made many years back at the public consultations stage be considered sufficient to satisfy the requirements of public inputs?
If the EAC feels that the public consultation is the only lawful mechanism for public inputs, then all such projects should be sent back for the public consultation stage.
4. It is very well-known and widely acknowledged that the public consultation process, and particularly the public hearing process are often not conducted as per the spirit and the word of the law. Problems include Environmental Impact Assessment (EIA) reports not being made available in advance, particularly in local languages, hearings not held in all affected areas, and people not being allowed to participate in public hearings with the use of money and muscle power.
For example, some of the most severely affected areas by river valley projects are the areas downstream of dams. But public hearings are not held in the downstream areas, which can often be far off from “project site” which is narrowly defined to mean the place where dam construction takes place.
5. More important, the legal process requires that the points made in the public consultations are to be given responses by the project developer, and the EAC has to apply its mind to these replies and see if the project promoter has addressed all the concerns. However there is little evidence that this is happening. The minutes of the meetings do not show such application of mind. On the contrary, it appears that claims of project developer that they have considered all the points raised in public consultations are taken at the face value. The EAC itself does not seem to following the dictum it wants to impose on the civil action groups, that is, legal procedure “has to be followed strictly”.
An issue missed by the new EAC is that in many cases, it’s the civil action groups which have brought out information which the project proponent or the EIA had not revealed or the EAC itself could not find. There are instances of mistakes in EIAs, cases of blatant plagiarism, ignoring important facts and so on. It’s indeed sad that the EAC wants to shut out such inputs, which can complement and strengthen its work.
May be the real reason lies in the attitude of the EAC. This is reveal by its categorisation of “many such kinds of representations” as “anti-development”. How has the EAC come to this conclusion? It seems to claim expertise, and monopoly, on what should be called “development”.
Moreover, the EAC stating that such representations
“have an anti-development attitude so that the projects are kept on hold or delayed. This has financial implications to the developers in particular and to the nation in general.”
also has no logic. No representation by itself has any power to hold up or delay any project, unless the EAC or any other empowered body takes action based on the representation. Presumably, the EAC would hold up a project based on some representation only if it found the representation to have some serious points. To say that anti-development representations will delay projects is to actually say that the EAC will be swayed by such representations even if they don’t have strong enough grounds. So is the EAC admitting a lack of confidence in itself?
Last but not the least, the issue of such representations having financial implications for the project developer and the nation is nothing but the old thinking which looks at environmental considerations as obstacles to “development” (narrowly defined), and which believes that giving due consideration to environmental concerns means delays and increased costs for infrastructure projects, and hence these concerns should be played down or ignored.
The fact that a body that is supposed to represent the environmental perspective displays such an attitude is the biggest critique of the EAC and the environmental clearance process that it is a part of.