“Parsimonious With the Truth”

The Supreme Court Indictment of the Environment Impact Assessment of the Mopa Airport and Lessons to be Learnt 

  

SC Stays EC of Proposed Mopa Airport

 On 29^th March 2019, the Supreme Court (SC) suspended the environment clearance (EC) granted to the proposed Mopa airport in Goa, due to serious lapses in the impact assessment, including non-disclosure of vital information by the project proponent (Government of Goa) and abdication by the Expert Appraisal Committee (EAC) of the environment ministry of its role and function to appraise the environmental impacts and mitigation plans and recommend or deny the EC based on this.

The essence of the problem can be captured just four words used in the judgement, that the EIA (Environmental Impact Assessment) of the project is “parsimonious with the truth”.  A more pithy and terse but sharp and hard-hitting summary would be difficult to find.

Unfortunately, what the judgement says about the Mopa EIA is true about many, if not most of the EIAs for such large infrastructure projects.  

Proposed Airport and Trees to be felled for it. Photo Courtesy https://m.dailyhunt.in

A Far-Reaching Judgement

Indeed, that is what makes the Mopa judgement so important – that it identifies and clearly spells out key problems with the entire process of environmental clearances for infrastructure projects. It also lays down principles and guidelines for ensuring that the spirit and letter of environmental laws are implemented, or, as the judgement points out, for upholding the “environmental rule of law”. These points, a few of which we will highlight here, have the potential to bring back on track the environmental clearance process which has been distorted to the point where environmental protection has become the least important aspect in the process, a process that has been reduced to rubber-stamping project clearances no matter the nature and extent  of their social and environmental impacts. 

This far-reaching implication of the judgement is probably what caused NITI CEO Amitabh Kant to write an angry commentary on the judgement, ( “The Need to Mope About Mopa”, ET April 15, 2019) calling the verdict a “dangerous precedent”. It certainly is a dangerous precedent – dangerous to those who see environment as merely an obstacle in the path of development (whatever the latter may mean), and who have been pushing and bending the implementation of environmental laws to get away with blatantly violating and ignoring environmental concerns. Kant’s article clearly reflects the unease that an institution as important as the SC has called out the terrible flaws and called for addressing them. Kant’s articles is mostly a series of specious arguments and has been ably addressed by eminent environmental lawyer Ritwick Dutta in his rejoinder “When Wings were Rightly Clipped” (ET April 29, 2019) so we won’t get into it. But we will later bring in some points that Kant makes to highlight the problems in the EC process. 

Critical Points in the Judgement

Complete Disclosures at Application Stage a Must

Coming back to the important points made by the judgement, the very first point is that full and proper information should be given right at the stage of application for EC, that is, in the Form 1 (and Form 1A). Often, the project proponents leave questions blank, or provide inadequate or even misleading information in the this Form. Sometimes, the information is subsequently provided in the EIA. This judgement has highlighted that nondisclosure at Form 1 stage cannot be remedied by disclosure at EIA stage, and that

“failure on part of the project proponent to make mandatory disclosures stipulated in Form 1 under the 2006 notification…must have consequences in law.”

The reasoning behind this is also very important, namely, that the

 “failure on part of a project proponent to disclose material information in Form 1 …has a cascading effect ..” 

because the TORs are based on Form 1, and the EIA has to be assessed against the TORs. Moreover, the EIA Notification gives the power to the EAC (and the SEAC) to reject the project at the application stage itself in case it is seen as severely impacting the environment. Information given in Form 1 would play a big part in this consideration. Thus, non-disclosure or wrong disclosures in Form 1 

“bypasses the authority of the EAC and SEAC to reject an application at the preliminary stage and cannot be countenanced.”

Map showing location of proposed Mopa airport surrounded by forested area. One of the key information not disclosed was the large number of trees that you have to be cut, and presence of eco-sensitive areas nearby.

EAC Must Apply Mind to Environmental Aspects

An important point made by the judgement is that 

“the EAC betrays a lack of comprehension of the true nature of its function under the 2006 notification. The EAC has failed to consider relevant circumstances bearing on the environmental impact of the project and has instead considered circumstances extraneous to its function.”

This unfortunately is the rule rather than the exception in most EACs and their deliberations. In the Mopa case for example, the SC judgement lists the six points considered as reasons by the EAC to recommend clearance to the project, and these include issues like project is in public interest, delays in land acquisition etc. whereas no environmental factors are listed.

Indeed, it is not the function of the EAC to look at whether a project is in public interest (one presumes that if it was not, this fact would have been identified at the pre-feasibility stage itself and the project would never have come to the EC stage), and more importantly, use that as a reason (or excuse!) to overrule all environmental impacts, objections. The main function and role of EAC is to assess the environmental impact and appraise the project from the sustainability angle. As the judgement rightly says, this

                             

“analysis of the EIA report is, to say the least, sketchy and perfunctory and discloses an abdication of its functions by the EAC.”

The judgement then order the EAC to re-examine the project, an exercise “primarily … for the EAC to carry out in its expert decision making capacity.” If all the EACs just simply adhere to this role and function as has been mandated for them by the EIA Notification 2006, it would dramatically alter the EC process in favour of environmental protection, as is the intent of the law.

NGT Must Carry Out Merits Review

As the judgement points out

“The mix of judicial and technical members envisaged by the statute is for the reason that the Tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment.”

Thus, the NGT is supposed to examine the appeals in front of it not just on the grounds of law but on the grounds of merits and substantive questions of environment. The judgement points out that

“In failing to carry out a merits review, the NGT has not discharged an adjudicatory function which properly belongs to it.”

And that this constitutes a failure of the (checks and balances in the) EC process. Such failure of the NGT to carry out an effective merits review is seen in many other cases. For example, consider the OA 487/2015 which called on the NGT to require the Ganga Waterway (National Inland Waterway 1) to seek environmental clearance as at least the dredging component fell within the ambit of the EIA Notification 2006. The NGT heard the matter for close to three and half years, and at the end merely ordered that the MoEFCC should state its stand on whether waterways needed EC or not. (See here for a commentary on that order by Avli Verma of Manthan).

The NGT is supposed to act as a check to ensure that the EAC and MoEFCC do justice to the spirit and letter of the EIA Notification 2006 to ensure proper scrutiny and clearance only if environmental protection is ensured. A failure by NGT to carry out such merits review, and in a time bound manner, is detrimental to the larger goal of protecting the environment and ensuring sustainable development and allows the flawed processes in the EC process to continue.

In his article mentioned earlier, Kant says “And, yet, the apex court continues to treat the environment and economic development as binaries. Neither does it provide a means to reconcile SDGs [Sustainable Development Goals] in the context of the Mopa airport, nor does it call for a proper cost benefit analysis.”

But Kant forgets, or ignores, that this (reconciling SDGs in context of infrastructure development) is not the role of the SC or the judiciary. The SC had to intervene precisely because of the complete failure – in fact, a deliberate, considered abdication of responsibility of protecting the environment – by the Government and its specific institutions like the MoEFCC, EAC that are tasked with the job. Indeed, what the Mopa order has done is in fact laid down principles and ways of operating that will ensure that the existing systems (like EAC) work in way that proper reconciliation of developmental and environmental goals is done, and to ensure the “environmental rule of law”.

Bona Fides of Those Raising Objections

A very critical observation of the judgement is that it has considered it

“appropriate to record a finding on the bona fides of the appellants before this Court. It was briefly urged by the respondents that the appellants have invoked the jurisdiction of this Court based on a personal agenda and consequently, the present appeal is liable to be dismissed. This argument cannot be accepted.

“Vague aspersions on the intention of public-spirited individuals does not constitute an adequate response to those interested in the protection of the environment.”

This is really important as often, project promoters, Government and vested interests attack anyone who raise objections, who question projects, who talk of environmental impacts, by abusing them, by casting aspersions on their motives and means etc. The SC judgement has done well to remind all that there is an important role for such public spirited individuals and that casting aspersions on them cannot be a defence against the issues raised by them. These need proper answers from  governments and project authorities. 

It may be pointed out, for example, that the EAC responsible for assessing River Valley and Hydropower projects had actually decided in its meeting of 30^th Dec 2016, that it will “not take any cognizance of such representations received from the any Civil Action Group during final appraisal”, because 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.”

Excellent Tutorial

Lastly, an unrelated but a very interesting aspect of this judgement. The judgement explains in detail the entire procedure for a project to obtain environmental clearance under the EIA Notification 2006. In that, for any student who wants to understand the said notification and the procedure for environmental clearance, this is an excellent tutorial and a wonderful first learning, that too from two judges of the Supreme Court.