Expert Appraisal Committee of Environment Ministry Applies its Expertise to Determine Civil Action Groups are Anti-Development

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 30^th 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 1^st 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.

Ministry of Environment, Forests and Climate Change: A Promise and A Problem

On the occasion of World Environment Day, June 5, 2016, this blog post looks at one big potential or promise of the Ministry of Environment, Forests and Climate Change (MoEFCC), and its one big problem. 

Before going onto the theme, one clarification. This blog does not attempt any comprehensive review of the MOEFCC over the last two years. It does not attempt to critically evaluate important developments like introduction of new regulations, or the consistent dilution of many regulations and practises. This post deals with only one promising development at the MoEFCC and one serious problem.

Potential – Focus on Compliance 

In several interviews and press releases in the last week of May 2016, on and around the occasion of completion of two years of the NDA government, Shri Prakash Javdekar, Minister of State (Ind. Charge), MoEFCC has repeatedly stated that for the next three years, his focus will be on compliance of environmental laws. (See for example, ‘Focus Over the Next Three Years will be on Compliance of Laws’: Javadekar’, Press Release of MoEFCC/PIB, 23 May 2016).  

This is a most welcome focus, and has the potential to transform the environment of the country. India has some good environmental laws, but compliance is pathetic. Many laws are blatantly violated, and action is rarely taken. This has created an atmosphere of impunity and an ethos where non-compliance is the norm. Compliance (rather, lack of it) is one of the biggest problems and one of the biggest challenges in the country.

For example, one of the biggest menaces in the country is the ash which is produced when coal is burnt. Yet, last year (2014-15), some 82 million tons of it was just dumped in form of slurry in massive ash ponds, or in dry dumps or just discharged into rivers. (See Figures 1 and 2, for example).

Figure 1: Fly ash dumped in the open near people’s houses. Odisha. Photo, Shripad Dharmadhikary, Manthan.

Figure 2: Google satellite image. Fly ash dumped into Kesla River (Dengur Nallah) which meets the Hasdeo river. Korba, Chhattisgad.  

Thus, an emphasis on ensuring compliance could be a game changer.

The most important means of achieving compliance seems to be technology driven.  MoEF’s document titled “New Initiatives and Efforts 2014-16” says:

“In  a revolutionary decision, highly polluting industries were mandated to install 24x7 air/effluent monitoring devices. This has ensured constant monitoring and its tracking.

“Out of 3400 polluting industrial units identified, more than 2400 industries have already installed the mechanism and the results are encouraging. If pollution norms for any parameter are exceeded continuously for more than 15 minutes, SMS alert is generated and sent to all concerned individuals/ regulatory agencies.

“650 industries have been closed down based on these inputs.”

The same document also claims that industrial pollution in the Ganga has gone done by 35%. 

These figures, if true, indicate not only very high levels of fulfilment of required environmental instrumentation, but also a demonstration of strong political will. Both would be welcome changes in the Indian law enforcement experience. But a given our historical legacy, the common person can be allowed a certain amount of scepticism, and hence it would be important for media and other independent organisations to confirm these levels of compliances.

Supporting this will be a new legislation that is to bring in more stringent punishments for violations of environmental laws, though there are reports that it is already being diluted, even before it has gone to the cabinet.

Further, there are a few points to be noted in this regard.

1.  The emphasis seems to be overwhelmingly on use of technology, and to some extent officialdom to ensure compliance. This can be very limiting. It is imperative that the common people, the affected populations and concerned citizens be also involved in the process. To this end, full transparency in the matter is an important first step.
2. To ensure transparency, it is necessary to make available all the data from the continuous monitoring devices to the public. This can be done best by putting all the data on a publicly accessible website.
3.  SMS alerts of non-compliance can be sent to local community representatives, sarpanch etc. apart from officials and regulators.
4. It is critical that the locations of the monitoring points (along with their latitude-longitude coordinates) should also be made public. This will have several benefits. For one, local people will be able to clearly identify the discharge points of emissions and effluents, and hence any illegal discharges. (For example, see Figure 3,). Second, knowledge of the locations of monitoring points will allow juxtaposing all such points in area and help achieve synergies in monitoring as data from multiple points will be available in an area.
5. Another important point is that compliance cannot be only about pollution and hence 24x7 Continuous Effluent/Emission Monitoring Systems can only be one part of ensuring compliance. There are many conditions given as a part of environmental clearances which do not pertain to pollution – for example, ensuring environmental flows in rivers below dams – and different mechanisms to ensure compliance in such cases will be needed. 

Figure 3: Showing a discharge from the back wall of a power plant, north of Chennai, to mangroves and wetlands. This is likely an illegal discharge point since the Environmental Clearance clearly mandates another discharge point. If the discharge locations of the plants are made public, then it would be easy to identify whether such discharges are legal or illegal. Photo: Jinda Sandbhor, Manthan.

The most important component of any compliance mechanism remains political will. This is what the MoEFCC is actually promising when it says it will focus on compliance during the next three years. Possibly one test of this would be  whether MoEFCC is able to clean up some of the most polluted areas in the country (many of them part of MoEFCC’s own designated Critically Polluted Areas) including areas like Korba, Ennore, Dhanbad, to name a few.

We see the promise of compliance as one of the biggest potentials / promises of the MoEFCC.

The Problem – Skewed Understanding of Environment, Downplaying  its Importance

The biggest problem with the MoEFCC – and that predates this government, though it has possibly been aggravated in the tenure of the current regime – is the attitude of the MoEFCC to environment. One is that the MoEFCC has internalised the criticism that it is blocking “development”. The second is that again and again, MoEFCC betrays a lack of understanding what “environment” and “environmental protection” really means.

It is ironical that the ever since the NDA government has come in, the achievement that  the MoEFCC itself considers as its most significant one is that it is no longer a “road block” ministry. On the occasion of completion of two years of the government too, MoEFCC’s statements have focused on how in the last couple of years it has significantly brought down the time taken for clearance (from 600 days to 190) without compromising on environmental norms, how it has given 2000 clearances unlocking investments of Rs. 10 lakh crores, and how it is no longer called the “obstruction ministry”. 

Of course, it is no one’s case that the MoEFCC – or any other ministry for that matter – should become an obstruction in the process of development. But at the same time, no ministry should devalue its own agenda. The problem is that the MoEFCC has internalised the propaganda that any caring for environment means working against development, that environment protection is essentially only the formality of clearances and that protection of the environment does not need time and effort. 

No one will complain if a bank takes its time to evaluate a project to decide whether to finance it or not. If a large project takes several years for its engineering design to be finalised, it’s called due process. Yet, if environmental assessments take time, then it is seen as obstruction. Indeed, given the quality of current environmental impact assessments, what is needed is more diligence, and possibly more time for assessments, not less. Further, in many cases, the time taken by the environmental clearance process comes due to the bad quality of assessments. So, while by all means environmental clearances should be expedited, there is a limit beyond which the process cannot be compressed.

The MoEFCC now wants to reduce the time for environmental clearances (EC) to 100 days (See, for example, Interview of Shri Javdekar to Business Standard, 17 May 2016).  It is not clear whether this time is measured from the date that all assessments and other procedures like public hearing and submissions of final EIA are completed. If this is the case, there is nothing new in the announcement. The EIA Notification 2006, which governs the environmental clearance process, already requires that the Expert Appraisal Committee complete its appraisal within 60 days of receiving the final EIA, and place the recommendation to the MoEFCC for final decision within next 15 days of this.  The MoEFCC has to take a decision within 45 days of this. Thus, as such, even now, the decision on environmental clearance has to be taken within 120 days of the final EIA being submitted. So MoEFCC is promising to cut down all of 20 days. 

However, if it means that the EC will be given within 100 days of application – then it is a worrying sign. As such, impacts areas of major projects should be studied for at least one full year, to ensure baseline and other studies covering the full cycle of all seasons.  There could also be cumulative impact assessments needed if more than one project is coming up in an area. Then there needs to be the public hearing, and consideration of the issues raised by public and their incorporation into the EIA. Thus, even if the entire process is carried out with full efficiency, it would need considerably more time than 100 days. Any cutting down on these times would mean a compromise on  environmental norms.

So the MoEFCC needs to clarify what it means exactly when it says it shall reduce the time of granting EC to 100 days.

The problem is that by being so defensive about the time it takes to give environmental clearances, the MoEFCC is directly and indirectly supporting the mindset which sees environmental clearance as a mere formality and environment protection as an add-on at best.

On the contrary,  one expects the MoEFCC to fight fiercely to ensure that everything needed for environmental protection is given its rightful place. 

Another – and related – issue is that the MoEFCC view of environment does not seem to go beyond the issue of “clearances”. It needs to have a broad framework and understanding of what environmental integrity means. It needs an understanding that rivers need to flow, that forests and habitats needs to be contagious, that we can interfere and extract from the environment only to a certain extent and not more. It needs to distinguish between faux environmental protection and genuinely maintaining and restoring environmental integrity. 

This is illustrated best by how it views what constitutes forests. In the interview to Business Standard published on 17 May 2016, Minister Javdekar says:

“You have only 21% forestland. That won’t grow. But our target is 33% forest cover. So tree cover outside the forest has to grow. So a major thrust is on agro-forestry and making tree cover outside the forests. We have already partnered for growing forests along the highways. … I see forest growing along all highways, railways tracks and Ganga even in agro-forestry in next 10 years because we are guaranteeing that any density of plantation you do and tree cover you grow that will not be declared as forests – that is the only promise I am making – they can harvest they can do movements.”

In other words, the Minister equates road side plantations – and moreover, plantations which can be “harvested” anytime – with forests. Literally a case of missing  the woods for the  trees!

With such skewed way of looking at environment, even the best of efforts of the Ministry will not lead to environment protection. Rather, we may end up with facades of good “environment” – like roadside plantations!

There is an urgent need for the MoEFCC to internalise a more ecological and people-oriented view of what is environment, and come out defending that more strongly. Not doing so is the biggest problem and drawback to the Ministry’s efforts in the coming years.

Coal Assets at the Risk of Stranding?

This is a follow up post, taking off from some points made in the earlier post titled "The Curious Case of Surplus Electricity in India"

Power plants whose viability is at risk due to low demands are not the only one. The Crisil report mentioned earlier states that an additional 33,000 MW of coal capacity is facing risks of becoming unviable – of becoming stranded assets. 

Stranded assets are essentially assets – that is, investments, infrastructure projects etc. – whose economic returns fall before their planned life. Such a fall in economic returns could be short- term, long-term or even permanent. Traditionally, reasons for stranding of assets have been seen mainly as financial or economic. However, there is increasing awareness that assets can be at risk due to social and environmental factors. This is probably seen most clearly in the case of coal based thermal power plants, as extraction and burning of coal has severe impacts on the environment.

Climate Change, Carbon Emissions and Risks to Coal Based Power Plants

In recent years, with consensus emerging globally on the need to aggressively fight climate change, reducing consumption of coal has become an important goal. To avoid dangerous consequences of climate change, scientists have said that the world’s temperature rise has to be restricted to 2^oC. To achieve this, carbon concentration in the atmosphere needs to be limited to 400 ppm. In turn, this imposes limits on how much fossil fuel can be burned.

Based on such limits on how much coal can be burned, and the number of coal based power plants existing and planned, several observers have indicated that if the 2^oC / 400 ppm goal is to be met, many of the existing or planned power plants would become stranded. That is, there wouldn’t be enough coal permitted to be burned to support all existing and planned power plants, and hence, many of them would have to remain idle due to lack of fuel. (See for example, several papers presented at the 1st Global Conference on Stranded Assets And The Environment 2015, held on 24-25 Sept. 2015, organised by the University of Oxford’s Smith School of Enterprise and the Environment at Oxford, UK.) 

While this may be true at a global level, it is unlikely to apply in the case of India. This is because India will not accept any binding restrictions on its use and consumption of coal. And rightly so. This is because in terms of historical emissions, India has not been the main culprit responsible for the cumulative accumulation of carbon in the atmosphere. Further, its per capita emissions are fairly low. It rightfully expects those who are responsible to bear the major obligation of addressing the problem. This is also the accepted principle of ‘Common But Differentiated Responsibility’. Given this, India’s coal plants are not likely to face limitations from any regulatory restrictions on fuel, at least from the carbon emissions angle.

Other Factors that Threaten Stranding of Coal Based Generation Assets

However, India’s coal plants are still faced with the risk of being stranded, but due to very different set of reasons.

The first reason is the one dealt with in the first part of this blog. While India has planned rapid and large expansion of its coal-based power generation capacity, there are questions about how much demand will be there for the electricity generated from these plants.

The Crisil report notes three major reasons, apart from lack of demand, that threaten the economics of coal based thermal power plants. The first reason is the shortage of domestic coal and the problems with the coal allocations to each power plant. The Crisil report says that some 13,000 MW of coal power plants are at the risk of stranding because of fuel availability risk. However, this report was prepared in July 2015, and since then, some of these risks have been addressed. Yet, even with better coal availability, power plants still remain at risk as the demand issue is not addressed. 

The second reason noted by the Crisil report is that several power plants had bid aggressively to win contracts and are now finding it difficult to supply power at these low rates. They are therefore asking for post-contractual changes and higher tariffs. This of course is the very anti-thesis of the ’market principles’ which the power sector reforms are trying to promote, and indicates that these principles are selectively and conveniently invoked or bypassed[1]. These cases are pending in legal forums. The Crisil report argues that unless these higher ‘compensatory tariffs’ are allowed, power plants with a total capacity of 16,000 MW would be at risk of becoming unviable. However, there is little attention paid to another side of the same issue: in case higher tariffs are allowed, power will become costlier. Will DISCOMs then purchase it? Will not the problem of lack of demand for high cost power be further aggravated and pose a risk to these power plants from another angle?

The third risk noted by the Crisil report is that similar to power plants, many of the coal miners who have bid in the recent auctions of coal mines, have bid aggressively and their power plants are not likely to be viable at such low prices. They put these at around 4000 MW of power plant capacity. However, these projects also face the same dilemma – unviable at low prices, but uncertainty of demand at higher prices.

Solutions to address these problems include reducing transmission and distribution losses, reducing theft, and increasing tariffs – the last one to ensure DISCOMs are financially sustainable. But if tariffs are raised, who will be the buyers? 

In other words, there is a fundamental issue at the heart of the power sector in India – how much demand is there for power, given the current high prices of electricity generation? And how to meet the demands of those with lesser capacity to pay? And, will these aspects play a role in deciding the scale of expansion of the generating capacity? If not, there are very real risks of high stranded capacities.

Apart from these reasons related to costs of generation, there are two more reasons, in my opinion, that will threaten the viability of proposed, if not existing, coal based capacities.

Roll Out of Renewable Energy

India has massive plans for roll out of renewable energy based power generation, particularly solar. Current targets are a capacity of 175,000 MW. Looking at the rapidly falling prices of solar PV, and sustained implementation of the projects, there is a good chance of these capacities coming online as planned, or at most with some delay. Given the scale of renewables, and their falling prices, there is a real possibility that they will displace coal based power. 

The Social and Environmental Impacts of Coal

While earlier I have argued against the possibility of stranding of coal projects in India on account of carbon emissions, the case with other social and environmental impacts of coal is quite different. Mining, washing, transport and burning of coal have very serious impacts on air, land and water. Mounting stocks of coal ash, running into millions of tons every year, have become a massive burden on the environment. All these in turn impact people’s health adversely. In a Press Release dated 9-April 2015, the Minister for Power Shri Piyush Goyal announced that[2] “We have specially taken a big CSR initiative as we are going to establish 5 cancer hospitals in coal mining areas in the country.” What interpretation can one have of this announcement? Does it mean that cancer is more prevalent in coal mining areas? In any case, health impacts of coal are well documented.

There is little doubt that increasing awareness amongst communities and the increasing scale of coal mining and power generation will create more pressure on the Government to introduce stricter regulations to control and manage pollution. This – if it is implemented seriously, and not reduced to lip service – will mean more cost for coal based power generation, and could also imply refusal of permission to some plants. Another serious issue is the large amount of water consumed by coal based plants. Given the increasing scarcity of water and increasing competition for available sources, coal plants are likely to face constraints unless they are able to reduce their water use significantly.

These and other social and environmental impacts of coal are fairly well known, so there is no need to elaborate them here. 

However, it’s clear that in the future, these aspects are likely to make coal based power costlier, and increase its vulnerability to financial and other risks. 

In Conclusion

While carbon emissions related regulations are not likely to create risks of stranding for coal plants in India (and they should not), there are other factors that are likely to threaten the viability of (some or even significant part of) coal based power generation in India. Unfortunately, the massive ongoing and proposed expansion of coal based power generation in India has not factored in these aspects. The impacts of these factors are already being felt, and it is necessary to undertake some urgent course correction by giving consideration to these factors.

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[1] See here for a detailed article on the basic issues, background and early developments in the case of two major project which have asked for these ‘compensatory tariffs’.

[2] http://pib.nic.in/newsite/PrintRelease.aspx?relid=118109