Wednesday, May 1, 2019

“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 29th 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

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 30th 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.

Thursday, September 14, 2017

In Which Swaminathan Iyer McDonaldises the Tribals and Serves Other Junk Food

What can one expect when one is faced with a blog by “India’s leading economic journalist” which is titled “Most of the ousted tribals are flourishing and loving it”? (Times of India  TOI, 12th Sept, at ) That there will be a large helping of fries on the side? That it will taste great but is really junk? In all of these expectations, one is not disappointed. 

First, a little background. The leading economic journalist is Swaminathan Iyer, and he and a colleague have carried out a survey of some tribals ousted by the Sardar Sarovar Narmada dam, comparing their situation with those left behind in the hilly areas near the river, and others in the hilly areas but near a mining project. On 10th Sept 2017, Iyer wrote a blog titled “Why many tribals don’t mind being ousted” based on his study. In a matter of just two days, Iyer has come out with a second blog based on the same study on the same topic. One wonders why? But then, again, one may not wonder, for the Sardar Sarovar has become an important topic with the Prime Minister scheduled to dedicate to the nation the dam on 17th Sept 2017.

The first blog was a classic case of misinterpretation of data, hiding the more important issues, and conclusions not supported by research findings, as we showed in our response. We showed that the tribals do mind being ousted. Now Iyer has written another blog on the matter, which skirts the issues we had raised in our response and omits some crucial survey findings given in the earlier blog, but still tries to show the Sardar Sarovar rehabilitation program as being successful. 

Iyer’s second blog tries to discredit activists who have raised issues with resettlement of tribals affected by the Sardar Sarovar, and argues that displacement has led to modernisation for the tribals, that they are flourishing, and of course “loving it”, as his title says. 

To do this, he uses several devices. Firstly, he sets up a strawman: “Some activists say economic development and modernisation are disastrous for tribals.” This statement is of course easy to attack. But activists, least of all the activists of the Narmada Bachao Andolan (NBA) which has worked with Sardar Sarovar oustees, have never taken such a position. We have argued that modernisation, development, and social and economic change is very important for tribals, but that it be their choice, be gradual, be on their terms (as much as possible), with their full involvement, and in a way that they can handle.  Displacement for the dam was not only involuntary but missed most of the other elements too; and much of the struggle was in fact to have the tribals find a voice in the process of what happens to them. Iyer is not concerned with this detail.

Second, his findings that tribals are better off in the resettled village is not exactly substantiated even by his own surveys, as our earlier response shows. In the second blog, he reiterates his earlier findings that “the oustees were far better off in material terms (TVs, mobikes, pukka houses, school access, electricity)”, but omits figures that show that even 30 years after resettlement, and hundreds of crores of rupees spent by the project, 55% of resettled oustees did not have access to drinking water, 63% no access to a PHC,  and 84% no access to a hospital. His own finding that “54% of oustees said they would rather return to the same land they once occupied in the forest” – 25-30 years after displacement, is an indication of whether the oustees feel they are better off.

Third, in his second blog, one of the findings Iyer gives to show how well the tribals have accepted modernisation is that “Cellphone ownership, the epitome of modernisation, was 88% for oustees versus 59% in the semi-evacuated forest villages.”  Whether the cellphone is the epitome of modernity is questionable, but the fact that tribals have accepted and taken to this new technology is simply a testimony to the fact that tribals, like most of the human race, are intelligent and will learn new things. But Iyer wants to imply that such a “modernisation” is possible only when the tribals leave their forests, and that it is the Sardar Sarovar that has made such modernisation possible. Both are flawed assertions. Tribals have taken to modern technology even in their original villages. With the support of NBA, two of the tribal villages in the submergence area set up micro-hydro power generation projects. Once partial submergence made travel virtually impossible without motorised boats, tribals were quick to buy second-hand boats from Alang shipyard and run them themselves.

Microhydel project underconstruction in tribal village in SSP Submergence area. PC: Anon. Courtesy NBA.
Tribals running motor boat in partially submerged villages. Photo: Nandini Oza

Iyer highlights the modernity of displaced tribals by saying “Many of those near the Sardar Sarovar Dam have cell phones and motorcycles, and can download their land titles from internet caf├ęs.” Is this an attempt to attribute causation to the Sardar Sarovar, and by doing so, justify or glorify it? If so, that is bunkum, as the examples given by us show.

Rest of his blog meanders away from the Sardar Sarovar oustees and talks about how some tribals have become affluent, foreign-educated ones, and how tribals left behind in forests “can catch up, given empowerment and access to modern facilities.” There is no disputing this. But the issue is that what “catching up” means should be defined by the tribals themselves, and not by others for them. And certainly, that should not require them to be forcibly uprooted from their lands, culture and communities. As Iyer himself says, but ignores in his conclusions, “Tribals in hill states earn well above the national average. Education and infrastructure have enabled hill tribals…to leapfrog into modernity with minimal trauma.” But this is without any displacement by any dam, which Iyer seems to conveniently ignore. So may be displacement is not a necessary condition for modernisation and development, unlike what Iyer wants to imply?

Let us then make this the aim – that the tribals themselves decide what “modernity”, “development” mean for them, that it be done with their involvement and control, where they are located, any migration being voluntary, and with minimal trauma. That the Sardar Sarovar has none of these characteristics is clear, and that the tribals reject this as “development” is also obvious from the fact that majority still want to go back, after so many years. 

Thus, Iyer’s attempt at dressing up the Sardar Sarovar (and its rehabilitation program) by bringing in a false causality, by mistaking or implying co-existence and juxtapositioning as causation is completely irrational  and specious. The tribals certainly are not lov’in it.

Shripad Dharmadhikary (                                                 14 Sept 2017
Nandini Oza (
The writers were both fulltime activists with the Narmada Bachao Andolan for close to 12 years.

Tuesday, September 12, 2017

Why Tribals Do Mind being Ousted by Dams: Response to SA Iyer’s Unsupported Clean Chit to Sardar Sarovar Rehabilitation

SA Iyers’s piece in Times of India dated 10 Sept 2017, “Why many tribals don’t mind being ousted by dams”, examining the condition of some of the oustees of Sardar Sarovar Narmada dam, ( ) is a classic case of misinterpretation of data, hiding the more important issues, and conclusions not supported by research findings. Indeed, a proper reading of the article itself shows that unlike Iyer’s assertion, his own figures show that tribals do mind being ousted. Some important points are given below.

A rally by the oustees of Sardar Sarovar. Photo: Nandini Oza
Iyer claims that their “surveys showed, unambiguously, the resettled villagers were better off than their former neighbours in semi-evacuated villages.” In support, among the figures given from their survey, they point out that comparing the resettled with their former neighbours who remain in the original areas, the access to drinking water was 45% against 33%, to PHCs was 37% versus 12% and to hospitals 14% versus 3%. Given that the oustees were resettled between 25-30 years ago, and that the Sardar Sardar project has poured in hundreds of crores of rupees for resettlement, these figures don’t speak of oustees being better off, but indeed, point to the pathetic case of the oustees. After 30 years and massive money being spent, 55% of the rehabilitated people had no access to drinking water, 63% no access to a PHC and 86% no access to hospital. And this is when the oustees have been settled in areas closer to the cities and the former neighbours continue to remain in remote hilly areas. True, cycle and motorcycle ownership was more favourably distributed towards the oustees, but that may be simply because in the hilly areas, these are less useful. In any case, they are less crucial than drinking water, access to health services etc. 

While Iyer claims that “Resettled villagers said they adjusted to new conditions…within two years” (something which we, as former activists of the NBA who have lived for years with them, find completely unbelievable), Iyer also finds that in response to the question whether “Would they prefer returning to their old villages, with the same land they had earlier? Around 54% said yes, 30% said no…” This response, after 30 years of resettlement, itself speaks volumes.  Iyer justifies this by saying that “For a majority, nostalgia for ancestral land and access to forests mattered more than greater material possessions.” But it’s not just nostalgia.  The forests, the river, also provided the tribals with substantial economic and livelihoods resources including fodder, fruits and fish. The fact is that the majority of the oustees at the resettlement continue to face multitude of problems like bad quality of land, lack of basic amenities, hostility from original residents etc. and many promises made to them remain unfulfilled. (May be they were just jumlas to get the oustees to move?). That is why to them the original village would still appear a better proposition from even an economic point of view. 

This is further substantiated by the response to the question “... if given the oustee compensation package, they would like to be ousted. In semi-evacuated villages, 31% wanted to move, 53% wanted to stay, in interior villages, a majority (52%) wanted to move, 35% wanted to stay…”. While clearly a majority of the former neighbours of the oustees indicated their lack of confidence in the rehabilitation package, the response of the “interior villages” is used by Iyer to make astounding conclusions about majority of tribals wanting to leave the forests. But the “interior villages” are those living near the mines of the GMDC, where mining has impacted them badly, even as it has brought them some access to infrastructure like roads. 

Overall, Iyer uses his data to draw some highly unwarranted and astounding generalisations that “it’s entirely possible to implement resettlement packages making tribals materially better off. ..explodes the claim of some activists that modernisation is disastrous for tribals…”

Last but not the least, his concluding line is most revealing. “Many tribals want to leave the forest for a better life.” In saying this, Iyer never raises the fundamental question as to why the tribal have to be evicted from their original village in case they want to have a better life, why is it that they cannot have access roads, drinking water, health facilities etc. unless they leave their original lands, homes and forests. If they did have many of these facilities in their original homes, even the limited advantages which Iyer’s study shows the oustees got, would have vanished.   In deliberately ignoring this fundamental issue, in not articulating what his own survey reveals, and in making sweeping generalisations, Iyer betrays a haste to give an unsupported clean chit to the project’s rehabilitation, the reality of which is far more dismal. 

Shripad Dharmadhikary (                                                 12 Sept 2017
Nandini Oza (
The writers were both fulltime activists with the Narmada Bachao Andolan for close to 12 years.