In an unprecedented first ever Audit report, the Comptroller and Auditor General of India (CAG) which recently conducted Performance Audit on ‘Environmental Clearance and Post Clearance Monitoring’ has unambiguously stated that the existing processes for grant of Environmental Clearance are fraught with serious violations, noncompliance and deficiencies.[i] In fact River Valley and Hydroelectric Projects have been highlighted for poorest quality of Environmental Impact Assessment (EIA) Reports, maximum irregularities during Public Hearings, and non-compliance of Environmental Clearance conditions.
This is a resounding slap on the face of the functioning of the current and past Expert Appraisal Committee’s (EACs on Dams and vindicates and validates what SANDRP and other civil society groups have been saying for long. This is indeed much needed critical feedback when EAC is seeking to make its proceedings less and less transparent and providing false justifications for the same.
What is EAC: The Ministry of Environment, Forest and Climate Change (MoEF&CC) is the nodal agency which grants EC to the projects falling under Category A of Environmental Impact Assessment Notification of 2006. The MoEF&CC grants EC on the recommendations of sector specific EACs.
SANDRP has been sending representations to EAC for River Valley & Hydroelectric Projects (hereafter referred to as EAC) for last several years highlighting problems in the projects that reach the committee for appraisal. Till about a year of two ago our representations would often find mention in the minutes of meetings of EAC where EAC would ask the project proponents to furnish explanations to the issues raised by us. (See here for example)
Year 2017 however marked a rather shocking and disappointing shift in this routine. Perhaps for the first time we had to explicitly state that our representation was ‘in best interest of people and environment’ and thus was NOT ‘anti-development’.
The EAC for River Valley & Hydroelectric Projects was reconstituted on December 16, 2016.[ii] In its first meeting held on 30th December 2016 the newly formed EAC decided that it will no longer consider representations made by “anti-development” civil society groups against projects which are under the final stage of consideration.[iii] Minutes of EAC meeting stated “Many such kind of 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.” Calling the representations ‘unsubstantiated’ and ‘repetitive’ the EAC further states “…EAC should not take any cognizance of such representations received from the any civil action group during final appraisal.”
Not surprisingly CAG has underlined several lacunas which SANDRP has been consistently drawing EAC’s attention to. This article summarizes what CAG report has to say about River Valley and Hydroelectric Projects (RVHP) and draws parallels with SANDRP submissions which have highlighted these very issues in the past.
River Valley and Hydroelectric Projects sample size for the audit
Performance Audit on Environmental Clearance and Post Environmental Clearance Monitoring sought to examine whether:
- the process of grant of EC is in compliance with the laid down procedure, is adequate, fair and transparent.
- there is adequate Post Environmental Clearance Monitoring to ensure that the project proponents comply with all the conditions laid down in the EC letter and commitments made in the EIA report.
216 projects which had been granted Environmental Clearance between calendar years 2011 to July 2015 were sampled to examine the process of grant of Terms of Reference and Environmental Clearance at the Ministry. Total sample of 249 projects out of 2,917 projects granted EC during 2011 to July 2015 was selected. CAG received 216 files only. Out of 216 projects seven projects were of River Valley projects.
352 projects which had been granted Environmental Clearance between calendar years 2008 to 2012 were sampled to check the post Environmental Clearance monitoring. River Valley project sample comprises of nine projects (47 RVP were granted clearance in the period) out of 352.
Inadequate EIA Reports
EIA Notification 2006 specifies the Generic Structure of EIA Report. The EIA Report is expected in compliance with ToR.
According to the CAG scrutiny for six out of seven projects the RVP EIA reports did not comply with the Terms of Reference granted by EAC as well as generic structure stipulated in the EIA notification. Even though the sample size is smaller in RVHP projects percentage wise non-compliance is highest. CAG also highlights the fact that the projects have been granted ECs despite evident shortcomings in the preparation of the EIA reports with respect to the ToRs.
SANDRP has repeatedly come across extremely poor quality EIA reports fraught with plagiarism, copy paste job, devoid of any impact prediction and full of generic statements with no quantification of impacts. Kwar HEP (540 MW) proposed in Kishtwar district, Jammu and Kashmir by Chenab Valley Power Projects Ltd. (CVPP) for which SANDRP sent a representation in the first meeting of newly constituted EAC is a classic example of how EAC has chosen to grant environmental clearance to the project despite pathetic quality EIA report and flawed public hearing.
SANDRP has been highlighting the poor quality of Kwar EIA report since it was first submitted in 74th EAC meeting. The report was a direct copy paste job from EIA report of Kiru Project (600MW) proposed on Chenab in the same (Kishtwar) district prepared by the same consultant. Entire text save project specific numbers was the same in both reports. At certain places Kwar report in fact mentioned ‘Kiru’ instead of Kwar! While the TOR was granted for 520MW the EIA and EMP, the Public Hearing was conducted for 560 MW installed capacity. Revised scoping clearance for changed capacity was NOT OBTAINED. EAC directed the proponent to apply for TOR afresh. The same EIA report (except few project specific numbers) was presented again after for the revised TOR.
Unfortunate as it is, despite severe lacunae and the poor quality of EIA report, the newly constituted EAC recommended the project for Environmental Clearance.
It is rather absurd that EAC which has promptly called representations from the civil society groups as ‘repetitive’ did not mind the repeat submission of the EIA report at all for a project worth Rs. 5000 Cr!
Similar is the case for several HEP projects for which SANDRP has sent representations.
No assessment of Cumulative Impacts
CAG Audit has noted that in most of the EIA reports the PPs have not carried out cumulative studies. Also, there was no mandatory requirement of cumulative impact studies before preparing the EIA reports. There was either no information regarding cumulative effect or very general information was given by the PPs without any substantive cumulative impact studies in the EIA reports.
SANDRP in its representations has consistently written about the lack of cumulative impact assessment (CIA) in the EC process. Kwar HEP is again a classic example of how the projects are assessed individually without regards to the cumulative impacts. Not to mention that this is true for nearly all hydropower and irrigation projects.
The immediate upstream project to Kwar H.E. Project is 624 MW Kiru H.E. Project (624 MW, yet to be constructed) with elevation difference of just 3.24m between TWL of Kiru and FRL of Kwar. Similarly elevation difference between FRL of Kwar and FRL of downstream Dul Hasti project (390 MW, commissioned) is 3.4m. Other than these immediate upstream and downstream projects, the EIA report gave a list of 17 HEPs with a total installed capacity of 10,778 MW!
The EIA report has been completely indifferent towards cumulative impacts of such cascade development then and even now.
Accreditation of EIA consultants
CAG observes that EIA report and EMP were prepared by the consultants who were not accredited for the particular sector with the QCI or NABET. For RVPHP out of 7 cases in 5 projects, the consultants preparing the EIA Report were not registered with NABET for said project activity.
According to an Office Memorandum issued by MoEF&CC in December 2009, it was mandated that that EIA or EMP Reports prepared by such Consultants who are not registered with Quality Council of India (QCI) or National Accreditation Board for Education and Training (NABET), shall not be considered by the Ministry after 30th June 2010.
Further, in March 2016, MoEF&CC amended the EIA Notification 2006, and included the provision that the Environmental consultant organisations which are accredited for a particular sector and the category of project for that sector with the QCI or NABET or any other agency as may be notified by the MoEF&CC from time to time shall be allowed to prepare EIA report and EMP of a project in that sector and category and to appear before the concerned EAC.
The problem is little more serious though. EIA consultants like R S Envirolink Technologies Pvt. Ltd., WAPCOS (Water and Power Consultancy Services Limited), AFCL, CISMHE have repeatedly produced poor quality and shoddy EIAs and Cumulative Impact Assessments. Civil society groups like SANDRP have consistently submitted critiques of their EIAs to EAC and also have requested the ministry to blacklist such consultants removing them from the accreditation list. The EAC and the Ministry however has chosen to turn a deaf ear to these pleas.
Irregularities in conducting Public Hearing
As per EIA Notification, Public Consultation is a process which ensures that the concerns of local affected persons and others stakeholders likely to be affected by environmental impacts of the project or activity are ascertained. The Public Consultation comprises of a public hearing at the site or in its close proximity district wise, to be carried out in the manner prescribed, for ascertaining concerns of local affected persons.
Public Hearing is perhaps the most important aspect of the Environmental Clearance process. It is the only platform for the affected people in the EC process and in entire project cycle to voice their concerns. Performance of MoEF and EAC in this regard also comes across as a disappointment in the CAG report.
CAG observes that the due diligence process as prescribed in the EIA Notification for the conduct of Public Consultation was not followed in any of the seven sectors examined in Audit. The non-compliance was maximum in case of River Valley and Hydro Electric projects.
CAG observes that mechanism to ensure redressal of the concerns of the public in the final Environment Impact Assessment report or EC letter and implementation of the commitments made by the PP (Project Proponent) during public consultation in a time bound manner were not firmly in place. Besides, shortcomings were noticed in the conduct of public hearings. Delay in conduct of public hearing, missing advertisements, advertisement not in vernacular language, not taking views of public into account etc. were some commonly found irregularities.
As Environmental lawyer Ritwik Dutta argues the expert appraisal committees rarely scrutinise proceedings of public hearings. “The EIA notification of 2006 requires that public hearings be video recorded. The purpose is that the members of the EAC view the video and form an opinion. But there is hardly any time for that in the rapid appraisal mode necessary for bulk clearance of projects,” he has said.[iv]
More often than not SANDRP has come across public hearing reports for hydroelectric projects with project proponents or govt officials making false, intimidating remarks like “The best source of power generation is hydro power”. Many a times affected people are also misinformed. At times R&R plans are prepared based on NRRP of 2007 even when R&R Act of 2013 is in place.
Public Hearing for Kwar HEP shows how seriously flawed the process of public hearing is in case of River Valley and Hydro Electric Projects. As the project proponent had failed to submit the proposal for EC within the validity period of TOR and had conducted the EIA along with PH for 560 MW installed capacity instead of 520 MW for which the TOR was granted the EAC in its 85th meeting granted a fresh TOR clearance to the revised project. However while doing so the EAC specifically stated “As such, a fresh Public hearing may not be needed in this case.” The EIA notification of Sept 2006 provides no powers to EAC to provide such concessions, thus the decision of EAC is without legal support. The TOR itself had become invalid, both for expiry of validity period and since project parameters had undergone change.
As expected the PH report of Kwar project prepared in 2013 reflects no serious discussion on impacts of the projects and none on the cumulative impacts of the cascade of 17 projects as well. The massive impacts that the over Rs 5000 Crore project will have on site have been trivialized by misleading remarks such as “Muck dumping sites will be developed into parks” or “Dam power houses will be developed into tourists spots”.
One can see that the table is numbered 2.9. But the description below states 2.8.
Office Memoranda for Post Facto Impact Assessment
The EIA Notification 2006 was issued by MoEF&CC under the provisions of Section 3 of Environment (Protection) Act 1986. Making changes in the notification is a legal process which also requires opinion of the stakeholders and Gazette notification. CAG observes that ministry has sought changes in the EIA notification by way of issuing Office Memoranda (OMs) wherein he Ministry had not followed due process and the OMs so issued had the effect of diluting the provisions of original notification.
Two such OMs were issued by MoEF&CC on 12 December 2012 and 27 June 2013, which provided for considering the applications of the project where construction had been done/started without prior EC. As is obvious, this OM defied the very purpose of EIA which is to identify, examine, assess and evaluate the likely and probable impacts of a proposed project on the environment. By starting work before getting EC, the EC has been taken for granted, whereas the EC process can also end in rejection of the project for it being unviable. Moreover, it is evident that to work out remedial action plans to minimize these adverse impacts on the environment the EIA is required to be done at a stage before the commencement of the project.
CAG report points out that the EIA notification does not visualise such examination post-commencement and upon completion of the project. The OM issued by MoEF&CC was challenged and was struck down by National Green Tribunal in July 2015, with the observation that these OMs were ultra vires the provisions of the Act of 1986 and the Notification of 2006 and suffered from the infirmity of lack of inherent jurisdiction and authority.
EAC on its part however has continued accepting projects for impact assessment even after construction has been started in violation of the EC process. SANDRP has sent number of detailed submissions to the EAC regarding irrigation projects of Telangana like Dr. B.R. Ambedkar Pranahita Project, Kaleswaram LIS, elaborating violations of the environmental laws by starting the construction without obtaining environmental or forest clearance. EAC however has refused to take strict action against violators even when confronted with proof of violations. Dr. B.R. Ambedkar Pranahita Project was given a TOR clearance in 3rd meeting of EAC held on March 02, 2017.
What CAG report has missed out while auditing the EC process is how EAC issues TOR despite incomplete form I, incomplete pre-feasibility reports full of inconsistencies and misleading information provided by the project proponents and without a cumulative impact assessment being in place.
Post Environmental Clearance Monitoring
While the EC process is plagued with irregularities at every stage, scenario for post EC compliance is even more worrisome. After auditing the post EC monitoring for RVHP projects CAG has raised alarm over noncompliance of several important specific conditions. Discussed below is the compliance of EC conditions specific to RVHP projects. As we can clearly see these conditions are of critical importance to reduce the magnitude of the environmental damage inflicted by the RVHP projects. In fact EC is granted bestowing rather undue faith in the project proponents that the conditions will be complied with. If these conditions are violated it will not only amplify the damage caused to the environment but also jeopardize the project benefits.
Non maintenance of minimum environmental flow of discharge: Environmental Flows (EF) are the flows of water in rivers that are necessary to allow rivers to continue to perform its essential tasks and to maintain aquatic ecosystems. A flow regime in the river, required for sustaining a complex set of aquatic habitats and ecosystem processes are referred to as EF. CAG observes that out of nine RVHEP projects condition for minimum EF was not stipulated at all in six (67 per cent) projects. The condition could not be verified in two projects as the projects were yet to be made operational. Compliance was seen in case of Kelo Major Irrigation Project, Chhattisgarh. CAG cautions of adverse impacts on aquatic ecosystems in case of non-incorporation of minimum E-Flow. The CAG should have also looked at how the Eflows are assessed for the projects being given clearance post 2011 or earlier.
Noncompliance of Muck disposal plan: Muck disposal is an important part of Environmental Management Plan. Millions of cubic meters of of stones/muck is generated at various points in River Valley and Hydro Electric power projects which, if not properly disposed of, would invariably slide down into the river causing damage to the river ecosystem and create flooding. Muck disposal plan estimates the quantity of muck generated during the dam construction and allied activities and suggests measures for its proper disposal at certain identified areas. The excavated material needs to be relocated and dumped according to the muck disposal plan so that it does not impose any negative impact on terrestrial and aquatic environment. CAG observed that out of nine RVHEP projects, there was no condition of consolidation and compilation of the muck at the designated dumping sites in three (33 per cent) projects. The CAG should have assessed the actual muck disposal at all these projects and compared it with the plans.
Fishery Conservation and Management Plan (FCMP): The construction of the dam leads to fragmentation of habitat, modification in hydrologic regime and would have serious adverse effects on the indigenous and migratory fish. Hence, FCMP in case of RVHEP projects is necessary. CAG observed that out of nine RVHEP, no condition as to implementation of FCMP was stipulated in five (56 per cent) projects. Out of the remaining four projects where such a condition was mentioned in the EC, the condition was being complied in one project. FCMP was not found implemented in rest of the four projects. MoEF&CC stated (October 2016) that in most of the cases the projects had deposited the money to the concerned Department of the State Government but the implementation had been delayed.
Non implementation of the Catchment Area Treatment Plans: Soil erosion in the catchment areas of reservoirs and transport of detached material through the drainage network gives rise to a series of problems like siltation, depletion of flow capacity, steady loss of storage capacity, consistent drop in hydro-electric power generation and frequent floods. A well-designed Catchment Area Treatment (CAT) Plan is essential to ameliorate the adverse process of soil erosion in the catchment area. We observed that out of nine River Valley and Hydro Electric power projects, condition as regards to CAT Plan was not stipulated in four (44 per cent) projects. In the other five projects the CAT Plan was not found implemented by the PPs. MoEF&CC stated (October 2016) that in most of the cases the projects had deposited the money to the concerned Department of the State Government but the implementation had been delayed.
Some deficiencies in CAG Audit The CAG audit also suffers from some serious deficiencies. The report available with us did not contain the list of the River Valley Projects that the CAG audited under EC and under compliance processes.
Secondly, the Audit did not go into the depth of the violations and deficiencies in the process. It could have gone into greater detail and given names of the projects, EIA consultants, developers and state pollution control boards and EAC members how were responsible for the deficient decision making.
Thirdly, the recommendations of the CAG are shockingly weak. It clearly does not suffice to recommend that the norms should be followed when norms are being violated. Moreover, even after seeing that there are no consequences for noncompliance with the law or with the EC and EMP requirements, the CAG does not provide strong conclusions and recommendations. This would be taken as a signal by the EAC, MoEF and developers that CAG is not really serious and whatever is going on can continue. There are no really strong and effective recommendations to ensure that there are fewer violations or instances of noncompliance in future and that there are consequences when violations and noncompliance still happens.
One hopes future CAG audits would be stronger in this regard.
In conclusion The CAG report indeed provides the most eye opening and shocking audit of the way EAC and MoEF appraise and clear the projects without any concern for the environment, people, rivers or even the projects they clear. It shows that almost every norm, every mechanism, be it EIA, PH, EAC, EMP, compliance etc stands completely violated and yet there are NO consequences for ANYONE. One expected the CAG to say this in even stronger and clearer words to have some impact.
Though the newly formed EAC has been arrogant and has tried to block and trivialize the feedback of civil society organizations working on environment, CAG has in fact validated all their concerns and provided a resounding slap on the face of arrogant EAC members and MoEF. CAG report published at the right juncture highlights the need for civil society organizations to publically scrutinize the proceedings of EAC & MoEF, raise questions and hold them accountable. Something which is in deeper interest of people at the grass roots and environment at large cannot be simply dismissed as ‘anti-development’ as EAC has sought to do.
While the CAG report is welcome, one expects the CAG to do this on regular basis and also provide more in-depth and incisive audit and also show way forward for improving the state of the affairs. Currently, the CAG report is likely to pass off without ANY impact on the functioning of the EAC or MoEF. One also hopes that CAG does a more focused, exclusive and comprehensive audit of the EC process for River Valley Projects soon, considering the abysmal state of affairs found in these projects and massive impacts and investments that these projects involve.
One hopes the CAG report is taken up by the NGT (National Green Tribunal) and higher judiciary to ensure that this shocking state of affairs at EAC and MoEF do not continue.
Amruta Pradhan (email@example.com), Himanshu Thakkar SANDRP
[i] Report of the Comptroller and Auditor General of India on Environmental Clearance and Post Clearance Monitoring