Legal Imitative for Forest and Environment, New Delhi
The review of Environmental Law is currently being undertaken by the High Level Committee (HLC) constituted by the Ministry of Environment, Forest and Climate Change. The task is huge and requires a much more detailed, comprehensive, real and effective consultative process than what is currently being done. The Committee is well within its right to say that such a task cannot be undertaken within such a limited and unrealistic time frame (2 months) and without the required expert composition.
The committee must give suggestions only on how to strengthen environmental law in India and not dilute environmental laws. Undermining environmental law is disastrous for the people, environment and even for economic development. It is pertinent to point out some events which have occurred in recent times which reflects on how the decisions on environment have had disastrous consequences both for the people and the economy.
Contrary to what is generally projected by the Industry Associations and a section of the press, environmental laws are not the cause of slow economic growth. Rather speedy and hasty approvals have been the cause of both environmental, social and economic loss and damage. It is imperative to focus on some facts which would be relevant.
The Ministry of Environment and Forest and its various expert committees never reject a project totally. Even if the approval is declined in one meeting it is presented in a subsequent meeting with minor modification. One can cite the recent case of Dibang Hydro Electric project in Arunachal Pradesh which was recommended for forest clearance despite being rejected twice by the Forest Advisory Committee.
An analysis of the approvals granted by the Regional Office of the MoEF based on recommendation of State Advisory group, the rate of approval is 78 Percent [See report of EIA Response Centre, study from January to April, 2014 at Annexure IIm, see the end of the blog]
The Expert Advisory Committee (EAC) constituted under the EIA Notification 2006 undertakes the task of appraisal at remarkable speed and hasty manner. It is worth quoting from the Judgments of Courts and Tribunals on the manner in which appraisal is done by the Expert Committees.
A. Samata Versus Union of India [National Green Tribunal , Appeal No 9 of 2011,] [Thermal Power Plant in Andhra Pradesh]
‘For a huge project as the one in the instant case, a thermal power plant with an estimated cost of Rs. 11,838 crore, covering a total area of 1675 acres of land, the consideration for approval has been done in such a cursory and arbitrary manner even without taking note of the implication and importance of environmental issues. On the same day the EAC took for appraisal not only the thermal power plant in question, but also other projects which would be indicative of the haste and speedy exercise of its function of appraisal of the project.
“As regards the functioning of the EAC, from the response of the MoEF to the RTI application referred to hereinbefore, it appears that the EAC granted as many as 410 mining approvals in the first six months of 2009. This is indeed a very large number of approvals in a fairly short time. We were informed that the EAC usually takes up the applications seeking environmental clearance in bulk and several projects are given clearance in one day. This comes across as an unsatisfactory state of affairs. The unseemly rush to grant environmental clearances for several mining projects in a single day should not be at the cost of environment itself. The spirit of the EAC has to be respected. We do not see how more than five applications for EIA clearance can be taken up for consideration at a single meeting of the EAC. This is another matter which deserves serious consideration at the hands of MoEF.”
C. Gauraxa Hitraxa Pauchav Trust Vs Union of India [Appeal No 47 of 2012 of NGT] [Pipava port, Gujarat]
“The relevant observations in the EAC meeting reveal that the presentation made by the Project Proponent was accepted as “gospel truth””
D. Sreeranganathan K.P and ors Vs Union of India : [Appeal No 172 -174 of 2013] [Aranmula Airport, Kerala]
“The Tribunal is able to notice a thorough failure on the part of the EAC in performing its duty of proper consideration and evaluation of the project by making a detailed scrutiny before approving the same……The EAC is constituted consisting of a Chairman and number of members who are experts from different fields only with the sole objective of national interest in order to ensure establishment of new projects or expansion of already existing activity without affecting the ecological and environmental conditions. Thus, a duty is cast upon the EAC or SEAC as the case may be to apply the cardinal and Principle of Sustainable Development and Principle of Precaution while screening, scoping and appraisal of the projects or activities. While so, it is evident in the instant case that the EAC has miserably failed in the performance of its duty not only as mandated by the EIA Notification, 2006, but has also disappointed the legal expectations from the same.
The above list is only illustrative and there are many other judgments reflecting the situation with respect to haste with which approvals are granted.
While undertaking any review the Committee must keep into account the following facts, issues and ground realities.
India’s Environmental law are a result of people’s struggle, international convention, commitments and judicial pronouncements and is aimed at ensuring sustainable development. Most provisions of the India’s environmental law have been an outcome of International Conventions pursuant to Article 253 of the Constitution eg, the Public Hearings and Environment Impact Assessment became part of India’s legal framework pursuant to the Rio Declaration of 1992 and the National Green Tribunal was set up pursuant to India’s committment to Principle 10 of the Rio Declaration.
‘Principle on Non-Regression’ has to be applied while undertaking review.
The principle of non-regression is understood as the requirement that norms which have already been adopted by states may not be revised in ways which would imply going backwards on the previous standard of protection. This principle has been traditionally recognized in the area of human rights – that is, once a human right is recognised it cannot be restrained, destroyed or repealed. This theme is echoed in almost all the major international instruments on human rights, including the Universal Declaration of Human Rights.  Environmental rights are closely related to human rights as well, including cultural and social rights, and can be interpreted to apply in the context of environmental protection as well. In addition, the principle is increasingly being invoked in the context of environmental protection. The European Union has adopted this view through a resolution: 
97. Calls for the recognition of the principle of non-regression in the context of environmental protection as well as fundamental rights.
The Resolution of the UN General Assembly as the outcome document of the Rio+20 United Nations Conference on Sustainable Development reflects the acceptance of this principle as well:
20. We acknowledge that since 1992 there have been areas of insufficient progress and setbacks in the integration of the three dimensions of sustainable development, aggravated by multiple financial, economic, food and energy crises, which have threatened the ability of all countries, in particular developing countries, to achieve sustainable development. In this regard, it is critical that we do not backtrack from our commitment to the outcome of the United Nations Conference on Environment and Development. We also recognize that one of the current major challenges for all countries, particularly for developing countries, is the impact from the multiple crises affecting the world today.
Therefore, the principle of non-regression applies as a human and fundamental right, as well as under the principles of environmental law – like “sustainable development” and precautionary principle”.
The concept of Sustainable Development has to be comprehensively understood and cannot be equated only with economic growth. The Rio Declaration of 1992 has to be comprehensively understood and read not in isolation but as a whole. Public hearings (Principle 10), EIA (Principle 17) Precautionary Principle (Principle 15), Compensation and liability regime (Principle 13) are the core of Sustainable Development and have been incorporated as part of national law. The aim should be to further include these in various laws in a comprehensive manner. Rule of law, the right to participate effectively in matters which concerns one’s life.
Expert Committees, Advisory Committees, Appellate Forums constituted of Bureaucrats do not inspire confidence. This Committee must recommend that any committee or appellate forums should not have any bureaucrats. The working of the National Environment Appellate Authority (NEAA) is a classic example of failure due to the fact that retired IAS and IFS officials were made vice chairman and member. The Delhi High Court in Vimal Bhai versus Union of India [CM No. 15895/2005 in W.P. (C) 17682/2005 has held:
“The list produced by the petitioners of appeals before the NEAA shows that most of the appeals disposed of thus far have in fact been dismissed, comprised as it is of retired bureaucrats, minus the Chairperson and Vice Chairperson. The NEAA is, therefore, at present neither an effective nor an independent mechanism for redressing the grievances of the public in relation to the environment clearances granted both either the State or the Central Government.”
There is clearly a need to review environmental laws. Yet neither the objective and purpose is clear of the present exercise. The Environment (Protection) Act, 1986 has numerous notifications issued under it. It ranges from EIA Notification to rules regulating the use of Plastics and microorganisms. Will the present review cover all these? These are issues which needs clarity. In addition, the Committee has to genuinely interact with all concerned persons across the country. The present process cannot be called consultative at all.
India’s environment has already impacted negatively due to hasty decisions as evident from numerous decisions of the Courts, the least this HLC can do is not to prepare a hasty report based on limited one sided information and limited public interaction.
[Earlier Blog on HLC: https://sandrp.wordpress.com/2014/09/26/review-of-environment-laws-is-necessary-but-the-tsr-subramanian-hlc-lacks-credibility/]
Ritwick adds in post script: So far as ELMA is concerned, it is not even in a form that can be called as a Bill. The ELMA has many dangerous provisions and the sole aim is to manage the progressive provisions in all the other laws. ELMA gives overriding powers to the environmental authority to pass any direction. The thrust of ELMA is to ensure that those who approach the courts for redressal of their grievances face the threat of penalty. I feel that one of the most problematic provisions of ELMA is the fact that it combines all clearances (CRZ, EC and FC) into one (Single window) with very limited scope for appeal. The Appeal will have to be filed within 30 days of approval and before a Board constituting of two serving or retired secretaries to the Government! The process without doubt was a hurried one.
State Advisory Groups (SAGs): Recommendations for Forest Clearance during January-April 2014
The Forest (Conservation) Rules, 2003 under the Forest (Conservation) Act 1980, provide that proposal involving forest land of more than forty hectare shall be sent by the State Government to the Secretary to the Government of India, Ministry of Environment and Forests (MoEF) while proposals involving forest land up to forty hectare shall be sent to the Chief Conservator of Forests or Conservator of Forests of the concerned Regional Office (RO) of the MoEF.
RO is empowered to scrutinize and sanction the proposals involving diversion of forest area up to 5 hectare. In respect of proposals involving diversion of forest area above 5 hectare and up to 40 hectare and all proposals for regularization of encroachments and mining up to 40 hectare, the proposals are examined by the RO in consultation with State Advisory Group consisting the representatives of the State Government from the Revenue Department, Forest Department, Planning and /or Finance Department and concerned Department (User Agency).
State Advisory Groups (SAGs) are constituted by the Ministry of Environment & Forests, Government of India, under the Forest (Conservation) Act, 1980 for each State and Union Territory.
The view of the Advisory Group are recorded by the Head of the RO and along with the same, the proposals are sent to Ministry of Environment & Forests, Government of India, New Delhi for consideration and final decisions.
The meeting of the State Advisory Group (SAG) is normally held once in a month at concerned State Capital as per a pre-decided schedule for each State and Union Territory.
Agenda and minutes of SAG meetings are uploaded on the MoEF website.
In this report, we have analysed minutes of SAG meetings all over the country from January to April 2014. During the period, minutes of meetings in 10 states are available in public domain.
As per the information available on MoEF website, there were 16 meetings during this period of four months in which 541 ha area has been recommended for diversion. These meeting happened in Gujarat, Maharashtra, Madhya Pradesh, Uttarakhand, Andhra Pradesh, Karnataka, Kerala, Punjab, Tamil Nadu and Odisha. Gujarat leads with maximum diversion of 138 ha followed by Maharashtra with about 100 ha diversion.
It is interesting to note that Transmission Line is at top of the table taking maximum recommendation for diversion, 142 ha (26 %) closely followed by Roads with 138 ha (25 %). If we include Railways which takes 56 ha (11%), it is conspicuous that ‘linear intrusion projects’ are taking 62 per cent of the total recommended diversion.
The total number of projects considered by SAGs during the period was 41 of which 32 were recommended, i.e.78 per cent. It is alarming to note that not even one project was declined by SAG!
Every possible violation of norms, procedures, law and democratic governance is being committed in pushing clearances for the India’s largest capacity hydropower project, which involves India’s highest dam proposed so far & North East India’s Largest capacity reservoir: the 3000 MW Dibang Multi Purpose Project in Arunachal Pradesh. The players involved in these violations include the Union government of NDA led by BJP (UPA earlier), including its cabinet and Union Ministry of Environment, Forests and Climate Change (MEFCC), Ministry of Power, State government, the project developer company NHPC Ltd, the Expert Appraisal Committee (EAC) and Forest Advisory Committee (FAC).
The project will need more than 4700 hectares of biodiversity rich Forest area with several Schedule I species in Arunachal Pradesh. It will also have significant downstream impacts on the people & environment of Arunachal and Assam and Dibru Saikhowa National Park. Most of its impacts have not been either properly assessed or considered by the developer, EIA agency or the EAC & MEFCC.
Déjà vu: We did the same for Lower Subansiri HEP! It seems the government is indulging in the same blunders that the previous NDA government indulged in over a decade ago while clearing the then-largest capacity hydropower project: the 2000 MW Lower Subansiri Hydropower Project (LSHP), also in Arunachal Pradesh. Environment clearance for LSHP came on July 16, 2003 and stage I forest clearance came on June 10, 2003. Exactly the same set of players were involved in manipulating LSHP clearances over a decade ago. The developer is also the same: NHPC. The government at centre is again led by NDA.
Aaranyak environmental group of Assam, in a letter dated May 16, 2002 to the then-Chief Justice of India had highlighted the violations involved at various stages in the decision making of LSHP including during public hearings, in conducting EIA, in giving environment, forests and wildlife clearances. Almost all the issues that Aranayak letter raised then are applicable in case of Dibang with even greater force. But it seems in the twelve years since 2002 when that letter was written, our environmental governance has only degenerated.
The fate of the LSHP is a lesson in itself. After spending over Rs 5000 crores (Rs 50 Billion), the work on the project came to a standstill in December 2011. It has remained stalled for 34 months since then, following India’s biggest Anti dam People’s movement so far. This is unprecedented in India’s hydropower history. NHPC Ltd has been trying every possible trick to resume the construction work on LSHP, without genuinely trying to address the issues people’s movement has been raising.
Dr Mite Linggi, Representative of Kere A Initiative for Cultural and Ecological Security said exactly that at the public hearing of Dibang Project on March 13, 2013: “It is evident that the 2000 MW Lower Subansiri Project is stalled since Dec 2011 because the technical, environmental and social concerns of the people of Assam were not considered earlier… Ignoring downstream concerns will only ensure that this project to will meet the same fate as Subansiri Lower Project (2000 MW and get stalled by people of Assam.”
It seems none of the players have learnt any lessons from the blunders committed in LSHP’s decision making. If this is how Dibang Project is being pushed down the throat of the people of Dibang Valley, Arunachal Pradesh and the North East India, they will have no option but to oppose the project and the Dibang Project may have the same fate as that of LSHP. Those who have been involved in the decision making now will then be held accountable for the wrong decisions and manipulations.
THE DIBANG PROJECT
The foundation stone of 3000 MW Dibang Multipurpose Project on Dibang River was laid on 31st January 2008, by Prime Minister Manmohan Singh when the project had no clearances, showing utter disregard the former PM had for statutory clearances or environment or affected people. The project affects Lower Dibang Valley and Dibang Valley districts of Arunachal Pradesh, and significantly, several districts in downstream Assam.
Considering the fact that Dibang has the largest installed capacity for a project in India, involving highest dam in India and biggest reservoir in North East India so far, one expected the EAC to be much more diligent while considering the project and even more so considering the experience of the LSHP. But that, it seems, was expecting too much.
The first thing that would strike any one who goes through the EAC and FAC documents is that the basic parameters of the project are yet unclear even as the EAC and FAC have recommended clearances, within the span of a week, under pressure from their political masters. Unbelievably, these two committees functioning under the same Ministry have recommended clearance for differing capacities, differing heights, differing submergence areas and so on!
This is because the NHPC knowingly misled the EAC in its meetings by presenting the 288 m height (above the deepest foundation level) dam with 545 m elevation at Full Reservoir Level (FRL) and 3.75 Billion Cubic Meters (BCM) of storage capacity at FRL. The same NHPC, in FAC meeting on Sept 22, 2014 provided sensitive analysis with dam height reduced upto 40 m, but this was not even mentioned before the EAC!
Let us review the how the EAC and FAC dealt with the project.
A. ENVIRONMENTAL CLEARNACE FOR THE DIBANG PROJECT:
The Expert Appraisal Committee (EAC) of the MoEF, which holds the distinction of having a zero rejection rate for the projects it appraises, recommended Environment Clearance to 3000 MW Dibang Multipurpose Project in its 77th meeting on 16th Sept, 2014.
The Project was given TOR (Terms of Refence) clearance on 17.8.2009. Public hearings in Lower Dibang and Dibang Valley districts were held on 11.3.2013 and 13.3.2013 respectively, with huge protests from affected people. The EAC earlier considered the project in 68th meeting in Sept 2013, in 73rd meeting in March 2014, in 74th meeting in May 2014 and now in 77th meeting in Sept 2014.
Some key questions that arise as to how the EAC arrived at the positive recommendation:
1. Was there any Public Hearing in downstream Assam? Was there proper public hearing in Aruunachal Pradesh?
Although Dibang Multipurpose project will have impacts in the downstream Assam, as accepted by NHPC Ltd, WAPCOS and recorded in EAC minutes, no public hearing has been conducted in Assam, in complete violation of the EIA notification which clearly states that in all affected districts public hearings must be held. The submissions from Assam were not discussed during EAC minutes. The people of Assam have been completely ignored in the decision-making about a project that will affect them. Several people who spoke at the Dibang Public Hearing in Arunachal Pradesh in March 2013 raised this issue, but MEFCC and EAC failed to do anything about this even after SANDRP submissions to EAC also raised this issue.
Even in Arunachal, the public hearing process has seen several violations, leading people to oppose the project and the public hearings, see the quotes from the public hearings given below. Consequently, the public hearings were disrupted by the local people and had to be cancelled several times. The MEFCC, unfortunately, has no concern for the quality of the whole consultation process and sees it as only a box to be tick marked. The EAC does not even look at issues related to public hearings.
2. Were the issues raised at public hearing in March 2013 addressed?
No. As is clear from the report of the public hearing for the project held at Roing and New Anaya on March 11 and 13, 2014 respectively, the affected people raised a lot of critical issues about the project, EIA, EMP and Public hearing.
In the Minutes of the 68th meeting of EAC held in Sept 2013 and the 73rd EAC meeting held in March 2014, there is one paragraph (same para in both minutes) on public hearings: “Concerns Raised During Public Hearings It was explained that in general, the people were satisfied with the EIA and EMP reports and proposed R&R plan and community and social development plan. R&R plan has been formulated in line with the State R&R Policy, 2008. They took keen interest in knowing the R&R package and community and social development (CSD) plan. However, during public consultation prior to public hearing and during public hearings of Dibang Multipurpose Project, in addition to community and social development plan more infrastructural development in both Lower Dibang Valley and Dibang Valley Districts were sought viz., up gradation of District Hospitals in both districts, financial assistance for schools, colleges and polytechnic, and construction of cultural museum at Roing and ITI at Anini etc. Besides this for downstream people, the main concern was protection of downstream area in case of dam break / high flood. Keeping this in view, a lump sum provision of Rs. 17100 lakhs has been proposed for consideration of MoEF for mitigative measures at downstream and other infrastructural facilities as raised during public hearings in addition to R&R and CSD plan.”
The claim that “in general, the people were satisfied with the EIA and EMP reports and proposed R&R plan and community and social development plan” is a complete lie, as we see from the quotes from the official public hearing minutes below.
It seems the EAC members have not bothered to read the public hearing report, and they have willingly or unwillingly been misled by the NHPC and EIA agencies. To illustrate the critical issues raised at the public hearings, we are giving below some quotes from the official public hearing report. Most of these reports remain unaddressed in the EIA-EMP submitted to the MEFCC, but MEFCC and EAC has not bothered to check this.
Shri Lokha Elapra, President, All Idu Mshmi Students Union: “Poor planning of mitigation from impacts during construction phase. Mitigation measures fail to address issues of demographic impacts, socio-cultural concerns and preservation of traditional land and livelihood… EMP does not have any provision to address this. EIA and EMP does not have any mitigation measures to preserve nor compeansation for permanent loss of mithun grazing areas, fishing grounds and medicinal plants thus endangering the loss of Mishmi Takin (rare Animal), Mishmi Monal (rare Bird) and Mishmi Teeta (rare medicinal plant)… Flood control of Eze (Deopani River to protect Roing Township… A cumulative impact study in the Dibang river basin must be undertaken.”
Shri Raju Mimi, Member, Mishmi Scholar’s Association: “NHPC had undermined the seismic design parameters as recommended by the experts of IIT Guwahati, Guwahati University and Dibrugarh University in respect of the Subansiri Dam. In this regard can the community members of the affected areas be certain that such careless disregard for dam safety be not repeated by NHPC in this case? All the documents related to dam design and safety be made public. Also, the documents should be peer reviewed by independent group of scientists. Ecological concerns like extraction of boulders from ecologically sensitive Important Bird Area (IBA). No impact assessment made regarding this in the EIA report… Hence a cumulative impact study in the Dibang river basin must be commissioned. Socio-economic concerns like the catchment area treatment (CAT) plan will restrict land use resulting in loss of land and livelihood. NHPC must ascertain such losses and compensate the people affected by CAT… There is possibility of loss of land by destabilization of soil due to the huge reservoir. What mechanisms will be implemented to address these losses? ”
Shri Kelo Pulu, President IMCLS: “Environment Monitoring Cell to assess and review the various mitigation measures as mentioned in the EMP is not convincing. Therefore, the Government of Arunachal Pradesh should immediately notify the formation of an independent Committee consisting of less than 5 members of local Idu Mishmi people.”
Shri Moba Riba: “Conduct Public hearing at Dambuk Sub division.”
Shri Jibi Pulu: “Additional EIA-EMP must be undertaken to ensure the minimum impacts to the ecology of Dibang area. The Community people will lose an area of 10390 ha that will be required for CAT plan. This area being grazing area of Mithun will be lost. The EIA does not have any data or estimate/ valuation of this resource. Without any compensation the livelihood rights cannot be taken away from the community. EIA studies about wildlife conservation is inadequate. EIA studies carried out regarding assessment of economic and medicinal plants is not project specific nor community focused. It does not have any reference, assessment and compensation of economically valuable plants like Piper mellusa and Paris polyphylla. The impact of 1950 earthquake of 8.7 magnitude.. Is the dam axis and reservoir standing along the seismic fault line? The impoundment of the drainage system by building dam will have major effect.. Hence, EIA studies on downstream impact particularly study of Deopani drainage and its siltation status is absolutely necessary.”
Dr Mite Linggi: “As recommended by the Planning Commission Committee we demand for a Dam safety design panel for an independent assessment of safety of Dibang Dam. There are lacunae in EIA-EMP reports. This must be rectified.”
Shri MartinLego: “Resistance capacity of the mountains which fall in the reservoir is not studied. Dam should be able to withstand flashflood. Construction of flood protection works with RCC wall supported by vegetative cover on both banks of Dibang River… Our demands must be fulfilled then only we will support.”
Shri Mibom Pertin, President Adi Bane Kebang (ABK):“Till date no initiative has been taken by the State Government, the district administration or the NHPC to educate the people… the EIA EMP must be modified/ rectified wherein safety measures and actions to be taken in case of dam break… Until and unless the above points are fulfilled the holding of this public hearing is strongly opposed by ABK.”
Shri Jowar Moyang: “Demand to establish a family dossier of the entire downstream people… Downstream not reflected in the EIA/EMP and DRP therefore, a separate guideline be made to include the downstream within the defined local area. The demands placed above must be addressed to within three months of this hearing or else will protest against the construction of the project.”
Shri Nun Pertin, President, Dibang Adi Students’ Union (DASU): “Downstream people are unaware of the project benefits, impacts and other issues which are mandatory to be known before the commencement of the project. Therefore, public hearing in this regard must be conducted within blocks and subdivision of Lower Dibang Valley. This must be furnished in written assurance form within one week’s time. ”
Shri Anjite Menjo, Zilla Parishad Member, Iduli Anchal Block and Shri Chiliko Meto, ZillaParishad Chairperson: “Environment Monitoring Cell to assess and review the various mitigation measures as mentioned in the EMP is not convincing. Therefore, the Government of Arunachal Pradesh should immediately notify the formation of an independent Committee consisting of less than 5 members of local Idu Mishmi people… Hence a cumulative impact study in the Dibang river basin must be commissioned.”
Dr Mite Linggi, Representative of Kere A Initiative for Cultural and Ecological Security (KICES): “It is evident that the 2000 MW Lower Subansiri Project is stalled since Dec 2011 because the technical, environmental and social concerns of the people of Assam were not considered earlier. Report of the Planning Commission appointed Committee of Dr C D Thatte and M S Reddy has raised several serious concerns about the downstream impacts of the 2000 MW Subansiri Lower Project. Therefore, keeping this in mind, it is absolutely important that public consultation in Assam is carried out before the Dibang project gets environment clearance. Public consultation in Assam is not only necessary to address the concern of the people, but it is a pre-requisite for the people of Dibang Valley in the upstream… Ignoring downstream concerns will only ensure that this project to will meet the same fate as Subansiri Lower Project (2000 MW and get stalled by people of Assam. Rights of the people to use Catchment Area will be denied. Will compensation be included for them? Is it possible for NHPC Ltd to formulate new criteria for all those villages perched atop to include within affected families?”
Shri Lokha Elapra, President, All Idu Mishmi Students’ Union (AIMSU): Raises most of the critical issues raised above including need for Cumulative Impact Asessment, inadequate EIA-EMP, Impacts of demographic changes, lack of assessment of loss of grazing land, fishing right. “We do not want to be refugees in our land.. We the Idu Mishmi have a way of living where we live independently. Past history is proof of it. We had never been ruled and can never be ruled under any circumstance or vice versa. The plot which the NHPC Ltd claim giving free of cost is by virtue forcefully asking us to live in that piece of land where the PAFs are not satisfied.”
Shri Athupi Melo, Ex-ZPM, Anelih-Arju Block and Representing New Endoli village: “Public hearing on Dibang Multipurpose Project (3000 MW) was postponed 10-14 times earlier as the consent of the public was not taken before preparing EIA and EMP reports. The NHPC Ltd had cheated the entire affected people by concealing information and letting the awareness remain within the high reach people only. The NHPC Ltd as per their survey has shown 5 villages, 72 families, 243 persons, 938.8 ha of agriculture land as to be affected by the project. Do they know that the storage reservoir will submerge the land mass which belongs to another 34 villages of the valley?”
Shri Kupu Miku-ASM Arzoo and Representative of Apako village: “Had been resisting NHPC Ltd for the last ten years. Nothing was made known as to how much land would go and how much compensation would be provided.”
Shri Rezina Mihu, General Secretary, All Idu Mishmi Students Union (AIMSU): “It has been six yeas of resistance till this morning. The former President of AIMSU sacrificed his life fighting against the Dibang Project… the EIA-EMP is still not upto the mark.”
This selection of quotes from the Public hearing and reading of NHPC response, EIA-EMP and EAC minutes show that not only NHPC has failed to satisfactorily respond to most of these issues, the EAC and MEFCC has not even bothered to check the veracity of the claims of NHPC and uncritically accepted the NHPC claims. Inadequate response to the issues raised at the public hearing means that environmental clearance given to the project is legally untenable.
3. Has there been proper Environmental Impact Assessment of the project? Kalpavriksh, SANDRP, affected groups from Assam and Arunachal have made several independent submissions to EAC on the inadequacies of the EIA (Environmental Impact Assessment). SANDRP itself sent four different submissions (dated Sept 20, 2013, April 2014, May 2014 and Sept 12, 2014) highlighting various inadequacies of the EIA including:
Lack of compliance with the Terms of Reference of the EIA
Lack of basin wide cumulative impact assessment
Impact of mining of materials for the project not assessed
Lack of downstream impact assessment (more details below)
Lack of assessment of how climate change will affect the project and how the project will worsen the climate change impacts.
Lack of options assessment
Severe Impacts of Migration of Outsider on Local Tribal Community not assessed
Impact of the project on disaster potential in the project area as well in the downstream including Assam not assessed
Impact of changing silt flows downstream not assessed
As noted above, large number of speakers at the public hearing also pointed out the inadequacies of the EIA-EMP.
4. Are downstream impacts on Assam & Arunachal Pradesh Studied?
No credible study of the impact of the dam, dam break and peaking on Assam and Arunachal Pradesh in the downstream has been done.
Several speakers at the public hearing raised this issue of inadequate downstream impact assessment, as can be seen from the quotes from the public hearing listed above.
It may be mentioned here that the biggest issue plaguing the LSHP is lack of downstream impact assessment, and the EAC, MEFCC, NHPC or the EIA agencies (WAPCOS, which by now is notorious for doing substandard studies and National Productivity Council). Even Assam and Arunachal Pradesh state governments also seem least bothered. Also, it seems no lessons have been learnt after Larji mishap when 25 students were washed away due to demand-driven water releases by upstream hydropower project.
5. Has the impact of Peaking on Downstream Assam & Arunachal Pradesh studied?
This is despite the fact that submissions were sent to the EAC from several organizations and individual also from Assam, drawing their attention to impact of peaking in downstream Assam, especially in lean season (winter) when flow fluctuations will range from 111 cumecs (Cubic meters per second) to about 13 time rise in volume at 1441 cumecs in a single day. Fluctuations can happen twice or thrice in a single day.
6. Has the impact on Dibru Saikhowa National Park in the downstream Assam studied?
The EAC has shown zero application of mid in this respect. There are several hydropower projects being constructed on the three main tributaries of Brahmaputra upstream of Dibru Saikhowa National Park in Assam. All these hydropower projects will undertake peaking operations. EAC has considered these projects separately, as a part of basin studies and as a part of downstream impact studies on Dibru Saikhowa National Park.
In all these studies, the level fluctuation at the National Park when the three major projects in the upstream undertake peaking operations is different, as per the convenience of the project proponent! EAC has considered all these studies without raising any questions about this convenient difference in figures even when the contradictions were brought to EAC’s attention by SANDRP.
The EAC has recommended Clearance to Dibang Multipurpose Project accepting the contention of the NHPC that “water level fluctuation in Dibru Saikhowa National Park (DSNP) will be less than one meter.”
However, the same EAC has considered EIA of Lower Siang HEP (by WAPCOS) where the fluctuation at Dibru Saikhowa when all projects are peaking is said to be 8 feet (2.38 meters)
The Report on “Effect of Peaking power generation by Siang Lower HEP, Demwe Lower HEP and Dibang Multipurpose HEP on Dibru Saikhowa National Park” also by WAPCOS states that level difference when all three projects are peaking is estimated to be 34 mts i.e. 7.67 feet. (Page 26)
EAC did not question these glaring differences in these models even when a submission highlighting these points was sent to the EAC on 13.09.14, before the 77th EAC meeting. The submission is not mentioned in the minutes, neither discussed, also violating Hon. Delhi High Court Orders (Utkarsh Mandal Case).
7. EAC decision violates its mandate; MEFCC & NHPC guilty of misleading EAC.
During the entire appraisal process, the EAC has failed to pose any difficult questions to NHPC, has not taken a stand supporting Assam, has not even initiated discussion in that direction, has turned blind eye towards submissions it received raising critical concerns, has overlooked contradictions, has overlooked precautionary principle and welfare of people in the downstream Assam and has refused to learn any lessons from the LSHP experience or the Larji Mishap.
While discussion about height reduction of Dibang upto 40 meters were initiated in MEFCC/ NHPC since Feb 2014, the MEFCC or the NHPC has not brought this proposal to the attention of the EAC and the EAC has taken absolutely no notice of this and has not even asked for this 40 m height reduction. The only reference we can find to the height reduction proposal is in the minutes of the 73rd EAC meeting, where too there is reference to only 10 m ht reduction. And yet, there is no mention of this in the minutes of the 77th EAC meeting where the EAC recommended clearance to the project.
This alone is sufficient to make the EAC decision legally untenable and make both MEFCC and NHPC guilty of not informing the EAC about these developments more than six months after they were initiated.
The EAC on its part has not shown the will to ask for a realignment of the project to minimize its downstream impacts, peaking impacts and submergence impacts. Such biased conduct and the decisions of the EAC, sidelining genuine concerns are in complete violation of the mandate given to EAC and extremely damaging to environmental governance of the country and are a reason for increasing conflicts, delays, protests and strife underlining its callousness towards environmental impacts and local resistance.
The issues that FAC raised while rejecting the Forest clearance are the very issues that EAC should be concerned about since they are under their mandate. But not only EAC did not raise them on their own, but even after they were brought to the EAC’s attention by SANDRP, the EAC failed to even discuss those issues.
8. Issues on Dibang raised in earlier EAC meeting remains unanswered
The decision making paragraph of the minutes of the EAC meeting of Sept 16-17, 2014 on Dibang Project reads: “After critically examining the proposal and considering the response to various issues raised in the earlier EAC meetings, the project was recommended by EAC for accord of Environmental Clearance to Dibang Multipurpose Project. However, EAC suggested that 20 cumec flow may be released towards e-flow in the 1.2 km diverted stretch as 15 cumec gives just sufficient quantity. EAC noted that beyond this 1.2 km, adequate flow will be available from TRT which will be minimum in the order of 85 cumec at 80% rated discharge of one turbine.”
It is clear that this paragraph does not reflect any application of mind by EAC if the response provided by NHPC to the various issues raised by EAC and others’ submissions to EAC are adequate. Even in this paragraph, it is not clear what is the basis of EAC decision to recommend 20 cumecs flow downstream of the dam and not the norm that EAC is following for other projects (30% in monsoon, 20% in lean season and 20-25% in non monsoon non lean season). Nor is it clear what is the basis and impact of operation of one of the (there are 12 turbines, each of 250 MW installed capacity in this project) turbine at minimum 80% capacity round the clock. This non application of mind on the part of the EAC is the norm of EAC and not an isolated incident.
In fact, reading through the minutes of all the EAC meetings since Sept 2013 where Dibang EC (Environment Clearance) was discussed, it is clear that while EAC has raised a large no of questions and reported some of the information submitted by NHPC, no where can we find application of mind of the EAC where it is stated that the information/ responses provided by NHPC is adequate or not. The uncritical acceptance by the EAC about the information/ responses provided by the developer is another noteworthy feature of EAC decision.
Let us illustrate this. The minutes of the 73rd EAC meeting held in March 2014 says: “A detailed fisheries (also flora and fauna) survey was conducted by Centre for Inter-Disciplinary Studies for Mountain and Hill Environment (CISMHE), Delhi University in the month of December 2013.” Immediate question than arises is, why were the fisheries and other surveys done only in one month and not across the year as is the normal practice? What were the outcomes of the study? You will find neither critical questions, nor any answers in the EAC proceedings.
Here is another example. The minutes of the 74th EAC meeting held in May 2014 says: “It was informed that fluctuation in the water level at upstream of Dibang-Lohit confluence due to peaking operation will be about 17 cm which is almost negligible considering the size of the river.” Shockingly, the EAC does not even ask: A. If this estimate is sound and if it is consistent with conclusions of other studies; B. What will be the level fluctuation at different points along 60 km stretch of the river upstream from this point to the project site and what will be the impact there of. EAC’s such uncritical acceptance of apparently contradictory and inadequate responses from the developer is the norm and not an isolated incident. Considering that EAC was considering the largest installed capacity project of India, highest dam of India and biggest reservoir in North East India so far, one expected the EAC to be more diligent. This was even more so considering the experience of the LSHP.
To further illustrate, the minutes of the 74th EAC held in May 2014 says: “The point-wise reply to the two representations submitted by Kalpavriksh was submitted to MoEF and EAC members and the same was also presented before EAC during the meeting.” Similarly, the minutes of the 73rd EAC meeting held in March 2014 says: “point-wise replies to the issues raised by Shri Chow Rajib Gogoi, Secretary, All Tai Ahom Student Union, Jorhat and Shri Pushp Jain, Director, EIA Resource and Response Centre (ERC), New Delhi were also given”. But in both cases, there is not even a word as to whether EAC discussed the NHPC response and if they did what was their conclusion about adequacy or acceptability of the NHPC responses.
As far as four separate submissions sent by SANDRP to EAC on Dibang Project are concerned, EAC neither mentioned them, nor did it seek NHPC’s response on them.
Considering all this, the decision of the EAC to recommend EC to the Dibang Project is clearly wrong, based on inadequate appraisal, in the absence of application of mind and legally untenable.
B. FAC DECISIONS ON DIBANG PROECT
It has been reported that the Forest Advisory Committee of the MoEF has recommended clearance to 3000 MW Dibang Multipurpose project in its meeting on Sept 22, 2014, though the minutes of the FAC meeting are as yet unavailable. This decision is reversal of FAC’s clear rejection to the project twice in past 2 years in addition to MEFCC’s rejection letter to the project as late as on the 28th August 2014.
MEFCC was pressurized by the Cabinet Committee on Investment, Ministry of Power and even unrelated Ministries like Ministry of Mine, Ministry of Steel and Ministry of Coal into clearing the Dibang project. FAC itself was under pressure of the MEFCC minister and its highest officials to clear Dibang at any cost.
Relevant papers regarding height reduction proposal by NHPC were not uploaded on FAC Website in advance of the Sept 22, 2014 Meeting.
It is unclear if even the FAC Members had these documents, which form the basis of project consideration.
The height reduction proposal was not available to the EAC members a week earlier before EAC recommended clearance to the project.
FAC’s recommendation on Dibang project is clearly an undemocratic and illegal decision in the absence of prior information in public domain for all concerned, and when all the original objections raised by FAC while rejecting the project twice remain unaddressed.
Let us look at the timeline of FAC decision making on Dibang Project:
12.06.13: FAC rejects Dibang FC (Forest Clearance) Proposal. Reasons: “huge forest area with very good forest cover, irreparable and adverse impact on general eco-system of the area by felling of more than 3.5 lakhs of trees, several other HEP have been proposed in the same river valley apart from Dibang HEP, unavailability of study on cumulative impact of all the HEP, etc. The Committee is also of the opinion that ecological, environmental and social costs of diversion of such a vast track of forest land, which is a major source of livelihood of the tribal population of the State, will far outweigh the benefits likely to accrue from the project.”
13.08.2013: Meeting of Secretary, Ministry of Environment and Forests and the Secretary, Ministry of Power held and it was decided that proposal will be considered again after exploring the possibility to reduce the requirement of forest land for the project.
9.12.2013: Project discussed by the Cabinet Committee of Investment which nearly ordered fast clearance for Dibang Project. It stated: “Ministry of Environment and Forests may grant the requisite clearance for diversion of forest land expeditiously.” Such direction from CCI was clearly in violation of the Forest Conservation Act 1980 which clearly defines the process for forest clearance and where CCI has no role.
10.02.14: NHPC revises proposal and submits two alternatives, reducing height by 5 m and 10 meters respectively. Marginal decrease in submerge of forest land due to 10 meters reduction. NHPC Officials say any further reduction will not be possible.
Revised Diversion proposal with reduction of 10 mts height and 445 hectares forest area submitted to MoEF with new proposal for total diversion of 4577.84 hectares.
29th-30th April 2014: Revised proposal discussed in FAC with 10 meters reduction. The revised proposal was incomplete in many basic respects like absence of maps, CAT Pan, FRA compliance, identified land for Compensatory afforestation, etc. In addition, the FAC noted that the region is home to Schedule I species, the reduction in forest loss due to decrease in height in minimal and will not have substantial ameliorative impact, It said “Such a marginal reduction in requirement of the forest land for the project may not be able to reduce the adverse impact of project on such a biodiversity rich mature forest ecosystem to the extent which could make the project environmentally as well as socio-economically viable in forest dependent tribal society of Arunachal Pradesh”. FAC also noted that impact of reduction of dam height on its economic feasibility was not put before the committee.
16.06.2014: Secretary Power writes to Secretary, MEFCC on 16.06.2014 to review the decision of FAC and accord the Stage-I forest clearance. Such direction from letter was clearly in violation of the Forest Conservation Act 1980 which clearly defines the process for forest clearance and where Power Ministry secretary has no role.
19.06.2014: Joint meeting held between Ministry of Mine, Ministry of Steel, Ministry of Environment Forests and Climate Change and Ministry of Coal, attended by the Ministers and Secretaries of the respective Ministries, as well as Secy, Ministry of Power wherein it was decided that a report on sensitivity analysis of dam height reduction by 40 meters shall be submitted to MoEF and action will be taken only after that.
24.06.2014: Secy, Ministry of Power writes to MEFCC & submitted a report on the sensitivity analysis on the dam height reduction upto 20 meters. However, MEFCC maintained that that as decided in the meeting the sensitivity analysis report was not submitted by the project proponent.
28.08.14: MEFCC sends letter rejecting Forest Diversion Proposal of Dibang Multipurpose Project on the basis of 10 meters height reduction, rich forest, social impacts and also downstream impacts on Assam, including Dibru Saikhowa.
5.09.2014: MEFCC writes to (NHPC/ Min of Power) to submit sensitivity analysis of reduction by 40 meters.
08.09.14 (This letter of 08.09.14 was uploaded on MEFCC FAC website on the day of the FAC meeting, 22.09.14): NHPC submits letter to MEFCC about sensitivity analysis for height reduction from 5m-40 meters. While it highlights the loss in installed capacity (780 MW) and loss in revenue due to 40 m reduction, it downplays the fact that 40 mts reduction will bring down forest land requirement by 26%. It concludes, without substantiation that “Decrease in dam height and consequent sacrifice in power generation beyond 10 mts reduction is not commensurate with saving forest land” and further recommends only 10 mts height reduction, which proposal the MEFCC had rejected in its Apr 29-30, 2014 meeting.
21.09.14: No sensitivity Analysis uploaded on MoEF FAC Website. SANDRP sends a submission urging FAC not to consider the project in the absence of this analysis in public domain as it violates CIC orders. People affected by the project have no idea of this analysis which is the basis of decision making in the next day’s meeting.
22.09.14: Day of the Meeting: Suddenly Additional Information document accessed (and downloaded) on 21.09.14 changes, with two additional pages and letter from NHPC about sensitivity analysis is uploaded ON THE DAY OF THE MEETING.
23.09.14: News that FAC has recommended clearance to Dibang was already public.
CONCLUSION As noted earlier, the Dibang Project is the largest capacity hydropower project, the highest proposed dam and largest proposed reservoir of North East India. One expected all concerned to be diligent in taking decisions on such a project. However, it is clear from this narrative that the process of environment and forest clearance for the Dibang Project is fundamentally flawed, inadequate and in violation of all norms of democratic and informed governance. Significantly, it is also illegal and untenable. Such manipulative decision-making has led to flawed decisions of environmental and forest clearances in case of LSHP in 2003, with the project stalled by people’s agitation since 34 months now. If the Dibang Project, which is bigger than LSHP in every respect and with much greater impacts, is pushed in such a manner, it is likely to face the same fate as that of the LSHP. We hope that the final decisions related to Dibang Project will be more informed, diligent, democratic, unbiased and objective. Admittedly, such hope seems rather farfetched at this moment.
 This is not to state that the UPA government that ruled India during the 2004-2014 decade was in anyway more sensitive to environment or democratic concerns. In fact part of the EC and FC time line and some of the manipulations happened before May 2014 when the current government took over. However, it is apparent that the current government has indulged in much more violations and manipulations and pressurized the statutory bodies (including FAC & NBWL reconstitution).