MoEFCC orders “Don’t Ask Additional information unless Inevitable” (Or: “Just clear the projects and don’t bother about informed decisions”)  

Even as the government is set to review 6 of the foundational environmental laws of India, the Union Ministry of Environment, Forests and Climate Change (MoEFCC, formerly MoEF) has been issuing a slew of orders, circulars and Office Memorandums (OM)[1] lately for “streamlining” Environmental and Forest Clearance process.

Having said that, there is no doubt that the system of Environment and Forest clearance needs to be made stronger, accountable, transparent, democratic and informed. Ironically, the only way the government has sought to do this is to make the system more industry-friendly. A vast majority of orders passed lately by MoEFCC are pro-industry and anti-environment. Drop by drop, such orders and circulars are making it impossible to rely on the original Environment acts and Notifications as the orders have interpreted Acts in convenient ways. At the same time, the misleading, non-compliance, hiding of information, willfully providing wrong information is rampant from project proponent side, with MoEF taking no firm action. We have illustrated this with very few examples below.

When this is a known case, accelerating clearance process, ignoring necessary studies and bypassing checks and balances is only accelerating our fall to the bottom.

Take an example of  OM issued on the 7th October, 2014 titled “Seeking additional studies by EACs/ SEACs during appraisal of project beyond the Terms of Reference (ToRs) prescribed under EIA[2] Notification 2006”(No. 22-A3/ 2O14-IA-III).[3]

In a nutshell, this OM states that “It has been brought to its notice” that Expert Appraisal Committees (EAC for short. EAC is at the center, considering Environmental Clearances for bigger projects) and State Expert Appraisal Committees ( SEAC for short. SEAC is at State level, considering smaller projects for Environmental clearance) have been asking for “additional studies which do not form a part of TOR” and this “delays the whole process and is against the spirit of EIA Notification (2006)” It further says that EAC/ SEAC should address all issues at the primary scoping clearance stage [4]itself, based on Form I submitted by the proponent and meeting of proponent with EAC and should ensure that “no fresh issues are raised later” and that additional information/ additional studies should be asked only if it is proved to be “inevitable”.

This OM clearly seems to be brought out due to pressure from project-related ministries state and industry lobby. We need to understand that EACs and SEACs were asking for Additional Studies in very rare cases. EACs like the one on River valley and Hydropower projects have a clearance record of 100% and rarely asks for additional studies. So what was the need for this specific OM?

This OM does not serve any purpose other than discouraging the committees from asking additional information or studies post TOR stage and is a regressive step.

In reality, the very need for asking such additional studies or information is due to severely compromised information provided by the proponents themselves at the Scoping Clearance stage.

Looking at the EC process it seems hiding information, providing false information, misleading the EAC and even committing blatant violations has become the norm rather than an exception. In very rare cases, when this is exposed before EAC, they have asked for additional studies (instead of taking any strong action, for example rejecting the application or postponing decision till the studies are done, as per the Law and prudent decision making norms). The OM is effectively stating that EACs should process applications based on any shoddy information they receive and should close their eyes even when critical issues surface later in the process. This is like accelerating a flawed process, in a race to the bottom.

Rather than passing such OMs, the Ministry needs to ensure that all the steps of EC process are complied with. That’s not the case today and that’s a more pressing problem than the additional studies. It is this non-compliance that is damaging the “Spirit of EIA Notification 2006” about which the MoEF seems to be least concerned. There is no need for any additional OMs to fix these issues, only real concern for spirit of EIA Notification and other related laws.

Below we give a few examples which indicate the gaping holes in the current system is and how “not asking for fresh information or additional studies” will result in severely flawed environmental decision making.

  1. Basic Project Information (Form I & PFR) has been incorrect, false or incomplete on many occasions:

The OM states that the EACs/ SEACs should base their TORs on basic project information (in the form of Form I & Pre-feasibility Reports – PFR) submitted by the proponent and a brief meeting with the proponent. (Note here that there is no role for any external agency and the Ministry is fully relying of the proponent for project information submitted at this stage.) Form I asks limited questions and a number of times, the answers provided by the proponent are incorrect, incomplete or misleading. Seems to be a sure way to make wrong decisions, doesnt it?

For example:

Sonthi Lift Irrigation Scheme in Karnataka, the Form I took the MoEF for a royal ride. The project was already significantly finished, in violation of the EIA notification and EPA (1986) when the officials approached MoEF for “Scoping” Clearance! And even after pointing out all the blatant violations, the MoEF accepted the project, with no action taken again the violators (Karnataka Neeravari Nigam Limited). We had pointed this out at many stages, see SANDRP’s submissions and notes: http://sandrp.in/Sonthi_Lift_Irrigation_Nov_2013.pdf

In case of 1750 MW Lower Demwe Project in Arunchal, which is part of a string of projects in Lohit Basin with huge cumulative impacts and downstream impacts on Assam, the Form I says “No cumulative impacts”.

In case of 72 MW Rolep project in Sikkim, Form I does not clarify that the project falls is a high landslide and flashflood zone, when landslides and flash floods have occurred at the site itself.

In case of Shirapur Lift Irrigation Scheme in Maharashtra, the Form I was a joke as the half-finished project with canals has been sitting idle for many years in Solapur, blatantly violating EPA,1986. Not only does the Form I hide that the project is nearly finished, is also states that the project “does not affect important ecological areas” or “areas for sensitive species”, when the canal of the project will take 92 hectares from Great Indian Bustard Sanctuary. Incidentally, the MoEF has a special plan for protection of the Great Indian Bustard! (See SANDRP’s submission at TOR Stage http://sandrp.in/irrigation/ShirapurLIS_SANDRP_Sbmsn_to_EAC_Jan2013.pdf)

These are only a few indicative examples and the violations are on a huge scale. We and others have pointed this out to the EAC and MoEFCC over the years, but no action was taken, thus encouraging the developers. We have not heard of a single instance when the MoEFCC has rejected the proposal based on problems with Form I/ PFR and as per the Clause 8 (vi) of EIA Notification 2006, which is reiterated in the present OM.

And now the Ministry wants EAC to take action only based on such information, and without any further studies!

  1. No action is taken when EIA is prepared violating granted Terms of Reference (TOR):

The Ministry is saying that asking for additional information is against the spirit of EIA Notification 2006. The same Ministry does not bat an eyelid when projects are recommended EC (Environment Clearance) by EACs even when they violate the TORs based on which the project received first stage clearance! Is that not against the spirit of EIA Notification?

Here too, SANDRP has pointed this out a large number of times, but this has not been acknowledged in most cases. Some examples:

EIA EMP of Kalai II Project in Arunachal Pradesh, major issues like hydrology, biology, geological aspects spelled out in TORs were not even addressed in the EIA EMP by none other than WAPCOS, Ministry of Water Resources enterprise, famous for shoddy studies. (See SANDRPs note: https://sandrp.wordpress.com/2014/01/15/eia-emp-of-kalai-ii-hydropower-project-doesnt-comply-with-its-terms-of-reference/)

TORs issues for the 3000 MW Dibang Project in Arunachal Pradesh, India’s largest capacity hydropower project, were not fulfilled and yet EAC recommended Environment Clearance, see: https://sandrp.wordpress.com/2014/10/06/manipulating-environment-forest-clearances-for-dibang-project-deja-vu-lshp-history-repeated-will-it-be-tragedy-or-comedy/.

TORs issued for the 660 MW Kiru and 560 MW Kwar HEPs in Jammu and Kashmir, were not fulfilled as pointed out by SANDRP (see: https://sandrp.wordpress.com/2014/05/10/massive-kwar-and-kiru-heps-on-chenab-j-and-kpoor-quality-cut-paste-eias-flawed-public-hearing/) submission.

TORs issued for Sach Khas Project in Himachal Pradesh had specifically asked for study of impact of sudden release of huge quantities of water for generating hydropower (Peaking) on biology of the river. This was not done by WAOCOS, but the EAC and hence the MoEF did not consider this point, even after SANDRP made a specific submission on it. See SANDRPs note: https://sandrp.wordpress.com/2014/08/19/sach-khas-hydro-project-in-chenab-basin-another-example-of-wapcoss-shoddy-eia/

Again this is just an indicative list, showing the extent of real problems.

  1. No action was taken when EIA was plagiarized

There have been multiple occasions when EIA is exceedingly shoddy and even plagiarized! In these cases too, although it has been brought to the notice of EAC/ MoEF, no action has been taken.

For example: In case of Mohanpura Irrigation Project in Madhya Pradesh, plagiarising in WAPCOS EIA was pointed out to the EAC by SANDRP and individual researchers (see : https://sandrp.wordpress.com/2013/11/15/mohanpura-dam-in-madhya-pradesh/) but the MoEF took no action against the agency.

In case of Sonthi lift Irrigation scheme, the entire EIA was so poorly plagiarized by WAPCOS that even the name of the original project (Kundalia major multipurpose project from Madhya Pradesh) was all over the EIA for a Karnataka Project! SANDRP pointed out this too, but there was no response on this point. https://sandrp.wordpress.com/2014/03/12/tragedy-of-errors-environmental-governance-and-the-sonthi-lift-irrigation-scheme/

These are again just indicative examples.

  1. No action was taken when EIA provided misleading information

There are several such examples but the most recent example, is 3000 MW Dibang Project in Arunachal. The EIA agency and Project Proponent has issued misleading information about the impact of the project on the downstream Dibru Saikhowa National Park in Assam. The report states that the water level rise or fall at Dibru Saikhowa due to sudden water release from all projects in the upstream Arunachal Pradesh will be less than one meter, when a different study also considered by EAC shows that this fluctuation when all upstream projects hold back and release water will be 7-8 feet (more two meters)! SANDRP had pointed this discrepancy, but the EAC did not even take a note of this in the meeting and actually recommended clearance to this project! (https://sandrp.wordpress.com/2014/10/06/manipulating-environment-forest-clearances-for-dibang-project-deja-vu-lshp-history-repeated-will-it-be-tragedy-or-comedy/)

In other cases, basic information like length of the river, location of the project, area of submergence, area of affected population has also been wrong in the EIA and yet the EAC has recommended clearance for the projects, despite these issues being pointed out.  Some examples in this regard include: Bansujara Project, (https://sandrp.wordpress.com/2013/11/12/bansujara-irrigation-project-in-mp/) and Chinki Multipurpose project (https://sandrp.wordpress.com/2014/02/22/chinki-major-irrigation-project-on-narmada-yet-another-evidence-of-mps-obsession-with-large-irrigation-dams-wapcoss-shoddy-reports/), both in Madhya Pradesh, EIA in both cases done by WAPCOS.

To reiterate, the above is a brief, indicative list. SANDRP and other organizations routinely look at the EC process, and we are overwhelmed at the level of non-compliance happening at the proponent end as well as EAC and MoEF level.

The affected communities see how their submissions are either misrepresented in the EIAs, or just not considered by the EAC even when objections are loud and clear in Public hearing reports (like in case of Dibang EIA).

  1. MoEFCC further denigrates the Public Consultation Process

By ordering that no additional information should be sought after TOR stage, the MoEF is deriding the importance of Public Hearing which take places as a part of the Environment Impact Assessment Study, after TORs have been granted. Like in the case of Dibang, major issues raised by affected people have not been raised either in Form I or in TORs or in the EIA and need additional studies.

Now by discouraging additional studies, the MoEFCC is suggesting that even public consultations are immaterial. No more studies, after TOR please! This is an insult of the public consultation process which should form the heart of appraisal and assessment process.

For the same reason, in many countries public hearing is conducted before granting Terms of Reference. In the absence of any such provision, simply stating that additional studies should not be recommended after TOR stage is a seriously regressive step.

  1. Project application documents not availalble in public domain

For basic transparency in Environment appraisal process it is necessary that all the documents (Form 1 and PFR at TOR stage & EIA-EMP and Public consultation documents at EC stage) that accompany the application for environmental clearance are put out in public domain well in advance ( at least ten days) before the projects are discussed by EAC.

Ironically, MoEFCC does not have any legal requirement in this regard and it was Central Information Commission that in 2012 directed the MoEFCC to ensure that. But this is not happening. In fact the projects that are on the EAC agenda are many times not even listed on the relevant environment clearance website (http://environmentclearance.nic.in/).

When this was brought to the attention of the MoEFCC’s concerned officials and EAC, they have taken no action in most cases. The situation has particularly worsened since June 2014, after the new BJP-led government came to power at the centre. It is on areas like these that we need MoEFCC to be pro-active. ( Pass some OMs here!)

In the end The system of Environmental Appraisal and Clearance today lacks accountability, transparency, democratic norms and compliance. Some of the major reasons for asking for additional studies is when the Form I, PFR and EIA do not adequately address issues.

In order to bring in speed and accountability in the appraisal process, there is a need to:

  1. Blacklist and debar EIA consultants which provide plagiarized, misleading or false data in EIA reports
  2. Reject applications based on false or misleading Form I – PFR
  3. Reject applications which do not conform with TORs granted
  4. Consider submissions received from civil society and affected groups at the time of TORs and EC process carefully and consider these as inputs and help for a holistic appraisal, not as adversaries. Invite organisations/ individuals in the EAC meetings when those specific projects are discussed.
  5. MoEFCC needs to ask EAC to show application of mind while appraising projects, submissions, public hearing processes and considering proponent’s response. This serious consideration by the part of EAC should be reflected unambiguously in the minutes of the EAC meetings.
  6. MoEFCC needs to appoint as members and chairpersons of EAC only such persons with a track record indicating knowledge, experience and independence on environment issues. A recent NGT order asked MoEFCC to do exactly, this, but MoEFCC has yet to implement this order.
  7. MoEFCC needs to ensure that all the relevant documents for projects on EAC agenda are put in public domain at least ten days in advance of the EAC meeting, as directed by the Central Information Commission. In absence of such documents in public domain, the EAC should not be considering the projects. (MoEFCC should in fact come out with a notification on this!)
  8. Reject projects which have violated EPA (1986) and EIA Notification (2006). Here too, the MoEFCC regularizes blatant violations by passing OMs.

Most of the above is enshrined in the EIA Notification (2006) and the Environment Protection Act (2006) and there is no need for passing any OM for this, but such steps will automatically make the EC process not only efficient and swift, but also responsive, pro-environment and pro-people.

And this should be the main concern of Ministry of Environment, Forests and Climate Change.

– Parineeta Dandekar ( parineeta.dandekar@gmail.com) 

with inputs from Himanshu Thakkar ( ht.sandrp@gmail.com)

END NOTES:

[1] http://www.moef.nic.in/circulars

[2] EIA: Environmental Impact Assessment

[3] http://moef.gov.in/sites/default/files/OM_EAC_SEAC_07_10_2014.pdf

[4] Scoping clearance stage is first stage of Environmental Appraisal Process when the EAC grants Terms of Reference (TOR) to the project based on which Environment Impact Assessment is carried out later

One Comment on “MoEFCC orders “Don’t Ask Additional information unless Inevitable” (Or: “Just clear the projects and don’t bother about informed decisions”)  

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