Thanks, Dr Sharad Jain: But Plz step down from EAC: Let us understand Conflict of Interest!

Above: Ken Yamuna Confluence at Chilla Ghat (Photo by Siddharth Agarwal)

We are thankful & glad that Dr Sharad Jain has responded to our open letter to MoEF, circulated through email and blog[i] that he holding the charge of NWDA Director General and Chairman of Expert Appraisal Committee (EAC) on River Valley and Hydropower Projects (RVP) involves Conflict of Interest. We are also thankful that through the Indian Express report (on June 3, 2017), he has provided another set of answers.

Unfortunately, Dr Jain, all this only expose our lack of basic understanding as to WHAT CONSTITUTES CONFLICT OF INTEREST. You have failed in trying to defend the indefensible, and we would rather urge you to resign as we continue this debate.

Firstly, let us understand that there are two distinct issues involved here: Conflict of interest in your very holding of the chairmanship of EAC (RVP) since the day you became director General of NWDA (National Water Development and Agency). The second distinct and very much related issue is the way the EAC headed by you have cleared Ken Betwa Project (KBP) just weeks before becoming NWDA DG.

Dr Sharad Jain’s email dated June 2, 2017 But before that let us quickly review what you have said in your email. In the email you sent around 8 pm on June 2, 2017, over three days after we sent out and published our letter to Union Minister of State of Environment, Forests & Climate Change, Dr Harsh Vardhan, demanding that you should be asked to step down from the post of EAC on RVP and the minister should also direct a review of the decision about KBP after appointing a new chairman with some real credentials on environmental issues and also track record of being able to take independent, objective, scientifically credible stand.

  1. The first point you make in the email in your defense is interesting: “NWDA is a government organization.” We all know this piece of information and it fails to convey how it helps you defend against charge of conflict of interest. Are you trying to convey that all government organisation persons are necessarily beyond charge of conflict of interest? That would only show how little we understand what is conflict of interest, sir. You seem to not appreciate that NWDA is a developer of river linking projects and any one who heads it, cannot be expected to objectively, independently and scientifically assess the viability of the dam projects, and say, if necessary after such a scrutiny, that the project is unviable. That is what leads to conflict of interest in your holding the charge of NWDA DG and EAC Chairmanship simultaneously.
  2. Your second point in the email reads: “I took over the charge of Director General of NWDA (Additional charge) three months after the Expert Appraisal Committee (EAC) – RVH had considered the Ken-Betwa project.” The key point is that this sentence cannot help you defend the charge that your holding two positions (DG of NWDA and Chairmanship of EAC) are in direct conflict of interest. It also does not help you defend the second charge about your bias in clearing KBP when we see the inherent bias and consider the lack of application of mind, as we shall soon show.
  3. The third statement, “After my assuming the charge of Director General of NWDA, no proposal has come up for consideration before the EAC (RVH) in which NWDA is a party” again, obviously does not help in defend either of the charges.
  4. By way of the fourth and last point in your defense in the email, you state, “The procedure followed by the EAC for recommending a project proposal involves the presentation of the proposal by the project proponents followed by interaction and questions by the Committee members.  In case, some more information and clarifications are needed, the proponents are asked to submit the same and the EAC considers the matter in a subsequent meeting.  If a project is not cleared in the first or subsequent meetings, it does not mean that it is rejected. The project proposal is recommended for approval when the EAC is satisfied that it meets all the stipulations of MOEF. Thus, it is not correct to say that the new EAC overruled the decision of the previous Committee.” This point exposes many things, about the shoddy functioning of the EAC, but let us not go into all that here. It is sufficient to point out that you have claimed that EAC was “satisfied that it (KBP) meets all the stipulations of MoEF. Thus, it is not correct to say that the new EAC overruled the decision of the previous Committee.” We will soon show how there was not even basic application of mind on the part of EAC when they cleared KBP in the very first meeting of reconstituted EAC on Dec 30, 2016 and also apparent pro project bias that the EAC showed in the process.

Sharad Jain’s statements in Media In the report in The Indian Express on June 3, 2017[ii], Dr Sharad Jain is quoted saying a few things in his defence.

(i) Dr Jain’s defence Dr Jain told The Indian Express, “To suggest that I was rewarded for clearing a project is ridiculous, as this is anyway an additional charge for which I am not paid. And how can we be faulted for clearing the project in our first meeting? Evaluation is an ongoing process, and every (EAC) meeting builds on the progress made in the previous meetings.”

Our Response Dr Jain seems to (mis)understand that conflict of interest comes into picture only when payment is involved. About lack of application of mind of EAC while clearing the KBP in its very first meeting, and how that meeting ignored, overlooked and over ruled what the previous committee said about this project, see details below.

(ii) Dr Jain’s defence Dismissing the precedent cited (of removal of Shri P Abraham as EAC (RVP) chair in 2009 for conflict of interest issue) for his removal as “incomparable”, Dr Jain said, “You can’t compare a private company with NWDA. As far as the issue of conflict of interest goes, no NWDA project has come up before the EAC since my appointment as director-general. When it does, I may abstain from the meeting, or from the discussion on the specific item on agenda.” Dr Jain also rejected the perception of potential bias in experts from government institutions clearing government projects.

Our Response Again Dr Jain shows how little we understand conflict of interest issue. He fails to understand that there is clear conflict of interest in his holding dual charge of NWDA DG and EAC Chairmanship. His contention that he would abstain if and when NWDA project comes before EAC, is exactly the same one that Mr P Abraham also tried to make, but that did not help Mr P Abraham and that won’t help from Dr Jain either. But it exposes how narrowly we look at the issue of conflict of interest. The fact is very holding of the dual charges involves conflict of interest, so abstaining from the meeting or discussion on specific agenda does not help.

(iii) Dr Jain’s defence “If we don’t want experts who draw salaries from the government to evaluate government projects, then we cannot allow private experts to assess private projects either. So let’s import foreign experts then,” he said.

Our Response Again Dr Jain exposes our abysmally poor understanding of conflict of interest issue. It is not question of govt experts or private experts AT ALL, sir. It is about having experts with track record of knowledge in subject matter and track record of being able to take independent, objective and scientifically credible stand. All that necessarily needs absence of conflict of interest.

HOW EAC DECISION IN DEC 2016 ON KBP SHOWS BIAS  & LACK OF APPLICATION OF MIND Now let us examine how the decision of the very first meeting of reconstituted EAC[iii], headed by Dr Sharad Jain shows bias and lack of application of mind.  We illustrate this through a few examples, since thorough, detailed analysis of the EAC decision on this project will take a lot more space and time and that will need a separate piece of writing.

A. The KBP was considered earlier by the predecessor EAC in its meetings on 24-25 Aug 2015, 26-27 Oct 2015, 8-9 Feb 2016 and 2-3 June 2016 and each time EAC ended up not recommending clearance for the project as a lot of crucial issues remained unresolved. One expected that the reconstituted EAC, while considering this project in its very first meeting on Dec 30, 2016, would actually go through the issues raised in these earlier EAC meetings, and assess as to what extent they have been adequately addressed by the EIA consultant and the NWDA, the developer organisation. We do not find any evidence of such a scrutiny in the minutes of the Dec 30 EAC meeting. On the contrary we find many examples showing bias or lack of application of mind in how the EAC decided about this project. To illustrate:

i) The June 2016 EAC meeting minutes[iv], the latest EAC meeting before the Dec 2016 EAC meeting where this project was considered, says: “Reduction of FRL by 10 m: The issue of reduction of water level at FRL by 10 m i.e. from 288 m to 278 m was also deliberated at length. Project proponent informed that the reduction of 10 m in the FRL shall compromise irrigation benefits to about 2.4 lakhs ha of the area. It was also conveyed that the level of 275 m shall be attained by October every year due to release of water in the canal. EAC sought clarifications from Project proponent on this issue, as the water availability above 278 m of FRL shall be only for monsoon months (3 months).” When we read the minutes of the Dec 2016 EAC meeting, we find nothing about this. It clearly means that reconstituted EAC decided to IGNORE OR OVER RULE this outstanding issue of earlier EAC without so much mentioning that decision.

ii) The June 2016 EAC meeting minutes says: “EAC suggested to explore the dropping of the hydropower generation component in the Project, including Infrastructure from planning of Ken-Betwa Link Project in view of likely ecological disturbances on wild life. Project proponent assured the committee to review the hydropower component.” Again no mention of anything about this in Dec 2016 EAC meeting. It clearly means that reconstituted EAC decided to IGNORE or OVER RULE this outstanding issue of earlier EAC without so much mentioning that decision.

iii) The June 2016 EAC meeting minutes decided: “Therefore, it was proposed that a meeting may be convened by NWDA with Director, WII, Dehradun, MoEF&CC officials and EAC Vice Chairman, Sh. H.S. Kingra for expedition in the matter.” The Dec 2016 meeting makes a rather strange contention: “It was intimated by NWDA that the said meeting could not be convened due to paucity of time among the above officials and subsequently, the tenure of EAC ended on 03.09.2016. As the EAC couldn’t be re-constituted immediately after validity period, the Competent Authority in the MoEF&CC approved to convene the aforesaid meeting which was convened on 30.11.2016…” Now the first thing that hits you is that the reconstituted EAC accepted the decision of the MoEF&CC and did not even ask for a meeting, as decided by earlier EAC, thus over ruling the earlier EAC. If MoEF&CC were to take all such decisions, what is the need for a EAC?

Even more shockingly, the reconstituted EAC uncritically accepted the decision of the officials: “As the scope of the LMP was different and covers beyond the study area of EIA/EMP report of Ken-Betwa Inter-Linking Project, it should be delinked from the perspective of the Environmental Clearance.” This was clearly wrong decision. The study area of EIA/EMP is artificially narrowly defined, and there is no scientific reason to support the contention that LMP scope area should not be concern of the EAC.

B. It is well known that the EIA done for the KBP project is one of the shoddiest and inadequate one and that there were many violations involved in the public consultation process. Detailed submissions were sent to EAC about these during earlier EAC and also before the Dec 30, 2016. We do not find any application of mind by the EAC about any of these crucial issue.

C. The Minutes of Dec 2016 meeting of EAC notes: “The NWDA further informed that the Standing Committee of National Wildlife Board in its 39th meeting held on 23.8.2016 has recommended the project for clearance. The Ministry issued wildlife clearance for Ken-Betwa Project in Madhya Pradesh on 21.9.2016 with the following conditions.” The minutes than lists just two conditions, but does not even bother to list this important decision of NBWL decision of 23.8.2016[v]: “Chief Wildlife Warden suggested that as the main objective is addressing drought in Bundelkhand region, any installation of power generation within the tiger reserve should not be permitted… The representative of user agency, Special Secretary, MoWR expressed consent of the Ministry of Water Resources to the conditions as prescribed by site inspection team in the combined report. In response to the Committee’s query on the need of the Hydro Power Generation, he explained that all the power generating facilities shall be established outside the TR and the operations shall have minimal disturbance on the TR… After discussions, the Standing Committee agreed to recommend the proposal with the conditions prescribed by the Site Inspection team and NTCA, as agreed by MoWR.”

The minutes of the reconstituted EAC failed to record this important decision of the NBWL for the simple reason: if this decision is to be recorded than it would mean that the project cleared by the NBWL was significantly different than the project that EAC appraised and also significantly different that the project that the EIA assessed. It would also mean fresh design, fresh impact assessment, fresh public consultations and fresh appraisal, since taking the power component outside the Tiger Reserve would mean redesign of the project[vi].

This again shows lack of application of mind and bias of the reconstituted EAC.

D. While recommending Environment Clearance to the KBP, the conditions listed by the EAC includes this one: “An e-mail was received by the Chairman and the Members of EAC, drawing attention to a notification dated Oct. 2016 from MOWR, RD&GR that 8 prohibits any construction within the larger Ganga basin rivers. When clarification was sought from NWDA, it was informed that this notification applies to only those constructions that cause pollution because otherwise, it may mean that even a bridge cannot be constructed across any river in the Ganga basin. After deliberating over the matter, the EAC directed the Member – Secretary to clarify this point with the Director General, NMCG, MOWR, RD&GR before taking approval of the competent authority for issue of EC.”

The language EAC minutes uses is worth noting: “When clarification was sought from NWDA, it was informed that this notification applies to only those constructions that cause pollution because otherwise, it may mean that even a bridge cannot be constructed across any river in the Ganga basin.”

This statement is totally unnecessary, unwarranted and shows the bias of the EAC. The language seems to suggest, rather arrogantly, that the notification won’t allow construction of even a bridge across any river in the Ganga Basin! If the EAC members had bothered to read the said notification, a copy of which was sent to the EAC members, then they would not have reached such arrogant, biased and unwarranted conclusion. The Ganga notification does not debar activity, it only says what kind of scrutiny will be required at the local, district, state and national level for any activity adversely affecting the Ganga basin.

More importantly, why was the EAC in such a hurry to clear the project? Why it could not have waited for getting the clarification from DG, NMCG, as it feels is required? Again shows such utter lack of application of mind and undue hurry to clear up the project.

E. The last condition of EAC for EC for this project reads: “Six monthly compliance reports shall be submitted to Regional Office, MoEF & CC, Bhopal without fail until completion of the modernization works.” There is nothing new here, this is standard statutory requirement and need not have been mentioned. But funnily, while mentioning it, it says “without fail until completion of the modernization works”. Unfortunately, KBP is not a modernization project, so there is no question of any modernization works. Apparently, the condition has been cut and paste from some other project recommendation, and the callous EAC members did not even bother to change this! Just another instance of absence of application of mind.

F. The reconstituted EAC over ruled the earlier EAC in another major way. The minutes of the Dec 2016 EAC meeting records a decision of EAC under agenda 3.0, which reads: “Thus, in general the EAC should not take any cognizance of such representations received from the any Civil Action Group during final appraisal.” This was shocking, anti environment, anti people, anti civil society, anti democratic functioning decision by the EAC. This slamming shut a door that earlier EAC had opened after a lot of struggle and efforts of the people. The reasoning given by the EAC for such a decision was completely lame and without any justification. The EAC does not even bother to understand that half the agenda items that they consider does not even involve any public consultation process. Moreover, the EAC does not even scrutinise if the public consultation process has been properly conducted. Even in case of KBP, as we had written to EAC, there were plethora of violations but the EAC did not even bother to address them. So this only shows how anti democratic, anti environment, anti people this EAC has been, over ruling all kinds of decisions of the previous EAC, without any application of mind.

In Conclusion These are only a few of the instances that shows how biased and how without any  application of mind the EAC headed by Dr. Sharad Jain conducted itself in its very first meeting, in clearing KBP. There are many other reasons, but these should be sufficient to establish our case that the EAC headed by Dr. Jain cleared a project that it should not have without addressing all the crucial outstanding issues.

Under the circumstances, we see no other option for the Union Minister of State (IC) of Environment, Forests and Climate Change to ask Dr. Sharad Jain from resign from the position of Chairman of EAC. We request the honorable Minister to appoint a new chairman of the EAC having a track record of expertise in environment issues and also having track record of taking independent, objective and scientific stand and after that, ask the EAC to reconsider the decision about Ken Betwa Project.

It’s sad that we have to write this on World Environment Day!

  1. Dr E A S Sarma, former Secretary, Govt of India, Vishakhapatnam, eassarma@gmail.com
  2. Prof Sunil Kumar Choudhary,Prof. & Head, University Dept. of Botany, T. M. Bhagalpur University, Bhagalpur, sunil_vikramshila@yahoo.co.in, 09431875861
  3. Shripad Dharmadhikary, Manthan Adhyayan Kendra, Pune, manthan.shripad@gmail.com
  4. E Theophilus, Munsiari, Uttarakhand, etheophilus@gmail.com
  5. K Ramnarayan, Himal Prakriti, Munsiari, Uttarakhand, ramnarayan.k@gmail.com
  6. Malika Virdi, Himal Prakriti, Munsiari, Uttarakhand, malika.virdi@gmail.com
  7. Dr Latha Anantha, River Research Centre, Kerala, latha.anantha9@gmail.com
  8. Vimal Bhai, MATU jan Sangathan, Uttarakhand, bhaivimal@gmail.com
  9. Siddharth Agarwal, Veditum India Foundation, Kolkata, siddharthagarwal.iitkgp@gmail.com
  10. Himanshu Thakkar, South Asia Network on Dams, Rivers & People, Delhi. ht.sandrp@gmail.com, 09968242798

Part of proposed Ken-Betwa link submergence area (Photo by Joanna Van Gruisen)

END NOTES:

[i] https://sandrp.wordpress.com/2017/05/30/open-letter-to-moef-remove-chairman-of-expert-appraisal-committee-on-dams-for-conflict-of-interest-he-is-dg-of-nwda/

[ii] http://indianexpress.com/article/india/conflict-of-interest-charge-chief-of-panel-that-cleared-ken-betwa-link-is-now-govt-agency-head-4686653/

[iii] See minutes, KBP at Agenda item 2.3 at: http://environmentclearance.nic.in/writereaddata/Form-1A/Minutes/12012017YXHJSW1J1stEACMeetingforRVHEP30thDecember2016.pdf

[iv] http://environmentclearance.nic.in/writereaddata/Form-1A/Minutes/24062016Q3TYNCQAFinalMOM94thEACmeeting.pdf

[v] http://www.moef.nic.in/sites/default/files/Minutes%20of%2039th%20SC%20NBWL%20-23.08.2016.pdf

[vi] In fact, if we consider the conditions of FAC clearance, there are further reasons for redesign of the project.

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