The Loharinag Pala and Tapovan-Vishnugad hydroelectric power projects have a lot in common. They are both run of the river projects that the public sector National Thermal Power Corporation (NTPC) is constructing in Uttarkashi district of Uttaranchal. Incorporated in 1975, NTPC had invested close to Rs.45,000 crore rupees by 2001 largely in thermal power with a commissioned capacity close to 19,500 MW, government figures say. Its foray into hydro power is more recent. The Loharinag Pala is a 600 MW project and it's barrage site is at Loharinag village on the Bhagirathi river. The Tapovan-Vishnugad is a 520MW project and the dam is across the Dhauliganga river in Joshimath town.
The Centre for Environment, Water and Power Consultancy Services (I) Ltd (WAPCOS) conducted the Environment Impact Assessment (mandatory under law) for both projects. The EIA helps affected people and civil society organizations understand impacts the project might have, and accordingly give their suggestions and objections as part of the clearance process.
The Ministry of Environment and Forests (MoEF) granted both these projects clearance on 8th February 2005. Unfortunately, the points of commonality don't end here. Several violations of procedures happened prior to the clearance for these projects. Information about the public hearing and access to the Environment Impact Assessment Report (releasing which is mandatory under law) should have been made available to the public atleast 30 days prior to the hearing, and this was not done. The public hearings took place in July and August 2004. For the Loharinag Pala project, only the Executive Summary of the EIA report was made available by the government. The EIA report itself was not.
Panchayat representatives and civil society groups challenge clearances
In both cases, gram panchayats, other representatives of affected villages, as well as civil society organizations indicated this in letters to district authorities, the State Pollution Control Board (SPCB) and the Ministry of Environment and Forests (MoEF). From the information that was demanded and made available in the case of Loharinag Pala, it was clear to them that the EIA was grossly inadequate.
• Zero appeals cases in 2004
• Give the environment its due
Muck, due to small landslides during the construction and due to explosions triggered for construction of the dam would increase the silting rate in the Bhagirathi River. The Matu People's Organisation had found that the EIA summary did not show that any
survey/study been conducted for monitoring this crucial aspect. There was no mention of the minimum flow of the Bhagirathi River after the project. The summary also said that a socio economic study would be conducted, meaning that at the time of release of the EIA summary, the EIA was not even complete.
Advocate Prashant Bhushan also sent legal notices to NTPC and the SPCB in October 2004 on the Loharinag Pala project representing the Matu People's Organisation.
As mentioned earlier, both projects received clearances from the Ministry of Environment in February 2005. After much debate, it was decided that local people along with the Matu Peoples Organisation would approach the National Environment Appellate Authority (NEAA) to challenge the Ministry's decisions. Legally this was the forum to approach, as it was set up with the purpose of addressing grievances against the grant of environmental clearance.
The NEAA is a significant institution of appeal. It was constituted under the National Environment Appellate Authority Act, 1997. Till March 2005 it had heard only 15 cases. The applications in these cases were either not admitted, or not within the jurisdiction of the authority. The few that were admitted were dismissed in favour of the project proponent. (See: NEAA article).
Appeals before the NEAA need to be filed within thirty days of a grant of an environment clearance, and not later than ninety days. If filed within 30 days, the application has to be admitted, and if between 30 and 90 days, admission is by the discretion of the Chairman of NEAA. The Chairman needs to be convinced that there was sufficient reason for not being able to file an application within thirty days time. As the appellants for the Loharinag Pala and Tapovan-Vishnugad challenges would find out later, this discretion would take a different meaning altogether.
Vimal Bhai of the Matu People's Organisation talking to the Uttarkashi villagers on the
Loharinag Pala project. Pic: Matu People's Organisation.
The appeals were filed on 1 April 2005, the 52nd day after the grant of clearance. The appellants in first case were Vimal Bhai, from the Matu Peoples Organisation and two gram pradhans, Vikram Singh Ravat and Raghwanand Nautiyal. Atul Sati of Joshimath Bachao Sangharsh Simiti and Vimal Bhai challenged the Tapovan-Vishnugad clearance. It was upto Vishwanath Anand, the Vice Chairman of the NEAA, to use his discretion and admit the case so that it could then be heard on substantive grounds.
Appeal proceedings begin
Both appeals were heard at the same time in New Delhi. Ritwick Dutta, a Supreme Court lawyer was counsel for the applicants. The first hearing was set for 5 May 2005, over a month after the application was filed. It was made clear that no substantive issues would be considered at this hearing. The arguments would be on whether the delay in filing the application should be condoned or not, i.e. whether the appeals themselves would be heard or not.
The proceedings began with the counsel of the applicant, Ritwick Dutta (a Supreme Court lawyer) highlighting that the applicants were regularly raising the issue of the procedural violations of the EIA notification, including non information of public hearings, non-availability of documents and so on. Further, they were social activists, and therefore had the bonafide to file the application. Dutta argued that the delay in filing the application was primarily because of the lack of timely access to the information -- the environmental clearance letters to the projects and furthemore access to the environment clearance letter at the stipulated avenues. The counsel said that this, along with the financial constraints delayed the filing of appeal beyond thirty days, but still, it was filed within 90 days.
The counsel for NTPC, Shashi Upadhyay denied all these, and said that the applicant did not have the sufficient cause to file the application. He said that information regarding the clearance was made available on time. The only thing that was not done, he confirmed was that public advertisements were not issued in local newspapers informing citizens.
Conditions number 9, 10 and 11 of the environmental clearance letter of the Loharinag Pala project clearly say:
"9. A copy of the clearance letter will be marked to concerned Panchayat/local NGO, if any from whom suggestions/representation has been received while processing the proposal.
10. State Pollution Control Board/Committee should display a copy of the clearance latter at the Regional Office, District Industries Center and Collectors office/Tehsildar's office for 30 days.
11. The project proponent should advertise atleast in two local newspapers widely circulated in the region around the project, one of which shall be in the vernacular language of the locality concerned informing that the project had been accorded environmental clearance and copies of the clearance letter are available with the State Pollution Control Board/Committee and may also be seen at the Website of the Ministry of Environment and Forests at http://www.envfor.nic.in."
The representatives of Uttaranchal State Pollution Control Board, Ministry of Environment and Forests and the counsel for NTPC, claimed that clearance letters and information were available in all places specified in the clearance letter. Vice-chairman Anand asked the NTPC counsel to put together information before the next hearing to prove that those conditions were indeed complied with.
The next hearing was set to 17 May 2005.
Second hearing of the appeal proceedings
NTPC's counsel Upadhyay in his statement said that on 21 February 2005 the information on clearances to the projects was available at the Uttarkashi District Industries Centre and the District Collector's office. The offices had a copy of the Ministry's letter dated 19 February 2005 intimating clearnace and also asking that the information on the clearance be displayed on the notice board. NTPC also said that the information was made available at their own District Information Office.
The defense had no response to requirements 9 and 11 of the Loharinag Pala clearance letter.
The counsel for the appellants pointed this out. He then highlighted that the District Industries Centre and the Collector's office are both 60-70 kms away from the affected areas. "The letter was received at these places 13 days after the clearance was granted, accounting for loss of time. The villagers and local NGOs will not be traveling everyday to these places to check the information, as if it may be an 'exam result'!", Dutta added.
The counsel for NTPC went back on his earlier claim at the first hearing that everything was in order. He responded in so many words, "agree that we might not have complied with points 9 and 11 of the clearance letter, but did so with 10. Does that prevent them from knowing about the clearance?" What followed was a lot of legalese on what is 'substantial cause', 'my word against yours', 'negligence on the part of the applicant' and so on.
As the day's proceedings were about to end, Dr.S.Bhowmick, the Director, Ministry of Environment and Forests had his turn to speak. He said, "Vimal Bhai was all along aware that the clearance is going to be granted and will be granted. He was constantly in touch with MoEF. MoEF had also asked for suggestions to be included as conditions in the clearance letter and he had faxed it to them, removing the name of his organization."
Bhowmick also said that the MoEF's website used an automated system so that the moment a project is cleared, it moves from the pending clearance list to the cleared projects list, online. So if the clearance were granted on 8 February 2005, the information would have been available on the website on 9 February 2005.
But this was a reality that environmental groups across the country wished was true at that time. Countering Bhowmick, Dutta pointed out that national level organizations had written to the MoEF complaining that the environmental clearance letters could not be downloaded from the MoEF website. The clearance letters themselves were not opening up.
(This problem however seems to have been fixed since the end of April and downloading of letters has been possible since then. But it seems to have been fixed after the 30-day (first) deadline for challenging the clearances in the two Uttarkashi projects themselves had expired.)
In his response Vice-chairman Anand stated that he couldn't take Bhowmick's word that Vimal Bhai was constantly in touch with him, as there is no proof to support it. Bhowmick himself had also pointed out that he had no proof. The Vice-chairman then ended the hearing saying that the order on whether the case will be admitted or not, would be issued on 20 May 2005.
Time for the order
20 May 2005. In tune with its past reputation, the NEAA did not admit the appeals for the projects. Read in relation to what the order itself had to say, this was not a surprise. Vice-chairman Anand ruled in three pages that the applicants did not have any reason to file their appeals application late.
Yet, one of the first things that the order delved upon was matters of substance regarding the projects, even though those matters were not argued during the two hearings. The hearings were held only to look at whether the delay in filing the application is justified or not. The orders then went on to justify that NTPC had followed all procedures before the public hearing and had not violated any norm as pointed out.
The order said that there was no problem in downloading information from the MoEF website, and that Vimal Bhai, one of the applicants who has a Delhi based address, was in constant touch with Bhowmick and knew everything. "The learned representative from the MoEF Dr.S.Bhowmick stated that it was not correct that there was any problem in downloading environmental clearances from the website of the MoEF. This was listed under approved projects." But the specific issue under contention here was that the clearance letter itself could not be downloaded, not whether the project was stated as cleared or not. How is one to file a timely appeal without timely release of the letter itself?
Furthermore, the order alluded Vimal Bhai had sufficient time to challenge the clearance because he had a Delhi address. Merely because of a local address, does it mean that the time taken to determine the redressal mechanism, put together relevant information, travel to the affected areas, carry out discussions, and then file the appeal, will all assuredly take only 30 days? Also the admissions order centred too much on the case for whether Vimal Bhai had sufficient time, whereas he was only one of the appellants. There were three others from the affected areas who were parties to the appeals. Were their constraints of any relevance to the case?
Another critical point about the NEAA hearing itself was that the applicants were not given an opportunity to respond to Bhowmick's remarks during the second hearing. Vice-chairman Anand had also said at that hearing that he could not take Bhowmick's word, as there was no proof. But in his ruling, the Vice-chairman went to support the Ministry official's claims. What had changed?
'Fated' to be cleared without due process
Anyone who was present in the courtroom for the hearings (as I was) would be sure that the order was not based on the arguments presented from both sides. What happened to points 9 and 11 and NTPC agreeing to the fact that they did not comply with those conditions and yet asserting that the challenge not be admitted? Why did Vice-chairman Anand decide to pit Bhowmick's word against that of the applicants, even without giving them an opportunity to respond? The NEAA's order in these two cases has opened up questions of inherent double standards in the clearance process in the country. The project authorities themselves did not comply with mandatory conditions as well as the basic rule of releasing the EIA report 30 days before the public hearing. And yet the NEAA did not admit the appeals cases on procedural grounds that were at best dubious and unfairly tested in the hearings.
The list of baffling questions is endless. The NEAA's handling of these two cases only indicates that an appeals authority can be convinced only if it has an inclination! Ultimately, it would seem that the projects were 'fated' to be granted clearance, and that is exactly what happened. Public hearings and appellate proceedings are an important space for people's participation, but they are also the most abused public processes in the country. So it came as no surprise that the process failed for the Loharinag Pala and Tapovan-Vishnugad projects.
