On 5 February 2007, the National Environment Appellate Authority (NEAA) gave its final order in the case challenging the environment clearance given to the Loharinag Pala hydro-electric project in Uttaranchal. This 600 MW run-of-the-river project is being constructed by the National Thermal Power Corporation (NTPC) on the Bhagirathi river, which is an important tributary of the Ganga. The long course of the challenge, leading up to this verdict, has many lessons for regulation of large projects. For the NEAA itself, this verdict marks a small positive direction, away from its unimpressive record so far.

The NEAA was constituted under the National Environment Appellate Authority Act, 1997. Environment clearances granted to any project under the Environment Impact Assessment (EIA) Notification can be challenged before this authority. It was under this ambit that when the Loharinag Pala project was given environmental clearance in February 2005, an appeal was filed before the NEAA.

Merely getting the appeal going proved difficult. When the matter was first taken up - see this earlier article - none of the substantive issues were discussed. Instead, on 20 May 2005 the NEAA declined to review the environment clearance on the grounds that the applicants - Vimal Bhai of the Matu People's Organisation, Vikram Singh Rawat, Gram Pradhan of Bhageli, Sunagar, and Raghavanand Nautiyal, Gram Pradhan of Bhatwari - had not submitted their appeal within the stipulated 30-day period after the clearance was given, and that their reasons for delay - among other things, the environmental clearance letter was not available at the stipulated location - were inadequate. Undeterred, the applicants pursued the case and - through their advocates Ritwick Dutta and Rahul Chaudhary - challenged the the NEAA's stance before the High Court of Delhi. On 29 September 2005, the High Court directed the NEAA to revive the appeal and consider it on its merits, and only thereafter pass any appropriate order.

It was only after repeated prodding by the High Court that the NEAA's members were finally appointed.

 •  No cases in court of appeals
 •  Rejecting cases coldly

But at this point, another hitch was encountered. Until this time, the NEAA had been steered by a single Vice Chairman, Vishwanath Anand, even though, per its constitution, the authority is to have a Chairman, a Vice-Chariman and three Members. Indeed, in the first eight years since it was established, the Authority only heard 15 cases. In July 2005, Anand's tenure ended, leaving all the posts in the authority vacant. Thus, even though the HC had directed the NEAA to review the environment clearance, there wasn't anyone left to do this! The court's repeated insistence, however, carried the day eventually, and after much delay by the Ministry of Environment and Forests (MoEF), one after another three members were appointed to the NEAA. With the news of the first member, K Prasad being appointed on the committee, the counsel for the applicants filed an appeal to revive the case on 17 July 2006. Gradually the other two members I V Manivanan and J C Kala also came on board. Following this, during nine hearings in the second half 2006, the case was discussed threadbare.

Two of the claims raised by the applicants were particularly important.

Mandatory public hearing

The mandatory public hearing organised by the developer was totally illegal. There was not enough information made available to the affected villagers and to civil society organisations, and this ruled out the possiblity of meaningful participation. The applicants and their counsel repeatedly highlighted that they were at the site of the public hearing, and in reality the required information, as stipulated by the EIA notification, was not available at the designated place. The contentions in the application were responded to by the NTPC, Uttaranchal State Pollution Control Board and MoEF, who denied all the claims of the applicants. The NEAA, however, after careful examination of the claims and responses, ruled that the argument that the public hearing was illegal is not sustainable.

[Aside: In my experience, the NEAA often does not consider procedural violations - such as not holding a hearing properly - sufficient to pull up a project. Instead the Authority has sometimes asked applicants what additional information might have been available if hearings had been held properly, thus putting the onus on the applicants to prove that a procedural violation was significant].

EIA report inadequate

Another contention of the applicants was that the EIA report leading up the environment clearance was grossly inadequate, and did not cover several critical issues - like muck disposal, ecological sensitivity, seismicity, minimum water flow in the river and so on. It was also argued that the analysis was also based on 1991 census data which is old, and the EIA consultants should have taken current data to assess impacts. Moreover, the EIA and Environmental Management Plan (EMP) were made in complete isolation and no consultation took place with the affected people. NTPC gave detailed responses to the points raised by the applicants and they were argued out before the NEAA.

On this claim too, the applicants were overruled by the NEAA. The Authority held that the applicants did not provide factual assessments to prove that the EIA was inadequate, and therefore did not uphold the claim. The MoEF also vouched for the completeness of the report, based on which clearance was granted. The NEAA's order notes the MoEF's view that "at the time of preparation of EIA report Census 2001 report was not published; as such the report was based on Census 1991 data."

Here, it is noteworthy that the applicants include two gram pradhans, and one local NGO, who have come forward to highlight basic gaps in the EIA report. These are not persons with technical qualifications who would be able to prepare a point by point critique of the EIA report. When individuals such as these raise red flags against technical project reports, they are often unable to argue their points convincingly, and to meet the necessary standard for proof. Unless socially and environmentally conscious environmental scientists come forward and help local groups, critical issues raised by impacted villagers will continue to be lost.

The NEAA also took the view that since there is no mandatory requirement as per the EIA notification to consult local people during the time of the preparation of the EIA report, the project proponent cannot be held responsible for it.

The verdict

Since the applicants could not uphold and prove any of the contentions made by them, no order was passed against the environment clearance granted to the project.

For the applicants, and for impacted villagers, that's no comfort. And they might be forgiven for thinking that the MoEF and the NEAA have - as in so many other instances - failed to adequately protect the interests of local communities against the exploitative tendencies of project developers. Among environmentalists too, the MoEF has certainly acquired a reputation for being too developer-friendly in recent years, and not very attentive to its mandate as a guardian of the natural environment and forests; this verdict from the NEAA will harden that view.

Ironically, despite rejecting the applicants' claims, the NEAA's order recognised some of the critical points raised by them during the arguments. These include the need to improve the quality of EIA reports, and the need to serve notices of public hearings in each affected village. In its order dated 5 February 2007, the NEAA listed a few suggestions. On EIA and EMP reports, the NEAA notes that "The EIA and EMP for every project must be prepared scientifically, in an un-biased manner by specialized agencies and with enough autonomy." It states that "in order to improve the quality of the EIAs and EMPs the Authority feels that MoEF, should consider appropriate mechanism for Empanelment of Suitable Specialized Agencies for preparation of EIA and EMP with a provision for enabling the project proponents to choose their own agency from out of the list of Agencies approved by MoEF ..."

The Authority also accepts the need for more meaningful public hearings, and agrees it is not enough that the notices of such hearings should be issued in two widely circulated newspapers, one of which is vernacular language, which is what the EIA notification now mandates. According to the NEAA, "this is not adequate enough to meet the Principle of Natural Justice for the affected people, in view of the fact that considerable segment of rural population are still illiterate unable to read or write the local vernacular language." The revised EIA notification of 2006 also does not make any provision in this regard. The NEAA observed that the notice of the Public Hearing should be exhibited in the office of the concerned local bodies of the area affected by the project and directed the MoEF to take action in this regard.

On monitoring too, there was some new room for cheer. Following a series of arguments, the discussions in the NEAA shifted towards the need for stringent monitoring mechanisms at the project site, to ensure that the concerns of the local people are properly addressed. The applicants pointed out that under the current rules mandated by the conditions of environment clearances, project monitoring is left to the proponent of the project - an obvious conflict of interest. As a result, effective monitoring is absent in nearly all projects. The NEAA accepted the shortcomings of this approach, and asked the applicants to file their suggestions for an effective monitoring mechanism for this project. Its report observes that:

"There is a need for a Multidisciplinary Monitoring Mechanism for the project and reconstitution of the existing mechanism as prescribed under the environment clearance letter. The reconstituted Multidisciplinary Monitoring Committee would be under the control of the MoEF instead of the project proponent and monitor the implementation of general and specific conditions laid out in the environment clearance letter. The committee would include ecologists, environmental scientists, conservationists and experienced administrators in that Committee." The NEAA noted that this is important to "repose the faith of the public in Government's intentions and commitments to conservation and sustainable development".

The final order of the NEAA brings with it partial success and a little relief; the need for proper impact assessments has been accepted, and a strict monitoring mechanism for the project has been set in place. This is the first order passed by the reconstituted NEAA; prior to this case, the Authority had developed a reputation for not even admitting most appeals. Its observations in this case are thus a small sign of a new direction, even if the contentions of the aggrieved persons were not upheld.