National Law Institute University,

Bhopal

PROJECT – ENVIRONMENTAL LAW

The Environment Impact Assessment Mechanism of India and Vedanta Project:A Critical Analysis

Submitted by:-

ARCHITGUPTA

2011B.A.LLB 51

1

ContentsThe Environment Impact Assessment Mechanism of India...................................................................1

The Evolution of EIA Mechanism in India:.............................................................................................3

The Monopolistic allocation of power to the Ministry of Environment and Forests: The apparent flaw and the need for EIA:.............................................................................................................................4

The Procedure and the elements of the EIA process: The lacunae in enforcement of the Law:...........6

The Stakeholders: The Essence of public participation and its requirement in the EIA process:.........10

Brief Introduction to Vedanta Project:................................................................................................12

Timeline of Vedanta Project:...............................................................................................................13

Critical Analysis of EIA in Vedanta Project:..........................................................................................17

Conclusion:..........................................................................................................................................20

2

The Evolution of EIA Mechanism in India:‘Earth provides enough to satisfy every man’s need; but not every man’s greed’ -Mahatma

Gandhi1

The concern for environmental protection in India can be traced back to the ancient period,

where it was the dharma of the individual to protect nature.2 The very principle of

sustainable development, finds mention in the Atharva Veda, where the sages chanted

What of thee I dig out

Let that quickly grow over

Let me not hit thy vital, or

Thy heart.3

The quintessential issues, which culminate into a challenge of reconciliation, concern the

values of economic growth, social vitality and ecological integrity.4The compromise between

the right to development and the need for environmental conservation can be disembarked

through effective EIA’s. The emerging concept of international standards, by which such

degradations is to be controlled and monitored,5 has lent credibility to the anticipation of

environmental harm, rather than its prospective prevention. In its original form the Indian

1 Pyarelal, Mahatma Gandhi, Volume X: The Last Phase, Part II (Ahmedabad: Navajivan, 1958), p.5522 P.S Jaswal (1999).Environmental Law. 1st Edition .New Delhi: Pioneer Publications. p.4.3 Ibid at 7.4 Kalpana. Markandey and S. Simhadri , Globalization, Environment and Human Development. 1st ed. 1. New Delhi: Rawat Publications, 2011. p.1-4.5 Paolo Contini and Peter H. Sand (1972).Methods to Expedite Environment Protection: International Ecostandards . The American Journal of International Law. 1(66), p.39.

3

constitution contained no provision relating to the protection of the environment.6The

fourty second amendment to the Indian constitution, after the Stockholm declaration,

introduced provisions relating to the protection of the environment. The Directive Principles

of State Policy provide for the duty of the State to protect and improve the environment

and to safeguard the forest and wildlife of the country.7 The duty is also cast upon the

citizens whereby every citizen has the fundamental duty to protect and improve the natural

environment.8 The demand for environmental protection has mostly arisen out of political

necessity rather than the mass realization of protecting the ecosystem. The Environment

Protection Act of 1986 emerged as a result of an industrial disaster involving Union Carbide

in Bhopal.9 Sustainable development has been defined as ‘what type or extent or

development can take place, which can be sustained by the ecology with or without

mitigation.10’The competing interests of development and the conservation of the

environment, require a harmonization, of the approach to sustainable development. The

reconciliatory mechanism required to balance these divergent interests, has evolved in the

form of an Environment Impact Assessment (EIA). The legal conception of sustainable

development11 and the EIA apparatus can be summarized as a precautionary principle,

where it is better to err on the side of precaution and prevent irreversible environmental

harm.12

6 P. Leelakrishnan .Environmental Law Case Book. 2nd edition .New Delhi: LexisNexis Butterworths,2006. p.5.7 Constitution of India, 1950 Art 48A.8 Constitution of India, 1950 Art 51(g).9 Should Large Developing Countries Pursue Environmental Policy Unilaterally? Amitrajeet A. Batabyal Indian Economic Review, New Series, Vol. 28, No. 2 (1993), p. 191.10 N.D. Jayal and Anr. v. Union Of India and Ors (2004) 9 SCC 362, 20.11 Vellore Citizen’s Welfare Forum v. Union of India (1996) 5 SCC 647-49.12 A.P. Pollution Control Board  v. M.V. Nayudu AIR 1999 812.

4

The Monopolistic allocation of power to the Ministry of Environment and Forests:  The apparent flaw and the need for EIA:The National Environment Policy Act (NEPA), 1969 in the United States introduced the

concept of Environment Impact Assessment (EIA)13 by facilitating its implementation

through a legislative instrument.14 The preamble of the NEPA clearly identifies the purpose

of the legislation, which states, “To declare national policy which will encourage productive

and enjoyable harmony between man and his environment”. The evolution of EIA can be

traced in the international arena to the Rio Declaration (1992) under Principle 17, which

provides for the concept of EIA15 as an environmental management tool to reduce the

potential adverse impacts on the ecology, arising out of developmental activities. After the

Stockholm conference, the National Committee on Environmental Planning and

Coordination (NCEPC) was constituted, under the Department of Science and Technology,

which initiated the process towards the formation of the separate ministry concerning the

environment.16 The international obligations are mandated to be implemented as provided

for under Article 253 of the Indian constitution.17 The Espoo Convention (1991), Protocol on

Environmental Protection to the Antarctic Treaty (1991), Biodiversity Treaty (1992) and the

United Nations Framework Convention on Climate Change (1992) exclusively provide for a

13 Pandey K.M, Debbarma Ajoy, Das Hirakjyoti, Roy Amitava and Nath Writuparna,  Environmental Impact Assessment and Management, Vol. 7 No. 4 2013 JERD, p.1459.14 Thomas B Stoel Jr and S Jacob Scherr, Experience with EIA in the United States, Built Environment , Vol. 4, No. 2, Environmental Impact Analysis (1978), p. 94-7.15 International Association for Impact Assessment, ‘Principle of Environmental Impact Assessment Best Practice’ (www. iaia.org 1999) <http:// www. iaia.org/ modx/ assets/f iles/ Principles% 20of% 20IA_web.pdf> accessed 22 October 2013.16 B.P Pal, Environmental Conservation: Indian National Committee on Environmental Planning and Coordination, Vol. 6, 04, 1979 p. 256-256.17 Constitution of India, 1950 Art 253.

5

mechanism of EIA for sustainable development. In the MOX plant case18, Danube Dam case19

and the Pulp Mills case20, the court arrived at the deduction that an EIA, should be

construed as an integral part of the principles of due-diligence and the no- harm rule. Thus

EIA is utilized as a universal tool in environmental conservation and management.

The EIA process envisages an important regulatory tool to balance the needs of society as

well as the realization of goal of rational utilization of resources of the nation. The concept

of sustainable development arose out of the deliberations of the Brundtland Commission in

1987, which defined sustainable development as “development, which meets the needs of

the present generation without compromising the ability of future generations to fulfil their

needs.” Thus the resultant gradual shift from mere economic viability of the certain

industrial activities to a more meticulous analysis of the ecological, societal and

sustainability of the project in question. The Govindarajan Committee effectively

strengthened the argument that environmental conservation priorities were to be tolerated,

as long as they did not hinder the promotion of investment. The approach of the Indian

government to proceed with an executive order rather than a legislative approach needs

consideration, as a form of rule modification to serve executive interests delineates from

the said purpose. The issue with the use of a notification in contrast to a legislative

instrument strangulates the ambit for debate, discussion and deliberation, which is the

primary safeguard against the exercise of arbitrary powers by the executive.

18 D. Annandale, Developing and evaluating environmental impact assessment systems for small developing countries’, Impact Assessment and Project Appraisal (1st, Maxwell, London 2001) p.187-193.19 Ireland v. United Kingdom 2003 42 ILM 118620 GabcikovoNagymaros Project (Hungary v Slovakia) (Separate Opinion of Vice-President Weeramantry) [1997] ICJ 4 Rep. 7, 113.

6

The Procedure and the elements of the EIA process: The lacunae in enforcement of the Law:The global system that has emerged is based on the fundamental premise of economic

growth as the fundamental principle. The slight deviation being the introduction of

sustainable development as one of the subsidiary aims within the states agenda of economy

over ecology and equity. The kind of cost-benefit analysis approach that has put a price tag

on each and every resource culminates to a shift from a market economy to a market

society. Thus when environmental costs emerge in the arrangement of economic

calculations, the basis for the value judgment is the monetary value assigned. The Indian

approach to environmental governance lacks in the manner of its implementation policy.

The fundamental function of regulation lies in its capacity to contribute to the balancing of

interests and resolution of conflicts in society. The brazen discretionary powers granted to

the officials, neither does justice to the needs of the environment as well as development. In

the Philip Hampton Report on Reducing Administrative Burdens, has identified that

regulators should use risk assessment in the form of eliminating unnecessary inspections

and shift focus towards compliance.

The EIA notification of 2006 brought about considerable changes, which ensued a deliberate

compromise of prerequisites such as public participation and transparent decision-making.

The notification envisages the hierarchical stage of clearance process, beginning with

screening and then scoping, public consultation, appraisal. It involves the project proponent

who applies for the terms of reference from the concerned authorities at the central or

state level. The minutes of the public consultation hearings are sent to the Expert Appraisal

Committee (EAC) of the MoEF for Appraisal. The major problem with the EIA process

7

includes the quality of data that is utilized in arriving at decisions for grant of clearance of

potentially harmful industries. The entire collection of data is dependent upon the project

proponent, who can present distorted data with the help of the consultants, who are also

financed by the project proponent. This method of preparation of the EIA report defeats the

use of this tool as a regulatory mechanism. The cogent reasoning that follows from

consultants financed by the project proponents, stipulates the manner in which such a

report would be unbiased and not client centric. The Supreme Court of India as also

observed that “This Court would have been more comfortable if the environment impact

studies were made by the Ministry of Environment and Forests (MoEF) or by any

organization under it or at least by agencies appointed and recommended by it.” The MoEF

has taken measures with regard to procedural checks such as granting environmental

clearance when EIA reports are prepared by an accredited consultant and requiring

clearance before initiation of any construction activity. These reforms do not in any manner

address the issue of pecuniary influence that might result in the assessment report as being

financed by the project proponent. This accreditation body Quality Council of India (QCI)

which is bestowed with the task of providing accrediting accurate consultant agencies is

jointly partnered by the Government of India (GoI) and the Indian industry. This process of

rubber stamping whilst industrialists having a substantial interest in the outcome of the

process, defeats the very objective of the accreditation process. The MoEF presented this

process as a solution to the inaccurate and misrepresented data projected by the

consultants but financed by project proponents. In the United States the NEPA requires the

Environment Impact Statement (EIS) to be formulated by the concerned agency of the

government. In this endeavour the agency can employ private consultants in preparing the

EIS. The role of the agency is also clearly determined with the responsibility of the content

8

lying with the agency. The problem in India can be remedied through a specialized agency

similar to the United States but independent of political or complete bureaucratic control

considering India ranking 94th in the Corruption Perception Index ratings 2012. This problem

is also compounded by the fact that the composition of the Expert Appraisal Committee

(EAC) is mainly a bureaucratic undertaking with the no involvement of environmentalists

and civil society members. The EIA notification of 1994 provided for an independent

ecologist and environmentalist as part of the EAC. The enforcement mechanism is also fairly

ambiguous with no clear procedure for the penalties and when clearance can be revoked.

There is also no clarity with regard to the role and powers of the EAC, in case its

recommendations are amended or overturned without following the provisions of Para 8 (ii)

of the notification. Thus there is a lack of suo moto authority to insist upon the

implementation of the recommendations.

The application of the EIA process is based on the principle of a pre-emptive approach and

the mitigation out of effective alternatives to ecologically harmful activities. This approach is

ineffectual when the rationality caters only to development. The mind frame that exists

among the people, that taking socio-economic conditions into consideration will hamper

economic growth can lead to a misdirected attempt at rapid development. The projects that

the government takes must also be subject to cost benefit analysis, as decision-making tool

of sustainable development. The stance taken by the government in cases of infrastructure

projects involving large-scale public investment excludes a number of polluting industries

whilst providing exemptions to some industries. The very idea of having a pre-determined

list with an exclusive rather than inclusive policy defeats the entire purpose of assessing the

impact on the environment. The EIA norms have been amended for almost fourteen times

and mostly in the favour of the project proponents and scarcely for the sake of the

9

environment. This continued flexibility afforded to the MoEF to notify changes almost

antithetical to previous notification defeats the objectivity of an environment friendly

notification. The composition of the EAC has also been compromised by the inclusion of the

term professionals in contrast to the EIA notification, 1994, which provides for members

who are environmentalists or civil society representatives.[xlviii] In the European Union the,

competent authorities decide the decisions with regard to the requirement of an EIA, after

seeking advice from the developer and NGO’s. In the case of most developed countries the

screening process is well established on the basis of clear scrutiny rather than having a pre-

determined list as in the case of India. The ineffective mechanism of dealing with the issues

of the environment has also led to judicial directives, which have clarified the position of law

as well as set guidelines for the implementation of the judicial recommendations. The

problem with the functioning of the MoEF and the executive decisions in various cases have

led to the judiciary reprimanding these bodies for their inability to meet statutory

obligations. The proposition for a national policy and effective public participation, to

regulate the environmental, still lacks the political and societal will in its implementation.

The Stakeholders: The Essence of public participation and its requirement in the EIA process:The World Commission on Environment and Development, in its 1987 report has concluded

that the objective of social justice cannot be achieved without an equitable sharing of the

cost and benefits of environmental protection. The realization of distributive justice cannot

be rendered through ineffective apparatuses of the law, which lack practical application in

the domain of policy decision making. The UDHR[liv], ICCPR and American Convention on

10

Human Rights, acknowledge and reverberate the essential democratic aspect of the right to

political participation. It reflects an expansive notion of democracy, which cannot be

achieved by the states involvement in the decision-making procedure. The implementation

of public participation adds legitimacy to the environmental decisions and adhere to the

international obligations of access to justice and such pluralistic structures of public

involvement. Once the public hearing is held, the grievance and opinions expressed, the

minutes of the project are sent to the MoEF. Though this procedural aspect is finalized, the

low educational levels and environmental awareness hinder the entire purpose of this

integrative exercise. In most cases the help is provided by NGO’s – who take up this cause of

the locals. A large number of environmental projects are inadequately researched and

biased, as the proposer of the project funds them. The development policy of India must

integrate, the essence of environmental laws, which advocate accountability, public

participation and administrative justice. The implementation of the international obligations

under the Convention on Biological Diversity are also under question, when the Indian

Biodiversity legislation has faced criticism over legalizing bio piracy and the structure of the

regulatory body skewed in favour of the government and the bureaucracy.

The willingness of the various bodies to exclude public participation becomes clear with

regard to a number of cases, which have provided public consultation as one of the essence

of Environment Impact Assessment. In the Jan Chetna case the court clearly held that ‘It is

no more res integra that environment is a right guaranteed under Article-21 of the

Constitution. The Environment (Protection) Act, 1986 and EIA Notification are the means

adopted, to protect the right in discharge of the obligations enjoined under Article-48 A of

the Constitution.’ The blanket immunity granted to certain projects with regard to public

consultation defeats the purpose of EIA as it does not take into account any concerns of the

11

public which might actually be affected in any manner. The rights of the citizens to know

and the right to object to any activity that might impair the right to environment, is an

essential criterion for the complete realization of the statutory and constitutional

obligations cast upon the state. The Supreme Court has also upheld this right to know about

the affairs of the government and the policy decisions that impact their welfare. The process

of assessment must be tailor made to suit the needs of the people and their concerns,

without having an overarching exemption to certain industries, even if they do not

ostensibly impact the environment. The only instance at which there is public involvement

in the project cycle is the public hearing stage, which reduces scope for public participation

in the preparation of the EIA report. This only opportunity provided for public consultation

would result in severe injustice to grievance redressal. The scenario in which there can be

informed participation of the local communities is when the EIA report is provided in the

local language, which in many cases is not followed. In India, weak screening and scoping,

poor quality baseline data, ineffective follow-up, whilst lacking key legislation are the most

glaring loopholes within the prevalent mechanism. Therefore, the prerequisite necessity for

a complete overhaul in the preliminary stages of the EIA implementation process.

Brief Introduction to Vedanta Project: In the poor state of Orissa in India, resides an isolated tribe called the Dongria Kondh.

Dongrias have survived for centuries following the same traditional methods of agriculture

and food gathering. They live in the rich and forested hills of Niyamgiri, which not only

provides them with food and shelter, but is also sacred to them and is worshiped as a living

god . Unfortunately, Niyamgiri is also home to about 2 billion dollars worth of bauxite (an

aluminum rich ore). The bauxite rich hills attracted Vedanta Resources, a giant British mining

12

company, to mine the Niyamgiri hills. According to the Indian laws, large mining projects,

such as the planned bauxite mining project of Vedanta Resources, require a comprehensive

EIA and public consultation of the affected parties . Being in a dire need for an economic

boost, the officials of the state of Orissa sided with Vedanta Resources and took the

responsibility of obtaining the necessary mining clearances. Needless to say, undertaking

such mining project would end the traditional way of life of the Dongria Kondhs and

irreversibly damage the Niyamgiri environment.

In 2003, when Vedanta Resources applied for clearance from India’s Ministry of

Environment and Forest (MoEF), only a rapid EIA was carried out for the project.

Furthermore, several surveys and site inspection reports have indicated the frustration and

the lack of information that various Dongria Kondh village settlers have about the Vedanta’s

project (MOEF, 2010), showing a lack of proper public consultation. While Vedanta

Resources and the state of Orissa were pushing for the final clearances, the Dongria Kondhs

and several international NGOs, such as the Survival International, were expanding their

own fight against the project through the many rallies and protests in which they demanded

the officials to carry out a comprehensive EIA and to revoke Vedanta’s granted permits.

Nevertheless, in 2008, India’s Supreme Court approved the Niyamgiri mining project.21

In light of the findings of several independent EIAs and as a result of growing controversy

caused by the case, in 2010 in an unprecedented move, India’s Environment Minister put a

halt to Vedanta’s mining project based on its violation of the forest laws and disregard of

the native people. However, the Dongrias and the NGOs opposed to the project have not

yet won. The Orissa government has promised Vedanta access to bauxite in Niyamgiri and in

2011 they appealed to the Supreme Court challenging the MoEF decision in cancelling

21 http://www.cseindia.org/content/vedanta%E2%80%99s-lanjigarh-project-refinery-and-bauxite-mining

13

Vadenta’s mining clearance With all the reconsiderations in this case it would be of no

surprise if the project is once again approved in the near future.22

Timeline of Vedanta Project: London-based industrialist Anil Agarwal’s Sterlite Industries of India Limited signs

memorandum of understanding (MOU) for a mining project with the Orissa

government in 1997.

Land acquisition and a gram sabha notice issued to villagers for the “proposed

Lanjigarh alumina refinery project” on June 6, 2002. According to the notice, 12

villages would be razed, 60 families displaced and 302 families would lose their

farmland when project materialised.

In March 2003, Sterlite applied to the Union ministry of environment and forests

(Mo EF) for environmental clearance for the proposed refinery. The application

made no mention of the 58.9 ha of forestland it required.

On August 16, 2004, it filed a separate petition for clearances under the Forest

Conservation Act (FCA), 1980, through the Orissa Industrial Infrastructure

Development Commission.

On March 24, 2004, MoEF informed the company that as the refinery would be

dependent on the mining proposal being cleared, the ministry would consider the

two proposals together.

Next day, Vedanta sent MoEF another application arguing that while it would take

three years to build the refinery, only a year was required to open the mines.

22 https://mastereia.wordpress.com/2012/02/17/mining-the-sacred-hills-of-niyamgiri/

14

Six months later, on September 22, 2004, MOEF reversed its decision and granted

the refinery environmental clearance on condition that Sterlite got mining clearance

before “operationalising” the refinery. The approval letter also stated: “The project

does not involve diversion of forest land.” This, despite the fact that another division

of the ministry had received an application for FCA clearance for the refinery.

In November 2004, Orissa’s forest department sent Vedanta a show-cause notice for

encroaching on 10.41 acres (4.21 ha) of village forestland for its refinery. Around the

same time, several activists separately petitioned CEC to halt the company’s

operations.

On March 23, 2005, after CEC questioned MoEF about the validity of an

environmental clearance, that the ministry directed VAL to halt construction work till

clearance was given for the 58.9 ha of forestland within the refinery compound.

The next day the company dashed off a letter to MoEF seeking withdrawal of its

request for forest clearance for the refinery saying it didn’t need the 58.9 ha after all.

The state government sent MoEF a letter recommending withdrawal of the proposal

on March 27, 2005, which happened to be a Sunday. The very next day, the ministry

withdrew its stop work order, without bothering to look into why the company had

changed its stance.

In September 2005, CEC recommended to the Supreme Court that mining should not

be permitted on Niyamgiri hill. The report was a scathing indictment of the project

and questioned the integrity of the authorities involved.

In February 2006, the apex court referred the matter to MoEF’s Forest Advisory

Committee (FAC)— which looks into diversion of forestland for non-forest purposes

—and asked for a report in three months.

15

FAC, in turn, asked the Wildlife Institute of India (WII) and Central Mine Planning and

Design Institute Limited (CMPDIL), to assess the project for soil erosion and impact

on water resources.

CMPDIL, according to Vedanta’s lawyers’ statements during Supreme Court hearings

on May 16 and May 18, 2007, cleared the project of all water-related concerns.

However, WII’s report submitted in June 2006 warned that bauxite mining in

Niyamgiri plateau would destroy a specialised wildlife habitat. However, following a

special presentation by Orissa forest officers, the institute tagged on a

supplementary report in October 2006, which included a Rs 42-crore plan for

mitigation of impact on wildlife.

Based on the two reports, FAC recommended diversion of forestland for the mining

project.

However, in another matter, the Supreme Court had already ordered a review of

clearances granted by FAC after September 15, 2006, which included the VAL

project.

On December 8, 2006, the court asked CEC to file more comments. When the matter

was heard on May 16 and 18, 2007, CEC iterated its stand that MoEF had acted

irresponsibly and with “undue haste” in granting Vedanta clearances.

While case pending in the Supreme court, the refinery operated with bauxite from

Vedanta’s Chhattisgarh mines.

In-principle clearance for 660.749 ha of forestland for mining was granted on

December 11, 2008. Further, in April 2009, forest clearance was given for an

additional area of 33.73 ha.

Public hearing for 6 folds expansion of the refinery was held on April 26, 2009.

16

Clearance by the MoEF to the mining project of Vedanta on April 28, 2009 despite

widespread protests.

Temporary withdrawal of clearance rights by the MoEF on the recommendations of

FAC on August 24.08.10

Critical Analysis of EIA in Vedanta Project:The Ministry of Environment and Forest (MoEF) granted the Terms of Reference (ToR) on

2nd February, 2011 to prepare the Environment Impact Assessment (EIA) Report for its

expansion plans for Alumina Refinery from 1MTPA to 6 MTPA in accordance with the

provisions of the EIA Notification, 2006. This is despite the fact that according to Vedanta

itself it has carried out nearly 55 % of the construction for the plant, without prior approval

under the EIA Notification, 2006. This reminds us the position that Vedanta took in the Apex

Court’s Green Bench during 2006-07 after constructing the original plant in Lanjigarh

ignoring all laws of the land that it has spent good amount money for the plant therefore

clearance be granted. The authorities in Bhubaneswar and Delhi are advising them how to

violate laws and how to blackmail the government. The person who did the most for

Vedanta is now the Principal Chief Conservator of Forests (PCCF) of Odisha.

The EIA Report clearly mentions that the bauxite supply will be met from the Lanjigarh

mines/ Niyamgiri located at a distance of 3.7 Kms. The action of granting ToR and

preparation of EIA Report and announcement of Public Hearing is illegal, malafide and

motivated with the sole aim to mine the Niyamgiri hills by creating a fait accompli situation.

This is because:

17

(i) The Forest Clearance granted to mine the Niyamgiri hills stands cancelled by the Ministry

of Environment and Forest on 24th of August, 2010 in view of the violation of the Forest

(Conservation) Act, 1980;

(ii) The Environmental Clearance granted to the Mine also is inoperable and stands

suspended in view of the Order of the National Environment Appellate Authority and the

Ministry of Environment and Forest.

(iii) The Orissa Mining Corporation has challenged the above decision of the MoEF before

the Supreme Court, but no stay or relief has been provided by the Supreme Court.

(iv) Vedanta’s appeal for allowing expansion and questioning the MoEF ban on the

expansion project also has been rejected by the Odisha High Court twice, once the petition

and subsequently the review petition.

Therefore, in the absence of any mine legally available to Vedanta/ OMC it is illegal on the

part of Vedanta to plan for an expansion of its refinery based on the assumption that it will

source its bauxite from Niyamgiri. The plan of Vedanta is very clear: invest on construction

of the Refinery and the Captive power Plant, and then seek approval for the mine. It is

unfortunate that the Ministry of Environment and Forest has allowed such illegal decision to

be taken. It is time that a clear decision is taken by the Ministry of Environment and Forest

to close all files relating to Vedanta and take action against those officials who have got the

TOR issued for the refinery which is based in mining the Niyamgiri Hills.

The EIA Report has been prepared by one EIA Consultant called “Global Experts”. It is not in

the list of accredited consultants of the Ministry of Environment and Forest and seems to be

a lobbying group, rather than an EIA Consultant. Further, the EIA Consultant claims that it

18

has “conducted Public hearings” and also helped in getting environmental clearance for its

clients from the Ministry of Environment and Forest and the State Pollution Control Board.

This is clearly contrary to the neutral role envisaged for the EIA Consultants. We would not

hesitate to call them ecological criminals who are providing the advice to kill the mother

earth just for few million rupees. The task of conducting a Public hearing is of the Pollution

Control Board and the following up with the Regulatory Authorities is the task of the project

proponent not of the EIA consultant. The sole intention of Vedanta in getting the EIA

Consultant is to ensure that it lobbies with the Ministry of Environment and Forest to get

the necessary approval.

Even more shocking is the fact that contrary to the statement of the ‘Global Experts’, no

comprehensive EIA Report has been prepared. Comprehensive EIA includes a full season

data. The present EIA report is a rapid EIA Report based on a single season data. It can by no

stretch be regarded as a Comprehensive EIA report. This amounts to misleading information

which is a ground for revocation of the ToR.

What is even more surprising is that, no detailed description has been provided about the

specific location of the areas where the expansion will take place. Given the fact that the

area is surrounded by forest and specifically Gram Jungle jogya, it seems doubtful that no

forest land is involved.

It is very surprising that the Terms of Reference for preparing the EIA Report is issued on the

2nd of February, 2012, while baseline data has been collected from 1st of November, 2011

till the 29th of February, 2012. Clearly, Vedanta could not have started the process of

collection of baseline data prior to prescribing the TOR’s. The fact that Vedanta started

collecting baseline data prior to TOR being prescribed, reflects its confidence in both the

19

Central and State Government that it will be allowed to carry out its mining and expansion

activity.23

Amnesty’s report “Generalisations, Omissions and Assumptions” is in essence a sustained

critique of the main source of public documentation for the project: the EIAs. This is

different to an all-round critique of the project as it is restricted to what is in these

documents. On page 14 of the report, at the start of its Conclusions section, Amnesty states

the following: “Amnesty International’s analysis of the Vedanta EIAs for the Lanjigarh

refinery and proposed Niyamgiri mine demonstrates that they fail to do what they are

supposed to do – which is assess the potential environmental and social impacts of the

company’s mining and refining operations. The EIAs are also inadequate to ensure that the

company is fulfilling its responsibilities to respect human rights. While the EIAs are not

intended as tools to assess human rights impact, Vedanta carried out no other impact

assessments process in relation to human rights, even after serious human rights problems

were brought to the company’s attention.”24

Conclusion:The problems of overpopulation and urbanization are typical phenomenon that occurs in

every developing nation, at particular phase of its growth. This stage of growth results in

sound economic policies but rather unsound environment friendly policies, as the

government tries to balance the needs of the state while adhering to the principles of

sustainable development. The result of reconciling the aspects of development and

sustainability must seem tangible and effective, rather than represent mere tokenism on

23 http://www.sruti.org.in/?q=news-media/vedanta-continues-insidious-efforts-mine-niyamgiri-hills-17th-april-201224 http://www.vedantaaluminium.com/pdf/The-Lanjigarh-Development-Story-Vedanta-Perspective.pdf

20

part of the government. The prevalent EIA mechanism in India has failed to address issues

on a number of constant criticisms levelled by environmental organizations and various

pressure groups. There is an urgent need for a shift from the prevalent EIA mechanism to an

independent regulatory body, which lacks political interference and corporate pressure

from various lobby groups. The EIA notification allows acquisition of land for projects even

before an application of environment clearance and pre-construction activities of

hydroelectric projects goes unregulated. There clearly exists a lack of an enforcement

regime and requires only half-yearly reports from the project proponent. The ostensible

nature of the EIA process in India portrays the inherent flaws with its initiation in policy

making to the eventual implementation. The objective of sustainable development cannot

be achieved through a sustained process of exploitation of the recurrent loopholes of the

environmental procedures and the wilful acquiescence to the demands of the industry.

The Supreme Court in the T. N. Godavaraman case has held that conformity to the principle

of sustainable development as constitutional requirement based on the principle of

intergenerational equity. It can be understood that the concept of sustainable development

entails legal sanctity rather than being a mere policy decision, performed at the discretion of

the executive. The prevailing need for a shift from the current EIA process can be

understood when the former Union minister for Environment and Forests in 2011 went to

the extent of terming the EIA process in India to be a ‘joke’. The EIA notification of 2006 has

also devolved powers to the state governments, which is a welcome step towards the

devolution of monopolistic like powers conferred upon the MoEF and the central executive.

This step brings into line the division of powers under the concurrent list under the seventh

schedule, which includes subjects such as protection of wildlife, mines and minerals and

forests. Although this devolution is devoid of any substantial change as it acts in a

21

counterproductive manner, when local bodies are excluded from the decision making

process.

The industrial perspective must also change from the viewpoint of EIA being a hindrance, as

future costs of litigation, resulting compensation for damages, environment disasters and

their mitigation can be determined on the basis of accurate analysis. Thus if the industrialist

realizes the benefit that results out of this process, then the demand will be for voluntary

compliance, rather than evading the requirements of the EIA process. The bureaucratic

control and the concerns of the capitalists can be dealt with an independent regulatory

body, free from the political control of the Ministry of Environment and Forests. The

number of EIA scams and the affirming judgements vindicating the failure of the

environmental regulatory bodies in India clearly put forth the need for an overhaul of the

present EIA mechanism, even after the EIA notification of 2012. The fallacies of these

notifications lies in their ambiguity and inability to deal with a number of agencies, thus

necessitating the requirement of a comprehensive legislation with clear devolution of roles,

responsibilities and powers of various state and central bodies. In 2007, when there was

severe questioning of the Quality Council of India process by certain groups and individuals

of the accreditation mechanism, the QCI brought out a list of EIA consultants with flawed

assessment reports. In the case of the Kundankulam Nuclear Project, which is now in

operation, the report was prepared by the National Environmental Engineering Research

Institute (NEERI), which was amongst the list of flawed EIA’s put forth by the QCI in

2007.Such instances entirely defeat the process of EIA as a solution to the problems of

society.

The Indian government can under the powers granted by Section 3(3) of the Environment

Protection Act, 1986, create an independent regulator, which would deter the political and

22

bureaucratic functioning of the EIA mechanism. The establishment of the National Green

Tribunal has done much to the cause of the environment and the effective implementation

of the present provisions without providing scope for exploitation of the plethora of

loopholes present in the notifications. The National Green Tribunal also has wider powers to

go into the merits of even policy decisions impacting the environment. The NGT also cannot

circumvent the prevalent law in the form of notifications, which are pro-industrialist

considering the number of EIA scams and the multiple amendments brought about in the

past two decades, with no significant remedial measures. The creation of an independent

regulator would provide the monitoring that goes into enforcing the laws of the land. This

scenario of a single regulator can be compared to that of a Comptroller Auditor General

(CAG) or Securities and Exchange Board of India (SEBI), with little or no political influence in

their functioning, concerning a wide number of issues.

23