ENVIRONMENTAL PROBLEMS and JUDICIAL INTERVENTION

o The Silent Valley Project.

o The Tehri Dam Project.

o The Narmada Valley Project

o Thermal Power Projects (Dahanu Case).

o Konkan Railway Case.

o The CNG Controversy (Delhi Case).

The Silent Valley Projects

In the late 1970s, the Silent Valley project stirred up a hornet’s nest in India’s first major ‘environment versus development’ controversy. The proposed project, now abandoned, was to dam the Kuntipuzha River in Kerala’s Palghat district. As it flows through the valley, the Kuntipuzha drops 857 meters, making the valley an attractive site for generating electricity. Those promoting the project claimed that it wou1d produce 240 MW of power, irrigate 10,000 hectares of land and provide over 2000 jobs. Environmentalists, on the other hand, asserted that as home to one of the few remaining rain forests in the Western Ghats, the valley ought to remain pristine. They further contended that with over 900 species of flowering plants and ferns an several endangered species of animals and birds, Silent Valley was one of the world’ s richest biological and genetic heritages.

In the campaign to save Silent Valley, legal strategies played a peripheral role. The environmentalists’ success was due to a combination of several other fActors, including the grass-roots campaign led by the Kerala Sastra Sahitya Parishad (KSSP); intense lobbying by several non-Governmental organizations and influential environmentalists within and outside Government; and international pressure exerted on Prime Minister Indira Gandhi.

The adverse effects from the conversion of the Silent Valley into a hydroelectric project were listed thus: first, the deforestation was bound to affect the climatic conditions in the State and even outside, by depriving the State of its legitimate share of rain during the Monsoon; Second, the preservation of the forests was needed for conducting research in medicine, pest control, breeding of economic plants and a variety of purposes, and third that deforestation was bound to interfere with the balance of nature, as between the forest land on the one side and arable and others types of lands on the other.

The argument stressed that a project like this, if sanctioned and setup would have its impact on environment, and this has to be carefully considered. Copious citations were made from various treatises, reports, and publications, to show the importance of the environmental factor in industrial planning.

The Tehri Dam Project

The rivers Bhagirathi and Bhilangana rise in the Garhwal Himalayas in Uttaranchal and flow south to the plains as the Ganga. As part of a larger plan to trap the waters of the Upper Ganga basin, a three billion dollar clay core, rock fill dam is being constructed at the confluence of the Bhagirathi and Bhilangana, close to the Garhwal town of Tehri. The lake created by the dam will extend upto 45 kms in the Bhagirathi Valley and 25 kms in the Bhilangana Valley with a water-spread area of 42.5 sq. kms. It will submerge nearly 100 villages, including Tehri, a historical capital. As many as 85,600 families will be relocated as a result. On the benefits side of the equation, the project is supposed to generate 2,400 MW of electricity, create irrigation facilities for 270,000 hectares of land, and create a supply of 500 cusecs of water to New Delhi.

The Tehri dam project has provoked controversy focused on three issues. The completed dam will displace many people and submerge several towns, among them the town of Tehri; the region is vulnerable to earthquakes and the dam may be structurally incapable of withstanding them or may perhaps even cause them; and the possible failure of the dam could kill hundreds of thousands of people and destroy downstream towns of immense religious significance. Of particular concern are the 1,70,000 inhabitants of the down streams Hindu holy towns of Hardwar and Rishikesh. Both the resettlement policies and the structural flaws of the dam have provoked civil protests, lawsuits and international attention that have repeatedly stalled the project, which was begun in 1978.

The Tehri project was unsuccessfully challenged in the Supreme Court in a writ petition filed by the Tehri Bandh Virodhi Sangarash Samiti (TBVSS) in 1985. In April 1987 the Indian National Trust for Art and Cultural Heritage (INTACH), an ‘intervenor’ in this petition and a leading non-Governmental organization in the field of conservation, sponsored an independent assessment of the economic feasibility of the dam. The principal finding of the multi-disciplinary team that conducted the appraisal was that the benefit to cost ratio of the Tehri dam, after calculating social and environmental costs and benefits, works out to 0.56:1, well short of the 1.5:1 ratio adopted by the Planning Commission to sanction such projects.

In addition, in 1986, the Soviet Union agreed to help fund the project with loans at extremely concessional terms. As a part of the agreement with the Indian Government, Soviet experts conducted a review of the proposed project and made several ominous findings, the most frightening of which was that the high seismicity of the Tehri area had not been adequately taken into consideration by Indian planners. The INTACH team, under the leadership of Vijay Paranjpye, also found that while the Indian Government projected a useful life of 100 years, the Actual siltation rate would render the dam useless in 62 years or less. Finally, while the authorities put the number of displaced people, or oustees at 46,000, the INTACH team found that 85,600 people would be displaced by the project.

The Supreme Court dismissed the petition in 1990 after a very limited enquiry. Although the Environmental Appraisal Committee had unanimously concluded that the Tehri project should not be approved, the Central Government relied instead on an opinion of the Department of Mines to convince itself and the court that the project was sound.

The Narmada River springs from a holy pool amidst Hindu temples on the Amarkantak plateau in the forested Shahdol district of Madhya Pradesh, and then winds westwards along a 1,300-ki1ometre course to drain into the Arabian sea. The Narmada is one of India’s most sacred rivers. A verse in the ancient Matsya Purana commands those who wish to wash away their sins to bathe three times in the Saraswati river, seven times in the Yamuna or once in the Ganga, but if it is the Narmada that one visits mere sight of the river is cleansing enough.

The Narmada basin drains an area of 98,796 square kilometers and is home to 21 million people, nearly 80 per cent of who live in villages. About a quarter basin is covered in moist and dry deciduous forests and about 60 per cent of black soils composed of silty clay with low permeability.

Although the Narmada Valley Project was conceived in 1946, final planning and work on it commenced only after the Narmada Water Disputes Tribunal passed its final orders in 1978. This Tribunal was established in 1969 under India’s Interstate Water Disputes Act of 1956 to resolve the dispute on river water sharing among the riparian States of Madhya Pradesh, Gujarat and Maharashtra. The tribunal also laid down conditions regarding resettlement and rehabilitation of the people to be displaced by the submergence-the ‘oustees.’

The Narmada Valley Project, if and when completed, will rank as the 1argest irrigation project ever planned and implemented as a single unit anywhere in the world. By the year 2040, the project authorities hope to complete 31 major dams (11 on the Narmada and 20 on its tributaries), 135 medium dams and 3000 minor dams. Out of the 31 major dams, the ones most controversial are the Sardar Sarovar Project (SSP) in Gujarat and the Narmada (Indira) Sagar Project (NSP) in Madhya Pradesh. The NSP, which has the largest submergence zone and will create biggest artificial reservoir in India, is years behind the SSP in construction. The SSP, however, is well under way and has become the rallying cry of internal and Indian NGOs as a symbol of everything that is wrong with the way big dams are built, from international funding to environmental impacts to displacement abuse of people.

The SSP is intended to bring drinking water to Kutch and other drought-ridden regions of Gujarat. The dam will impound water in a 455 foot high reservoir that will submerge 37,000 hectares of land in the three States of Gujarat, Maharashtra and Madhya Pradesh. It will also divert 9.5 million acre feet (MAF) of water into a canal and irrigation system. The canal is the biggest in the world-450 kilometer long. The aggregate length of the distribution network will be 75,000 kilometer and will require 150,000 hectares of land, more than four times as the land submerged by the reservoir.

The Narmada Water Disputes Tribunal (NWDT) established specific conditions regarding the resettlement and rehabilitation of the people that would be displaced by the creation of the Sardar Sarovar dam. The language of the Tribunal award clearly States that all ‘Project Affected Families’ would be re-established as communities with access to water, education, and health (Clause 1V(1" on a ‘land-for-land basis’. Clause IV (6) States that ‘in no event shall any areas in Madhya Pradesh and Maharashtra be submerged under the Sardar Sarovar Project unless all payments of compensation and costs is made for acquisition of land and arrangements are made for rehabilitation.’ This clause has served as the centrepiece for litigation by the Narmada Bachao Andolan (NBA).

The NBA focused its writ petition in the Supreme Court on the rehabilitation of the affected people. It presented a comprehensive review of the project and re- quested that no further submergence or displacement takes place. On 5 June 1995 the Supreme Court granted a stay, citing the questionable rehabilitation process. Construction was suspended at a height of 81.5 meters.

After four years of investigations and mounds of further litigation, the Supreme Court surprised many by issuing an interim order on 18 February 1999, which permitted the resumption of construction on the dam up to a height of 85 metres. One of the major reasons the Court allowed work to resume was based on an affidavit provided by the States of Maharashtra and Gujarat that all oustees had been fully rehabilitated and indicating that arrangements had been made for those to be displaced by the increase of 3.5 metres in dam height. Overall, the court disregarded a great deal of the information prepared by the NBA. Instead, it used the Government data as the basis for the deliberations. Although the Court did allow work to continue, it also recognized a three member ‘Grievance Redressal Authority’, an independent Committee appointed by Gujarat, which was to investigate two issues: (a) whether the rehabilitation of the resettled oustees had been completed in a satisfactory manner, in accordance with the NWDT award and other Government policies; and (b) whether the preparations to resettle individuals who would be displaced if the height were to be raised to 90 meters were adequate. This Committee was to report on the State of the displaced in mid-April when the court would entertain the motion of raising the height of the dam to 90 metres.

Although the Court did State in its decision that all those displaced by the increase to 85 meters needed to be adequately rehabilitated, what type of signal does the decision give to those displaced who now face the sudden and immediate threat of submergence? Do you believe individuals might end up accepting less advantageous rehabilitation packages than they might have otherwise? Why?

In this interim decision the court restricted itself to considering only issues of ‘relief and rehabilitation.’ Interestingly, the NBA argued strongly that the entire project ought to remain suspended until a full re-examination has been conducted. The NBA brought up environmental issues, cost-benefit issues, and constitutional and equity issues surrounding the displacement process itself. Is this narrowing of the issues problematic? Why? Do you believe the court erred in accepting the notion of displacement of individuals as long as they are rehabilitated? Can a community ever be ‘rehabilitated’?

Not surprisingly, the court’s 18 February 1999 decision to allow construction to resume touched off a flurry of Activity within dam opposition groups. A series of marches, protests, and claims of Government fraud ensued. Many opposition groups, with the NBA leading the cause, challenged the assertions that Government officials made in court concerning land availability and the status of those currently displaced by the SSP.

In order to fully expose the incorrect Government claims, the NBA and a host of other concerned groups representing oustees, women, dalits, tribals, farmers and other downtrodden people, organized marches and sit ins throughout India, aimed particularly at dam sites and Government buildings. Their purpose was to force the Government to admit its untruths concerning the availability of land for the displaced. Several such protests were carried out between March and September 1999. However, the most significant of these rallies, entitled the ‘Manav Adhikar Yatra’ or the Human Rights March, occurred in early April, 1999. This extensive march covered hundreds of kilometers and included thousands of participants. The march started in Badwani, Madhya Pradesh and wove through several dam-affected communities in the Narmada Valley, as well as numerous cities and towns before reaching New Delhi early April 8^th.

The campaigns conducted by citizen groups are having some positive outcomes. In March, 1999 the Government of Maharashtra admitted that there was not land to sufficiently rehabilitate the families who would be submerged by the court sanctioned five meter rise in dam height. Remember that Maharashtra authorities had made earlier claims in the Supreme Court that there was land available for project-affected families. Authorities have admitted that the number of displaced families they had cited in the affidavit submitted to the court was based on numbers of a survey conducted in 1983-1984. This figure represented only one tenth of the Actual number of displacees.

Much of the recent controversy and litigation that has taken place is in response to the consideration of the court to allow building up to a height of 90 metres. However, recall the dam proponents admit that benefits will not accrue until the height of 110 metres (the final height planned is 138 metres). If completed as planned, opponents say that 320,000 people will be displaced by the SSP. Should the court be viewing the project in a more comprehensive manner considering the difficulties the Government is having locating land for displacees at these lower dam levels.

The Narmada planning process seems to have been replete with false claims of benefits, even aside from the deeply flawed scheme for resettlement and rehabilitation. The Governments involved continued to spend public money without environmental clearances, and presumably will do the same with future projects unless harsh penalties are imposed on them. Meanwhile, in the United States and France, large dams are being decommissioned as their high maintenance costs and damage to fisheries have become intolerable. Mega-dams may be a symbol of development in India, but they are beginning to seem an obsolete technology elsewhere in the world.

Thermal Power Projects (Dahanu Case)

North of Bombay, on the west coast of India lies Dahanu, an ecologically sensitive region with a thriving agrarian economy. Dahanu is best known for its chikoo fruit. Its orchards also grow vast quantities of guava and coconut. It supplies fodder, rice, milk and poultry to the surrounding regions and the Bombay metropolitan area. Fishermen reap a rich harvest of fish, crabs and shrimp. According to the Dahanu Taluka Environment Welfare Association (DTEWA) the sub-district is under forest cover. About 65 per cent of the Dahanu population is comprised of tribals who are engaged in cultivating their land an orchards.

The DTEWA and its energetic secretaries, Nergis Irani and Kitayun Rustoms have vigorously campaigned against the despoliation of this area. Their campaign began in the late 1980s when the Bombay Suburban Electric Supply Company decided to establish a 500 MW coal-fired thermal power station at Dahanu. BSES engaged a consulting firm to locate a suitable site for the power station to supply electricity to Bombay. Out of the nine sites investigated, only one-Bassein-was found to be technically viable. However, this site was discarded because it fell within the Bombay metropolitan region and would add to the existing high level of pollution in the area. Eventually, the authorities approved Dahanu.

The location of any thermal power station, which draws on seawater to cool its turbines, is bound to impact the marine environment. The warm water discharged by the plant alters the local ecology. Some species thrive in the warm water whilst others perish in the changed environment. Environmentalists feared that emissions from the proposed coal-fired plant, particularly sulphur dioxide, would adversely affect the chikoo crop. Another concern related to environmental harm from the disposal of ash in wetlands and reclaimed creek areas. The complex web of ecological issues and social impacts posed by the Dahanu siting were reduced to three easy-to-explain contentions before the Bombay High Court. The Bombay Environmental Action Group (BEAG) and DTEWA urged the court to stall the project since (i) the Central Government had issued environmental clearance contrary to the opinion of its Appraisal Committee of the Union Ministry of Environment and Forests (MEF); (ii) the project was being set up within 500 metres of the High Tide Line (HTL) mark, contrary to the guideline and condition imposed by the MEF; and (iii) the discharge of water would increase the sea temperature and adversely affect marine life.

A division bench of the Bombay High Court rejected the petitions finding that the site offered several advantages. The land was barren, no tree would be felled, there was no habitation at the site and consequently no relocation of villagers, and the use of marine water for cooling would help conserve scarce fresh water resources. Accepting the stand of the State Government and BSES that the 500 metres distance from the HTL would be maintained, the court found that the concerned authorities had considered all the relevant factors, had imposed stringent safeguards and hence there was no justification for interfering with the project under Article 226 of the Constitution. The environmental groups petitioned the Supreme Court for special leave to appeal under Article 136 of the Constitution of India. We carry an excerpt from the Supreme Court judgment.

On 20 June 1991, the MEF declared Dahanu as ‘an ecologically fragile area, and imposed restrictions on the establishment of industries under section 3(2)(v) of the Environment (Protection) Act of 1986 (EPA). This notification lists the industries that are permitted and prohibited in Dahanu and also required the State Government to prepare within a year a regional plan based on the existing land use in the region. The State was asked to clearly demarcate on the plan the existing green areas, orchards, tribal areas and other environmentally sensitive areas. The Dahanu notification prohibited a change in land use and confined industrial Activity in the Taluka to a maximum of 500 acres within designated industrial estates.

The notification was a triumph for the environmental groups which had long campaigned to preserve Dahanu’s natural heritage. The notification remains the foundation of DTEWA’s efforts to protect the Dahanu environment.

Konkan Railway Case

It was a long-standing demand of the people residing in the west coast region of India re for a cheap and fast transport to improve the economic conditions and make accessible the hinterlands in the State of Maharashtra, State of Goa and State Karnataka. Their dreams came true when the Central Government decided to provide a broad gauge railway line from Bombay to Mangalore and thereafter to extend to the State of Kerala. The Central Government was considering providing a railway line for a considerable length of time but the project was postponed from time to time due lack of requisite funds. Ultimately the Central Government took a decision to provide the line and to achieve that purpose. The Konkan Railway Corporation Ltd., a public limited Company, was set up. The length of the line from Bombay to Mangalore along the west coast is to be 760 kilometres and out of that 106 kilometres line runs through the State of Goa, The cost of the project was envisaged at Rs. 1391 crores in the year 1991-92. The Central Government set up a Corporation as the total allocation of the Planning Commission was only to the order of Rs. 300 crores and, therefore it was incumbent for the Corporation to raise the funds for seeking equity contribution from the Ministry of Railways and the beneficiary States of Maharashtra, Goa, Karnataka and Kerala.

The Konkan Railway alignment passes through different States and the Corporation is required to construct large number of tunnels and projects over rivers. The Railway line will have 136 major bridges and 1670 minor bridges and there will be 71 tunnels with a total length of 75 kms. The Konkan Railway is the biggest railway project undertaken in the Indian sub-continent in the present century. The project was approved after detailed and long-drawn survey of various aspects of the matter and the Corporation was constituted in July, 1990 to undertake the exercise which is of an extensive magnitude. The project commenced on 15 October 1990 and the Government of Goa approved the alignment passing through the State of Goa on 17 December 1990.

The reason behind the controversy was that claim that the alignment would cause ecological damage even though the damage will not be felt immediately, such damage will be gradual and will lead to the deterioration of the land quality and will affect large number of people.

On July 28, 1998 The Supreme Court of India ruled that all eight-year-old buses and pre-1990 three-wheelers and taxis would have to be converted to compressed natural gas (CNG) by March 31, 2000. For the rest of the buses, three-wheelers and taxis, the deadline was fixed as March 31, 2001. This order, however, is getting to be the most difficult to implement. Resistance from the diesel lobby and lack of support from the Government nearly sabotaged the initiative. It is only because of the strong stand taken by the Chief Justice bench that some progress is being made. Instead of building up consumer confidence in the CNG market, the Government and industry alike have tried their best to propagate myths about CNG to mislead people. Even biased expert comments have been flaunted to discredit the move to bring in CNG. Without explaining the public health benefits expected out of the CNG strategy, administrative lapses and technical snags have all been mixed up to create confusion about CNG technology. Instead of taking pride in the fAct that one of the largest CNG programmes of the world has been launched in Delhi, efforts are being made not to let it happen. Despite the opposition, Delhi today boasts of more than 2,200 CNG buses, 25,000 CNG three-wheelers, 6,000 CNG taxis and 10,000 CNG cars.

International experience shows that moving to any new technology is always beset with hurdles, primarily opposition from entrenched business interests. But other Governments have taken strong proactive approaches to counter such opposition, and raise public awareness. A notable example is the public notification that was issued by the US Department of Energy to separate myths from Acts about CNG when similar barbs were hurled at it in the US. To counter what it calls ‘industry folklore’, the US Department of Energy issued the notification, entitled Natural Gas Buses: Separating Myth from Fact, in April 2000. The release deals with every issue that is confusing Delhi’s decision makers: cost, effect on global warming, safety, and health effects of nano particles or ultra-fine particles from CNG. “It becomes very difficult for people to understand the benefits of an alternative fuel programme if they are confronted with misinformation or poor comparisons based on false assumptions,” points out the notification.

Similarly in Delhi, ever since the Supreme Court orders have come into effect, there has been a spate of statements from Government officials, politicians, some experts and by the media on CNG.

The Environmental Acts and Laws in India are analyzed according to the nature of the problems. Accordingly they are categorized under the following Sectoral Areas.

* WATER POLLUTION RELATED

* AIR POLLUTION RELATED

* NOISE POLLUTION RELATED

* COASTAL ZONE RELATED

* FOREST CONSERVATION RELATED

* WILDLIFE RELATED

* ENVIRONMENT PROTECTION RELATED

* HAZARDOUS SUBSTANCE MANAGEMENT RELATED

* OTHER LAWS / ACTS RELATED TO THE ENVIRONMENT