A Dangerous Precedent

First published on February 08, 2024

By Bhavya Iyer

Why are developmental projects approved, despite the fact that their impacts are clearly detrimental to the ecosystems around them?

Projects that threaten environmental destruction, deforestation, or otherwise negatively impact forests require prior Environmental Impact Assessments (EIAs) to study and analyse the potential impacts they may have on the ecosystems and their biodiversity, and on local communities. Across the world, such EIAs help decision-makers to either act on potential mitigation measures to reduce negative impacts, or to reject the proposed projects outright. From the looks of it, India may be diluting this process to the point where any post-facto action would need to work in a fait accompli situation.

At the end of 2023, the Ministry of Environment, Forests and Climate Change (MoEFCC) sent a note to state governments on the ministry’s PARIVESH portal, informing them that the Ministry may grant ‘in-principle’ approval to hydropower projects, even before Carrying Capacity Studies (CCS) and Cumulative Impact Assessment Studies (CIS) were carried out. This implies going forward with financial investments without assessing any serious upstream, downstream, geological or social impacts on the river ecology and its surrounds. This is because the MoEFCC considers the grant of approvals under the Forest (Conservation) Act, 1980 to be a “time taking process”. The notice referenced a 2013 order (OM NoJ-11013/I/2013-IA-I dated May 28, 2013), which stated that the CCS and CIS would be taken into consideration when granting environment and forest clearances. These studies are crucial if more than one hydropower project is planned in a river basin – but the studies are not required for the first project being set up in the  river basin. Such studies analyse environmental flow, biodiversity, muck disposal sites, and resettlement and rehabilitation of people in the region, among other critical factors.

The new rules passed as per the new Forest Conservation (Amendment) Act, 2023 (FCAA) in effect strips protections thus far afforded to deemed forests. Rather than protecting our environment and wildlife, this could lead to wide-scale deforestation. Photo: Rajesh Chaudhary/Sanctuary Photolibrary/Image For Representational Purposes.

The standard terms of reference for environmental clearances stipulate that such studies be considered by the Expert Appraisal Committee (EAC) and Forest Advisory Committee (FAC), which will “consider” the result of these studies in granting clearances.

Bad Fait

Scientists point out that such ‘in-principle’ clearances will result in a fait accompli situation, where once work has begun and time and money is spent on a project, clearances might be freely given on the basis that “the damage had already been done”. The record shows that in practice, this is precisely what large project proponents have relied on doing, possibly in collusion with consultants who ‘manage’ the consequences in subsequent meetings with the MoEFCC officials who have shown a tendency to turn a Nelson’s Eye to environmental regulations, and impact and social assessment studies for potentially destructive development projects. The Supreme Court, in fact, recently stayed an order passed by the MoEFCC on January 2022, allowing the grant of ‘post facto environmental clearance’ to projects that had started without the necessary clearance.

Court Proceedings

A plea was filed against this order by the NGO Vanashakti, arguing that an EIA had to be undertaken before the commencement of any project, and that granting post-facto clearance was  against the provisions of the Environment (Protection) Act, 1986 (EPA). The advocate appearing on behalf of Vanashakti in court argued that the EIA notification of 2006, and Rules, mandated prior environmental clearance for all projects. However, in 2017, the government issued a notification providing six months for violators to apply for post-facto clearance – in essence, granting legitimacy to illegal projects and defaulters. This was the executive order stayed by the Madras High Court. However, in 2021 the ministry released a standard operating procedure enabling project proponents to apply for post-facto clearance. When this was challenged, the Supreme Court said the stay applied only to Tamil Nadu. On the basis of this restriction, the Ministry released yet another order in 2022, to grant post-facto clearances to a slew of projects.

The recent SC stay on this order has, for now, put a stop to processing and granting of clearances to projects that had applied for post-facto clearances after April 13, 2018.

From Bad To Worse

Yet, in December 2023, ex post facto clearance was granted to a private university, which had encroached and built on forest land in the Aravallis. Further grant of such clearances in the Aravallis is being considered, as per the minutes of a Forest Advisory Committee meeting on December 18.

This situation will continue, under the new rules passed as per the new Forest Conservation (Amendment) Act, 2023 (FCAA), which in effect strips protections thus far afforded to deemed forests by subverting the SC’s Godavarman judgement, which tasked states to identify all unclassified forest areas. Ignoring  protests by people across all sections of society against the FCAA, the bill was passed. Urgent measures are required to preserve the legislations that have been safeguarding India’s life-saving environment. All eyes are now on the Supreme Court, which is hearing a PIL against the FCAA, arguing that the Act, rather than protecting our environment and wildlife, could lead to wide-scale deforestation. At the time of publication, the matter has been scheduled for further hearing.

What You Can Do
1. Write a polite letter to the Minister of Environment, Forests and Climate Change, Shri Bhupender Yadav (mefcc@gov.in, Mail address: Indira Paryavaran Bhawan Jorbagh Road, New Delhi – 110003, India) using points from the
above campaign.
2. Join hands with credible organisations and help them by documenting local biodiversity in nearby wetlands, marshlands, grasslands, forests, and other areas, which may or may not be officially protected.
3. Report cases of illegal development and deforestation on forest land to the concerned authorities and write with well-documented evidence of any wrongdoing you see.
4. Tweet your concerns on X, tagging the MoEFCC official account (@moefcc) mentioning the threat you observed and that you would like the authorities to insist on due process for environmental clearances. Use the hashtag #nopostfactoclearance.
5. Use creative ways to amplify the issue – art, poetry, music and dance, reels, or even comics!


join the conversation