Jairam Ramesh has become a national hero by upholding the rights of the Niyamgiri tribals and that of the ‘other traditional forest dwellers’ (OTFDs) in the POSCO project area, both in Orissa. In the case of the Niyamgiri, he withheld ‘forest’ clearance and in the case of POSCO, he withdrew it citing violations of the Forest Rights Act.

Also see: SC green bench directive an invitation to more violations

Undoubtedly, the Orissa government is guilty on both counts. But what has escaped notice is that much before these forest rights violations, Ramesh’s own ministry of environment and forests (MoEF) had granted a series of clearances, including those that he calls ‘in-principle’ clearance, to both the projects in violation of the rule of law. Had he or his ministry acted as the law required, there wouldn’t have been any  need to withhold or withdraw anything. The Vedanta group’s project is now a fait accompli and the POSCO project an agonising experience for everyone involved.

To understand how Ramesh and his ministry have unleashed a regime of ‘un-principled’ governance, let’s revisit these and other well-known projects.

Niyamgiri saga

The Vedanta group came up with a project to make metallurgical grade alumina and aluminium products in Orissa. The project included setting up a smelting plant in Jharsuguda (to make liquid aluminium from alumina powder); a refinery in Koraput’s Lanjigarh (to make alumina powder from bauxite) nearly 400 km away and mining of the Niyamgiri hills (to mine bauxite), about five km of aerial distance from the refinery. Obviously, all three operations are inter-linked and inter-dependent and work started on all three simultaneously.

You would expect the MoEF to consider and give (or deny) clearance to the project in its entirety and at one go. What actually happened is quite bizarre.

The smelting plant of Jharsuguda got environment clearance on March 7, 2007. The Lanjigarh refinery got environment clearance on September 22, 2004. The mining (by the Orissa Mining Corporation, which would then pass bauxite to Vedanta) got environment clearance on April 28, 2009.
 
Meanwhile, Vedanta sought environment clearance to expand its refinery capacity from one million tonne to six million tonne and received what is called the terms of conditions (TOR) on March 12, 2008.

What about ‘forest’ clearance? It came separately.

The smelting plant required no forest clearance because it was on revenue land, though within the Sambalpur elephant reserve. The refinery neither sought nor got this clearance because no forest land was involved (this claim turned out to be false as MoEF admits that the refinery has occupied 26.123 hectares of forest land). Since the refinery didn’t need forest clearance, the expansion plan also didn’t need forest clearance. The mining operation got ‘in-principle’ forest clearance on December 11, 2008 (delayed by more than a year because of litigation; MoEF’s forest advisory committee had given its approval in October 2007).

What MoEF has done now is to deny ‘final’ forest clearance to the mining (Niyamgiri hills) on the ground that the forest rights of the Dongaria and Kutia Kondhs have been violated by the state government.

But read Ramesh’s 20-page order. Page 17 carries a shocking confession. It says: “It is brought to my attention that this is the first time that the Dongaria Kondhs have directly challenged the project in any court of law. The appeals highlighted (the) several violations in the environmental clearance process. Some of the key charges raised were that the full environment impact assessment report was not made available to the public before the public hearing, different EIA reports made available to the public and submitted to the MoEF, the EIA conducted was a rapid EIA undertaken during the monsoon months. The matter is reserved for judgment before the NEAA (National Environment Appellate Authority).” (Ramesh’s own emphasis)

These facts were enough to deny ‘environment’ clearance, which came in September 2004. Or withdraw it in all these years for violating the Forest (Conservation) Act of 1984 and its guidelines. MoEF  did neither.
Ramesh’s excuse that he came to know the facts only now is not borne out by facts. These facts were made known to the Supreme Court-appointed Central Empowered Committee way back in November 2004, when the project was challenged. Besides, national and international media and human rights bodies have published these facts and national and international celebrities have held demonstrations in India and abroad since 2004.
Several other facts are worth noting.

n The legal battle challenging the clearance to the smelting plant started in 2007 (before the NEAA and then the Delhi High Court), on the ground of improper EIA and improper public hearing and continued till mid-2009. By that time, construction of the plant was over; it went into production in 2008. MoEF should have intervened but it didn’t. The smelting plant became a fait accompli.

n The legal battle against the refinery began in November 2004, which objected to non-disclosure of 26.123 hectares of forest land it had occupied, before the Supreme Court-appointed Central Empowered Committee. CEC recommended withdrawal of the environment clearance but by the time the apex court took it up, it was 2007 and the refinery had started its operations. MoEF should have withdrawn clearance as “concealment” of information violates the EIA Notification of 1994. It didn’t and the refinery became a fait accompli.

n MoEF gave ‘in-principle’ forest clearance to Niyamgiri’s mining in December 2008. Immediately, Vedanta began constructing a conveyor belt in violation of Forest Conservation Act and its guidelines. It was stopped by the locals. The whole world knew it. But MoEF granted ‘final’ forest clearance in April 2009. Its own inquiry established these violations in February 2010. But the clearance wasn’t withdrawn.

n Work on expansion of refinery is 60 percent complete without environment clearance. Ramesh admits it, but hasn’t done anything beyond promising to issue a show-cause notice. If history is any indication, this will soon become a fait accompli too.

n The N C Saxena report says the Niyamgiri mining lease has “limited relevance” as it can support the expanded refinery only for four years. Where from will Vedanta get the bauxite? Vedanta Alumina COO Mukesh Kumar says “all required bauxite deposits are available within a 40 km radius of the refinery.” What is to expect? Many more Niyamgiris, soon.

Ritwick Dutta, an environment lawyer who has been fighting for Niyamgiri tribals, makes an apt point: “Failure of governance on part of MoEF and continued support to the project through a series of approvals right up to 2009 led to the present situation. Had the MoEF done justice with its environment clearances, things would have been sorted out much earlier.”

POSCO pitfalls

South Korean steel major POSCO proposed to set up a steel plant in Orissa’s Jagatsinghpur with an investment of Rs 54,000 crore. MoEF granted it environment clearance on July 19, 2007. The ‘in-principle’ forest clearance was given on September 19, 2008. The ‘final’ forest clearance came on December 29, 2009.

On August 5, 2010, Ramesh issued a “stop order” to the Orissa government for denying rights of the other traditional forest dwellers and overlooking resolutions of palli (gram) sabhas refusing transfer of forest land.
The obvious question is how did MoEF give its final forest clearance in December 2009?

More than four months before the forest clearance, MoEF had, on August 3, 2009, issued a ‘binding guideline’ to all state governments which said “application for diversion under the Forest Conservation Act would be considered only after all due process contained in the Scheduled Tribe and Other Forest Dwellers (Recognition of Rights) Act, 2006 have been fully and satisfactorily completed”. (Ramesh’s emphasis)

Why this “binding guideline” was violated by Ramesh? A sub-committee’s report on the basis of which Ramesh issued the “stop order” points this out and says: “The MoEF ‘final approval’ of December 29, 2009 is itself a violation of its circular No. F. No. 11-9/1998-FC (pt), of 30 July 2009 (and therefore of the FRA), requiring FRA completion and gram sabha consent for forest diversion.”

This sub-committee made two recommendations: One, to ask the Orissa government to stop all work and second, “withdraw the forest clearance provided in December 2009.” Ramesh accepted the first but ignored the second.

What about the mining part of the project? MoEF is blissfully ignorant while the state is struggling to find a mine for POSCO. The Orissa High Court stayed the state’s last attempt to recommend a mine saying that proper procedure had not been followed.

Polavaram patchwork

Given the two glaring examples of violations of the Forest Rights Act, the least you would expect is that Ramesh wouldn’t commit the same mistakes again. Right? Wrong.

On July 28, 2010, he quietly handed over the ‘final’ forest clearance to the Indira Sagar (Polavaram) Multipurpose Project on river Godavari in Andhra Pradesh. (‘In-principle’ forest clearance had come on December 26, 2008 and the environment clearance on October 25, 2005.)

The order said the ‘final’ forest clearance was being given on three grounds: (i) “assurance” of the Andhra government that no forest rights need to be settled; (ii) a “clear understanding” that the Andhra government will ensure “no submergence of forest land” in Orissa and Chhattisgarh and (iii) that the rehabilitation and resettlement package will be implemented.
Firstly, this violates “binding guideline” of 2009 and other notifications about implementation of forest rights as a pre-condition to forest clearance.

Second, how will Andhra Pradesh ensure no submergence? MoEF had itself acknowledged in its environment clearance order of 2005 that the project will submerge 11 villages, over 1,000 hectare of land, that included forest land, affecting 6,316 people in Orissa’s Malkangiri and 16 villages, 2,398 hectare of land affecting 11,766 people in Chhattisgarh’s Dantewada.
Andhra’s “assurance” came only in January 2009. It said submergence could be avoided by constructing embankments along two rivers in these states. This is an absurd proposition and will cost Rs 600 crore, as against Rs 60 crore to rehabilitate those to be saved! It involves constructing 10 m high, 30-km-long embankments on each of Sileru and Sabri rivers on either side! Imagine the amount of land needed to dig up earth and to build the embankments!

Third, this alters the project substantially and hence, calls for cancellation of the nod given earlier. Fourth, it violates the pre-condition of “no submergence and displacement” set in 2008 for final forest clearance.

Fifth, both Malkangiri and Dantewada are Fifth Schedule Areas and so, the Panchayats (Extension to the Schedule Area) Act of 1996 is applicable. No forest clearance can be given without a “mandatory” approval of the gram sabhas. That is so because even if embankments were to be made, it would require a huge chunk of land and the nods from gram sabhas. No such approval has been taken.

Sixth, on December 19, 2007, NEAA quashed environment clearance to the project saying the affected people of Malkangiri and Dantewada had not been consulted. It said the clearance “is quashed on the ground that the impugned order was passed taking into consideration the Public Hearing which by itself was incomplete as it was not conducted in affected areas of Orissa and Chhattishgarh resulting in denial of access to information and opportunities to the affected people to express their views/opinions etc. on the Environmental Impact of the Project and consequential violation of Principles of Natural Justice.”

The Andhra High Court stayed the order and the case is now pending before the apex court.

So, when, on July 28, 2010, Ramesh gave ‘final’ forest clearance to the project, he actually had six reasons to withdraw the previous clearances and deny the ‘final’ one - all for violating various laws, guidelines and notifications. He did the opposite.
 
Incidentally, Indira Sagar will be one of the biggest hydropower projects -- bigger than the Narmada projects as it would displace about 277 villages and 1.8 lakh people.

Where does all this leave us? That our Green Crusader is not, after all, a hero to be looked upto but someone who has been violating all the forest, environment and tribal laws, his own “binding guidelines” and various notifications.

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Regime of 'fait accompli'

Lafarge’s mining in Meghalaya

French company Lafarge set up its cement plant in Bangladesh for which limestone was to be mined from Meghalaya’s Khasi hills. The project got MoEF’s environment clearance in 2001 on the basis of an Environment Impact Assessment report which said the proposed mining area was “wasteland and non-forest area”. So, no forest clearance was sought. Mining began and the plant went into production in 2006.

Later, in the same year, MoEF admitted that the mining area was actually a “natural/virgin forest” but allowed the operation by telling the Supreme Court in 2008 that a stay will adversely impact “credibility of India as an investment destination”! After four years of operations, the Supreme Court stayed mining in February 2010. MoEF and the government of India went and pleaded that the stay was harming Bangladesh’s economy and would spoil our relations with Dhaka!

The court has not vacated the stay. But it is a ‘fait accompli’. MoEF has already submitted a proposal for compensatory afforestation and local development plan for which Lafarge will pay the money.

Jindal’s Rantagiri thermal plant

Jindal’s 1,200 MW thermal power plant in Maharashtra’s Alphanso mango and cashew belt, Jaigad in Ratnagiri district, got environment clearance on May 17, 2007 on the basis of an EIA report which didn’t mention that Alphanso or cashew orchards abounded in the area. Litigations followed and fresh assessments were ordered. One of such studies by MoEF’s Expert Appraisal Committee (under vice chairman Prof CR Babu) admitted Alphanso and cashew orchards existed but said pollution is actually good for them!

It said: “All these observations amply suggest that both Alphanso mango and cashew were as healthy or even healthier in vehicular polluted environments as compared to those found in environments away from vehicular pollution.” MoEF continues to send expert teams, supervisory committees (the last one set up on June 28, 2010) to study the impact of thermal power plants on “sensitive” environment.

On September 1, 2010, one 300 MW unit of the JSW Energy went into commercial production. Rest three will do so by end of March 2011, said an official. Fait accompli!