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Topics: Public Participation

India: District Court Intervenes To Stop Faulty Public Hearing

By Ritwick Dutta (Posted: October 9, 2008)

In a rare instance, the District Court of Raigarh on 17-9-2008, in the Central Indian State of Chhattisgarh, stayed the proposed Public Hearing for seven projects which included thermal power plants and steel plant expansion projects on the ground of non compliance with the procedure stipulated under the Environment Impact Assessment Notification.

Local resident and activist Ramesh Agrawal of local civil society group: Jan Chetna had objected to the manner in which public hearings are being conducted by Chhattisgarh Environment Conservation Board (CECB). A complaint was filed before the Chief Judicial Magistrate’s Court Raigarh to halt the seven public hearings on the following grounds:

• CECB failed to hold public hearings within stipulated time of 45 days from receipt of request from project proponent and hence not empowered to hold public hearings. • The public were not provided information with respect to the proposed project, this restricts active and effective participation in the decision making process. • Raigarh District is facing sever pollution caused by industries and it is of utmost importance to know people’s concern for upcoming projects since it will affect their Right to Life guaranteed under Article 21 of the Constitution.

Judge A.Toppo expressed his strong concern by citing Supreme Court’s verdict and held that ‘Permission to Establish of industries must only be granted only after assurance that proposed industry will make every effort for conservation of environment. Development is must in this era and equally important is conservation of environment for existence of human life and other living beings. We should maintain balance between Development and Conservation of Environment.’ Court stayed three public hearings.

The District Courts used to be major avenues for redressal of grievances for the public prior to the advent of Public Interest Litigation which is centered in the High Court and the Supreme Court under Article 226 and Article 32 of the Constitution respectively. Today despite the increase in number of civil society groups and increasing recourse to judicial remedy, District Courts are rarely relied on by environmental activists. The liberal relaxation of locus standi and the activists approach of the judges in the mid 80’s and 90’s prompted aggrieved citizens and groups to approach the Supreme Court and High Courts directly circumventing the District Courts. This led to several landmark decision of the higher Courts which are cited by judicial bodies throughout the world. However, over the past few years, the higher courts have increasingly adopted the approach of ‘judicial restraint’ and non interference in the ‘economic and policy’ affairs of the State. Unfortunately, many of the environmental issues get clubbed under this broad category leading and this has led to increased frustration among those who relied on higher Courts to seek relief and fight state policies. The initiative of Jan Chetna is therefore landmark, they chose to approach the judicial forum which is closest to the affected people i.e District Court and got relief. At a time when justice from the Higher Courts eludes struggle groups, the District Courts decision is commendable and also worth replicating in other parts of the country.

Ritwick (ritwickdutta@gmail.com) is an environmental lawyer with Legal Initiative for Forest and Environment (LIFE) and heads the TAI Himalayan Coalition.

India’s First “Referendum” on an Industrial Project?

Posted by Ritwick Dutta (October 8, 2008) 

In a very first in terms of public participation in environmental decision making, the State/Provincial Government of the western Indian State of Maharashtra organized on 22nd of September 2008 a Referendum in District Raigad for deciding the fate of the new Special Economic Zone. As per reports, farmers are said to lose over 3400 Hectares if the project is allowed to come up and have been opposing the project not only in terms of the displacement and loss of land but also the impact on the ecology of the area characterized by agricultural holdings, dense forests and mangroves and coasts offering varied livlihoood options.
The referendum was held in stages and as per reports in the media, the project has been opposed by an overwhelming majority of villagers. The proponent of the Special Economic zone, Indian Industrial giant : Reliance Industries claimed that the referendum reflected the view of ‘so called farmers’ and not the ‘landowners’.

As per the existing practice only a Public Hearing is conducted under the provisions of the Environment Impact Assessment Notification, 2006 for eliciting the views of the affected public. However, the outcome of the Public hearing is rarely give weight in the decision making process. Organizing a Referendum thus is an interesting development and offers hope for communities opposed to socially and ecologically destructive projects.

Earlier, the affected farmers under the banner of Shetkari Samiti had filed an Appeal before the National Environmental Appellate Authority with assistance from Legal Initiative for Forest and Environment (LIFE) against the approval granted to the 4000 MW Thermal power Plant at Raigad on the grounds of: • The project been approved only on the basis of a Rapid Environment Impact Assessment report based on two months data despite the need for a comprehensive one year data; • The outcome of the Public Hearing not been considered (in fact the Ministry of Environment and Forest been totally unaware of the Public Hearing process) by the decision making body; • The thermal power project is located in highly ecologically sensitive estuary and coastal zone and also a designated Green Zone where such activity is prohibited

The outcome of the Referendum is clear so far as the opposition of the farmers are concerned. However, seeing the views of the people, the government seems to have turned turtle. While the Referendum was announced and conducted by the District Collector (the highest government officer of a District), the Chief Minister (the head of the State Government) has stated that what was held was not a ‘referendum’ at all.

Like most struggles in India, this too had landed in the Court with Reliance Industries filing an Petition in the Bombay High Court. Whatever its outcome, the events in Maharashtra marks an important landmark in the struggle for greater voice for the affected communities on decisions which affect their lives and environment.

Ritwick (ritwickdutta@gmail.com) is an environmental lawyer and leader of the TAI Himalayan Coalition

Let Justice Flow – A TAI Success Story

Posted By Lalanath de Silva (October 2, 2008) 

This is a story about how community leaders activated the Supreme Court of Sri Lanka to intervene and save a river the Deduru Oya. If you cannot view the video from the video frame below you can do so by clicking here

The Deduru Oya river bed had been mined for years for sand. Sand is used in buildings and road construction. Over exploitation of the river had lead to major environmental damage river bank erosion, lowering of the water table, salt water intrusion, poor water quality and habitat destruction.

The Supreme Court acted on a human rights case brought by community leaders. Led by Chief Justice Sarath N. Silva, the Court banned sand mining in the river and ordered the Geological Survey and Mines Bureau to stop issuing mining permits. The Court galvanized the Police to arrest and prosecutes illegal miners. The issue received wide publicity in the press.

Mining operations have been stopped for about two years now. As a result natural recovery has begun. Additionally the community leaders have been able to obtain funds through the UNDP and commence rehabilitation of the river bank in two critical areas.

The case was made possible through financial and legal aid given to community leaders by the Green Movement of Sri Lanka. The green Movement is part of The Access Initiative Coalition of Sri Lanka.

Assessing Access in Yunnan, China

Posted by Monika Kerdeman

The Yunnan coalition started their TAI assessment process during a training workshop from Jan 13-15, 2008, led byTAI core team partner Thailand Environment Institute. The coalition of civil society groups includes Eco-Watch, Yunnan Academy of Social Science (YASS), Yunnan Institute of Environmental Science (YIES), Yunnan Environmental Science Society (YESS) and Centre for Mountain Ecosystem Studies ICRAF-China, the coalition’s lead organization.

At the workshop, coalition members were trained on the TAI Assessment Toolkit. Since the training, the Yunnan TAI coalition translated the indicators in the TAI Assessment toolkit into Chinese, and gathered information and relevant documentation, laws, regulations and guidelines for review.

As part of their research, Yunnan coalition members met with the Provincial Water Bureau, Yunnan Provincial Environment Protection Bureau, Agricultural Bureau, Yunnan Provincial Forestry Department, Vegetative Protection Station, Air Quality Monitoring Station, local agricultural stations, environmental protection stations and other related sectors to acquire more information. Interviewees included experts, villagers, and consumers as well as local authority staff.

The Assessment in Yunnan examines eight case studies on access to information. These studies are on various environmental issues including; the state of environment report of Yunnan Province, air quality monitoring in Kunming city, accidental explosion at a sulfur depot and vitriol factory of the Sanhuan chemical company, noise quality monitoring in Kunming city, environmental information of Yuntianhua International Chemical Company in Yunnan, monitoring of drinking water quality in Songhuaba reservoir in Kunming, GMO information monitoring in Yunnan, and paraquat herbicide accidents in Yunnan.

Five case studies on public participation are: public participation in environment protection decisions in eco-tourism policy in Diqing prefecture, public participation in the urban agglomeration development plan in south of Yunnan, public participation in the extension project of the 2nd hospital of Kunming, public participation in the water saving regulatory of Kunming city, public participation in decision-making of Provincial Forestry Development Strategy and public participation in the environmental impact assessment of the construction of Honghe Steel Factory..

The research also looks at access to justice. The access to justice case studies are on pesticide residue information in food – claimed by people to the people’s congress, public’s claim on the dam building on Salween River, local residents’ collective claim on old trees felled by a company in Baiyu Village, Xishan District of Kunming, and the claim on the pollution accident of Longma Phosphorous Chemical Company in Xundian, Yunnan.

Tribals Fight for Access Rights in North East India

By Ritwick Dutta (August 16, 2008) 

There are reasons to smile for the members of the Idu Mishmi community in the North Eastern State of Arunachal Pradesh located in the Himalayan Mountain Ranges: The Government on 13-08-08 has cancelled the proposed Public Hearing for the proposed 3000 MW Hydel Power Dam to be located in Dibang District of Arunachal Pradesh.

For more than a year, local tribal communities have been protesting against the dam touted to be among the highest in the Country on the ground that it woud devastate the fragile ecology and destroy the culture and livelihood of the Idu Mishmi Community numbering only 8000 Individuals.

The Dibang Dam is a classic instance of a fight of a local community for access to Information and Participation and a partial victory of the community. When the first Public Hearing was announced, local tribal community sent a legal notice through Legal Initiative for Forest and Environment (LIFE) requesting for postponement of the hearing in view of the fact that the Environment Impact Assessment Report was not available at designated places and only an electronic version was made available in a state where people hardly had access to Internet. The Government relented and directed that no Public Hearing be conducted till the required EIA Reports are made available at the designated places for access to the community. The Public Hearing was planned over two phases. The first Public Hearing saw large scale protests by community members.

As the Public Hearing process was underway, in a shocking development aimed clearly at undermining the Public consultation process, the Prime Minister of India, Dr Manmohan Singh decided to lay the foundation stone for the project at Itanagar, the State Capital located more than 500 Km from the project site ! This was met with stiff opposition both locally and nationally.

Finally, the date for the second Public Hearing was fixed on 20-8-2008. However, the community was shocked to learn that the place for conducting the Public Hearing was more than 100 Km from the affected villages and project site. The Environment Impact Assessment Notification, 2006 provides for conducting the Public Hearing in or in proximity to the project site. In the North Eastern Part of the country characterized by undulating terrain and heavy rainfall travelling 100 Km could very well take even upto a day’s journey.

The Community members with the support of Neeraj Vagholikar of NGO Kalpavriksh contacted Rahul Choudhary, Environmental lawyer and member of TAI Himalayan Coalition who immediately shot off a legal notice during the first week of August, 2008 citing violation of Principles of Natural Justice and provisions of the EIA procedure by conducting the Public Hearing at such a distant place which would make it difficult for the affected community to participate and thereby defeating the whole purpose of Public Hearing.

See also A Public Hearing without the ‘real’ public: Notes from TAI Himalayas

On 13th August, Community members were pleasantly surprised to know that the proposed Public Hearing has been cancelled. Even more important was the fact that the Chief Minister of the State has called for a meeting with all the concerned organizations who have been raising the issue with respect to the Dam to be held on 20-8-2008.

The happenings in the far eastern State of Arunachal has important lessons for the rest of the Country. The community is convinced that there is no use of Public Consultation unless it is based on adequate and proper information about the dam and its impact and the fact that people should be able to participate effectively in the Public Hearing. Easy access to the place where the Public Hearing is conducted is as important as access to information. In the absence of these pre conditions, the Public Hearing process becomes a mere formality and procedure to be accomplished in the EIA process. For the Idu Mishmi Community, it is their first step in securing their access rights.

Ritwick Dutta Ritwick (ritwickdutta@gmail.com) is the leader of the TAI Himalayan Coalition and the founder of Legal Initiative for Forest and Environment (LIFE) and is based in New Delhi

The Grass is Going to be Greener This Year!

Posted By Ritwick Dutta (July 20, 2008) 

The benefit of Right to Information and citizens’ participation in environmental issues is not just limited to NGO’s and citizens. It can also be of great help to government officers, especially to those trying to implement the law and Judgments of Court but who face resistance from other departments.

The recent instance in the famous tea-growing Darjeeling Hills in India provides an interesting example. As the example of Darjeeling shows, the petitioner got the relief even before the case was heard by the Supreme Court special committee on Forests, in view of the strong evidence obtained through the Right to information Act, 2005.

The issue relates to an ecologically fragile part of the Himalayas located in Darjeeling viz the Senchal Wildlife Sanctuary which is home to several endangered species. A part of the Sanctuary comprising grasslands was used for dumping old vehicles by the local government, namely the Darjeeling Gorkha Hill Council. The dumping encroached upon 20 acres of land of the Protected Area. This was done in violation of the provisions of the Wildlife (Protection) Act, 1972 and even the orders of the Supreme Court.

The dumping of vehicles continued until April 2008. The forest officer in charge of the Sanctuary, Ms Sumita Ghatak, directed the Hill Council to remove the vehicles. The Hill Council resisted, and continued to dump its old vehicles thereby polluting and destroying the fragile ecology. The orders from the Forest Department not only met with strict resistance but also led to the Hill Council making a formal complaint before the government for strict action against the Forest Officer for harassment and undermining the authority of the Council.

It was at this moment that conservation groups and concerned citizens got together. Using the Right to Information Act (RTI), 2005, local citizens obtained all interdepartmental correspondence which revealed a shocking level of arrogance of the Hill Council to the provisions of law and to the orders of the Supreme Court. It was clearly seen that the manner in which the Hill Council responded to the direction of the Forest Officer, prima facie constituted contempt of the Court. The Hill Council sought to overlook the provisions of all conservation laws.

Using the various information obtained under RTI, a petition was filed by Wildlife Trust of India, a national level NGO, before the Central Empowered Committee (CEC) of the Supreme Court asking for initiation of contempt proceedings against the Principal Secretary of the Hill Council. As is required by the Court procedure, a copy of the petition was sent to the Hill Council.

Surprisingly, within three days of receiving the copy of the petition and without even the case coming up for hearing, the Hill Council wrote to the Forest officer that in view of the petition filed in the CEC, the Hill Council would like to surrender the entire 29 acres immediately and also take away all the vehicles dumped by it!

Within days (first week of May 2008), the vehicles were removed. The land is now back with the wildlife and Forest Department.

Is this a case of effective judicial remedy, or the benefits of RTI, or responsive civil society intervention? Well, it is a mix of all and the beneficiary is obviously the wildlife of Darjeeling hills which will get to munch in an extra 29 acres of grassland free of rusting vehicles!

Contributed by Ritwick Dutta (with inputs from Vyom Raghuvanshi, WTI) Ritwick (ritwickdutta@gmail.com) leads the TAI Himalayan Coalition and filed the above mentioned petition on behalf of Wildlife Trust of India.

New Regulation for Public Participation in Ecuador

Published: 2008

In October 2006, the environmental movement welcomed the adoption of the regulation on public participation and consultation in decision making. This fact generated great expectation by the implications in environmental management.

However, in May 2008, President Correa issued a new regulation that governs the mechanisms for social participation in environmental management. In the view of Manolo Morales, President of CEDENMA, “what –the new regulation- pursues is to facilitate the process and make it more expeditious manner that does not become an obstacle to development”.

This new regulation sidelined several important criteria reflected on the previous, for example, consultation pre-implementation and monitoring of impacts generated by the laws, policies and strategies. This creates a gap again, and highlights the need that the processes of policy development involve citizen participation and especially the stakeholders who will be affected (positively or negatively).

At only include participation and consultation processes for environmental impact assessment, can be considered a regulatory setback. But there is also the perception that the previous regulation could not be implemented due to lack of resources, capacity of Ministry of Environment and information. This may have generated in the government the need for a more “real” and operational mechanism.

 

Nuevo Reglamento de Participación en Ecuador

En octubre de 2006, el movimiento ambiental celebró la aprobación del Reglamento sobre Participación Ciudadana y Consulta Previa. Este hecho generó gran expectativa por las implicaciones que tendría en la gestión ambiental.

Sin embargo, en mayo de 2008, el Presidente Correa emitió un nuevo reglamento que regula los mecanismos de participación social en la gestión ambiental. A criterio de Manolo Morales, Presidente de CEDENMA, “lo que persigue –el nuevo reglamento- es facilitar el proceso y hacerlo más expedito de manera que no se convierta en un obstáculo al desarrollo”.

Este nuevo reglamento deja de lado varios criterios importantes que recogía el anterior, como por ejemplo, la consulta de pre-ejecución y el control de los impactos generados por las normas, políticas y estrategias. Esto último genera nuevamente un vacío, y resalta la necesidad que los procesos de desarrollo normativo cuenten con la participación de la ciudadanía y especialmente de los actores que se verán afectados (positiva o negativamente).

Al únicamente regular la participación y consulta en los procesos de evaluación de impacto ambiental, se puede considerar un retroceso normativo. Sin embargo también existe la percepción que el reglamento anterior no pudo ser aplicado en la práctica por falta de recursos, capacidad del propio Ministerio del Ambiente e información. Esto pudo haber generado en el gobierno la necesidad de contar con un mecanismo más “real” y operativo.

Greenwatch Uganda Champions Information Rights

By Lalanath de Silva (Posted: March 4, 2008)

Laws alone are not enough to ensure environmental protection. Civil society organizations often play a critical role in bringing those laws to life. In Uganda, Greenwatch has done exactly that for the country’s laws on access to environmental information, the first of which passed in 1998.

Under Ugandan environmental law, the public has several opportunities to make its voice heard about new development projects. Projects that might affect the environment of Uganda have to be approved by the National Environment Management Authority (NEMA). Before such projects are approved the developer must perform an Environmental Impact Assessment(EIA), which studies the environmental impacts and examines environmentally friendly alternatives. The law requires that the press announce that the assessment has been performed and that the written results are made available to the public for comment. If comment shows that a project is controversial, NEMA must hold a public hearing.

The public can also challenge NEMA decisions in the Ugandan courts, and that’s where the civil society organization Greenwatch, Uganda (Greenwatch) has distinguished itself. As early as 1999, the organization began suing the government to honor the regulations requiring the assessments.

Although the court refused to stop the signing of the agreement, Greenwatch and other advocates of greater public participation consider the case a partial victory: for the first time, a Ugandan court recognized that concerned advocates could bring a case to vindicate environmental laws. Justice Richard Okumu Wengi of the High Court of Uganda also declared that an assessment and NEMA approval were required before the project could go forward.Greenwatch’s first court challenge of a NEMA decision was to a hydro-electric project funded by the International Finance Corporation and other banks. A utility company – AES Nile Power – was attempting to sign a power purchasing agreement with the Government of Uganda, but the company had not performed an assessment nor had it obtained NEMA approval.

(Citation: NAPE VS AES Nile Power Ltd High Court Misc. cause No. 26 of 1999)

AES Nile Power then proceeded to perform an EIA, and NEMA approved the project. Yet when Greenwatch requested information on the project and the power purchase agreement, the Ugandan Government refused. Review of the power purchase agreement would tell the public if the electricity produced would be affordable and would ease the burden on the environment. Greenwatch sued the Attorney General of Uganda to obtain the document. The court decided that the power purchase agreement and all connected documents were both public documents and therefore ought to be made available to the public.
(Citation: Greenwatch Vs AG & UETCL)

A recent UN report concludes that while Uganda has made remarkable progress in the application of EIA procedures, there is a need to improve key aspects of its application. The report states that there is a “need to further develop approaches to ensure effective public participation in EIA, as well as need to create and strengthen regional and sub-regional EIA networks to complement national efforts for promotion of EIA.”

Greenwatch has also successfully used the space provided for public participation at EIA public hearings to stop the spraying of herbicides on Lake Victoria – the second largest lake in the world and the largest in Africa. Greenwatch produced convincing evidence to show the dangers of pesticide spraying. Greenwatch also showed that the entire operation might not be financially viable because the Ugandan company’s parent company in the U.S.A was bankrupt.

Greenwatch continues to advocate in the public interest today. Most recently, it obtained an interim order against Warid Telecom (U) Ltd., stopping the construction of a telecommunication tower in a residential area. The company had failed to perform an EIA and the residents had fears of a cancerous gas affecting them and the construction noise creating a nuisance. Warid Telecom has challenged these allegations saying that there is no scientific basis for any of them. The application for a temporary injunction will be heard soon.

Greenwatch has been closely associated with The Access Initiative coalition in Uganda and has blazed a trail championing citizen rights of access to information, public participation and access to justice (“access rights”) in environmental matters. It also works closely with the Government of Uganda to train public officers and judges in environmental law.

“Every person has a right to information under the Ugandan Constitution,” says Kenneth Kakuru, the Director of Greenwatch, Uganda. “An Environmental Impact Assessment is a public document.”

Resources and Legal Citations:

Full Judgments and more information can be obtained from the Greenwatch website, www.greenwatch.or.ug.

Freedom of Information Victory in India

By Lalanath de Silva (Posted: January 28, 2008)

For the first time in its ten-year history, the National Environmental Appellate Authority* (NEAA) has overturned a decision by the Government of India, quashing an environmental clearance granted by the Ministry of Environment and Forests. In its decision, the Appellate Authority cited a failure of public participation and access to information.

On December 19, 2007, the NEAA quashed environmental clearance for the Polavaram Multipurpose project granted by the Ministry of Environment and Forests. The project, which would have displaced close to 3000 families (totaling about 200,000 people) in the States of Andhra Pradesh, Orissa and Chattisgarh, was to have included a hydroelectric power component of 960 MW and irrigation facilities. The project was proposed by the State of Andrah Pradesh.

The project was opposed by civil society organizations on the grounds that the required Environmental Impact Assessment had been performed inadequately, and the Ministry of Environment and Forests had failed to conduct any public hearings in the affected States of Orissa and Chattisgarh.

During the hearing, both States contended that the legally required environmental clearance was granted by the Ministry of Environment without considering the opinion of the states though they were affected by submergence.

Immediately after the Appellate Authority’s decision, the State Government (Andrah Pradesh) filed a petition for the Andra Pradesh High Court (the highest court in the State) to review the case. The Court has now temporarily suspended the decision of the Appellate Authority and fixed a hearing for February 11.

The NEAA found that:

  • People to be affected by the project had no access to the executive summary in the notified place
  • People to be affected by the project had no opportunity to participate in public hearings and express their view on the likely environmental impact of the construction of the project

The Appeal against the clearance was filed by Dr R. Sreedhar of Academy for Mountain Environics and represented by Ritwick Dutta. Dutta is a leader of the TAI network in India, and is preparing to launch a formal, TAI assessment of access to justice, public participation, and access to information in Northern India.

*The National Environmental Appellate Authority is the only competent Authority set up by Parliament through an Act to hear appeals from aggrieved/ affected persons against the grant of environmental clearances by the Ministry of Environment and Forests to different projects across the country.

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