India's legal backing for conservation

In an ongoing Supreme Court case (T. N. Godavarman Thirumulkpad Vs Union of India), the Maharashtra government asked the apex court for time until March 2005 to carry out the survey and demarcation of the boundaries of an Ecologically Sensitive Area in the state. The Court granted permission till the end of this year. The matter goes back to 2003, when under orders from the apex court, the Centre notified Matheran in Maharashtra as an Ecologically Sensitive Area. But boundary demarcation has since been hanging fire with the state government.

Ecologically Sensitive Areas (ESAs) are an important part of India’s legal regime for promotion of conservation. This article will examine this practice using recent and past examples, with a note on current implementation hurdles.

The Environment (Protection) Act 1986 (EPA) gives power to the central government i.e., the Union Ministry of Environment and Forests to take all measures that it feels is necessary to protect and improve quality of the environment and to prevent and control environmental pollution. To meet this objective the Central Government can restrict areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards.(Refer section 3(2)(v) of the Act.)

The Environment (Protection) Rules, 1986 (EPR) of the same law states that the central government can prohibit or restrict the location of industries and carrying on certain operations or processes on the basis of considerations like the biological diversity of an area, maximum allowable limits of concentration of pollutants for an area, environmentally compatible land use, and proximity to protected areas. (Refer section 5 (1) of the EPR, 1986; clause v accords biodiversity protection.)

Since the late 1980’s these two clauses have been creatively used by the government and citizen’s groups as a space for highlighting the sensitivity of a region and thereby granting it a special protection status. This has usually been done by restricting and prohibiting various forms of industrial/commercial activity in a region. Today, it is more popularly known as the declaration of Ecologically Sensitive Areas (ESA) or Ecologically Fragile Areas (EFA) various parts of the country.

Record of usage

1989 is perhaps the earliest recorded instance when these clauses were used effectively in the case of the Doon Valley, Uttaranchal. The notification categorized various kinds of industrial operations/activities for the valley. These included Red, Green and Orange on the basis of the extent of pollution that may be caused and the impacts on the valley. While Category Green are industrial operations allowed by the state without referring to the central government; the list of industries falling under Category Orange are permitted only after assessment by the State Pollution Control Board and subsequent consideration by the central government. The Red Category industries are not permitted in Doon Valley at all. It was also specified that any mining, tourism, grazing and future land use must be taken up in the valley only after the management plans are drawn up by respective state departments and these are approved by the central government.

It was in the same year that, Murud - Janjira in Maharashtra, received protection primarily with the objective to protect the fragile coastal ecology and the historical heritage of the place. The notification prohibited the location of all industries in certain areas along the coast. It is important to note that Murud Janjira is famous for the palace of the Nawab of Murud and the Janjira caves. Another place of immense historical importance is the 40 ft high fort of Janjira built by the Siddis, which is constructed in the sea. It is said that that there were repeated but failed attempts to capture the fort by the Marathas, the Peshwas, and later by the British

This was a very crucial notification for the region’s protection as the Coastal Regulation Zone (CRZ) notification (also under the EPA, 1986) had not been enacted then and came into being only about two years later. Interestingly though the CRZ was also notified by interpreting Section 3 (2) (v) and the entire Indian coastline came to be protected within the sweep of one notification. In the past, it was only small pockets of the country that were covered.

In June 1991, Dahanu Taluka was notified as an Ecologically Fragile Area with a set of guidelines prescribed for siting of industries in the entire block. This notification also categorized industries as Red, Green and Orange, and few other restrictions were placed on industrial expansion. This included recognizing a industry free buffer zone of 25 kms around the taluka. The state government was directed to prepare a master plan/regional plan for the taluka which was done and approved.

The clause was interpreted once again in 1992 as an urgent measure to protect the Aravalli Hills from the large scale mining. The Aravalli Hills are an extremely significant ecoregion running across Delhi, Haryana, Rajasthan and Gujarat. They act as a natural physical barrier between the Thar Desert and the rest of the country. In order to protect this sensitive region from the ongoing degradation, the central government prohibited mining processes and operations in parts of Haryana and Rajasthan states. They could from then on be carried out only with the prior permission of the government.

In yet another creative use of the, a “No Development Zone" within a radius of 15 km around the Numaligarh refinery in Assam was created to limit its further growth and resultant pollution. This was 1996. The background of this notification is that the Ministry of Petroleum and Natural Gas had proposed a petroleum refinery at Numaligarh, just east of the Kaziranga National Park. The 1996 notification came into being as a precautionary measure keeping in mind that the pollution from the refinery would have a impact on the natural resources and the wildlife habitat in the Kaziranga National Park. As the notification itself recognized, Kaziranga is “home of three-fourth of the total population of Rhino and contains largest single concentration of endangered species wild animals like swamp-deer, wild-buffalo, elephants, tigers and Gangetic Dolphins and it is the only park of its kind with a viable low land grassland ecosystem in South Asia.”

In late 2000, the Ministry of Environment and Forests (MoEF) attempted to protect the unique environment of the Himalaya by proposing that “in order to ensure environmentally sound development of hill towns, the following restrictions and conditions are proposed for all future activities in the areas in the Himalayan region…” Location planning in urban areas of the hills, rain water harvesting and stable hill roads, critical for the Himalayan region and its people, were all emphasized upon. However the current status of this draft notification is not known.

By now the use of the EPA had reached a point when it was more precautionary in nature and not reactionary. This primarily means that while recognizing a possible threat to a region, the EPA clause (3(2)(v)) was being used to seek legal protection. It is in this light that the two most recent ESA notifications of Mahabaleshwar-Panchgani (2001) and Matheran (2003) must be viewed. Environmental groups campaigned to protect the areas from impacts of large scale and unplanned tourism and related development. It was however, the Supreme Court that directed the notification of the Matheran ESA through the Godavarman Case. The Court ordered for a zonal master plan for the area to be prepared by the State Government, the appointment of a monitoring committee, among other regulations.

Since 1999 a group of NGOs and academicians have been involved in a campaign to declare a 7,350 sq.km. stretch of the Western Ghats in North Karnataka, Goa and South Maharashtra as Sahyadri Ecologically Sensitive Area (SESA). The same principles are the foundation of this demand. This proposal remains pending with the government. In the meantime, a range of threats including mining, illegal felling, conversion to agriculture, proposed hydro-electric projects and so on continue to loom large. It was over a year back that an official site visit had been undertaken by the MoEF.

Similar proposals are also being worked upon for the Eastern Ghats in Andhra Pradesh.

Criteria for declaring an ESA

In 2000, the government’s practice of using the EPA Act and Rules to notify ESAs was further formalised. The MoEF approved a comprehensive set of guidelines laying down parameters and criteria for declaring ESAs. A committee constituted by MoEF put this together. The guidelines lay out the criteria based on which areas can be declared as ESAs. These include Species Based (Endemism, Rarity etc), Ecosystem Based (sacred groves, frontier forests etc) and Geomorphological feature based (uninhabited islands, origins of rivers etc).

The legal regime is flexible in its protection of a range of ecosystems (like coasts, forest, plains islands) and the kinds of protection. It can potentially be one of the innovative and effective manifestations of the EPA/EPR regulations. In fact, ESAs provide an opportunity for regional planning which can take into account both ecological security and livelihood security. Each notification can actually direct that master plans for the ‘development’ of the region be done only with effective participation of local communities, where local needs and priorities can be built in.

As has been the case in some earlier notifications like Dahanu, notifications can actually provide and opportunity to set up committees/authorities at district/local level with representation of local people, researchers and members of the concerned agencies. These multi-sectoral committees can together plan for the region and also oversee the implementation of what has been notified.

ESAs contrasted with other environmental regulations

All other provisions under the EPA including the Environment Impact Assessment and Public Hearing Notification, Coastal Regulation Zone Notification, Hazardous Waste Handling Rules, Siting Guidelines etc., are still applicable to an ESA/EFA. At the same time, the ESA/EFA should not be viewed as being against the objectives of protection of other central government legislations. ESAs need to be seen as an opportunity for supplementing the protection granted by other laws or systems.

For instance, when an ESA spans national parks or sanctuaries (like in the SESA proposal), the Wildlife (Protection) Act, 1972 (WLPA) will still be operational. A management plan for the ESA can specify this. Also, ESA based protection does not necessarily need to restrict itself to state boundaries. The CRZ notification exemplified it in 1991; proposals such as SESA present opportunities for the same. Landscape planning is the need of the hour and many groups are working towards it.

There is another aspect that distinguishes the supplementary nature of ESA based conservation. ESAs are primarily restricting industrial/developmental processes, while the WLPA seeks to protect species of animals or plants and ecosystems which perform functions of maintaining micro climate, water catchments, etc. In fact a government committee for drafting the National Wildlife Action Plan has made recommendations that 10-25 kms around Protected Areas and Biosphere Reserves, Heritage Sites to be considered as Ecologically Sensitive Areas.

It is often cited that Biosphere Reserves (also being implemented by the Ministry of Environment and Forests), also allow for landscape planning, can cut across a variety of ecosystems, allow for local participation and so on. However, there is one critical difference between ESAs and Biosphere Reserves, that of a legal backing. The central government guidelines on Biosphere Reserves (BRs) mainly focus on scientific research and monitoring of biodiversity in the region, with no direct focus on conservation. However, none of this has any legal recognition, and is not mandatory as BRs are being declared under a ‘programme’. This is the sharpest edge of ESAs as against BRs where the basis of ESAs is a central legislation.

Implementation hurdles

All this said, the toughest hurdle that ESAs face today is that of implementation.

There is very little monitoring on the status of most of these notifications and ironically many local groups don’t know of their existence. More specifically, there was news of the Central government seeking to disband the Dahanu Taluka Environment Protection Authority, the quasi-judicial body constituted under Supreme Court directives. This is probably because the DTEPA prevented a fuel gas plant, a port and other similar initiatives which would have been disastrous to the ecological security of the region.

In some cases like Matheran, as pointed out in the beginning of the article, the survey and demarcation of the boundaries of the ESA is still pending. The matter came up as part of a hearing in the Supreme Court on 15th October 2004 as part of the ongoing Godavarman case. At the hearing, the counsel representing the Maharashtra state government said that the delay was caused because of monsoons and elections in the state. He further asked for time till March 2005 to carry out the task. The court granted permission till December 2004.

Despite difficulties, what is significant is that legal backing for conservation exists. The role of concerned citizens and NGOs as catalysts in this process is critical. The more widely the ESA concept is understood, the more likely it will be used. Its recognition as an important tool for securing conservation of natural resources and people’s livelihoods will then follow.