Already destroyed? Ok, then.

At the time of my earlier article in this publication on the Naupada swamps of Andhra Pradesh's Srikakulam district (see this link, environmental approval to the Bhavanapadu thermal power project promoted by East Coast Energy Private Ltd (ECEPL) in this ecologically fragile region had been challenged before the National Environment Appellate Authority, (NEAA) and decisions were pending.

Before I proceed further, it is significant to reiterate certain facts. First, it has been acknowledged by the Expert Appraisal Committee (EAC) of the Ministry of Environment and Forests that the area where the plant is located is an "ecological entity of incomparable value requiring conservation and protection". A position they themselves contradicted subsequently. This site is also just five kilometres from Telineelapuram pelicanry, a globally recognised area for avifauna, and a nesting and foraging ground for large-sized migratory birds. The Naupada swamp also supports both fishing and agriculture-related livelihoods in the area.

However, despite initial recommendations for a change in plant location, the site remained the same when the environmental approval was granted on 11 February 2009. Compounding this, the company had begun draining water from the Naupada swamps and initiated excavation work before the approval had been granted - in clear violation of law. The report of the National Board for Wildlife (NBWL), however, gave a lease of life to the illegal construction; it recommended mitigation measures to address the damage in set of secondary recommendations, although its primary finding was that ECEPL should not have undertaken development on this site and should vacate the ecologically important wetland.

NEAA Challenge: Is the area a wetland?

In the NEAA, the appeal filed by Mandapaka Narsinga Rao (through advocate Ritwick Dutta) challenging the environment clearance went through 11 hearings and one site inspection, after which the Authority gave its decision on 30 August 2010. The hearings included allegations and rebuttals, details of which have been highlighted in the final order of 30 August. At the time this case was being heard, the NEAA comprised of only one member, J C Kala, a retired Indian Forest Service officer.

In his judgment, Kala notes that before arriving at the decision on the case, he had ascertained whether or not the proposed project is located in or affecting an important bird area, and whether it posed a threat to the ecoystem as well as livelihoods of locals. The order then refers to the series of assessments of the Wildlife Insittute of India (WII), the Bombay Natural History Society and the report of the NBWL all of which pointed ot the ecological fragility of the area. It remarks that MoEF had not kept its environment clearance in abeyance although the common overall thrust of all the expert reports was not in favour of the project.

The MoEF has placed before the NEAA a detailed set of reasons for the same. Their primary justification was based on the fact that the Government of Andhra Pradesh had responded saying that proposed site of the Bhavanapadu plant does not fall within the Naupada swamps as per the approved Coastal Zone Management Plan (CZMP) of the state. Responses from other state government departments had indicated that the area was not conducive habitat for both resident and migratory large birds. It is these and other set of reasons that led the MoEF to conclude that the approval may be granted to the proposed thermal power plant.

Of course, whatever one may say or hear from a distance, there is a simple way to discover if the project site is a wetland, and the appellants insisted that the NEAA must decide this question by actually visiting the location, which it did between 28 and 30 June 2010. Just prior to the site visit, the NEAA had asked Dr. Asad Rahmani, Director of BNHS to depose before it on the issue. The final order of the NEAA refers to the deposition: "prima facie, an ecologically important wetland deserved to be declared as a conservation reserve and should not have been cleared for the project."

During the site visit itself, NEAA concluded that various reports pertaining to the project, including those from MoEF were incorrect, and that contrary to the basis on which environment clearance was granted by MoEF, the area was indeed a wetland and marshy area.

Yes, but ...

The NEAA order not only observed the area is a wetland, but acknowledged that the company is to blame for destroying it. It agreed with both BNHS as well as Dr. S Kaul, an internationally renonwed wetland expert, that the "elevation of the site through excavation in several places by the project proponent, after the grant of EC nearly a year ago, has caused irreversible changes in the character of the wetland."

However, having nodded acceptance to the view that the project should not have come up in the first place, the NEAA order takes a different turn, saying "... however, in view of the non-reversibility of some of the ecological impacts which had already occured due to the earth work, the project authorities will have to demonstrate utmost seriousness for reducing their ecological footprints by ensuring strong and effective measures to reduce and remedy the impacts that could have been prevented had the plant not been located here for development."

Recall that earlier in the process too, the NBWL had said roughly the same thing. However, no 'minimising the ecological footprints' was carried out, nor was permission for the project withdrawn. As a result, the damages continued to mount, until they became 'irreversible'. And now the NEAA has ruled that since there isn't any environment left to save in the region, the project shouldn't really be stopped on environmental grounds anymore! Despite the range of irregularities pointed out by scientific "experts", and despite the objections of local people, the NEAA concluded that it would serve no public interest to ask the project proponent (who had started construction prior to clearance, carried out inadequate assessments and so on) to halt the project.

Why? Because, says the order, stopping the project would result in a setback to the welfare activities already set into motion by the company!

Rather than upholding the appropriate clauses of environment law and penalising the company (and possibly, others) for their actions leading to the destruction of the wetland, the NEAA order seeks to "balance development with conservation". The order shockingly concludes, "in order to strike the said balance in the interest of justice and fair play, the Authority is inclined to agree with the views of Dr. Rahmani and Dr. Kaul that at this stage, all efforts should be made to contain the impact on ecology and on the people of the area at the same time maximising the fruits of development to the affected villages and the project be allowed to continue."

The NEAA's definition of containing the impact on ecology and people does not include disallowing the permanent change in land use that will occur due to the power plant, nor does it include penalty for causing this, despite the Authority's own findings that the company had caused damage to the ecologically fragile area. Instead, the order merely added some more conditions to be fulfilled by ECPEL, in the name of conservation.

The final message is stark: violate the law, and your clearance will not be revoked. Indeed, the reason it will not be revoked is that you have already violated the law, and you must therefore be allowed to go on doing so!