Sethusamudram: Court opinion amiss?

Last month, the Chennai High Court dismissed a writ petition against public hearings on the Sethusamudram Shipping Channel Project (SSCP). The proposed Rs 2,000 crore SSCP involves cutting an 83-km-long shipping channel 800 metres wide and 12 metres deep across the Palk Bay situated between Tamilnadu coast and Sri Lanka. The petitioner was the Coastal Action Network, seeking the court's directions on the grounds that the hearings were not in compliance with legal requirements. The court ruled that the petition was premature and instead directed the Collectors of six coastal districts to complete the hearings expeditiously.

But the Judges did not simply dismiss the petition, they also went much further. The bench dryly observed “that in the name of environment protection, scientific and technical progress of the country should not be obstructed. No doubt environment has to be protected, but at the same time, we must never overlook the basic aim of our country, which is to make India a powerful and modern industrial State." The Judges have determined that in considering developmental activities, only minimal weight must be given for the protection of environment and local communities.

The Bench further stated that "there is no conflict between industrialisation and environment protection." Pointing out that rivers, air and water in industrialised nations are less polluted, they simply asserted that "industrialisation not only creates wealth necessary for preserving and protecting the environment, but it also creates the modern mind in which protecting the environment is instilled in childhood."

These assertions by the Judiciary are not only in contradiction to the historical path of development in industrialised nations, but also ignore the crucial role of public participation in these nations.

The court is correct in noting that the air and water are indeed cleaner in the developed countries than in most developing nations. The court's opinion suggests that it is because of industrialisation and development that the population became attuned to the idea of clean air and water. But, in fact, the opposite is true – it is because the people have demanded clean air and water that those nations were forced to adopt initiatives for cleaner development. Public participation and a comprehensive addressing of environmental concerns became a requirement for developmental activities. Therefore, references to developed societies should be arguments for more public involvement and environmental action, not less.

Let’s take the example of the United States of America, which is generally assumed to be the most developed country in the world. The development of this nation came with a high cost, as rivers were catching fire and smog was killing thousands of people. Rapid industrialization and infrastructure development in the U.S. was effectively destroying the environment. However, it was not wealth resulting from the development that led to environmental protection, but public and political pressure that culminated in the first Earth Day on April 22, 1970.

Twenty million people across the country participated in the Earth Day movement to register their protest against the growing pollution. The grassroots support for environmental protection was larger than other accompanying people’s movements in the United States: for civil rights and against the Vietnam War. It was this strong public pressure, and not wealth resulting from developmental activities, that forced the U.S. government to establish the Environment Protection Agency.

The US National Environmental Policy Act (NEPA) in 1970 was one of the first laws ever written that established the broad national framework for protecting the environment. NEPA's basic policy was to assure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that significantly affects the environment. This Act also made the public participation mandatory in the environmental decision making process.

A closer look at the role of public involvement in the environmental clearance process reveals the importance given to the peoples’ view in current and future industrialization in the United States. The Environmental Impact Statement (EIS) of any project is prepared by individual government agencies that propose to build, sponsor, or license projects. The public involvement starts right from the inception of the project and it is mandatory for the concerned authority to address the comments and concerns raised by the public even at this early stage. Interested public can direct appropriate government agencies to receive notice of any projects requiring EIS that will affect areas or resources in which they may have an interest.

The project agency gives early notice of the project, both as published notices and as individual notices to those requesting it. After the initial ‘scoping’, the responsible government agency prepares a draft EIA and distributes it to members of the public who have asked for it during the scoping period. Comments on the draft EIA may be offered either in writing or at mandatory public information hearings. Taking into account all public comments, the agency prepares a revised final EIA and a final decision document.

Importantly, the agency must demonstrate its consideration of public comments with written responses to all comments of significance. The agency must indicate the basis on which it contests the substance or implication of the comments, and how the agency plans to deal with the problems raised. The agency then renders a decision for approving or modifying and approving, or rejecting the project. The decision must explain the agency’s conclusions about any significant impacts, about the adequacy of any reasonable alternatives, and about the reasons for deciding to go ahead in spite of potential environmental impacts.

Any work on the project is not allowed unless proper clearance is granted.

For example, the US Army Corps of Engineers is the nodal agency for preparing the EIS for the Cape Cod wind project. The Cape Wind project is the first offshore wind park in the United State five miles off the Cape Cod shore in Massachusetts. The wind park will consist of 130 wind turbines, with a maximum power output of 420 megawatts.

I attended one of the four public hearings for the Cape Cod Project. This hearing was called after the initial EIS was prepared and the comments were sought before the finalization of the impact assessment. Over six hundred people from all over the New England area attended the hearing. The project notice from the Army Corps presents a general description of the project, provides its action plan for preparing the EIS, and invites individuals, NGOs or other public entities to offer ‘scoping’ comments. This provides a space for the public to offer suggestions about the range of issues, problems and analyses that must be provided for a proper and complete EIS.

In India, there is no provision for public involvement at the initial stage of project’s approval by the Ministry of Environment and Forests (MoEF). In contrast to the US, there is no scoping period at all. In addition, the Environmental Impact Assessment (EIA) report is not prepared by the relevant government agency, but by a consultant hired by the project proponent – which can lead to an enormous conflict of interest. The public in India is involved only after the draft EIA is prepared – at a much later stages of the clearance process. In effect, the public is in the dark until the EIA is suddenly put out for comments. And when comments are received, it is not mandatory for the MoEF to address the concerns raised by the public.

Finally, the MoEF is the only agency for the country that approves the prepared EIA, despite the fact there might be no expertise in the Ministry for assessing the accuracy of the prepared EIA. The Ministry does have expert committees, but its role comes at the very end of the clearance process, when the EIA assessment has been finished and the public hearings are over. The expert committees do not have any powers to reject or approve the project. Also, most of MoEF experts committees have retired IAS officers, MoEF officials and officials from other government departments. There is hardly any public representative or environmental groups. On the other hand, in the US, the entire project is handled from the very beginning by an agency which has a jurisdiction over the project.

Added to all this is the 'fait accompli' approach: land acquisition and project construction start on projects even before the environmental clearance is granted.

Therefore, there is a big difference in the level of public participation and scrutiny of developmental projects in the United States and in India. While public participation is encouraged in the U.S., it is practically discouraged here. In order to advance India’s development, it is important to strengthen the public’s involvement not reduce it. But not only has the Chennai High Court ignored the practice of public participation prevalent in developed countries but, it also appears to have ignored the principles developed by the Indian Judiciary itself.

For example, the judgement in the case of Vellore Citizen’s Welfare Forum vs. the Union of India recites the Brundtland Commission’s definition of sustainable development that the needs of the present have to be met without compromising the ability of the future generations to meet their own needs. The Calcutta High Court, in People United for Better Living in Calcutta v. State of West Bengal stated that: “The present day society has a responsibility towards the posterity for their proper growth and development so as to allow the posterity to breathe normally and live in a cleaner environment and have consequent fuller development.”

Furthermore, the Supreme Court while dealing with commercial shrimp farming in the S. Jagannath case, held that a strict environmental test is required before permission is granted for the installation of such farming in fragile coastal areas. It added that there must be a compulsory environmental impact assessment which would consider intergenerational equity and rehabilitation cost. In another case similar to Coastal Action Network's petition before the Chennai High Court, the Gujarat High Court (Center for Social Justice Vs Government of Gujarat) in 2000 gave detailed guidelines for public hearings based on the local situation and need. In doing so, it went beyond the national EIA regulations.

The recent Tsunami disaster in the Indian Ocean also suggests that it is important to revisit the EIA reports prepared for the Sethusamudram project. The Tuticorin Port Trust (TPT) had commissioned the National Environmental Engineering and Research Institute (NEERI, Nagpur) to prepare a preliminary report in 1998 and the EIA as well as a technical feasibility report (TFR) in 2002. NEERI's work states that the canal is feasible technically and has the potential to operate without any environmental hazard. NEERI presented its work to the Tamil Nadu Pollution Control Board (TNPCB) and the MoEF in June 2004, towards final clearance. It is NEERI's EIA and TFR reports that give the SSCP its current legitimacy.

However, as it was already pointed out earlier, the environmental clearance process in India is fraught with conflicts of interest. There is no initial public scoping, no public participation in the early stages of impact assessment, and so on. Jurisdiction and single-agency issues compound matters further. Residents of coastal districts must be involved in the decision for approving the SSCP project. The Chennai High Court should have analyzed the Coastal Action Network's petition based only on its legal merits, which amounted to looking at any discrepancies in public hearings for this project vis-à-vis the prevailing regulations. It should have maintained a non-partisan view rather than come out as supporter of the Sethusamudram project.

India must learn from the commitment that industrialized countries have made for peoples’ participation and environmental concerns in their current and future development, and not repeat mistakes of their past. The Madras High Court judgement therefore appears to be an aberration from existing Indian jurisprudence. On balance, an organic process of meaningful peoples’ participation is much needed, rather than using the judiciary to promote the environmental causes – which can have its own pitfalls. The clearance process must not shun public participation (through hearings) as a hindrance to the country’s development.