Landmark fiat

The Union Ministry of Environment and Forests reverses its approach and refuses clearance to the Vedanta mining project.

in New Delhi

ON August 24, Jairam Ramesh, Union Minister of State for Environment and Forests, uploaded on the Ministry's website the text of his detailed decision rejecting the application from Vedanta Resources for forest clearance to start bauxite mining in Orissa's Niyamgiri hills. The decision is a rare instance of how the executive can use its powers to correct a perceived injustice resulting from its own earlier decision and directions of the Supreme Court. Jairam Ramesh's decision reversed the Ministry's first-stage forest clearance granted to the Orissa government in December 2008 and made inoperative the Supreme Court's August 8, 2008, clearance to Vedanta's Indian affiliate, Sterlite, to divert forests for bauxite mining.

The crux of the controversy is the Centre's powers to stop diversion of forest land for non-forest purposes. Ever since the subject of forests was transferred from the State List to the Concurrent List under the Constitution in 1976, the Centre's powers to act directly in managing the country's forests have been recognised. The Forest (Conservation) Act of 1980 conveyed Parliament's intention to arrest the rapid decline in forest cover which had, until then, averaged one million hectares a year. The Act prevented the cutting of trees in forests without the Central government's approval. However, interpretation of the Act's provisions gave rise to legal problems. The meaning of the word forest' used in the Act was contested, and the need for prior approval of the Central government in all activities in the forest area was questioned before the Supreme Court. Although the Supreme Court resolved this issue of definition easily in terms of the dictionary meaning of forest', the cases before it presented an opportunity for it to assume a much more active role than it had been assigned originally. Thus, the Supreme Court began to issue, from December 1996, sweeping directives to oversee the enforcement of forest laws across the country. It aimed to regulate the felling and use of trees and the movement of timber in all States to promote sustainable use of forests. It sought to do this through a Special Bench and a Central Empowered Committee (CEC) to examine the technical issues, whose advice has not always been binding on the Bench.

Jairam Ramesh's decision is significant because for the first time since the Supreme Court began playing an activist role in forest matters the Central government has asserted its powers and felt bold enough to render a Supreme Court decision irrelevant. In this the Minister was helped by legal opinion, tendered by Attorney-General G.E. Vahanvati, that the Supreme Court's direction is not binding on the government if it rejects an application for forest clearance.

How it all started

On February 28, 2005, the Orissa government forwarded a proposal to the Union Ministry for Environment and Forests (MoEF) for the diversion of 660.749 hectares of forest land for mining bauxite in favour of the Orissa Mining Corporation (OMC) in Kalahandi and Rayagada districts.

The Forest Advisory Committee (FAC) in the MoEF recommended in principle approval on October 27, 2007, stipulating certain conditions such as concurrent reclamation, minimum tree felling in a phased manner and modified wildlife management plan. Although the August 24 decision does not elaborate, it is relevant to know how the FAC arrived at the decision to recommend in principle approval.

In September 2005, the CEC recommended to the Supreme Court that mining should not be permitted on the Niyamgiri hill. The CEC report was a scathing indictment of the project and questioned the integrity of the authorities involved. It also recommended that the environmental clearance granted by the MoEF for the alumina refinery plant on September 22, 2004, be revoked and all work be stopped.

Yet, in February 2006, the court referred the matter to the FAC and sought a report. The FAC requested the Wildlife Institute of India (WII) and Central Mine Planning and Design Institute Limited (CMPDIL) to assess the project for soil erosion and impact on water resources. The CMPDIL cleared the project of all water-related concerns. The WII's report, submitted in June 2006, warned that bauxite mining in the Niyamgiri plateau would destroy a specialised wildlife habitat. However, following a special presentation by Orissa forest officers, the institute, in October 2006, recommended a Rs.42-crore plan for mitigation of impact on wildlife. When the Supreme Court heard the matter on May 16 and 18, 2007, the CEC argued that the FAC had acted irresponsibly and with undue haste in granting Vedanta clearances. On December 11, 2008, the MoEF granted in-principle clearance to the State government.

On August 10, 2009, the State government applied to the MoEF for the final clearance. The FAC recommended on November 4, 2009, that the final clearance be considered only after ascertaining the community rights on forest land and after the process of establishing such rights under the Scheduled Tribes and Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, also known as the Forest Rights Act (FRA), is completed.

On January 1, 2010, the FAC constituted a three-member expert group to carry out a site inspection. When this group recommended further examination on various grounds, Jairam Ramesh set up a four-member committee of specialists, chaired by Naresh Saxena, former Secretary, Planning Commission, to facilitate a holistic investigation. This committee submitted its report on August 16.

Saxena Committee's report

Some salient findings of the Saxena Committee, which influenced the MoEF's decision not to grant the final clearance, are:

The project would severely disturb important wildlife habitat that has been proposed as part of the Niyamgiri Wildlife Sanctuary.

More than 1.21 lakh trees would need to be cleared for mining besides many more lakh shrubs and herbal flora.

The grasses are breeding and fawning ground for the four-horned antelope ( Tetracerus quadricornis), barking deer ( Muntiacus muntjac) as well as spotted deer ( Axis axis). A rare lizard, golden gecko ( Callodactylodes aureus), is found on the proposed lease area. The populations of all these species will decline if mining is allowed.

Mining on the scale proposed in this habitat would severely disturb elephant habitats and threaten the important task of elephant conservation in south Orissa.

The mining operations involve stripping of more than seven square kilometres of the Niyamgiri hilltop, which would drastically alter the region's water supply.

The proposed mining lease (PML) area is intimately linked, by way of economic, religious, and cultural ties, to 28 Kondh villages with a total population of 5,148. The affected include 1,453 Dongria Kondhs, who constitute 20 per cent of the total population of this tribe. Loss of forest cover will cause a substantial decline in their economic well-being. Landless Dalits who are dependent on Kondhs will also suffer.

Mining-related activities will deny Dongria Kondh access to their cultivable lands. Mining activities will also adversely affect the surrounding slopes and streams that are crucial for agriculture.

The Orissa government did not follow the Forest Rights Act and disregarded the legitimate and well-established rights of the Kondh Primitive Tribal Groups (PTGs).

The Orissa government is not likely to implement the Forest Rights Act in a fair and impartial manner as far as the PML area is concerned.

The MoEF cannot grant the clearance unless the process of recognition of rights under the Forest Rights Act is complete and satisfactory; the consent of the concerned community has been granted; and both points have been certified by the gram sabha of the area concerned. All of these conditions, not any one, must be satisfied.

If mining is permitted on this site, it will not only be illegal, but will also destroy one of the most sacred sites of the Kondh PTGs. It will make the area easily accessible to poachers and timber smugglers, threatening the rich biodiversity of the hills.

The mining activities at the PML site will have limited relevance to the refinery now under a sixfold expansion as the 72 million tonne ore deposit here would last only about four years for the increased needs of the expanded refinery. In balance against this are the adverse consequences on the primitive tribal people, the environment and the wildlife of these forests.

Vedanta Aluminium Limited was accorded clearance under the Environment Protection Act (EPA) on the condition that no forest land would be used for the establishment of the refinery. But now it is clearly established that the company has occupied 26.123 ha of village forest land within the refinery boundary with the active collusion of the officials concerned. Hence, the environment clearance already granted is legally invalid. Allowing mining in the PML area would shake the faith of the tribal people in the laws of the land and have serious consequences for the security and well-being of the entire country.

FAC endorsed the report

The FAC on August 23 endorsed the Saxena Committee report, accepting that there was lack of diligence in safeguarding the rights of the PTGs in the adjoining forest areas, and found it a fit case for applying the precautionary principle to obviate the irreparable damage to the affected people. This principle requires the government authorities to anticipate, prevent and attack the causes of environmental pollution. It imposes the onus of proof on the developer or industrialist to show that his or her action is environmentally benign.

The FAC, therefore, recommended temporary withdrawal of the in-principle/stage-1 approval accorded by the MoEF for the diversion of 660.749 ha of forest land in favour of Orissa Mining Corporation Ltd. After giving due opportunity to the State government to present its views on the Saxena Committee report, Jairam Ramesh elaborated on certain factors that he considered while arriving at his decision.

Decisive factors

First, he found that the narrow definition of Project Affected People by the State government ran contrary to the letter and spirit of the Forest Rights Act, 2006. Simply because some communities did not live on the hills it did not mean that they had no rights there; the Forest Rights Act specifically provides for such rights, but these were not recognised and were sought to be denied, he explained.

Secondly, he said that the fate of the PTGs needed some emphasis, as very few communities in India in general and Orissa in particular came under the ambit of such a category. Their dependence on the forest being almost complete, the violations of the specific protections extended to their habitat and habitations by the FRA were unacceptable, he said.

A significant aspect of Jairam Ramesh's decision is the applicability of the Forest Rights Act to even Dalits who are dependent on the PTGs. He said: While they [the Dalits] may technically be ineligible to receive benefits under the FRA 2006, they are such an inextricable part of the society that exists that it would be impossible to disentitle them as they have been present for over five decades.

Another factor that influenced him was the appeal by the Dongria Kondhs themselves against the environmental clearance before the National Environment Appellate Authority (NEAA), which has reserved its judgment on the matter.

How the MoEF accorded the environmental clearance to Vedanta Aluminium Limited for the aluminium refinery in 2004 is rather curious. VAL has already proceeded with construction activity for its enormous expansion project, which would increase its capacity sixfold, without obtaining environmental clearance under the EPA. The Minister agreed with the Saxena Committee that this was a serious violation of the EPA.

The Ministry granted the environmental clearance for the refinery project on September 22, 2004. While granting the clearance, the MoEF was unaware of the fact that the application for forest clearance was also pending since the environmental clearance letter clearly stated that no forest land was involved in the project, the Minister has stated in his decision. In its application for environmental clearance, Sterlite had stated that no forest land was involved in the project and that there was no reserve forest within a radius of 10 km of the project site.

However, a petition filed before the CEC in November 2004, well before construction work began at the site, had pointed out that Vedanta had obtained the environmental clearance without disclosing that the Lanjigarh refinery was predicated on the mining of bauxite from Niyamgiri. It was in September 2005 that the CEC recommended that the environmental clearance be revoked. But the Supreme Court properly heard the matter only in April 2007, by which time the refinery had become operational. Jairam Ramesh's decision is silent on whether the MoEF displayed due diligence when it granted environmental clearance in 2004 for the refinery.

Role of the Supreme Court

But Jairam Ramesh could not be faulted for relying on two Supreme Court judgments while issuing in principle approval to the Orissa government on December 11, 2008. In the first judgment, on November 23, 2007, the court imposed a condition that Sterlite or the Orissa Mining Corporation would be charged with the execution of the project while Vedanta, in all its forms, was not to be involved.

In the second judgment, on August 8, 2008, the court granted clearance to the forest diversion proposal, in the light of the parties' acceptance of the rehabilitation package suggested by them in the court's first judgment. But it added: The next step would be for the MoEF to grant its approval in accordance with law.

The phrase in accordance with law provided Jairam Ramesh the necessary liberty to take his own decision later, even if it was contrary to that of the Supreme Court. With the Attorney-General's opinion suggesting that he could take a decision independently of what the Supreme Court had said in this matter, Jairam Ramesh concluded that the violations of the Forest Conservation Act (FCA), the EPA, and the FRA were too egregious to be glossed over. Further, he said, a mass of new and incriminating evidence had come to light since the Supreme Court's clearance to the mining on August 8, 2008.

In his final decision, he did not use the word temporary, as recommended by the FAC, while rejecting the stage-II forest clearance. Since forest clearance was being rejected, he said, the environmental clearance, already granted for this mine, was inoperable.

He pointed out that the company was sourcing bauxite from a large number of mines in Jharkhand for the one-million-tonne alumina refinery that was not in possession of a valid environmental clearance and said the Ministry was examining this. The MoEF issued a show-cause notice to the company asking why the clearance granted for the one-million-tonnes-per-annum alumina refinery should not be cancelled in view of the many violations of the law.

The report listed 14 mines from which bauxite was being sourced by Vedanta. Out of these, 11 had not been granted a mining licence, while two had received only terms of references, and only one had received clearance.

Another notice sought the company's response on why the terms of reference (TOR) for the Environment Impact Authority report for the expansion from one million tonnes to six million tonnes should not be withdrawn.

Meanwhile, the Ministry suspended the TOR and the appraisal process for the expansion. Separately, the Ministry also decided to examine what penal action should be initiated against the company for the violations of various laws as documented by the Saxena Committee. All these have made Jairam Ramesh's August 24 decision truly momentous in the history of India's environmental litigation.