Law and scientific expertise have an old connect. Policy and legal arguments have historically relied on the word of science to make or break a case, be it in courts or in decision-making corridors. When it comes to the practice of environmental clearances (under the Environment Impact Assessment, 2006), the framework requires the extensive application of scientific knowledge both in the preparing an impact assessment document as well as in appraising its authenticity. Most often, science lands up undoing itself and law is left gawking.
I present before you two such scenarios in our very recent times.
Most of us were witness to the spectacle of the Commonwealth Games (“the CWG”), hosted by India in 2010. The country is still reeling under the hidden truths and stated lies around the corruption saga related to these games. But, from the ecological point of view, one story remains in the shadow - one that tells the tale of how the floodplains of the river Yamuna ceased to be itself as the Commonwealth Games Village Committee had their eyes set out on the land.
In September 2003, after the Commonwealth Games Federation had selected Delhi as the venue for CWG, a site to set up the games’ village was identified off the National Highway Twenty-four leading from Delhi to Ghaziabad. The Delhi Development Authority (“the DDA”) entrusted Emaar MGF with this task through a public-private partnership. Proclaimed to be a premier real estate and infrastructure development company, their task was the construction of the ‘purpose-built, self-contained premium residential community’ of 1168-odd flats that, once used for the games, were to be sold in the open market.
The above-mentioned site was adjoining the Akshardham Temple in New Delhi, on the bank of the river Yamuna. A set of concerned citizens and institutions took the issue to court, through a writ petition bearing number W.P.(C) 6729 and 7506 of 2007. The petition challenged the construction activity going on the Yamuna riverbed, as it would damage the ecology and water recharge ability of the river as well as impact the livelihood of the agricultural communities who depended on their floodplain. The Commonwealth Games Village (“CGV”) had received an environmental clearance from the Ministry of Environment and Forests (“the MoEF”).
As court proceedings progressed, reports of National Environmental Engineering Research Institute (“the NEERI”), a reputed national-level scientific institution, had a critical bearing on the decisions that were to follow. Reports of the NEERI in 1999 and 2005 had warned against the urban sprawls and construction of residential and industrial facilities on the Yamuna riverbed. These reports formed a part of an Environmental Management Plan commissioned by the DDA with the overall objective of rejuvenating the river Yamuna.
In 2008, the NEERI submitted another report, pursuant to the visit of the panel of High Court judges to the sites of CGV and some constructions related to the Delhi Metro earlier on, in January. In this report, the NEERI changed its stance, and said that recent constructions on the Yamuna riverbed, such as the Akshardham Temple and an adjacent embankment, had reshaped the riverbed; therefore, the CGV would neither be an environmental threat nor impact the floodplain. The High Court's interim verdict in 2009 sought to establish an another expert body, headed by Dr. R.K. Pachauri of The Energy and Resources Institute, to advise on the ecological impact of all existing, on-going, and planned constructions in the riverbed.
The Supreme Court, in response to a challenge, undid this order. In July 2009, it gave a judgement that left the Yamuna devoid of part of its floodplain. The judgment stated, “The High Court disregarded and ignored material scientific literature and the opinion of experts and scientific bodies which have categorically said that the CGV site is neither located on a ‘riverbed’ nor on the ‘floodplain’”. The CGV was constructed and the rest, as they say, is history.
Far away from the city of Delhi, on February 28, 2011, the people of Kakrapalli village, Santha Bomalli mandal in Srikakulam district of Andhra Pradesh faced the brunt of police firing, as they were protesting the setting-up the 2,640 megawatt Bhavanapadu Thermal Power Project by M/s East Coast Energy Private Limited (“ECEPL”). The case in point here shows how a renowned wetland and important bird area was undone by scientific neglect and a decision that led to the Project receiving its environmental clearance.
The contested site is located just five kilometres from Telineelapuram pelicanry, a globally recognised area for avifauna. Even prior to all the approvals being in place, ECEPL had started draining water from the nearby Naupada swamps and initiated excavation work. This did not impact the decision of the Expert Appraisal Committee (“the EAC”) of the MoEF to allow the construction of the power plant without holding the company responsible for the illegal construction. More importantly, the decision was based on an environmental impact assessment (“EIA”) report that had misrepresented the wetland and swampy area not to be one.
This EIA report was significantly critiqued by a sub-committee of the National Board for Wild Life (“the NBWL”), which is mandated to appraise and decide on the impacts of activities in national parks and sanctuaries as well as areas located within ten kilometres of such national parks and sanctuaries. Two reputed scientists scathingly critiqued the EIA report and remarked that irreparable damage had been caused because of the draining of the wetlands at the plant site. While their first set of recommendations questioned the very existence of the thermal power plant in the area, the second was a bailout package with mitigation measures, in the light of the fact that clearance had already been granted.
Ironically, the National Environment Appellate Authority (“the NEAA”), before which this case was challenged, took a similar position. It couched its final decision in 2010 to allow for the plant to be constructed by seeking to balance development with conservation. While falsities of science and neglect of the experts contributed to the loss of Naupada's wetland ecosystem, the legal framework of the EIA notification was left asking for its procedural due. False and misleading data, says the notification, can make a project liable for rejection. ECEPL lucked out, but only till the impact was so dramatic that the people took to protests and the administration to aggression. The environmental clearance of the plant is currently suspended, and the firing on the villagers in February is being investigated.
The two instances cited here are just a minor representations of how ecological spaces can be undone. Expertise can help change a river's course, a forest's density, or the distance of the sea. The question is how much does law aid, abet, or rely on this process.
I present before you two such scenarios in our very recent times.
Most of us were witness to the spectacle of the Commonwealth Games (“the CWG”), hosted by India in 2010. The country is still reeling under the hidden truths and stated lies around the corruption saga related to these games. But, from the ecological point of view, one story remains in the shadow - one that tells the tale of how the floodplains of the river Yamuna ceased to be itself as the Commonwealth Games Village Committee had their eyes set out on the land.
In September 2003, after the Commonwealth Games Federation had selected Delhi as the venue for CWG, a site to set up the games’ village was identified off the National Highway Twenty-four leading from Delhi to Ghaziabad. The Delhi Development Authority (“the DDA”) entrusted Emaar MGF with this task through a public-private partnership. Proclaimed to be a premier real estate and infrastructure development company, their task was the construction of the ‘purpose-built, self-contained premium residential community’ of 1168-odd flats that, once used for the games, were to be sold in the open market.
The above-mentioned site was adjoining the Akshardham Temple in New Delhi, on the bank of the river Yamuna. A set of concerned citizens and institutions took the issue to court, through a writ petition bearing number W.P.(C) 6729 and 7506 of 2007. The petition challenged the construction activity going on the Yamuna riverbed, as it would damage the ecology and water recharge ability of the river as well as impact the livelihood of the agricultural communities who depended on their floodplain. The Commonwealth Games Village (“CGV”) had received an environmental clearance from the Ministry of Environment and Forests (“the MoEF”).
As court proceedings progressed, reports of National Environmental Engineering Research Institute (“the NEERI”), a reputed national-level scientific institution, had a critical bearing on the decisions that were to follow. Reports of the NEERI in 1999 and 2005 had warned against the urban sprawls and construction of residential and industrial facilities on the Yamuna riverbed. These reports formed a part of an Environmental Management Plan commissioned by the DDA with the overall objective of rejuvenating the river Yamuna.
In 2008, the NEERI submitted another report, pursuant to the visit of the panel of High Court judges to the sites of CGV and some constructions related to the Delhi Metro earlier on, in January. In this report, the NEERI changed its stance, and said that recent constructions on the Yamuna riverbed, such as the Akshardham Temple and an adjacent embankment, had reshaped the riverbed; therefore, the CGV would neither be an environmental threat nor impact the floodplain. The High Court's interim verdict in 2009 sought to establish an another expert body, headed by Dr. R.K. Pachauri of The Energy and Resources Institute, to advise on the ecological impact of all existing, on-going, and planned constructions in the riverbed.
The Supreme Court, in response to a challenge, undid this order. In July 2009, it gave a judgement that left the Yamuna devoid of part of its floodplain. The judgment stated, “The High Court disregarded and ignored material scientific literature and the opinion of experts and scientific bodies which have categorically said that the CGV site is neither located on a ‘riverbed’ nor on the ‘floodplain’”. The CGV was constructed and the rest, as they say, is history.
Far away from the city of Delhi, on February 28, 2011, the people of Kakrapalli village, Santha Bomalli mandal in Srikakulam district of Andhra Pradesh faced the brunt of police firing, as they were protesting the setting-up the 2,640 megawatt Bhavanapadu Thermal Power Project by M/s East Coast Energy Private Limited (“ECEPL”). The case in point here shows how a renowned wetland and important bird area was undone by scientific neglect and a decision that led to the Project receiving its environmental clearance.
The contested site is located just five kilometres from Telineelapuram pelicanry, a globally recognised area for avifauna. Even prior to all the approvals being in place, ECEPL had started draining water from the nearby Naupada swamps and initiated excavation work. This did not impact the decision of the Expert Appraisal Committee (“the EAC”) of the MoEF to allow the construction of the power plant without holding the company responsible for the illegal construction. More importantly, the decision was based on an environmental impact assessment (“EIA”) report that had misrepresented the wetland and swampy area not to be one.
This EIA report was significantly critiqued by a sub-committee of the National Board for Wild Life (“the NBWL”), which is mandated to appraise and decide on the impacts of activities in national parks and sanctuaries as well as areas located within ten kilometres of such national parks and sanctuaries. Two reputed scientists scathingly critiqued the EIA report and remarked that irreparable damage had been caused because of the draining of the wetlands at the plant site. While their first set of recommendations questioned the very existence of the thermal power plant in the area, the second was a bailout package with mitigation measures, in the light of the fact that clearance had already been granted.
Ironically, the National Environment Appellate Authority (“the NEAA”), before which this case was challenged, took a similar position. It couched its final decision in 2010 to allow for the plant to be constructed by seeking to balance development with conservation. While falsities of science and neglect of the experts contributed to the loss of Naupada's wetland ecosystem, the legal framework of the EIA notification was left asking for its procedural due. False and misleading data, says the notification, can make a project liable for rejection. ECEPL lucked out, but only till the impact was so dramatic that the people took to protests and the administration to aggression. The environmental clearance of the plant is currently suspended, and the firing on the villagers in February is being investigated.
The two instances cited here are just a minor representations of how ecological spaces can be undone. Expertise can help change a river's course, a forest's density, or the distance of the sea. The question is how much does law aid, abet, or rely on this process.
