Environmental damage

The Delhi Pollution Control Panel Is Misusing an NGT Order to Illegally Penalise Businesses

Though it does not have the power to do so, the pollution regulatory body has been imposing an environmental damage compensation penalty of between Rs 5 lakhs and Rs 80 lakhs on numerous small businesses since July 2019.

The Delhi Pollution Control Committee (DPCC), the authority responsible for the control and abatement of pollution in Delhi, appears to have misused its brief from the National Green Tribunal (NGT) in the imposition of environmental damage compensation (EDC) on polluting entities.

Since July 2019, the pollution regulatory body has been imposing the EDC on numerous businesses, including farm houses, banquet halls, small non-bedded clinics and nursing homes and auto service centres, without explanation or reason and by way of non-speaking orders, which has hurt these industries severely.

The EDCs imposed by the DPCC range from Rs 5 lakhs to Rs 80 lakhs. Some show cause notices have been sent to businesses which were actually closed during the lockdowns imposed by the state and Central governments to limit the spread of the COVID-19 virus, which means that they could not have polluted the environment at that time.

Also read: The COVID-19 Lockdown Can Help Devise Measures to Mitigate Air Pollution

Most of the businesses that have been served these notices employ up to 25 people and have no previous violations of environmental laws to their names, despite periodic and random inspections by the DPCC. All these businesses had been granted permission to operate by the DPCC in the first place on the grounds that they were non-polluting.

I have represented 27 such businesses before the Delhi high court, which set aside the EDC impositions in every case.

In at least 21 instances, the EDC orders passed by the DPCC were set aside on the very first day of the hearing.

Because the power and jurisdiction of the DPCC to impose the EDC under the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 were challenged via writ petitions, the DPCC was directed by the court to consider writ petitions as representation and to pass speaking orders after granting personal hearings.

However, in conflict with the orders passed by the high court (which makes the DPCC liable for the initiation of contempt action), the DPCC continues to impose the EDC on businesses within its jurisdiction.

In June this year, for example, banquet halls in Delhi that had been converted by the state government to makeshift hospitals and quarantine centres for patients infected by the COVID-19 virus were served show cause notices by the DPCC. These banquet halls operated without profit as COVID-19 hospitals till August 21 as the pandemic raged in Delhi.

Health workers at Shehnai banquet hall, which has been converted into an isolation centre for COVID-19 patients in New Delhi, June 24, 2020. Photo: PTI/Manvender Vashist

In July 2020, an auto service centre in Okhla was penalised by the DPCC via the EDC for alleged violations committed in January 2020 when the unit was still under establishment with a valid consent to establish duly granted by the DPCC. The unit had been inspected on March 19 and the consent to operate had been granted on March 20 because there was no violation at all.

On March 22, the ‘janta curfew’ was imposed on Delhi; on March 23, the state was put under lockdown by the Delhi government and on March 25, the nationwide lockdown came into effect and remained in place till May 31, 2020.

Unlock 1 started on June 1, 2020; the unit could only get its electricity connection on June 18, after which it began operations – only to learn that the DPCC had imposed an EDC on it.

Also read: To Clean Its Air, There Are Miles to Go Before Delhi Can Sleep

Elsewhere, a banquet hall at Najafgarh Road Industrial Area was sealed by the DPCC on September 16, 2019, for non-payment of the EDC. The EDC had been imposed on the banquet hall the very same day – September 16, 2019. This banquet hall had been operated by a tenant who had abandoned the property six months before the EDC was imposed and had defaulted on the rent.

Despite an order from the high court in February 2020, which was followed by a personal hearing by the DPCC on the directions of the high court, which in turn was followed by the compliance of landlord of the banquet hall in June 2020, after Unlock 1 came into effect, the DPCC has not moved on the issue.

The landlord, who lives on the income generated from renting the banquet hall, is now desperate.

National Green Tribunal. Photo: PTI

Where it began

The trouble started in 2018-2019 when the NGT, among its various orders, directed the DPCC and other state pollution boards to devise a plan in which polluting units of various industries would pay an environmental damage compensation or EDC as penalty. The penalty was meant to be imposed after a polluting unit had been identified via inspections and by following due process.

In 2018, the DPCC was fined Rs 50 crores by the NGT for “failure to discharge its duties” due to its non-compliance with the Master Plan of Delhi 2021 and for its disregard to the directions issued by the NGT for the relocation of steel pickling units from inside Delhi to the outskirts of Delhi. The NGT bench noted in its order: “The authorities have assumed that nothing can happen if they continue to defy the law to benefit polluting industries at the cost of public health.”

In this order, the NGT also warned that it could consider sending senior officials of the DPCC to jail for failing to implement the orders of the tribunal.

Also read: When the Court Convicted a Person for Polluting the Environment

However, the NGT allowed the Delhi government to recover the Rs 50 crores it had been fined from either industry owners or the officials responsible for the lapse.

This order was a clear indictment of the DPCC. It had been issued to serve as a deterrent for future issues and it allowed the DPCC to recover the amount of the fine in the usual way.

But the DPCC seems to have read just one portion of the fine recovery portion of the order which said that the fine could be recovered from industry owners or the officials responsible for the lapse and began imposing the EDC on units that operate in Delhi’s industrial areas.

Principles of law

It is a well-settled principle under the Air and Water Acts as well as by way of judicial pronouncements that neither the DPCC nor any other pollution control board has the power to impose an EDC or a fine. The concept of the polluter having to pay the penalty is not a law.Only the courts can impose such a penalty by way of the EDC.

The DPCC logo.

The DPCC, it appears, chose not to inform the NGT after receiving the NGT’s order that the power to impose the EDC rests only with courts, which may or may not impose the penalty on the basis of a case duly instituted and heard properly to a logical conclusion.

Instead, the DPCC seems to have appointed itself a judge and imposes the EDC on the basis of the NGT’s directions for the recovery of the fine it has to pay. Unfortunately for the businesses the DPCC labels as polluters, once the charge is made, even the NGT shows no mercy whether or not the business is actually polluting, because the DPCC has labelled it as polluting.

Perhaps the DPCC could learn from the Municipal Corporation of Delhi (MCD). In 2016-17, when the NGT directed the MCD to invoke the ‘Polluters Pay’ principle, notices were sent to alleged violators to appear before an NGT bench headed by Justice Swatantra Kumar. Only those units that had actually violated the pollution laws were penalised after following the due process of law.

Though Arvind Kejriwal, chief minister of Delhi, and Gopal Rai, the state’s environment minister, are aware of the issues with the DPCC, it seems the Delhi government is more concerned with the errors of law and facts committed by the pollution control body than with the fate of businesses wrongly labelled as polluters.

Also read: Delhi Govt Said Air Pollution Reduced By 25% But the Data Is More Complicated

But it is about time that the Delhi chief minister intervened in the matter. The DPPC must file an affidavit before the NGT expressing its inability to invoke the ‘polluters pay’ principle on the grounds of lack of power and jurisdiction. If the NGT directs the DPCC to invoke this principle, the pollution control body must inform the NGT accordingly of its actual powers.

And if the power to invoke this principle is to be exercised by the DPCC, amendments in the Air Act, Water Act and Environment Protection Act are mandatory and these must be carried out by parliament. Until such amendments are made, only courts can exercise the power to invoke the ‘polluter pays’ principle after a proper hearing.

The bottom line is that polluters must pay. But only after the facts are ascertained and the due process of law is followed.

Rahul Kumar is an advocate practicing at the Supreme Court of India and the High Court of Delhi.

Disclaimer: The author is former standing counsel of the DPCC and former senior panel counsel of the Central Pollution Control Board.

Environmental Damage Could Have Offshore Wind Farms Clearance Cancelled

India has an ambitious target: to install 175 GW of renewable power by 2022. Of that, 60 GW is expected to come from onshore wind power.

An offshore wind energy project, if found causing environmental damage to marine ecology, could be cancelled, as proposed in the draft offshore wind energy lease rules, 2019 by the Indian government’s ministry of new and renewable energy (MNRE). India plans to go big on offshore wind power for strengthening the energy security in the country, but harm to marine ecology and birds has always been a contentious issue.

At present, wind power is the main pillar of India’s renewable power sector. Of the total installed power capacity of 349,288.22 megawatt (MW) in India, renewable accounts for over 21% (74,081.66 MW). And of the total installed renewable capacity, onshore wind alone accounts for over 47% (35,138.15 MW).

India has an ambitious target of installing 175,000 MW of renewable power by 2022 and of that 60,000 MW is targeted to come from onshore wind power. But to further ramp up the renewable power capacity and harness the vast potential of the offshore wind power along India’s over-7,500-km coastline, the government, in October 2015, notified the national offshore wind energy policy.

India wants to install at least 5,000 MW of offshore wind energy generation capacity by 2022 and 30,000 MW by 2030. The government’s initial estimates suggest that the Gujarat coastline alone has the potential to generate around 106,000 MW of offshore wind energy while Tamil Nadu has a potential of about 60,000 MW.

As per the national offshore wind energy policy, which only provides a basic framework for development of offshore wind energy in the country, offshore wind energy blocks are to be allocated to successful bidders through international competitive bidding only. But to regulate the leasing of those offshore wind energy blocks, rules were required.

To fill that gap, the central government in January 2019 has come out with the draft offshore wind energy lease rules, 2019 and sought comments, suggestions and views from all stakeholders by February 25, 2019.

The draft rules stated that ‘every lessee shall have the exclusive right to carry out, in addition to geological and geophysical surveys data, other studies relating to geo-technical survey and investigations and testing operations required for development of offshore wind energy installations or/and related activities in the area covered under the lease but shall not have the overall right to sublease any part of the area covered under the lease’.

It emphasised that the lessee also has the right to carry out the development works like construction of buildings, waterways, roads, evacuation infrastructure (cables), offshore substations, underwater electric cables but ‘shall have no right to minerals and other resources in the lease area,’ stressing that the lease does not confer rights for mineral extraction or access to resources beneath the sea bed and sea water.

It also stipulated that those granted the lease ‘shall have no right to block/bar/restrict the entire area under this lease from any routine activities, as felt necessary for the purpose of livelihood and other activities that could coexist with the offshore wind energy farm, in the interest of common public’ provided those activities have no potential to harm the project.

Selna Saji, who is a research analyst with the Council on Energy, Environment, and Water (CEEW), a Delhi based think tank, said, “increasing the proportion of renewable energy in the total electricity generation is one of the top priorities for India.”

“Given the country’s huge potential for offshore wind and the increasing electricity demand, it is a good idea to explore this untapped potential. At the same time, it is important to ensure that the wind farms will have a minimum impact on the marine ecology,” Saji told Mongabay-India.

As per the draft lease rules, the ‘terms of a lease shall in the first instance be valid for a period of five years for prospecting and 30 years for establishment of offshore wind power project which may be extended on renewal of the lease for five years at a time with due approval’ of the Indian government. The area covered under a lease, as per the draft rules, ‘shall ordinarily be 100-500 square kilometres depending on the size of the offshore wind energy farm.

The draft rules highlighted that that the lease of an offshore wind power project can be cancelled if it is found to be ‘causing environmental damage to both flora and fauna beneath the sea water and posing threat to human life and property while carrying out the activities under water and operation of the wind energy turbines during validity of the lease.’

It also clarified that the central government may, after ‘reasonable’ notice to the lessee assume control of the operation of offshore wind turbines in isolation or in groups within a particular zone to prevent misuse of the lease area and ‘malfunctioning of the wind turbine installations posing a threat to national security, environmental protection, public life, and property.’

They emphasised that ‘if in the opinion of the central government, operation of the wind turbines/wind turbines is causing damage to environment or damage to property, or pollution can thereby be prevented, the central government may order the wind farm to be shut down pending an enquiry.’

Rakesh Kamal, a consultant with the Climate Reality Project – India, an independent organisation working on climate change related issues, emphasised that “there needs to be a balance that needs to be achieved’ because even though ‘offshore is a good option, it should not be in ecologically sensitive areas or in areas that fall in the route of migratory birds.”

He said that one of the reasons behind the focus on the offshore wind power projects is because there are a lot of concerns around the acquisition of land for industrial or power projects.

“That is why I think everyone – wind or solar – wants to go offshore today. It may be costly today but with volumes, it may come down, and this way developers will steer clear of any land related troubles,” Kamal told Mongabay-India.

As per the recent ‘offshore energy outlook’ of the International Energy Agency, offshore wind is a rising force but remains for the moment a relatively marginal one at 0.2% of global electricity generation. But it is gaining momentum and expected to increase rapidly. For instance, its deployment has more than ‘quintupled from 3.2 gigawatts (GW) in 2010 to 18.7 GW in 2017’.

The IEA’s report said that more than 80% of global offshore wind capacity is located in Europe, of which the United Kingdom with an installed capacity of 6.8 GW and Germany with 5.4 GW are the two largest countries. Last year, IEA’s executive director Fatih Birol had said that offshore wind power could reach around 200 GW by 2040.

In April 2018, India had sought an expression of interest from domestic as well as international firms or developing the country’s first 1,000 megawatt (MW) commercial offshore wind farm in the Gulf of Khambhat, an ecologically sensitive area off the coast of Gujarat. A total of 35 national and international firms showed interest in it but nearly a year has passed, and it is yet to be finalised.

Experts believe that even as the government is bullish on renewable power projects, the developers have their concerns as well.

For instance, Saji stated that the recent tender cancellations and low ceiling tariffs for solar and onshore wind projects could be some of the trends that are worrisome for the offshore wind developers.

“In India, Gujarat and Tamil Nadu have most of the high potential sites off their coasts. But since both the states have a high degree of renewables integrated to their grid, evacuation and integration of additional variable power could be challenging. Thus, the developers may also have concerns whether the power produced in the offshore wind farms will face grid integration challenges” Saji added.

This article was originally published by Mongabay and has been republished here under a Creative Commons license.

Landmark NGT Judgments Hold Private Firms, Not God or Government, Responsible

Activists are hopeful that the judgments will help deter private companies from functioning with impunity and under the cover of governmental apathy.

Activists are hopeful that the judgments will help deter private companies from functioning with impunity and under the cover of governmental apathy. The judgments in both cases acknowledged governmental inaction in dealing with environmental damage.

A rig addressing the oil spill off the Mumbai harbour in January 2011. Credit: felixdance/Flickr, CC BY 2.0

The National Green Tribunal (NGT) covered new ground for the ‘polluter pays’ principle by invoking it in two landmark judgments last week. First, it ordered Alaknanda Hydro Power Co. Ltd., a hydroelectric power company, to pay Rs 9 crore as compensation to people affected by Uttarakhand floods in 2013 because the dam constructed by the company contributed to the flooding experienced by residents of the region. Second, it fined Delta Marine Shipping Co., a marine shipping company, Rs 100 crore for the oil spill and ensuing ecological damage caused when one of the company’s ships sank off the coast of Mumbai in 2010.

The judgments in both cases are important instances of the NGT exercising its power to fix liability and hold private companies responsible for the environmental damage they cause. These judgments set a precedent for shifting the monetary responsibility of rectifying ecological damage from the government to the private actors responsible for causing the damage. The decisions will save taxpayer money and, importantly, the Alaknanda case is a rare example of affected civilians successfully suing a corporation for compensation.

Upendra Baxi, emeritus professor of law at the University of Warwick, wrote in an email, “These decisions are truly inaugural. They subject economic enterprises to a code of environmental jurisprudence.”

Ritwick Dutta, an environmental lawyer who served as counsel in both cases, stated that Alaknanda is the first time that a private company has been held responsible for damage precipitated by a natural disaster. It was also the first time that the NGT has used the ‘polluter pays’ principle to fine a marine shipping company for causing ecological damage.

Until now, according to Dutta, “The stand of the ministry of environment and forest has been that dams don’t damage the environment.” He added that previous court decisions reflected this way of thinking as companies would use an “act of God” defence to shun liability for the damage caused and instead ascribe it to floods and natural disasters.

However, in this case, the tribunal determined that the cloud burst on June 16 and 17, 2013, caused extreme amounts of rainfall in the region that collected in the dam’s reservoir. The company’s subsequent decision to open the dam’s sluice gates “resulted in [a] massive flow of water suddenly sweeping away the muck dumped on the river body and carrying it to the villages and the area flooded by the floods,” stated the judgment. The tribunal also noted the company’s negligence when it came to executing safety measures for disposing of the muck generated during the dam’s construction, another factor that exacerbated the flood-related damage.

Using the legal definition of ‘accident’, which means “an accident involving a fortuitous or sudden or unintended occurrence”, the tribunal determined that the loss of damage and property suffered by the applicants was indeed accidental. However, it still charged the company with paying compensation to those affected by the Uttarakhand floods by invoking the principle of no-fault liability. The principle is applied when the defendant in a case is held liable and expected to pay compensation even if their actions are not responsible for the damage caused.

The tribunal concluded by issuing directions, starting with: “Alaknanda Hydro Power Co. Ltd.-GVK to deposit an amount of Rs. 9,26,42,795 as compensation to the victims within a period of 30 days from the date of order.”

Baxi echoed Dutta’s positive take on the judgment, “The idea that there are pure natural disasters without any human human responsibility is firmly rejected in the Uttarakhand Case. Collective and corporate responsibility is encoded in the notion of foreseeability and the NGT has done well to accentuate this.”

The marine case

In the Delta case, the NGT used the ‘polluter pays’ principle to impose a fine on Delta Shipping Marine Co., a Panama-based shipping company, for the damage caused when a ship owned by the company sank and caused an ecologically devastating oil-spill off the Mumbai coast in 2011. Notably, the tribunal extended the principle to include Adani Enterprises Ltd., the intended recipient of the ship’s cargo of coking coal.

The ship was carrying over 600,000 metric tonnes of coal in its holds, over 290 tonnes of fuel oil and another 50 tonnes of diesel. The resultant oil spill caused grave damage to the mangrove forests and marine ecology of the region. The formation of tar balls on the ocean’s surface adversely impacted aquatic life in the area as well. The applicants even provided evidence to prove that the dispersants used to clear the oil spill were also harmful to the marine ecology of the affected region.

The tribunal ruled that “no party from any country in the world has the right/privilege to sail an unseaworthy ship to the Contiguous and Exclusive Economic Zone of India and in any event to dump the same in such waters, causing marine pollution, damage or degradation thereof.”

Dutta expanded on this order, saying that India currently functions as a “dumping ground” for old ships that are not seaworthy, citing the fact that Gujarat is home to the largest ship-breaking yard in the world. Thus, according to him, private companies are able to send old ships to India and incur very low liability on their part. The ship that sank in 2011 was kept in use by Delta despite its potential unseaworthiness.

Baxi wrote on the marine case judgment, “The NGT seems to have equally firmly dealt with the marine pollution case. No longer corporate immunity and impunity may extend to saying that loss belongs where it falls! Shipping companies may not ply unseaworthy ships either in coastal territorial waters or the high seas.”

Dutta too hopes that the NGT’s decision to fine Delta will ideally deter shipping companies from “taking the seas for granted.”

“The Indian coast is becoming increasingly vulnerable as there is significant increase in all types of oil tankers/bulk carriers/container ships passing through the Indian Ocean,” the applicants stated to the NGT while presenting cause and evidence for their case against Delta, Adani and other involved actors.

Additionally, the tribunal ordered Adani Enterprises to pay Rs 5 crore as “environmental compensation” and stated that the fine of Rs 100 crore “shall include the expenses incurred by the Coast Guard and other forces for the prevention and control of pollution in different ways, as stated above, caused by the oil spill and saving the crew etc.”

The judgment also ordered the formation of a committee to determine whether the ship’s wreckage needs to be removed from the site and to calculate the monetary cost of off-setting the ensuing environmental damage. Delta will have to remove the ship’s remnants within six months of the committee filing its report.

Implications of the verdicts

Dutta is hopeful that these judgments will help set a precedent for the future and deter private companies from functioning with impunity and under the cover of governmental apathy. The judgments in both cases acknowledged governmental inaction in dealing with environmental damage.

In the marine case, the NGT was “forced to come in”, said Dutta. Apart from the symbolic value of the judgment, imposing a fine on the polluter also shifts the monetary burden of rehabilitating the environment from the government to the responsible private company in question. “When the government handles rehabilitation, rescue and restoration projects in the aftermath of such cases, it draws from taxpayer money to do so” said Dutta. In the Alaknanda case, he hopes that the official acknowledgment of the fact that dams contribute to flooding will boost the cause for those who are against building dams.

He cited an academic paper by Maharaj Pandit and Edward Grumbine that states that the Himalayas are set to have the highest density of dams of any mountain range in the world. The paper, which was published in May 2012, states that the region’s dam density will be “nearly 62 times greater than current average global figures” and that the Himalayan average would be “1 dam for every 32 km of river channel”. This could greatly increase the danger of flooding and devastation in the area.

Dutta also noted that the Alaknanda dam implicated in this particular case has a capacity of 330 MW but dams with capacities as high as and over 500 MW can cause significantly larger amounts of damage in case of flooding or heavy rains.

While the two cases are similar in their use of the ‘polluter pays’ principle, the difference lies in the population affected. In the marine case, Dutta said the judgment on the 2011 oil spill, which mostly impacted the ecological system and not a particular community, has arrived “too late in many ways for rectifying the ecological damage.”

In the Alaknanda case, a specific group of people was directly affected by the action and inaction of Alaknanda Hydro Power and compensation will have to be distributed to residents of the affected region. Dutta thinks the efficient and organised distribution of the compensation by the government is the most crucial step that lies ahead.

Referring to both cases, Dutta explained that Indian “jurisprudence is not very well developed” when it comes to assessing environmental damage. He added that in such cases the “evidentiary burden also falls on the petitioners.” He acknowledged that though litigiousness is very common in Western countries and accommodated in their legal systems, this culture of litigiousness has not reached India in the same way. The overburdened status of Indian jurisprudence and the consequent slow processing of cases acts as another deterrent for potential petitioners or applicants.

Additionally, it has been rare for people affected by events such as the 2013 floods to seek help from the legal system. Dutta ascribed this to two problems. “First, most people don’t know that such forums exist. And the people who go through such events have already suffered so much” that it impedes their desire and resources for taking on such cases. Second, he added that the lengthy processing time of such cases is also a deterring factor. To sum up he said, “For all the damage that takes place, only a fraction is brought before the courts.”

Ramkishore Mankekar, the group head of corporate communications at GVK (the corporation charged in the Alaknanda case), wrote in an email, “We are contemplating to refer an appeal before the Supreme Court of India against the orders of the NGT.” There was no response from the Delta International Group.

Baxi commented on the possibility of the companies appealing, “Of course, there is a right to appeal to the Supreme Court. One hopes that the Supreme Court does not exercise the full appeals power and upholds the NGT decisional law by dismissing this at the threshold, if only to avoid the indictment of its robust ‘pro-environment’ approach that it has largely ‘upheld the concerns of middle-class environmentalism’ (as rightly said by Geetanjoy Sahu, Environmental Jurisprudence in India, at 67—68, Orient Blackswan, 2014).”

Immunity to International Finance Corporation Dilutes the Right of Indians to Seek Justice

The International Finance Corporation has funded projects in India that have caused large scale violation of environmental and social laws.

A fisherman casts his net into the Kathajodi River in Cuttack district, about 25 km (15 miles) from Bhubaneswar December 8, 2012. Credit:Reuters/Stringer/Files

In a recent move, India has extended the United Nations (Privileges and Immunities) Act, 1947 (46 of 1947), which confers legal immunity akin to the kind enjoyed by foreign missions and diplomats, to the International Finance Corporation (IFC), the private sector lending arm of the World Bank Group.

The United Nations (Privileges and Immunities) Act, 1947 (46 of 1947) gives effect to the Convention on the Privileges and Immunities of the United Nations in India. Some of the few organisations the Act provides protection to are the International Civil Aviation Organisation, World Health Organisation, International Labour Organisation, Food and Agriculture Organisation of the United Nations, United Nations Educational, Scientific and Cultural Organisation, Universal Postal Union, International Telecommunication Union and World Meteorological Organisation.

This list of organisations is not exhaustive and has been extended to more organisations over the years through government notification.

The Act provides jurisdictional personality to the institution that it is granted to. It also provides immunity to the officials of the organisation in case of any disputes of a private nature and disputes involving any official of the organisation. This will provide immunity to the organisation and its officials against legal action in India.

The problem of an abuse of the immunities by the United Nations or specialised agencies is addressed not by municipal legal action, but through consultation, arbitration or in the case of failure of such process, by the International Court of Justice.

Past projects funded by World Bank Group

The Sardar Sarovar Project was conceived as the first in a series of some 30 projects that were designed to develop the Narmada basin in the 1980s and was supported by the World Bank’s government lending arm – the International Bank for Reconstruction and Development (IBRD).

The bank’s support for the scheme took the form of a 10-year Dam and Power Project and a companion three-year Water Delivery and Drainage Project. Both projects were processed in parallel and were approved in 1985, two years before India’s Ministry of Environment, Forest and Climate Change cleared the project.

In 1991, massive protests against the project led to an unprecedented independent review by the World Bank. The Morse Commission, appointed in June 1991 at the recommendation of the World Bank, conducted its first independent review of a World Bank project. This independent review stated that the “performance under these projects has fallen short of what is called for under bank policies and guidelines and the policies of the government of India”.

It further strongly criticised the bank and the borrower for paying inadequate attention to resettlement and rehabilitation, and to environmental protection. In order to save face, the World Bank put conditions for improving the state of rehabilitation. A day before the deadline, having failed to meet the conditions, the Indian government pulled out of its loan agreement with the World Bank. The World Bank’s participation in these projects was cancelled in 1995.

Since then, the World Bank has funded a number of problematic projects in India. The IFC has in the recent past been involved with some of the most environmentally and socially damaging projects.

The Tata Mundra Ultra Mega Power Project (UMPP) sponsored by Coastal Gujarat Power Limited in the coastal region of the state has been under the scanner for displacing fish workers and impacting their source of livelihood.

In June 2011, a complaint, representing the various potentially affected fishing communities, was filed with the Compliance Advisor Ombudsman (CAO), the grievance redressal body of the IFC. The complaint raised issues related to the project’s social and environmental impact on fishing communities, specifically: deterioration of water quality and fish populations, blocked access to fishing and drying sites, forced displacement of fishermen, community health impacts due to air emissions and destruction of natural habitats, particularly mangroves.

The complainants also believe that the impact to their fishing communities were not adequately identified and mitigated, and the cumulative impact of the project was not adequately assessed.

The CAO audit report validated the concerns raised by the community and an inadequate action plan was formulated, which was rejected by the community and is being monitored right now.

The Tata Mundra UMPP is not the first instance where the IFC has funded projects in India that have caused large scale violation of environmental and social laws, even by IFC’s standards. In Orissa, the GMR power project, which is funded by the IFC through a financial intermediary – Infrastructure Development Finance Company – has been responsible for a grave environmental and social disaster. A complaint regarding this was filed with the CAO, raising concerns about the disclosure of project information, environmental and social risks and human rights violations.

In Tata’s tea plantations in Assam and West Bengal, where the IFC investment comprises an equity investment of $7.8 million, there have been serious issues regarding labour law violations. A complaint was filed with the CAO by concerned NGO’s on behalf of tea workers raising concerns about the labour and working conditions at three different plantations.

In their complaint they specifically cited long working hours, unpaid compensation, poor hygiene and health conditions, and a lack of freedom to associate among plantation workers. Furthermore, the complainants have questioned the worker share-buying programme, contending that workers have been pressured into buying shares, often without proper information about the risks of such an investment. In all the above cases the CAO has gone ahead and given an audit report reinforcing the contentions of the complainants.

A complaint on IFC’s technical assistance to Vizhinjam port in Kerala is pending with the CAO.

Sabotaging the interests of its people

Immunity is oddly being granted to the IFC at a time when the people in India have, for the first time, taken a major step towards holding large financial institutions accountable.

The local fishing and farming community members from the villages affected by the Tata Mundra UMPP, filed a class action lawsuit in a US court holding the IFC responsible for causing the loss of their livelihoods, destroying their land and water and for creating a threat to their health by funding the coal-fired power plant in Gujarat.

Though the appeal was dismissed in the lower court, for the people it was a chance at seeking justice. A new appeal has been recently filed in a higher court in the US. This is the first time that a case is filed against a member of the World Bank Group anywhere in the world.

Immunity to the IFC in India has snatched away a medium to seek justice from the people who are affected by IFC funding within the Indian jurisdiction. Also, the move to extend the United Nations (Privileges and Immunities) Act to an institution like IFC, which funds only private sector projects, seems not without a motive. By making this move, the government of India has opened a new door to lowering the environmental and social safeguard implementations, by taking away the rights of the affected people for holding IFC answerable for its investments.

Also, this underhanded way of bringing financial institutions under the Act is of serious concern. For any citizen, the judicial system of a nation is the most reverent space for seeking justice. By making this move, the government of India has gone ahead and compromised with the constitutional rights of its own citizens to seek justice in their own land and has made it easier for international financial institutions like the IFC to get an easy pass for the devastation that their projects have caused.

How can any institution be above the law of the land?

Art of Living Event “Completely Destroyed” Yamuna Floodplain: Expert Panel

Levelling land to construct for the World Culture Festival has caused possibly irreversible damage to the vegetation, organisms, water bodies and floodwater retention capacity of the Yamuna floodplain.

Levelling land to construct for the World Culture Festival has caused possibly irreversible damage to the vegetation, organisms, water bodies and floodwater retention capacity of the Yamuna floodplain.

The Art of Living Foundation caused great ecological damage to the Yamuna floodplain by levelling the ground for temporary use during its World Culture Festival. Credit: PTI

New Delhi: The expert committee, constituted by the National Green Tribunal to assess the damage caused by the World Culture Festival organised by Sri Sri Ravi Shankar’s Art of Living Foundation on the Yamuna banks, has found that the “entire floodplain area used for the main event site i.e. between DND flyover and the Barapulla drain (on the right bank of river Yamuna) has been completely destroyed, not simply damaged.”

In a damning 47-page report, the panel – chaired by Shashank Shekar, the water resources secretary, and comprising leading scientists, Professor C.R. Babu, Professor A. K. Gosain and Professor Brij Gopal – has stated that “the ground is now totally levelled, compacted and hardened and is totally devoid of water bodies or depressions and almost completely devoid of any vegetation.”

The report added that the main event site had been “totally destroyed by complete clearing of all kinds of vegetation on the floodplain (and loss of all dependent biodiversity), filling in of water bodies and all depressions, dumping of debris and garbage followed by levelling and heavy compacting of the ground”.

Pointing to how the compacting of earth and massive earth movement has impacted the area, it said: “The area where the grand stage was erected (and the area immediately behind it) is heavily consolidated – most likely with a different kind of external material used to level the ground and compress it. Huge amount of earth and debris have been dumped to construct the ramps for access from the DND flyover and from the two pontoon bridges across the Barapulla drain.”

The report also noted how the main river channel had been impacted by the preparations, saying,“Physical changes also occurred in the river channel due to the removal of riparian vegetation, construction of road and pontoon bridges, blocking of the side channel that would invariably disturb the flow and bottom sediments besides bringing in particulate material (sediments and organic matter) into it.”

It said the levelling of the land had also “severely compromised” the floodwater retention capacity of the area. “The simplification of habitat into a flat land has eliminated all water bodies in the impacted area – shallow or deep form naturally in the floodplain. These water bodies control floods, help groundwater recharge, support vegetation, fish and other biodiversity. Overall, the floodwater retention capacity of the area has been severely compromised.”

On July 28 the panel had found the Art of Living liable for causing damage to the river floodplain. The tribunal then gave the foundation three weeks to respond to the charges and the matter would now be heard on August 28.

The committee elaborated on how the construction of roads and ramps and levelling of the surface had damaged the area, saying, “the physical damage in the floodplain and its wetlands include a change in topography which has a direct bearing on the diversity of habitats. Construction of ramps and roads, filling up of water bodies and levelling of the ground together with compaction have almost completely eliminated the natural physical features and the diversity of habitats”.

It also observed that “the floodplain has lost almost all of its natural vegetation – trees, shrubs, reeds, tall grasses, aquatic vegetation including water hyacinth. The vegetation also includes numerous microscopic forms of algae, mosses and some ferns which inhabit the soil and water bodies. All of them have been destroyed in the area completely. Their total loss cannot be readily visualised and documented”.

The report further explained how this could potentially disrupt the natural cycle of the environment, “The vegetation provides habitat, food and sites for breeding/nesting to a large number and kinds of animals including birds, fishes, frogs, turtles, insects and innumerable bottom and mud-dwelling organisms (molluscs, earthworms, insects, and various other micro and macroscopic invertebrates).”

Noting that there had been some “invisible loss of biodiversity” that may “never be able to return”, it said, there was loss as “these organisms were rendered homeless, driven away by intense activity and many were consigned to graves under the debris”.

“Far more significant changes are expected in the micro-organisms which are critical to ecosystem functioning,” the panel cautioned.

The committee also mentioned the obstacles it faced in assessing the damage to the floodplains, saying its members were “prevented from making any study and were forced to retreat by the AOL volunteers on the site” on April 15. It said the team then visited the site on June 6 “for a visual assessment”.

For its part, the Art of Living Foundation in a statement to the media said: “The NGT is yet to hear our application for reconstitution of the committee. Hence, it is not logical to take the report of the committee into consideration before our application is heard. Taking all facts into consideration, it is clear that the allegation of environmental damage are unscientific, biased and unsustainable. We will submit our objections to the report in detail once we have had a chance to go through it.”