The sites of new knowledges: citizens’ participation in environmental decision making

A “public hearing” is perhaps the only part of the environmental decision making process in India which brings project authorities, affected communities, concerned citizens and those who have “assessed” the project for impacts to one designated place.

Public hearing is part of the larger public consultation phase mandated as per the environment clearance process laid out in the Environment Impact Assessment (EIA) notification, 2006 (the first notification was issued in 1994 and several amendments were made to it until a fresh one was issued in 2006). Such a consultation includes ascertaining the views of locally affected people at the time of the public hearing and also written comments by anyone who seeks to engage with the process.

Since 1997 which is when public hearings where made mandatory, this process has been implemented in different formats as well as with varying interpretations. As per the procedure laid out in the 2006 notification, governments need to ensure that Public Hearings be arranged in a systematic, time bound and transparent manner ensuring widest possible public participation at the project site(s) or in its close proximity district-wise, incase a project affects people of more than one district in the country (paragraph 1.0 of Appendix IV of the Notification). They have been spaces of deep contestation that have brought out significant critiques of impact assessment reports and the manner in which baseline data regarding a site is presented. The above can be understood through a few examples.

DB Power thermal power plant, Badadarha, Chhattisgarh

In July 2009, Ramesh Agrawal, a social activist from Raigarh district of the central Indian state of Chhattisgarh wrote to the then Environment Minister, Jairam Ramesh. This letter from his organisation Jan Chetana was to alert the minister that the public hearing for the 1200 MW thermal power plant at village Badadarha, Tundri district in Janjgir-Champa, proposed by DB Power Ltd was wound up in just 20 minutes, leaving over 1000 protesters utterly shocked. The public hearing started on 30th June, 2009 at 12.00 pm in the Block Office at Dadhara. There was strong protest from the very beginning as the site of the public hearing had been fixed more than 35 km from Badadarha village where the plant was to be set up.

But just as protests demanding the postponement of the public hearing started, the Additional District Magistrate (ADM) and the presiding officer, S K Chand, announced the conclusion of the public hearing proceedings. The grounds they gave were that no person was coming forward to speak specifically about the project. The public hearing was declared completed. No attempt was made by the officers to ascertain why local people were protesting leave alone to address those concerns.

A day after the email was sent to the Minister, there was a response stating “many thanks. let me see what I can do and revert.” And then there was silence till the minutes of the 64th meeting of the Expert Appraisal Committee (EAC) on Thermal Power projects became available on the website of the Ministry of Environment and Forests (MoEF) sometime in February 2010. The EAC had considered the project for environment clearance on 30th January, 2010 for the first time.

Members of the EAC viewed the video recording of that meeting and concluded that they were not satisfied with the manner in which the proceedings had been concluded. The minutes recorded voiced apprehensions that there was lack of clarity on whether the views of the public were heard, whether the project authorities had responded to queries and whether all other necessary procedures had been followed. The EAC sought the views of the state government, a representative of the Chhattisgarh Environment Conservation Board (CECB) and the District Collector. They deferred the clearance till these discussions took place. These individuals were called in for a meeting with the EAC in New Delhi. The EAC chose to put its faith in what these three government officials said. Unfortunately, none of the protesters or those who had petitioned the ministry was deemed worthy of being invited by the EAC to confirm the truth about the public hearing.

The 67th meeting of the EAC was held on March 19th and 20th, 2010. Those who attended when the DB power project was being discussed were the ADM, presiding officer SK Chand, and a representative of CECB. In their written and oral submissions again these officials declared the 20-minute public hearing as completed! Their statement was that members of an organization called the Kishan Mazdoor Sangh disrupted the public hearing and the people present were not allowed to raise issues for discussion. Ramesh Agrawal and Rajesh Tripathy of Jan Chetana, who were present at the public hearing, say that this allegation made by the officials is completely baseless.

The officials agreed that protestors were demanding a change of venue for the public hearing. Most of them were not residents of Badadarha, the place which is to be most impacted by the project. Ironically, what officials failed to see was that the people from Baradarha were not there in huge numbers primarily because the public hearing was held 35 km away. The officials claimed that they repeatedly asked people to come to the dais and raise their concerns, but none did. According to the statement of the state government officials to the EAC, seven persons who did come up to the dais did not raise any environmental issues. Instead they raised concerns about the venue for the public hearing, their unwillingness to sell land and a complete no to the company entering the area.

What the officials and the EAC refused to see was that the 1000 people present at the public hearing were objecting to the venue and were demanding that it be reorganised as per the procedural requirements. They were vehemently against the project and the company. Their point of view was that until these issues remained unresolved, they would not take part in any other EIA related substantive or technical issues. This position was clearly not of any concern to the presiding officials as they were keen on completing the check list of procedures so that the project clearance can be expedited. And indeed, the project was granted approval in the course of the subsequent few meetings of the EAC.

OPG Power Gujarat Ltd, Mundra, Kutch

Another example is related to environmental clearance and public hearing for the OPG Power Gujarat Limited which has now received environmental clearance to set up a 300 MW thermal power plant on the ecologically fragile Mundra coast in Kutch district of Gujarat. This is part of OPG’s plan to generate 5000 MW of power as stated in their Memorandum of Understanding with the Government of Gujarat, a State in Western India. This project has been granted environmental clearance with an unprecedented list of 121 conditions which the company needs to comply with as it constructs its project. Many of these are meant to take care of the concerns raised at the time of the public hearing, claim the regulators and the project authorities.

When the public hearing for OPG’s 300 MW plant was conduced on 29th May 2009, there was massive protest by the fishing and salt panning communities who would be affected by both the plant and its intake/outfall water channels. People gathered in large numbers and clearly indicated their objection to the project and even presented a detailed memorandum to the officials present there as well as forwarding the same to the Gujarat State Pollution Control Board and the State Environment Impact Assessment Authority (SEIAA) which was to appraise the public hearing proceedings and the EIA report. What is interesting is that in a submission made by the GPCB before the authority where the environment clearance has been legally challenged, the reply of GPCB mentions that there was strong opposition at the time of the public hearing by the 2000 people that were present. However because only 117 people mentioned their names and details, only their objections were recorded.

What is important to note is that the Executive Summary of the Environment Impact Assessment (EIA) report for the project, prepared for the OPG group by Detox Corporation Private Limited, set the tone for the need for a thermal power plant. Locating itself within the burgeoning industrialisation of the Kutch region, the report began with a clear justification for the need for the project. It argued that OPG’s 300 MW power plant is being set up because, « Gujarat State is among the most industrialized in the country and the peak demand gap is in excess of 15 per cent in the state. Kutch is emerging as a major industrial centre and the Kutch region has two large ports of international standards in Mundra and Kandla which are among the largest ports in the country. » Therefore, « the power project is being set up in Kutch to meet the rising demand in the region. It is also expected to service large industrial consumers like Arvind Mills, Shah Alloys etc. »

The Machimar Adhikar Sangharsh Samiti (MASS), a fishworker’s trade union which has been working on livelihood and environment issues in the Mundra region, carried out a detailed study of the EIA report with the help of civil society representatives, and found several lacunae. At the public hearing, however, the company failed to respond to many of the issues raised by the local villagers or address the discrepancies that were pointed to in the EIA report. Evidence of this is available not just through press notes and media reporting but also through video recording of the proceedings. However, the officially recorded minutes are in complete contrast to what really took place at the hearing. This mis-representation was once again brought to light to the concerned SEIAA and GPCB.

What was also pointed out in various submissions is that the Marine EIA for the OPG plant had not been carried out which was a huge lacunae as the site of the OPG plant is located right near the inter-tidal area of the Kutch coast which is an extremely ecologically fragile region supporting unique fishing and salt panning livelihoods. Infact when the company was questioned about the lack of availability of a Marine impact assessment, the reply was that the Marine EIA report study has been awarded to M/s Indomer, Chennai and that the report would be ready in one month after the public hearing was conducted. This report was never presented before the affected people.

Post the public hearing, the grant of environment clearance took over a full year and it was granted on 11.06.2010. This is when the SEIAA granted approval with the list of 121 conditions. During the course of this one year the SEIAA asked the project authorities to respond to several lacunae pointed out at the public hearing, fill the gaps in the EIA report and also get a complete Marine EIA report prepared and validated by a “reputed” academic institute. The SEIAA also met with representatives of MASS at the site of the plant and sought the company to respond to their concerns. According to the SEIAA, they have “duly” taken on board all the concerns and incorporated them into one or the other of the long list conditions, the compliance of which remains a huge question. Infact one of these conditions ironically is as vague as “All the issues raised in the public hearing shall be comprehensively addressed / complied with in a time bound manner.”

The result of all of this was only that the resistance against the plant grew stronger and the opposing groups have further lost faith in the appraisal process of the regulatory authorities.

Conclusion

In the country however, public hearings continue to be spaces which communities affected by industrial and infrastructure projects see as points of interaction and mechanisms of influencing decision- making by regulatory agencies. But for those who hold the decision making powers, such hearings are only where they listen to what people have to say, and do whatever it is that suits their own interests. There is no accountability whatsoever on what is left unrecorded or even unsaid.

The Public Hearing process was hailed as a radical space for participatory decision-making when it first emerged in the framework of environment law. Both government officials and legal experts have cited it in academic papers and conferences as a progressive legal space. However, reports of how they are conducted reveal that there is much distance between the clauses on paper and the practice of legal procedures. Unless decision-making bodies and judicial authorities find ways to include the actual experiences of these hearings and reports of common people who participate in them, it will appear that all is right with our decision-making process. This will do no good to the environment or the local communities for whose benefit these legal clauses were made.