https://www.thethirdpole.net/en/2019/12/19/neither-law-nor-accident-stops-coal-mining-in-meghalaya/

Neither law nor accident stops coal mining in Meghalaya

Activists trying to record illegal mining come under attack and are critically injured

Coal resting near water in the Indian state of Meghalaya. A still from the documentary Broken Landscape, part of the “Global Choke Point” series by the Wilson Center and Circle of Blue.

Sreedhar Ramamurthi, December 19, 2019

More than a year after the flooding of an illegal coal mine killed 15 miners in Meghalaya, the collective failure of all disaster management agencies in India has been almost forgotten.

On December 13, 2018, 20 miners were trapped in a mine in Ksan, in the north-east Indian state of Meghalaya. Five managed to escape. Rescue efforts for the remaining 15 continued for months, but failed.

The miners were trapped at a depth of around 370 feet (112 metres) in the Jaintia Hills district. Service personnel from the National Disaster Response Force (NDRF) and the State Disaster Response Force began operations shortly after the miners were trapped. After a request for assistance from the district administration, teams from Coal India, Kirloskar Brothers, the Indian Air Force and the Indian Navy joined the rescue effort.

The accident happened despite the fact that the National Green Tribunal (NGT) had banned mining in Meghalaya — particularly ‘rat-hole’ mining which is a primitive and hazardous method of mining for coal, with tunnels that are only 3-4 feet in diameter.

The NGT and anti-mining activists have pointed out that illegal mining of coal continues.

While two activists were conducting their investigations a few months ago, a group of people encircled their car and attacked them. Both were hospitalised with critical injuries, and local media reported that the attack pointed towards a coal mafia.

Coal mining in Meghalaya can no longer persist with its dangerous legacy. It is essential for India to set this right before we wake up to another disaster. The attacks on activists indicate that the process of setting it right will involve more than cosmetic changes.

A look at the Supreme Court case on coal block allocation (WP Civil 120 of 2012) and the subsequent amendments in 2012 of the Coal Mines Nationalisation (CMN) Act and the Coal Mines Special Provisions Act 2015 as well as subsequent meetings in the Ministry of Coal indicate that the coal mining in Meghalaya is entirely illegal.

The key points of the judgement were:

• The allocation of coal blocks through government dispensation route, however laudable the object may be, also is illegal since it is impermissible as per the scheme of the CMN Act. No state government or public sector undertakings of the state governments are eligible for mining coal for commercial use. Since allocation of coal is permissible only to those categories under Section 3(3) and (4), the joint venture arrangement with ineligible firms is also impermissible…
• The grant of reconnaissance permit or prospecting licence or mining lease in respect of an area containing coal or lignite can be made only through selection through auction by competitive bidding even among the eligible entities.

India’s coal ministry and the Meghalaya state government do understand this. The issue has been taken up in various meetings. In January 2017, a meeting was held in which ways to enable mining under the existing laws were discussed. It was concluded that the only viable option under the existing statutes will be for a state-owned corporation to do the mining.  In August 2017, the coal ministry accepted the state government’s submission that the Meghalaya Mineral Development Corporation will be the designated agency for mining coal and would be allocated the permission to mine if an appropriate proposal was made.

This has not happened yet. Till then, any and every coal transaction in Meghalaya – including mining – is patently illegal. The moot question is: who will set it right?

Sreedhar Ramamurthi works for Environics, an environmental NGO with focus on mining activities

ENVIRONMENTAL GOVERNANCE: HUGE CHASM BETWEEN PROMISE AND PERFORMANCE

The Promise

The election manifesto of the Bharatiya Janata Party[i] stated “We will put sustainability at the centre of our thoughts and actions, working on the principle that inclusive growth cannot be limited by the barriers of time and space - it has to be built on the foundations of the past, leverage on the opportunities of the present, and preserve and enhance its resources for the future. We will take Climate Change mitigation initiatives with all seriousness and work with the global community and institutions in this regard.” 

The manifesto further talking about natural resources invoked Gandhiji and asserted “A country's progress depends upon its resources and how they are harnessed and protected. Those in power have to realize they are just trustees of the resources of the nation. The resources are neither meant for them nor for their masters. If we bring this basic shift in thinking of the Government, which Mahatma Gandhi also advocated, all problems will be resolved. In recent years, it has been noticed that country's tangible and intangible resources have been looted with impunity. The adverse result is being felt on two sides: Firstly, the proceeds of the resources have not gone to the public exchequer. Secondly, because of this culture of usurping, the same resources are not available for public purposes. The management of natural resources is marred with either misappropriation or misallocation. This has to be set right.”

The Performance

Attempt to wholesale dilution of Environmental Safeguards

The Government began the process with a diametrically opposite effort by constituting a High Level Committee to dilute the various provisions of the Environmental legislations. These legislations have come in with several struggles of the communities and also commitments made to the international community. The process and the report of the High Level Committee led to severe disapproval and the report was placed before the Parliamentary Standing Committee (PSC) of the Ministry.  The PSC observed[ii], “The recommendations of the HLC report will not empower regulatory agencies to safeguard the environment. In many cases implementation of the High Level Committee Report[iii] will lead to multiplicity of institutions and authorities with little strength, power and capacity in the institutions such as the proposed National Environmental Management Agency and State Environmental Management Agency.”

The PSC rejected the report with the following recommendation, “Considering the various objections as aforesaid and comments of the Ministry, the Committee finds that objections raised by members of civil society/NGOs/experts are prima facie valid and require serious reflection. The Committee is of the view that the period of three months allotted to the High Level Committee for reviewing the six environmental Acts was too short and that there was no cogent reason for hurrying through with the Report without comprehensive, meaningful and wider consultations with all stakeholders.” Having failed in wholesale dilution, persistent efforts are being continuously made to dismantle these safeguards.

Efforts to Remove the Construction Sector from the Purview of Environmental Scrutiny

While there is a constant attempt to undermine the existing regulations, the case of the construction sector is worth analysing. Under the existing law, all Building and Construction projects from 20,000 Sq Mts requires an environmental clearance EC under the EIA Notification, 2006. In addition, it requires Consent to Establish and Operate under the Air Act, 1981 and the Water Act, 1974. Moreover, any concerned person can approach the National Green Tribunal to challenge the Environmental Clearance or seek action for violation.

In a Notification dated December 9, 2016 issued by MoEF&CC which exempted real-estate projects upto 1,50,000 sq.m built up area from the need for undergoing environmental impact assessment (EIA) and obtaining Environmental Clearance (EC) from MoEF/ State Level Environment Impact Assessment Authorities (SEIAA) and exempting the operation of the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974  for Building and Construction projects upto 150,000 Sq Mts. 

The Notification was challenged by a group of petitioners on various grounds including the reason for the exemption was 'ease of doing responsible business' and the same cannot be a ground for exempting the application of environmental law. In addition, the other ground i.e ' housing for all by 2022' is an attempt to 'hide behind' the poor while actually benefiting the builders lobby. Most significantly, all the exemptions were ironically done by stating that the exclusion of the application of environmental law was essential in order to improve the quality of environment.

In the strongly worded judgment, the Tribunal condemned this act of diluting environmental safeguards in the interest of ‘ease of doing responsible business’ under the garb of ‘housing for all’. It noted that: "The said amendment notification is only a ploy to circumvent the provisions of environmental assessment under the EIA Notification, 2006 in the name of ‘ease of doing responsible business’ and there is no mechanism laid down under the amendment notification for evaluation, assessment or monitoring of the environment impact of the building and construction activity. The construction industry consumes enormous resources and has a significant energy footprint; the sector emits 22 per cent of India’s total annual carbon-dioxide emission.”

The Tribunal also strongly reprimanded the Ministry for overlooking its own findings regarding the incompetence of local authorities to appraise real-estate projects as reported by the committee headed by Dr. K. Kasturirangan. Despite this, currently the Ministry has come up with a new effort to increase this limit from 20,000 Sq Mts to 50,000 Sq. Mts.

The Impunity of the Highway Sector

The dilution of the regulations is also best indicated in the Roads and Highway sector. The Ministry has exempted highways below 100 km from the purview of Environmental Impact Assessments. This has led to the widespread destruction the highways are causing to the environment and also generating pollution, dumping muck into reservoirs and wetlands, haphazardly quarrying for road materials. The classic case is of the Chandigarh-Rohtang National Highway 21, which goes along the Bhakra Reservoir. The four-laning of this road has been split in sections of less than 100 km to do away with all the due-diligence required. The Bhakra Reservoir area, which used to be the Govind Sagar Wildlife Sanctuary” was denotified, apparently to rationalise protected areas.

Highways passing thorough National Parks and Sanctuaries, ecologically sensitive areas are being bull-dozed into construction despite objections being raised by local communities and in some occasions by the relevant forest and wildlife departments.

The menace of this mindless road construction, much of which has no relevance to the vast majority of the rural people, is not only impacting the environment but also is the cause for a number of local land related problems and litigation. In their urgency the highway authorities do not properly demarcate the specific parcel of the land acquired from a specific family and when the road construction is complete, there are number of discrepancies of land that is left of the plots. The end result is that neighbours then have to seek legal remedy between themselves and the road builders are seen no-where. The irony is that these highways then become the toll-ways which add to the profit of the investors leaving the local people literally “in the streets”.

New Effort to Dilute Coastal Zone Regulations

The CRZ Notification governs development on the Indian coastline. It demarcates the first 500 metres of land from the sea as Coastal Regulation Zone (CRZ) and divides it into ecologically sensitive areas, water areas, urban and rural areas. It also includes the area in the sea up to 12 nautical miles. Acknowledging the vulnerability of coastal ecosystems, it delineates the first 200 metres of the rural areas of CRZ as No Development Zone (NDZ).

Being obsessed with rapid and exponential development of ports and coastal infrastructure, with the assumption of office in 2014, the Government initiated a CRZ review by Shailesh Nayak Committee to the proposed MCRZ Notification, each review/revision process has only diluted the coastal regulation. The MoEFCC opened the CRZ Notification to review but with a narrow scope – it limited the Terms of Reference of the Shailesh Nayak Committee only to address state governments’ grievances. Other stakeholders were kept out and the review thus conducted was obscure and skewed without an objective, inclusive and participatory assessment of the CRZ Notification. The inter-ministerial meeting does not fare any better. Fisheries and coastal agriculture, two livelihoods dependent on unhindered access to coastal commons are not represented in this ‘stakeholder’ meeting[iv].

CRZ 2018 notification proposes a series of changes in the 2011 version. Among the most worrisome is the arbitrary reduction of the tidal influence on land. The draft notification states “CRZ limits on land along the tidal influenced water bodies has been proposed to be reduced from 100 metres or the width of the creek, whichever is less, to 50 metres or the width of the creek, whichever is less.”

The draft complicates the understanding of the coastal ecosystems by dividing the CRZ into seven categories – CRZ-I A, CRZ-I B, CRZ-II, CRZ-III A, CRZ-III B, CRZ-IVA and CRZ-IV B compared to only four classifications (CRZ-I, CRZ-II, CRZ-III and CRZ-IV) in the 2011 version. Of the seven classifications, CRZ-I A is environmentally the most sensitive and critical, comprising areas like mangroves, coral reefs, sand dunes, biologically active mudflats, salt marshes, national parks, marine parks, reserve forests, wildlife habitats, turtle nesting grounds, nesting ground for birds, and heritage sites. These areas are also not spared from destructive development activities.

The draft notification states construction of roads and roads on stilts, by way of reclamation in CRZ-I areas, shall be permitted only in exceptional cases for defence, strategic purposes and public utilities, subject to a detailed marine/terrestrial environment impact assessment, to be recommended by the Coastal Zone Management Authority and approved by the MoEFCC. Further it goes on to state “in case construction of such roads passes through mangrove areas or is likely to damage the mangroves, a minimum three times the mangrove area affected/ destroyed /cut during the construction process shall be taken up for compensatory plantation of mangroves,”

A series of public hearings are being done in the coastal areas currently. The recent public hearing in Chennai[v] saw fisherfolk resisting and rejecting the farce public hearing which were not in accordance with the 2011 notifications. The information on the basis of which the public hearing on the specific zonation was to be undertaken was grossly inadequate to make any proper decisions. The pushing of these revised regulations to benefit tourism, real-estate and port based activities are going to be a death knell for the coastal fisherfolk especially when combined with the ambitious “Sagarmala” project which aims to connect ports with roads across the country’s eastern and western coasts. No wonder that these communities already living and eking out livelihoods in an uncertain environment exacerbated by the impacts on climate are deeply concerned about their future.

Dilution and Destruction of Institutions Governing Wetlands

The Wetlands (Conservation and Management) Rules 2010 had clearly prohibited activities like reclamation of wetlands, setting up of new industries and expansion of existing industries, solid waste dumping, manufacturing or handling or storage or disposal of hazardous substances, discharge of untreated waste and effluents from industries, cities, towns and other human settlements, any construction of permanent nature and any other activity that is likely to have an adverse impact on the ecosystem of wetlands. The new wetland rules promulgated, in the guise of “wise-use”,by the Government has severe implications to the already depleting waterbodies especially thorugh dumping on these sites and large scale encroachment by real estate. The specific aspects of the dilution are indicated here but in the name of decentralising authority, the role has been assigned to those who are responsible for its degradation.

i. Restricted, Diluted definition of Wetland by excluding zone of direct influence, catchment area, manmade water bodies/ tanks/ salt pans from the ambit of the definition.

ii. The categorization laid down under the Rules of 2010 has been done away with, and only Ramsar Sites as well as wetlands identified by the Central Government, State Government and the Union Territories’ Administration would be protected under the new regime.

iii. Dismantling of the Central Wetland Regulatory Authority, and constitution of a National Wetlands Committee which has been given only an advisory role under the new regime envisaged under the impugned Rules.

iv. Arbitrary concentration of power with the State Government as it has been empowered to notify the wetlands in their respective States and it is the Minister of Environment of the State that heads the Wetland Authority which has to identify and recommend wetlands for notification.

v.   List of Prohibited and Restricted Activities that can be carried out on wetland and its catchment area has been severely diluted

vi. Requirement of Environment Impact Assessment has been deleted which was mandatory under the Rules of 2010[vi].

Ostrich like attitude on Air Pollution from Coal Based Power Plants

Coal Based Thermal Power plants were to adhere to stricter pollution norms from December 2017. The Government did not make any effort or push the industry to initiate action on this notification issued in 2015. While environmentalists concerned with the raising air-pollution across the country from these polluting plants have been reminding the Government, it maintained that the norms will be adhered to by all industry by the said date of 7^th December 2017. Unabashedly in an ongoing case at the National Green Tribunal until the said date the Ministry maintained that it will be enforcing this condition. However, it surreptitiously approached the Supreme Court, with a dubious report to seek its intervention in extending the period for compliance to 2022. Coal Based thermal power plants are the undoubtedly the biggest emitters of GHGs. Promotion of such a destructive energy source in a period when renewables have become even financially attractive and dilution of the norms for their emissions clearly indicates the utmost lack of concern of the government towards the environment and in this case the very health of the citizens.

Decentralisation and Lure to States of Decision Making as a Tool for Dilution

While the constitution proudly proclaims our country to be a Republic, it has enabled or strengthened local institutions. Even state governments lack the institutional and technical basis for making several decisions. Further at the local level, decision-makers are themselves the vested interests in pushing ahead projects which are detrimental to local people. In almost all aspects of environmental decision making this is being used as a tool to enable easing of all the clearances. For instance, small projects are now cleared by a District Environmental Appraisal Authority and the Head of the Irrigation or Public Works Department happen to be among the members!

After the Supreme Court decision on the 2-G and coal scams, the law was changed to auction all mining leases. States are being lured into getting upfront money and the auction process is conducted completely keeping those people whose land is question in the dark. Once the bid is won, the promoter and the state force all clearance to be granted. The Government formed a “Post-Auction Mining Clearances and Approvals Facilitator (PAMCAF)” under which a more sophisticated acronym “TAMRA” - Transparency, Auction Monitoring and Resource Augmentation – has been created clearly to facilitate and expedite various clearances / approvals required after the mineral block is allocated. The consideration whether peoples’ rights exist, environmental conditions allow for such mining to come up do not seem to weigh much in this governance process.

Directions issued from PMO forcing agencies to clear without due diligence

Perhaps the most impactful of environment is the role of the Project Monitoring Group of the Prime Minister’s Office. The role of the project monitoring group is to enable investors ( FDI of Rs 500 Crore or Indian Rs 1000 Crore) can log in to the e-Suvidha portal and seek intervention in changing policies, obtaining clearances and changing rules to facilitate them. Once uploaded the PMG officials chase down the appraisal authorities to expedite the clearances which then become a fait accompli and without proper due-diligence they are merely papers generated to allow the activity.

A look at the current list of 914 projects[vii] in this portal is clearly indicative of the grossly climate unfriendly approach the Government has unleashed. This has completely undermined the laws and policies - that even if they were not the best, and its mindless and relentless pursuit of “ease-of-doing-business” is completely destroying the edifices of the regulatory and oversight institutions.

No wonder India is 177^th in the Environmental Performance Index among 180 countries even if it has inched to the 100^th position in the Ease-of-Doing-Business Index. One dreads to think if further improvement in the facilitation of destructive corporate activities have to be undertaken, how far more degradation of environment and quality of life we need to suffer.

The huge chasm between the promise and the performance needs a herculean effort to reverse the very mind-set of the state and regulatory agencies if we were to be serious about the looming climate crisis and even our Nationally Determined Commitments.

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[i] https://www.bjp.org/images/pdf_2014/full_manifesto_english_07.04.2014.pdf

[ii]http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20S%20and%20T,%20Env.%20and%20Forests/263.pdf

[iii] http://envfor.nic.in/sites/default/files/press-releases/Final_Report_of_HLC.pdf

[iv] https://counterview.org/2017/05/05/how-each-reviewrevision-of-the-proposed-mcrz-notification-only-diluted-coastal-regulation/

[v] http://www.newindianexpress.com/cities/chennai/2018/apr/28/angry-tamil-nadu-fishermen-raise-a-stink-public-hearing-on-draft-czmp-ends-abruptly-1807369.html

[vi] Based on detailed analysis by EIA Resource and Response Centre

[vii] https://esuvidha.gov.in/