We've excess power but no access to it: Environment lawyer Ritwick Dutta

Environment lawyer Ritwick Dutta's first case was against Vedanta, where he represented the Dongria Kondh tribals seeking a ban on bauxite mining in the Niyamgiri hills in south-west Odisha. He speaks to Prerna Singh Bindra of Indiaspend about dangers to India's environment.

Can you elaborate on specific moves by the current regime that dilute environmental regulations?

The National Waterways Act, 2016, intended to convert rivers into highways — with heavy traffic of cargo ships of coal, oil, chemicals — was passed by the Parliament, overruling other statutory processes. The government is not seeking environment approvals for bulk of the waterways.

The Wetlands (Conservation & Management) Rules, 2017, are more of a framework to legalise wetland destruction. It fails to cover 65 per cent of the total area identified as wetlands, disbands the National Wetland Regulatory Authority, waters down the definition of a wetland, and has done away with the requirement of an environment impact assessment.

The task of granting mining approvals has also been relegated to the district level, to a committee which will have the district chief engineer of the irrigation department as the chairperson and the mining officer as a member. The District Environment Regulation Authority is to be headed by the district magistrate whose job is to increase revenues. It’s like asking the fox to guard the chicken. It has granted general approval — which means each project won’t be assessed individually — under the Forest (Conservation) Act for clearances in forest areas that are within 100 km of the Line of Actual Control.
 

Isn’t the Waterways Act, and the big dams, a contradiction of one of the government’s flagship priority schemes — Namami Gange?

Yes, it is a serious contradiction. But before we get into that, I would like to bring up another point. When the new government came to power, one of the first things it did was to give the water resources ministry a new nomenclature — Ministry of Water Resources, River Development and Ganga Rejuvenation. The message here is that Ganga is to be rejuvenated, but other rivers may be tapped, dammed, developed. That they will be viewed only as resources, not rivers.
 

What it is essentially doing is making a class and caste discrimination between rivers, where Ganga is an upper-caste river in comparison to others which are lower-caste rivers. Brahmaputra, Teesta, Narmada, Cauvery — all suffering from pollution, reduced flows etc — other rivers don’t figure in its rejuvenation projects.

So we have a Ganga-obsessed ministry; yet, there is no concrete action to protect the Ganga. The main emphasis within this programme is on effluent treatment plants, likely as they are easy to set up. There is little talk of ensuring the flow of the river, which is essential for the flushing action to clean the water, and maintain the ecosystem of the river, support fish and other aquatic life like dolphins, gharials etc.

But for a river to have a flow, you need to rationalise and stop dams, and no one wants to do that.

But don’t we need dams for power? About 300 million Indians don’t have access to electricity.

It’s not about power. There is a nexus around the construction of dams — the contractor, construction, procurement of steel, cement etc — and that is the driver.

According to the Niti Aayog report, we have already reached surplus as far as power is concerned. Every single day, India has 3,000-4,000 MW with no takers. The Central Electricity Authority has itself said that there is no need for a power plant in the next 10 years, till 2017.

Yet, we continue to commission power plants. In September 2017, a 1,600 MW power plant — incidentally Adani’s — was approved in Jharkhand’s Godda district. It will destroy forests and multi-crop fertile land, only to sell its entire electricity produce to Bangladesh. There is immense unrest among the local farmers who do not want to give up their land, and because of the resultant pollution and falling water tables.

Yes, about 300 million people in India don’t have access to power, but it’s because there is no last-mile connectivity. We are in a situation where we may have 1,000 MW surplus power but no distribution for that last village which has 30 people.

What you need here is a wind or solar that will take six months to set up, rather than a hydro or thermal power plant which will be established only in eight to 10 years. But we will still invest in that mega power project with the long gestation period at the cost of one whole generation going without electricity.

Who are these power plants serving? Not the people who are still deprived of electricity. When we talk of protecting an elephant corridor which is being blocked due to, say, a power transmission line or a power plant, people say ‘but India needs power’. But we don’t, we have excess of it, but don’t have access to it. The real issues are bad management, distribution failure, transmission losses, inefficient plants — but (we) are not addressing these, or investing here.

There is also an effort to undercut the NGT?

The NGT is being hollowed out. The NGT Act requires the tribunal to have 40 expert members. It had about 20 members when it started in 2011 in its one Delhi bench. Now, it has only five members.

The NGT benches at Bhopal, Chennai, Pune and Kolkata are non-functional because of lack of quorum. The Chennai bench has closed down because it doesn’t have even one member, while Kolkata and Pune have only one judicial member. No judgement has been passed in Kolkata since December 2017.

It is not just about numbers. The tribunal hears matters on a range of subjects — pollution, toxic waste, pesticides, forest destruction etc, and to function effectively, it needs members with specialised expertise. For instance, one major issue the Delhi bench is hearing currently is to do with PM 2.5/PM 10, where forest officers — the only expert members it has — are out of their depth.

The result is that cases are being delayed, from hearing 80-90 cases a day, it can now hear only about 10. This defeats the very purpose of the NGT which was to provide expeditious and speedy justice. The law requires that every matter should be decided within six months.

Not filling the vacancies is a very deliberate action on the part of the government to ensure that this institute is made non-functional and dysfunctional. In its response to a petition, the Delhi High Court in August 2017 asked the government whether it wanted to wind up the NGT.

Another very damaging move was The Finance Act, 2017. It changed the process of appointment of its members by an independent committee to one that is decided by the secretary, Ministry of Environment, Forest and Climate Change (MoEFCC). It also provided the MoEFCC power of dismissal and other service conditions, thus making NGT subservient to it. Remember, the NGT questions decisions given by the environment ministry and holds them to task for non-compliance of laws.

Fortunately, it has been challenged in the Supreme Court. Another concern is the systematic process to dilute and dismantle the environmental law structure, which was first attempted by the high-level TSR Subramanian committee in July 2014. The report was stuck down by a parliamentary committee, but the process to weaken and subvert the law is ongoing.

So do you believe the NGT is being obstructionist, stopping big projects and development?

Not true. Contrary to the myth that the NGT strangulates growth, there are very few instances where the NGT has quashed a decision taken by the MoEFCC. In NGT’s entire history, the total number of projects it has stopped do not exceed 10, six of which have managed to get relief from the Supreme Court. In the same period, the government would have approved some 100,000 projects. As per our analysis, in 2017, the government gave about 10,000 forest approvals, and stopped only three, of which two have a forest area of less than three hectares.

The reason the government is intent on expunging the NGT is not because it is obstructionist, but because it enables the public to question the inaction of the government, and holds it accountable.