How exemption of 13 railway projects puts wildlife sanctuaries at risk

India’s environment ministry has exempted 13 pending railway projects, worth Rs 19,400 crore ($2.8 billion) and spread over 800 hectares of land, from the process of seeking forest permits, according to official documents.

These clearances could adversely impact a national park, a tiger reserve, a tiger corridor and wildlife sanctuaries across the states of Uttar Pradesh, Madhya Pradesh, Karnataka and Goa.

The railway ministry, including minister of railways Piyush Goyal, and the Railway Board, argued that this land was owned by the railways before 1980, the year the Forest (Conservation) Act (FCA), was passed, and so the Act did not apply to this land, according to railway and environment ministry documents accessed by IndiaSpend under the Right to Information Act.

The railway ministry declined comment over the phone. We await a response to a detailed questionnaire emailed on July 18, 2019, to the railway ministry. The story will be updated if and when we receive a response.

The Forest (Conservation) Act of 1980 prohibits the use of any forest land for non-forest activities without prior approval of the central government. This process is known as the ‘forest clearance’, or FC process, in common parlance.

In May 2019, the environment ministry issued a circular to all state governments that the FCA, 1980, will not apply for doubling of track and gauge conversion projects, if the land is railway land and was under non-forest use prior to 1980. Projects involving the construction of new lines would still need to apply for forest clearance.

The exemption now granted to these projects from the forest clearance process means that there will be no scrutiny or due diligence before forests are diverted for other uses. Usually, any proposal to use forest land is vetted and scrutinised by the state government, the divisional forest officer and eventually the headquarters of the central environment ministry or their regional offices, depending on the forest area to be diverted.

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Linear projects such as railways and highways are approved by the regional empowered committees. This scrutiny helps understand the unintended impact on wildlife, forest cover and long-term environmental sustainability of the project.

For instance, some of the 13 projects now exempted from the process pass through notified tiger reserves and national parks. There will now be no scrutiny of their impact on the movement of wildlife, or on the break-down of forests.

These projects, which include doubling of tracks and gauge conversions, were approved after discussions over two years, and backtracked on the government’s order from December 2017 that all forest land used by the railways for doubling or gauge conversion would be subject to forest approvals, irrespective of ownership.

The ministry's circular exempting these projects from forest clearance are contrary to the Forest (Conservation) Act's provisions, according to environmental law expert Ritwick Dutta.

“Any new activity done on any forest land after 1980, even breaking up an inch of land, for a non-forest use, needs prior approval as per the Forest Act,” he said, explaining that the Act is not just about tree cover, and any activity unrelated to conservation requires forest clearance.

The approval of 13 railway projects fits a pattern of fast-tracking environmental and forest clearances.

Over 500 projects were cleared in India’s Protected Areas and their ‘Eco-Sensitive Zones’ by the National Board of Wildlife over the four years of the Narendra Modi-led National Democratic Alliance government between June 2014 and May 2018. In comparison, the preceding United Progressive Alliance (UPA) government had cleared 260 projects between 2009 and 2013, as IndiaSpend reported in September 2018.

No more than 1.1% projects were rejected annually, on average, between June 2014 and May 2018, dropping from 11.9% under the previous UPA government between 2009 and 2013, according to an analysis by the Delhi-based advocacy, Centre for Science & Environment.

Approved projects will impact national parks, tiger reserves

At least four of the 13 approved projects will fragment either a national park, a tiger reserve, a tiger corridor or a wildlife sanctuary.

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If the 261 km Katni-Singrauli line is doubled, 33 km will pass through the Sanjay Dubri National Park in Madhya Pradesh, and will also disturb the tiger corridor connecting Bandhavgarh with the national park.

In July 2017, the National Tiger Conservation Authority told the railway ministry that 250 km of railway lines, including the Katni-Singrauli line, pose a high degree of threat to critical tiger habitats, according to a presentation made to the railway ministry in 2017.

The doubled Hospet-Tinaighat-Vasco line will pass through Goa's Bhagwan Mahaveer Sanctuary and Karnataka's Dandeli sanctuary while the Lucknow-Pilibhit gauge conversion will increase traffic and construction inside the Pilibhit tiger reserve in Uttar Pradesh.

The test case: Rules tweaked for Akola-Khandwa line

At the root of these approvals is the Akola-Khandwa gauge conversion project.

In 2017, when the Akola-Khandwa project came to the environment ministry for forest clearance, the railways said that the project did not need a fresh forest clearance since the gauge conversion would happen on land that was in their possession before 1980.

The project, which involves converting the 176-km metre-gauge line into a broad-gauge line, received the approval of the environment ministry in January 2017, as IndiaSpend reported in September 2018. Of the 176 km, 18 km passed through the critical tiger habitat at Melghat tiger reserve, home to more than 50 tigers, and 40 km passed through forested areas. The project would divert 161 hectares of forest land from the tiger reserve and the estimated cost was Rs 2,000 crore ($310 million).

In December 2017, the environment ministry clarified that even if the railways owned the land, they would need to apply for forest clearance since fresh forestland was to be diverted, according to a government order. This clarification was based on the opinion of the Ministry of Law and Justice, the order said.

In late 2018, the approval for the Akola project was challenged before a Central Empowered Committee (CEC) constituted by the Supreme Court, which asked the National Board of Wildlife to review the project’s clearance given its impact on a tiger reserve. The NBWL sent the proposal back in February 2019.

Given the back-and-forth on forest clearances for railway land, the railway ministry referred the matter to the Attorney General of India (AG), K K Venugopal, who sided with the railway ministry. In his 11-page opinion, issued in April 2018, AG Venugopal said that the Railways Act, 1989, gives the railways the power to execute necessary works even if it alters the course of any rivers, brooks, streams or other water bodies.

Further, Venugopal stated that while both Acts contained ‘non-obstante’ provisions, which allow these to override other laws prevailing at the time, the Railways Act would prevail in a case of conflict since it was enacted after the Forest (Conservation) Act.

For railway land under non-forest use before October 25, 1980, falling within the right of way of existing metre-gauge/broad-gauge lines, prior approval under the Forest (Conservation) Act would not be necessary, Venugopal concluded.

“The opinion of the AG is not a correct statement of laws as it does not take into account breaking up of land, and every single court direction that has said that the Forest Conservation Act will apply if there is a fresh requirement of forest land,” Dutta, the environmental lawyer, said. “Lastly, a ministry's circular or office order cannot be above a central legislation.”

On June 18, 2018, roads minister Nitin Gadkari chaired a meeting, with railway minister Piyush Goyal, the forests director-general Siddhanta Das and member of parliament from Akola, Sanjay Dhotre. Despite reservations raised by environment ministry officials, work on the gauge conversion should start immediately, based on the advocate-general’s decision, Gadkari said, according to Maharashtra state forest officials and environment ministry representatives present at the meeting.

In October 2018, Goyal wrote to the then environment minister, Harsh Vardhan, to raise the concern that state forest officials were not following the advocate-general’s directions, and asked Vardhan to direct officials to not apply the forest clearance rules to railway land already under non-forest use before 1980.

The environment ministry confirmed that they had agreed with minister Goyal. “We had a discussion with the railway ministry on the right of way issue. We had clarified earlier that they have right of way over land in their possession prior to 1980. But they asked us to reiterate this to all states and we have done that and we have resolved their problem,” said C K Mishra, secretary at the environment ministry.

Still, the National Board of Wildlife revoked permission for the Akola project in February 2019, citing the National Tiger Conservation Authority's views that the railway line would run through a tiger reserve, impacting sensitive ecology.

Currently the state government has put the project on hold following its rejection by the National Board of Wildlife. Still, over the past two years, the railways has cited this case--that the meter- gauge line has existed inside the Melghat tiger reserve since before 1980 and should not need additional forest clearance--to seek exemptions from forest clearance for other projects.