While allowing the Art of Living Foundation to go ahead with its three-day ‘cultural’ event on the Yamuna floodplains, the National Green Tribunal (NGT) described the situation as a fait accompli, something that could not be prevented from taking place at such a late stage. The only recourse available was to impose a fine and ask the organisation to restore the area to its original condition after the event.
The four-member committee that the NGT had set up last month to make an assessment of the kind of activities being undertaken for the event had expressed a similar opinion. It had said that so many changes to the floodplains had already been made that it would be futile to stop the event. Instead, the organisation should be asked to pay a heavy fine before the event and then told to restore the plains.
This argument has enabled several projects in the past, otherwise in violation of law, to see the light of day. Fait accompli situations are not new in environmental regulation. For years, industries have used ‘work already done’ or ‘investment already made’ argument to seek clearances despite being found at the wrong end of law. And they have got away with it, especially in cases where the projects required both environmental clearance as well as forest clearance.
Industries would often begin work on a project after getting stage-I environmental clearance which was easy to obtain because the assessment is made only on the basis of information offered by the party executing the project. The stage-I environmental clearance is always subject to forest clearance but by the time the party has made an application for forest clearance substantial work would already have been done. The party would then use this fact to press its case for forest clearance. More often than not, the clearance would come, attached with a fine, or some additional mitigating work, which the party would happily agree to.
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Fines, in such cases, were no longer a deterrent but were reduced to a means of legitimising transgressions of law. Not to speak of the huge potential for corruption that such situations opened up.
The approval for the Art of Living event as a fait accompli is even starker because the function serves no public purpose. There is no public good involved. Industries, at least, can talk about the jobs they can create or the ‘development’ they would bring to the area if their project is allowed to take shape.
In recent years, some effort has been made to avoid fait accompli situations in granting clearances to industrial or infrastructure projects. Both the Environment Ministry and the Supreme Court have laid down some guidelines in this regard.
In a landmark judgment in the Lafarge Umiam mining case, the Supreme Court, in July 2011, said that if a project needed both forest clearance and environmental clearance, the forest clearance must be obtained first. The Environment Ministry, through a series of orders in 2010, 2011 and 2013, has also tried to address this problem. It has been said that environmental clearance and forest clearance can no longer be independent processes. In cases where forest land is affected, an application for environmental clearance would be entertained only if forest clearance is obtained.
While some sort of clarity has been established in such cases, there are no firm policy guidelines in place about what can or cannot be allowed to be done on the floodplains or adjoining areas of a river. Big projects like industrial construction near a river or those that draw water out from the river, or hydroelectric power units do certainly need prior environmental clearances.
The Art of Living event, however, benefitted from the lack of clarity about the need for environmental clearances for activities of the kind it has planned.
The NGT has now told the Environment Ministry that it must not remain a mute spectator in such cases. It has drawn attention of the ministry to the Environment Impact Assessment (EIA) notification of 2006 that says that building and construction projects involving an area of more than 20,000 square metres need prior environmental clearance. And so do ‘townships and area development projects’ covering an area of 50 hectares or more. The notification does not explicitly mention whether these provisions are applicable to temporary construction as well. The NGT order now empowers the Ministry to make use of this provision.
While there was some doubt over applicability of the EIA notification, there couldn’t have been any doubt over the fact that the organisation of the event is a violation of NGT’s own order of last January that prohibited all activities on the Yamuna floodplain. The four-member committee that visited the site last month pointed it out very clearly in its report submitted on February 22. An immediate stop-work order at that time could possibly have weakened the fait accompli argument.
The final order of the NGT is still to come, and therein lies another opportunity for the court to set the benchmark in dealing with blatant violations of environmental law.