A ‘green’ rap on the knuckles

The NGT’s notice on implementation of the Biological Diversity Act is timely

September 01, 2016 12:17 am | Updated September 22, 2016 04:08 pm IST

“We have constantly seen fraudulent Environment Impact Assessments which undermine the ecological value of areas that are proposed to be dammed, mined or diverted.” Picture shows a hydel project site in Himachal Pradesh. — File Photo: Sandeep Saxena

“We have constantly seen fraudulent Environment Impact Assessments which undermine the ecological value of areas that are proposed to be dammed, mined or diverted.” Picture shows a hydel project site in Himachal Pradesh. — File Photo: Sandeep Saxena

For the first time since the enactment of the Biological Diversity Act, 2002, more than a decade and a half ago, States have now been forced to look into its implementation. The National Green Tribunal (NGT) had recently >asked for action against top State officials who had failed to respond to an application filed before the tribunal for effective implementation of the act. The act calls for the protection and management of biodiversity through the setting up of biodiversity management committees (BMC) for managing biodiversity, and managing peoples’ biodiversity registers (PBR) to document biodiversity in each district.

Right to Information responses from 15 States reveal the status of implementation of the act. While these States have more than 61,000 panchayats or municipalities, only 14 per cent of PBRs (less than 1,400) have been set up.

Biodiversity crisis The issue acquires importance as India is facing massive biodiversity loss: each day, 333 acres of forest are legally diverted on an average under the provisions of the Forest (Conservation) Act, 1980. This figure does not include forests which are illegally felled or encroached. While the Supreme Court has called for a “species best interest standard”, last year, one rhinoceros was killed almost every two weeks in the Kaziranga National Park. About 30 or less genetically pure wild buffaloes exist in central India while the number of Great Indian Bustards stands at a precarious 150 birds. Our hunger for forest land is also never ending: the construction plan for Amaravati, the new capital city of Andhra Pradesh, includes diverting 13,000 hectares, or 130 sq.km, of forest. The Himalayas are today the world’s mountain range with the most number of dams.

India is in the midst of an unacknowledged biodiversity crisis. Therefore, it is ironic that the act is the most neglected of India’s environmental laws, and one of the least implemented. There is very limited judicial pronouncement and interpretation, action by civil society is virtually absent, and the government’s approach has been one of extreme apathy. Many State biodiversity boards have Indian Forest Service officers, many of whom are waiting to be posted in a more “mainstream” post as biodiversity is perceived to be a dead subject.

This despite the fact that the act has immense potential to safeguard India’s threatened biodiversity.

What then is the scope of the Biological Diversity Act, 2002, and how can it be a potent tool in helping to conserve wildlife and wildlife habitat?

The act provides for both centralised as well as decentralised institutional mechanisms for conservation and sustainable use of biodiversity. It has the National Biodiversity Authority at the apex level and BMCs at the local level, with an intermediate State Biodiversity Board. The problem is not with the constitution of State- or national-level authorities. They have been set up by all the States and provide employment opportunities for officers of the government with limited responsibilities. The problem is acute at the level of BMCs. The BMC has been given diverse responsibilities which include conservation, promoting sustainable use and chronicling of knowledge related to biodiversity. BMCs are mandated to prepare PBRs, which are comprehensive records of biodiversity that occur under the jurisdiction of the BMC.

Violations and opacity We have constantly seen fraudulent Environment Impact Assessments (EIA) which undermine the ecological value of areas that are proposed to be dammed, mined or diverted. For example, the Monpa community in Arunachal Pradesh’s Tawang district had to struggle for three years to prove before the NGT that the riverine area proposed for the construction of a dam is the one of the two wintering sites of the black-necked crane, a protected species held sacred by Buddhists. The environmental consultant had deliberately avoided making a reference to the species. Similarly, tribals in Kinnaur, Himachal Pradesh, are struggling to protect the last remaining chilgoza (pine nut) trees from being lost to a series of hydropower projects. Forest Department records do not mention the significant role the tree species plays in providing livelihood security to people.

The act mandates impact assessment studies for activities which are likely to have an adverse impact on biodiversity, irrespective of the nature and scale of the proposed project. Today, most projects in ecologically sensitive areas are able to circumvent the EIA process as they are below the threshold limits or are not in the listed category. For example, the Lakhwar-Vyasi hydroelectric project in Uttarakhand is almost the size of the Tehri hydroelectric project, which means that an EIA should be conducted. But it has been exempted because of an ingenious and questionable interpretation of the law, which states that the project was proposed in 1987 before the EIA Act of 2006. The project may result in stemming the flow of more than 50 km of the Yamuna river, but no ecological studies have been done. Similarly, a series of dams in the Himalayas and the Western Ghats, which could have an adverse impact on aquatic biodiversity, have been allowed without EIA studies; the law requires that only projects above 25 MW should undergo EIA studies. Therefore, it is no surprise that most mini-hydel power projects in India are of 24.99 MW capacity! The same holds true for mining and other projects. The cumulative impact of these projects on India’s biodiversity is substantial, and at times irreversible.

PBRs could be an effective tool to counter false and misleading statements given in forest diversion proposals and EIA reports. They could help a community present the facts before the decision maker in order to highlight the “real value” of the ecological entity proposed to be “sacrificed”. They could save areas from being “valued” based on rapid assessment done by institutions of questionable integrity and methodology or project proponents, whose goals are only to take projects through. India’s famed “green judge”, Justice Kuldip Singh, had observed in ICELA v. Union of India, 1996 that “enacting of a law but tolerating its infringement is worse than not enacting a law at all”.

In the face of an unimplemented act and general apathy, India’s biodiversity is too precious to be lost. Contrary to a general viewpoint, we should not protect our biodiversity only for the present or future generations. This is an anthropocentric approach. We should protect biodiversity purely because we have no moral, legal and ethical rights to destroy something not created by us.

Ritwick Dutta is an environmental lawyer.

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