A boat passes over the Hooghly river in Kolkata. Photo: Yercaud-elango/Wikimedia Commons, CC BY-SA 4.0
On May 4, 2022, the National Green Tribunal (NGT) disposed of a case on the need for an environment clearance for a World Bank-funded ‘capacity augmentation’ of the Ganga Waterway project, a.k.a. the National Waterway 1.
The NGT’s final order is disappointing because it notes that the matter is beyond its scope, even though the tribunal has been deliberating it for seven years. Its order is also ineffective in holding the Union environment ministry accountable for its blatant disregard of a previous order, to hold expert consultations. Here’s why.
Work on augmenting the capacity of the Ganga Waterway is scheduled to be completed in December 2023. According to a response of the shipping ministry in the Rajya Sabha on April 5, 2022, developmental activities have also been initiated in 13 National Waterways projects while 13 more projects are currently being appraised.
The ‘capacity augmentation’ of National Waterway 1 aims to expand the Ganga-Bhagirathi and Hooghly river systems from Allahabad to Haldia to transport bulk and hazardous goods on barges of capacity 1,500 tonnes or higher. Since the main aim is to accommodate bigger vessels to carry these goods on a waterway, the project’s primary requirement is to maintain an adequate depth of 1.5-4 m across 1,620 km.
In addition, ancillary infrastructure such as the multimodal and intermodal terminals, ro-ro and community jetties, navigational locks, night navigation lights and channel markers, vessel maintenance complexes and freight villages are required.
Dredging for the navigation channel in the underwater domain is the most contested part of the augmentation process. There will be periodic excavation of sediments from the river. This is in addition to terminal development and operations such as loading/unloading, storage and handling of bulk and hazardous goods.
These interventions along with the barge traffic – carrying coal, fly ash, chemicals, iron ore, cement, etc. – on the rivers, and also planned river cruises, are all likely to increase pollution and changes in the underwater domain. This in turn calls for rigorous, neutral and transparent environment impact assessments and monitoring of changes.
Many of these changes are the first of their kind on these rivers, at least in terms of scale, and they alter the rivers in irreversible ways – especially in the absence of legally mandated assessments.
Inland waterways are not included on the list of projects that require prior environmental clearance in the Environment Impact Assessment Notification (EIA) of 2006. But dredging – a critical activity for the development of inland waterways – does need an environmental clearance.
This was the main prayer of the case that Bharat Jhunjhunwala and others filed with the NGT in 2015: that National Waterway 1 be directed to apply for an environment clearance. But after seven years, the NGT disposed of the case in its order dated May 4, 2022.
The findings and directions
The tribunal’s order concluded that “there is no scope for this tribunal to consider” the matter of applicability of an environment clearance for the Ganga Waterway because an Allahabad high court order dated April 28, 2016, had “clinched” the matter.
There are three major flaws in this statement.
First, the Allahabad high court’s order – on the matter of Kautilya Society Thru’ General Secy. & Anr. v. State of UP Thru’ Principal Secy. & Ors – deals with the Ramnagar multimodal terminal in Varanasi, which is only one component of the capacity augmentation of National Waterway – and not the entire project. The court noted in its order: (emphasis added)
“The Inland Waterways Authority of India, which is a statutory body constituted under the Inland Waterways Authority of India Act 1982, is proposing to develop a multimodal water terminal at Ramnagar, Varanasi.”
The court then directed that the EIA for the terminal also cover the likely impact of the project after it is commissioned – i.e. when it enters its operation phase. This is because, the order said,
“… the submissions which have been made before the court indicate that the draft EIA report deals with the environmental impact assessment up to the stage of the commissioning of the project and hence, it would be appropriate if [the Inland Waterways Authority of India] also undertakes to carry out an environmental impact assessment of the position after the commissioning of the project.”
Effectively, the NGT denied its jurisdiction on the matter in toto when in fact the high court had dealt with only one part of the project.
This is more disappointing because the NGT’s order itself also says that “the [project proponent] is splitting the project in smaller standalone components for the purpose of evading scrutiny under the EIA notification.”
Second, the Allahabad high court order was placed on record in the NGT on October 21, 2016 – six years ago – in an affidavit filed by the project proponent, the Inland Waterways Authority of India (IWAI). If the high court order was really the reason for the NGT to find the matter to be beyond its scope, it should have clarified and disposed of the case in 2016 itself!
Third, under the Section 20 of the National Green Tribunal Act 2010, the NGT is to apply the principles of sustainable development and the precautionary principle when it adjudicates on matters of environmental concern. The tribunal had also noted in an order dated November 1, 2018, about the inland waterways projects that “there is no doubt about the fact that such projects are first of its kind and may increase in the coming days.”
So it was certainly within the tribunal’s scope to apply the aforementioned principles and provide conclusive directions and orders with regards to the applicability of the green clearance for the National Waterway 1 project – especially vis-à-vis its long-term ecological and social viability.
Ministry’s blatant disregard
In its final order, the NGT also rerouted the matter to the Union environment ministry – to “study and clarify the matter for technical and governance clarity for inland waterways projects.” This is deeply problematic.
The NGT has issued 49 orders in all in this case, since 2015. In 15 of them – in 2016, 2017, 2018, 2019, 2021 and 2022, the NGT either granted a ‘last opportunity’ for the environment ministryCC to file its response or reminded the counsel to take clear instructions on the matter from the ministry.
On two occasions – November 1, 2018, and January 10, 2020 – the NGT directed the ministry to constitute a committee in consultation with experts to clarify the need for environment clearance for inland waterway projects. In its order of May 4, 2022, the NGT found that “the [environment ministry] has failed to respond to the direction of this tribunal to have the matter examined by experts.”
But given the ministry’s insincere responses on this matter so far as well as the NGT’s refusal to hold the ministry accountable, it is unlikely that the ministry will turn over a new leaf hence.
This is also unlikely because the ministry has said in its own office memorandum, dated March 6, 2017, that inland waterway projects involve dredging and are thus covered by the amended EIA Notification 2006.
On two occasions, in May and July 2017, the ministry’s own expert committee has recommended that the inland waterways projects be explicitly covered in the EIA Notification 2006 as ‘Category A’. But the ministry exempted the dredging components of all inland waterways from clearances after a high-level meeting with the ministries of shipping and water resources in December 2017.
After this, the environment ministry held no expert consultations and disregarded the NGT’s orders. With the controversial draft EIA Notification 2020, the environment ministry further erased the need for a green clearance for inland waterway projects by reclassifying them as ‘Category B2’ projects – which don’t require impact assessments, appraisal or public hearings. All this against the recommendations of its own experts.
Avli Verma is a researcher with the Manthan Adhyayan Kendra, and studies infrastructural interventions on Indian rivers. She is also interested in journalism, research and mapping, and the visual arts.