A damaged dam after the February 7, 2021, flash flood, at Raini village, Chamoli district, Uttarakhand. Photo: Reuters/Anushree Fadnavis.
On February 7, 2021, the residents of Raini village in Chamoli district of Uttarakhand woke up to their worst nightmare since the construction of the Rishi Ganga Hydel Project had begun. A glacial burst had breached the Rishi Ganga dam, causing a flood that laid waste to the valley.
A disaster of this magnitude compels us to look at the relevant environmental laws and assess their role.
Let us consider the conceptual challenges associated with relying on ‘sustainable development’ as an overarching environmental principle in the wake of the climate crisis – and how it can be reinvigorated by incorporating the idea of community resilience.
A legal battle
Uttarakhand is blessed with numerous rivers and natural rapids, making it suitable to produce hydroelectricity. But as a result the state’s rivers are straddled with dams. The Alakananda has as many as six hydroelectric dams in operation, eight under construction and about 23 in the pipeline.
Such damming has halted the rivers’ natural flow and could prove disastrous given the region’s floods-inducing weather. Local residents have also repeatedly highlighted irregularities in environmental impact assessments (EIA) pertaining to dam construction projects in the region.
A resident of Raini village filed a public interest litigation (PIL) with the Uttarakhand high court in 2019, highlighting the Rishi Ganga project’s adverse environmental and social consequences. The high court had ordered the formation of an expert group to assess these consequences – but the group didn’t report the illegal mining or rock-blasting in its report. Nonetheless, the court stayed the blasting work and directed the project operators to remove the muck being dumped around the construction site.
There is no specific legislative structure governing the operationalisation of dams in India. The legal provisions governing the management of dams are scattered around laws concerning electricity, environment, land and water.
This said, the EIA notification formulated under the Environment Protection Act 1986 influences how dams are conceptualised, constructed and maintained, and the Indian judiciary has also invoked the EIA regulatory mechanism, particularly the principle of sustainable development.
However, our over-reliance on sustainable development as a goal in the wake of climate change and the deadly consequences in Uttarakhand is not good.
The concept of sustainable development expresses the idea of reconciling economic development with protecting the environment. It targets a development model that mitigates its negative consequences on people and the environment. Its doctrine became part of India’s legal framework in 1997 by virtue of the seminal case of Vellore Citizens Welfare Forum v. Union of India, where the Supreme Court declared it to be a customary principle of international law, and with the enactment of the National Green Tribunal Act 2010.
In the Vellore case, the court used sustainability to balance ecology and development, to prevent tanneries from discharging effluents into the river. Subsequent judicial cases attempted to build on the substantive contents of the doctrine by focusing on the limited carrying capacity of the ecosystem.
Procedurally, the principle has been invoked through various measures, including stakeholder consultations and appointment of specialised committees that help provide information about the carrying capacity.
However, the notion of ‘carrying capacity’ is problematic when the risk is uncertain and when projects can irreversibly damage the environment. The Supreme Court has attempted to overcome this predicament by incorporating the precautionary principle as being integral to sustainable development.
Further, being an entity lacking technical expertise, the judiciary has had to bank on expert opinions to square off environment, development and the ecosystem’s carrying capacity. For example in Tehri Dam (1990), the court said:
The questions of safety of dams are highly intricate questions relating to science and engineering. This court does not possess the requisite expertise to render any final opinion on the rival contentions of the experts. The court can only investigate and adjudicate the question as to whether the Government was conscious of the inherent danger as pointed out by the petitioners and applied its mind to the safety of the dam.
The National Green Tribunal’s establishment, with some technical members on its Bench, alleviated this problem to some extent.
The Supreme Court also cemented the principle of sustainable development into the rights framework by reading it as part of the right to life under the Constitution’s Article 21.
Indian environmental jurisprudence on sustainable development also observed a shift from the carrying-capacity principle to a proportionality test in the Godavarman case. The court observed: “It cannot be disputed that no development is possible without some adverse effect on the ecology and environment. A balance has to be struck between the two interests. The comparative hardships have to be balanced, and the convenience and benefit to a larger section of the people have to get primacy over comparatively lesser hardship.”
This approach fundamentally goes against the court’s view in the Vellore case, where it held that the concept of development and ecology are not opposed to each other. The judgment approached proportionality as a balance of competing interests. However, the court didn’t explain the parameters to assist in this exercise.
Its decisions also reveal that while invoking sustainable development, it has paid inadequate attention to the social components underlying sustainable development.
Many decisions after Godavarman demonstrated the Supreme Court’s unflinching loyalty towards proportionality. It also demonstrated a pro-development stand in a few instances, as with the ship-breaking case of the Blue Lady.
Taken together, these judgments have resulted in a profound uncertainty. The court has provided no rationale for how and why a particular decision favoured environmental protection or development, and whether they could be justified on sustainable parameters.
For example, in Narmada Bachao Andolan (2003), the court assumed a pro-development stance:
Merely because there will be a change is no reason to presume that there will be an ecological disaster. Further, invoking sustainable development helped the court overlook local parameters, as sustainability is not always based on local paradigms, unlike the environmental justice paradigms, which primarily focus on local issues.
In Orissa Mining Corporation v. Ministry of Environment and Forests & others (2013), the court held that mining could proceed only with the consent of the Dongria Kondh community — using sustainable development to focus on social justice and overlooking the proportionality principle.
Thus, the judicial interpretation of sustainable development has been marked by uncertainty. This issue is likely to intensify with major climate-related shifts on the horizon.
Sustainable development to resilience
Climate change is characterised by uncertainty and the manifestation of new and complex challenges to development. In the face of such rapid changes in both nature and the human world, it will be difficult to decipher what we need to sustain, between the biosphere’s economic growth and health.
Here the idea of sustainable development, with its emphasis on socioeconomic and ecological stability, could seem vague, at times even counterproductive, and will need to be reformulated.
The idea of resilience, with community resilience in particular being defined as the capacity of a system and community to prevent, anticipate, adapt and transform in the face of ecological adversity and social and political turbulence, could be a better mechanism.
The Uttarakhand disaster on February 7, 2021, highlighted the need to shift our focus from sustainability to resilience. The government has mooted various hydroelectricity projects in Uttarakhand and has said they comply with environmental norms, as well as justified them on the bases of the carrying capacity and the proportionality principle — both of which are in line with sustainable development. But the fact that communities weren’t prepared and couldn’t adapt in the face of disaster suggests that relying on sustainable development alone may not suffice.
Sustainable development effectively emphasises the prevention of adverse environmental hazards and a system’s long-term stability. On the other hand, community resilience acknowledges uncertainty and instability, and focuses on anticipating and overcoming them.
The concept of community resilience in particular deviates from the premise of stability and is instead rooted in environmental justice. It is founded on equipping every member of society to cope with hazards in all dimensions. The principle underscores the fact that marginalised members of society bear a disproportionate environmental burden, that their participation in environmental decision-making has been neglected, and that it needs to be accounted for.
We can build community participation by promoting community participation, capacity building, sharing information, addressing inequity in access to resources and strengthening the ability of the poorest and the most marginalised to cope.
Indian courts, even when dealing with disasters like the 2013 Kedarnath flood, haven’t discussed resilience.
This said, resilience can’t and shouldn’t substitute sustainable development. Instead, the two concepts should be applied together, to avoid the cons of working with either one of them alone.
The Dam Safety Bill 2019 is currently pending before the Rajya Sabha. The Bill envisages institutional and administrative mechanisms for safety, surveillance, inspection, operation and maintenance of all specified dams.
It’s important that this and other legal instruments are not fixated on the effort to balance the two sides of the sustainable development coin but also attend to improving people’s resilience — a particularly important ingredient of human society in the climate change era.
Stellina Jolly is a senior assistant professor in the Faculty of Legal Studies, South Asian University, New Delhi. She is the author of the book Climate Refugees in South Asia: Protection Under International Legal Standards and State Practices in South Asia.