Representative image. Photo: Michael Gaida/pixabay.
In December 2019, before a bench of the Supreme Court headed by Justice D.Y. Chandrachud, attorney general K.K. Venugopal was representing the state of Goa. His brief was simple: to justify the need for a second international airport in Goa, in the Mopa Plateau of Parnem taluk. One of the grounds on which he argued is worth highlighting: that the second airport is needed because the existing airport (Dabolim) is a defence airport and commercial flights can’t operate between 8:30 am and 1:30 pm. Precious five hours are wasted every day because of the inability of people to fly.
The other reason is that passenger traffic will increase from 7.5 million people in 2019 to 12 million in 2021, and with an increase of 1.5 to 2 million each subsequent year.
It is not clear how the government was so confident of such massive and unrealistic increase in passenger traffic despite the economic meltdown.
In March 2019, the same bench of the Supreme Court had suspended the approval granted to the project on the grounds that Goa as the project developer had given false information to secure the environmental clearance from the Ministry of Environment, Forest and Climate Change (MoEF&CC). The Mopa plateau – the site of the proposed airport – is ecologically fragile. The Government of Goa stated before the MoEF&CC while securing approval that there are no forest, lakes, mountains, ecologically sensitive areas, rivers or wild flora and fauna within a radius of 15 kilometres from the airport site. This was proved to be a lie.
The 2019 judgment was hailed by local citizens, especially farmers. Even the usually conservative UN praised the judgment as a significant advancement of the environmental rule of law. As expected, the state and Centre were not pleased. The CEO of NITI Aayog Amitabh Kant wrote a scathing piece on how the judgment set a “dangerous precedent” and it that will impact business and investors’ confidence in India, and concluded that the court should find a balance between environment and development. The fact that every law was broken to grant approval did not merit the attention of the CEO of NITI Aayog.
The Mopa 1 judgment
The Supreme Court, in the judgment delivered in March 2019, a.k.a. Mopa 1 judgment, came down heavily on the Government of Goa and the MoEF&CC, particularly its expert committee. The court was also critical of the National Green Tribunal (NGT), which had abdicated its role as an expert adjudicatory body. The judgment, authored by Justice D.Y. Chandrachud, can be counted as the first comprehensive decision of the apex court on the environmental impact assessment (EIA) process. Justice Chandrachud wrote: “There can be no gambles with the environment: a ‘heads I win, tails you lose’ approach is simply unacceptable; unacceptable if we are to preserve environmental governance under the rule of law.”
The court emphasised the foundation of the EIA process: “For project proponents, the environment may not possess a human voice. But the purpose of prescribing an EIA report is precisely to undertake a baseline study on all aspects of the environment and to anticipate the impact of a projected activity on the environment. Ignoring any component of the environment amounts to a serious dereliction of duty which detracts from the rule of law in matters of environmental governance.”
The court’s job was to resolve the conflict arising out of the state’s interest in ensuring that passengers’ time is not wasted by their inability to fly between 8:30 am and 1: 30 pm, when the existing airport was not operational. On the other hand, the fate of a biodiverse plateau harbouring critically endangered species of plants and varied species of wild flora, fauna and sacred forest was at stake – as were the livelihoods of hundreds of farmers.
In the Mopa 1 judgment, the court did not quash the approval despite the fact that in similar cases of providing false information, the courts and tribunals have either quashed the approval or directed the process to start from scratch. The court did not even direct any action to be taken against the officers and EIA consultants who gave false information to secure the clearance.
Instead, the court took a rather conservative stand and directed the expert appraisal committee (EAC) of the MoEF&CC to “revisit” the approval granted in light of the concerns raised in the Judgment. The judgment was delivered on March 29, 2019. The EAC ‘revisited’ the project on April 23, 2019, and recommended grant of environmental clearance. This was the outcome of nearly 4 years of litigation spanning nearly 50 hearings before the NGT and Supreme Court.
Livelihood versus lifestyle
The approval granted on April 23, 2019, by the EAC was challenged by the villagers of the area (Hanuman Laxman Aroskar v. Union of India) before the Supreme Court. In its January 16, 2020, order, the court lifted the suspension and paved the way for airport construction to resume.
The second judgment (Mopa 2), delivered by the same bench of Justice Chandrachud and Justice Hemant Gupta, reiterated the “necessity to balance” the need for an airport and the environment. This is where almost all judicial decision making ends up – the ‘environment versus development’ debate. Preserving livelihoods, forest, water sources, culture and countless species of flora and fauna comes under the category of ‘environment’ – viewed as a luxury by the decision-makers. ‘Development’ on the other hand is viewed as a basic human need – for shopping malls, convention centres, bullet trains, international airports, casinos, tourism infrastructure, five-star hotels and resorts, urban redevelopment, etc.
In the case of Mopa airport, the chief minister of Goa announced in 2019 that a casino will be an integral part of the airport complex. At the end of the day, it is not really ‘development’ but more ‘lifestyle’, and the courts balance environment and lifestyle, and often that comes down to livelihoods versus lifestyle. It may not be out of place to state that the job of the court is not to ‘balance’ but only to interpret the law and ensure environmental laws and processes such as the EIA are followed in letter and spirit. The principle of balance provides an escape route for violators.
Importantly, ‘development’ is not a legal concept and therefore judges’ attempts to interpret what ‘development’ means are generally limited and usually linked to the creation of physical infrastructure and jobs. Economic growth and infrastructure can never be a yardstick to measure human development.
Dean Spears, a visiting researcher at the Indian Statistical Institute, Kolkata, in his recent book Air: Pollution, Climate Change and India’s Choice Between Policy and Pretence (2019), cites research that shows many of India’s enduring challenges to health and human development are because of social forces, not poverty. So more electricity and factories will not solve these important problems soon.
Notwithstanding the impropriety of balancing, history will show that the implied task is not very tough. Nearly three decades of environmental public interest litigation will clearly reveal that the courts have – except in a few cases – favoured lifestyles over livelihoods. In the process, not only is the environment undermined but also the rule of law. In the Mopa 1 judgment, for the first time the Supreme Court expressed in strong words the importance of the ‘environmental rule of law’ (para 127):
The environmental rule of law becomes a priority particularly when we acknowledge that the benefits of environmental rule of law extend far beyond the environmental sector. While the most direct effects are on protection of the environment, it also strengthens rule of law more broadly, supports sustainable economic and social development, protects public health, contributes to peace and security by avoiding and defusing conflict, and protects human and constitutional rights.
However, as subsequent events will show, this emphasis was short-lived.
The environmental rule of law
The Mopa 1 judgment had the potential to change the way EIAs were done in the country and could have led to the overhaul of the environmental governance system. It became a precedent with respect to other projects but it also failed to impact the EAC’s subsequent appraisal of the Mopa airport, carried out within a few weeks of the judgment. In January 2020, the same bench of the Supreme Court lifted the suspension and allowed the work on the project to proceed on the ground that the EAC had completed its task to the court’s satisfaction.
The records however show the contrary. Despite specific direction by the court that “a careful avi-faunal study was necessary”, no such study was undertaken. The Supreme Court in the 2020 (Mopa 2) judgment accepted the statement of the EIA consultant (Engineers India Ltd), that “no set routes of flyways were observed near the airport site”. Clearly no one can ever ‘observe’ set routes of flyway in the sky or going to the airport site. The fact is that the whole of Goa is part of the Central Asia Flyway, and the MoEF&CC has an action plan under implementation from 2018 to 2023 with respect to flyways, and no party pointed this out.
A detailed report on the avifauna was crucial since the court, in the Mopa 1 judgment, had categorically stated that the “report must deal with the impact of the airport on birds and likewise the impact of birds on aircraft operations”. It is worth pointing out that the court did not find it objectionable that the EIA consultant for the project – Engineers India Ltd. – is also the independent engineering firm contracted to oversee the construction of the airport.
The state of Goa and the MoEF&CC, which had earlier stated that there were no wetland, forest, rivers, mountains, etc., suddenly discovered that the Western Ghats, a world heritage site, is within the study area (10 km radius). In addition, it discovered four rivers, 42 reserve forests, two wetlands, mangroves and 10 ecologically sensitive areas notified by the MoEF&CC, as per the Kasturirangan Committee. These were not instances of minor omission, and this is not specific to Mopa either.
After analysing 75 different EIA reports of mining projects in Goa, Madhav Gadgil had concluded that every single report described Goa as a treeless, waterless, barren land with no hills and plateaus. The EAC in Mopa concluded that the failures to disclose were “inadvertent”. The Supreme Court did not consider it necessary to either blacklist the EIA consultant or direct action against the officers who made the wrong disclosure. This sets an unhealthy precedent: that there will be no punitive action for false declarations. And despite such new disclosures, neither the EAC/MoEF&CC nor the Supreme Court directed any fresh EIAs. The revisit was based on the old EIA report, with no new studies.
Disturbingly, the Government of Goa admitted before the EAC that details of wild animals were collected only from the “nearest village” and not from any of the 42 reserve forests. It is incomprehensible, and absurd, that a study of wild animals will be conducted in villages but not in forest areas, which – as we all know – is the preferred habitat for wild animals. The Supreme Court refused to question the improper collection of data on the grounds that “the court should be circumspect in micromanaging the decision making process by the EAC” and that “no process can be perfect or free from studied criticism”.
The manner in which the issue of deforestation was dealt is a cause for greater concern. The felling of over 55,000 trees was justified on the grounds that for every tree felled, 10 trees would be planted. This is three-times the existing norm of three trees for every one felled. The court accepted this as proof that the project has been subject to stringent conditions.
But what the state of Goa and the MoEF&CC failed to inform the court was the state’s dismal performance with respect to compensatory afforestation. In the last 10 years, Goa has failed to meet any of the targets for compensatory afforestation – so much so that the MoEF&CC has stopped allocating funds to Goa under the Compensatory Afforestation Management and Planning Authority. Thus, like all other projects, trees were felled without any assurance of afforestation.
Judicial approach in the time of climate change
The Supreme Court’s Mopa 2 judgment is not an exception insofar as environmental law is concerned. Lofty principles such as the precautionary principle, the public trust doctrine and the environmental rule of law rarely translate into actual action to protect the environment. Courts’ judgments continue to be based on the belief that every loss of forest and environmental services can be ‘compensated’. Issues of urgent concern, such as climate change, find only passing reference or are at best notes on the margins. There is a need to appreciate that there is no alternative to objective and scientific impact assessment.
The answer to 55,000 trees being cut for the Mopa airport is not planting 10-times the number of trees (even if the trees are actually planted) but studying the impact due to felling before the decision to fell them is taken. The answer to the destruction of livelihoods, ways of life and sacred forests is not a ‘zero carbon’ airport. At a time when the world is reeling from a pandemic caused by a zoonotic virus, the public health impact of deforestation has to be at the top of our minds.
David Wallace-Wells, in his thought-provoking new book The Uninhabitable Earth (2019), cites a study showing that every square kilometre of deforestation produces 27 additional cases of malaria through a process called vector proliferation: when an area is deforested, the bugs move in. According to Wallace-Wells, “The footprint of every mosquito-borne illness is presently circumscribed, but those borders are disappearing rapidly as the tropics expand — the current rate is about 50 km per decade.”
In The Great Derangement: Climate Change and the Unthinkable (2016), author Amitav Ghosh questions why climate change has not figured much in contemporary fiction and laments the lack of literature pertaining to real-world climate catastrophes. What Ghosh says is true not just for fiction but also for judicial decisions. India is undoubtedly a country that is already suffering the consequences of both environmental degradation and climate change, and as the years pass, it is only going to become worse. India also has the most judgments as well as litigations on environment. Yet one finds virtually no effort by the apex court to deal with the concerns arising out of a changing climate. The entire Indian jurisprudence is still lost in the 1980s and 1990s.
The references to the Paris Climate Agreement are only perfunctory. The judgments usually follow a pattern: start by referring to the Stockholm Declaration of 1972, then the Rio Declaration of 1992, proceed to highlight Constitutional provisions (Articles 48 A and 51 (A) g), address the issue before the court and finally ‘balance’ environment and development. At the end of the process, irrespective of any processual improprieties and environmental consequences, the projects are approved with a few cosmetic safeguards. In the case of Mopa airport, the Supreme Court mandated a ‘zero carbon’ airport. For those fighting to save their forests, water and livelihoods, the ultimate outcome of the litigation process is, plainly and simply, a zero-sum game.
The lofty elaboration by the court in the Mopa 1 judgment on the “environmental rule of law” – that the “protection of the environment is an essential facet of development” and that “it cannot be reduced to a technical formula” – did not seem to have any impact on the subsequent decision by the court.
The Mopa 1 judgment of 2019 marked a significant advance in promoting the environmental rule of law. The Mopa 2 judgment of 2020 turned the tide back. Lifestyle triumphed over livelihoods – as always.
Ritwick Dutta is an environmental lawyer.