06 Forest conservation clearances in India-III. The extraordinary difficulty of saying no

(A long version of the article is available at this link)

The coal sector and forest clearances

According to the Twelfth Five Year Plan (2012-2017), India is the world’s fourth largest consumer of coal (Planning Commission of India, 2012?, Vol.II, pp.130 et seq.). Total energy requirement is projected to grow at over 5% for the next two plan periods, and coal expected to remain the “dominant source of primary energy” (ibid., p.132). What is worrisome however, is that some of these projects “are plagued with uncertainties regarding fuel supply because they were based on imported coal and changes in government policies in the countries where the coal mines were located have raised the cost of coal”, a contingency not provided for in the power tariff agreements with the private investors (ibid., p.138 and p.149). The main impediments to achieving coal production were the “delays in forest and environmental clearances, problems of land acquisition and R&R, allocation of a block to more than one user and so on…”, “implementation of the Forest Rights Act, 2006” (ibid., p.134, 159), necessitating imports to fill the gaping shortage of 100 million tonnes in 2011-12, and leaving  25,000 MW of commissioned capacity under-utilized according to the Plan document (ibid., p.159).

View of Chotia hillside, Hasdeo-Arand coal field

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From the environment and forest ministry’s point of view, however, there did not seem to be any grave deficiency in the forest and environment clearance process, keeping in view the need to carry out the conservationist spirit of the laws.

Conservationists, on the other hand, have castigated the “unprecedented rate” of forest clearances during the 11^th Plan period between 2007 and August 2011, amounting to diversion of some 2.04 lakh ha (0.2 mha) of forest which is “about 25 per cent of all forestland diverted for projects since 1981” (Centre for Science & Environment, 2011). They state that in one year alone (2009) the forest diversion rate had gone up to as much as 87,883.67 ha (per year), a large proportion of which was for mining and power projects, and the maximum amount of forest land diverted for mining in any single year happened in 2010 – about 14,500 ha, coal mines accounting for more than half of all forest land diverted for mining, leading to a doubling of capacity in almost all sectors, but almost all of this capacity remains unutilized. (It appears the report has not allowed for the inevitable gestation period or time lags).

It is apparent that not all clearances result in implementation, and very few projects are actually pending before the Forest Advisory Committee (FAC) at any point in time (see Rajshekhar, 2012 for an in-depth analysis of dormant coal blocks). Even the environment minister makes a similar point on the “appropriation of natural resources” by corporate bodies (Sethi, Times of India, 16 October 2012).

Given this background, it appears that the uproar about tardy and difficult procedures in the MoEF, especially the forest clearances, was not so much because of the overall pace of disposal, but because, unexpectedly, certain specific proposals were denied permission in 2009 and 2010. Particularly, the denial of permission to the coal blocks in the Hasdeo-Arand (H-A) coal field may have created a shock, because a number of ultra-mega power projects (UMPP) in advanced stages of completion were said to be depending on these coal blocks.

The Hasdeo-Arand (H-A) coal field

The Hasdeo-Arand (H-A) coal field, situated in Korba and Sarguja districts of Chhattisgarh state, has some 49 coal blocks identified so far, stretching right across a continuous forested landscape from Hasdeo Reservoir in the west to the boundary of the Mand-Raigarh coalfield in the east, covering some 1502 sq.km. and containing proven reserves of 1369 billion tones of coal according to details in a Greenpeace report (Fernandes, 2012, p.51 et seq.). Due to significant elephant presence in Korba and Raigarh districts, the forest department had proposed the Lemru Elephant Reserve in the eastern part (a huge expanse of 400-500 sq.km. dense forest). The authors of the Greenpeace report cited above (Fernandes, 2012) speculate that there may be a deliberate underplaying of tiger and elephant presence in order to make it less difficult to get forest clearance, and the state government scrapped plans for the Lemru elephant reserve under pressure from the coal lobby (Fernandes, 2012, p.53, see also Supriya Sharma’s report, Times of India newspaper, 23 January 2011).

According to coal ministry sources, there is an estimated coal reserve of 5 billion tonnes in the H-A coalfield (which, compared to the annual shortfall of say 50 to 100 million tonnes, could potentially make up the gap for the next 50 to 100 years), and hence from the coal sector’s point of view it would be a great sacrifice to forego this resource entirely. According to coal sector sources, out of these, 20 coal blocks have already been identified as captive mines for supporting 14,000 MW power generation (for which, roughly, 14,000 ha coal block area would be opened up over a period of 30 years), and 4 million tonnes of sponge iron production. The captive coal block allottees (state-owned power utilities or joint public-private partnerships) have already made substantial investments for developing their end use plans, and the coal sector presses for the issue of FC clearance so that they can be taken up for open cast mining.

Of five coal mining proposals received in 2010 for forest diversion, 4 blocks (Paturiya-Gidhmuri, Nakiya I, Nakiya II, Madanpur-South, and Tara) were examined and rejected by the Forest Advisory Committee (after visits to the area) on the ground that they formed part of an extensive forest landscape with continuous, very good sal (Shorea robusta) bearing forest of high density, and with a record of elephant movements. As the coal and power ministries reacted strongly, an in-depth analysis was subsequently undertaken by the Chhattisgarh forest department, which confirmed that these are good forests, with tree density ranging from 227 trees per hectare in Madanpur-south to 380 in Paturia & Gidhmuri, with a good proportion of middle aged to mature trees.

Tara block, northeastern border

Sal sample plot outside Tara forest rest house

‘Go’ and ‘no go’ classification

The FC rejection caused bitter complaints that the forest clearance process was arbitrary, unpredictable  and subjective, and had no scientific basis. (Obviously, there was no such breast-beating as long as the MoEF was docilely passing all projects.) An attempt was made in the ministry to develop some objective criteria, based on the overall or ‘gross’ forest cover, with a cut-off threshold level of 30%, and a second measure of ‘weighted’ forest cover, which assigned relative weights to the area under different densities in the block under consideration.  The weights are the mid-class density figures of Open, Medium, and Very Dense forest: 25, 55, and 85. Under this scheme, each hectare of ‘Very Dense’ forest is worth 85/25 = 3.4 ha of ‘Open’ forest. So if a patch of 100 ha has, say, 20 ha Very Dense forest (20% of the total area), it would fall below the proposed 30% gross cover cut-off; but using the relative weighting, it would be equivalent to 20X3.4= 68 ha in terms of Open forest, and would come above the cut-off and therefore become unavailable. (The recent High-Level committee under TSR Subramaniam has apparently recommended a cut-off of 70% forest cover, as per article by Manju Menon and Kanchi Kohli in the 13 December 2014 issue of EPW).

In order to reduce the uncertainty in forest clearances, an attempt was made by the coal and environment ministries to develop the concept of ‘go’ and ‘no go’ areas. On the face of it, this is a sensible exercise, because it could potentially save the trouble of developing proposals for the ‘no go’ areas. However, when the exercise was done with the cut-off levels suggested for the Gross and Weighted Forest Cover criteria, it was obvious that the 45,883 ha comprising the 20 identified coal blocks in the Hasdeo-Arand coal belt would all fall in the ‘no go’ category, so this exercise also failed to satisfy the coal ministry. The overall average for 9 coal fields analyzed (excluding Hasdeo) was 35% ‘no-go’ in terms of number of mines, and around 48% ‘no-go’ in terms of area (ministry sources), while the entire H-A belt would be ‘no go’.

Push for ‘objective’ criteria

In a somewhat belated attempt to weaken the stand taken by the environment ministry based on the recommendation of the FAC, questions were raised about the lack of objectivity and legality of the ‘go-no go’ criteria itself (cf. The Financial Express of 14 January, FE Bureau, 2011; also the report by Chetan Chauhan on differences between the ministries on scrapping the classification in Hindustan Times, 20 June 2012). In the words of the Economic Times newspaper, 15 January 2011:

“Even though it (the Group of Ministers) has been pushing for a more liberal policy of mining in forest areas, the present exercise of demarcating “go” and “no-go” areas was initiated by the coal ministry and Coal India Ltd. … The idea was to put in place an “objective, informed and transparent” system which would allow for efficient decisions. A senior government official involved in the exercise said that “the study was taken up at the instance of the coal ministry and CIL. The results were unexpected, so the ministry recoiled and backtracked.” “ (Anon., 2011)

But the criticisms of the user ministries notwithstanding, the FAC recommendations were not actually based on totally subjective considerations, and were instead based on a reasonable strategy that sought to protect the really valuable forest blocks and large stretches (that may not yet have a high status as national parks and wildlife sanctuaries), as they constituted a precious store of natural habitats and organisms (even though a formal biodiversity survey and assessment may not have been done afresh), and important as catchment areas of our major river systems. The ‘go- no go’ classification, not unexpectedly, would not really help the coal and power ministries in the sense that blocks situated in a dense, continuous forested tract like H-A would not be expected to cross over into ‘go’ category by any reasonable stretch of the criteria. A few border cases would, no doubt, be enabled to cross over by tweaking the cut-off levels, but the core areas of dense forests (let alone the wildlife habitats) would very rarely be so transformed. For example, by ‘clustering’ and sub-dividing large blocks, no doubt the coal ministry could improve their position from a ‘go’ level of 60% to around 75% in the other coal fields, but the core blocks in the H-A forest tract would continue in the ‘no go’ category unless the cut-offs were reduced to a travesty. Nor could the FAC itself do the deed, even if it could be coerced or inveigled into such a self-destructive step, without losing completely its credibility and possibly attracting the ire of the Supreme Court or other regulatory authorities. Indeed, the Supreme Court in its order dated 27 April 2007 had once before already put shackles on the FAC and the ministry, by requiring the recommendations of the FAC, along with the opinion of the CEC, to be referred to that Court for re-examination and final orders, until the appointment of a fresh FAC with environmentalists as members mollified the Court.

The only stakeholder to be surprised at the outcome of the ‘go-no go’ mapping exercise seems to have been the user ministry, and the simple explanation for this denouement is probably that the coal and energy ministries started with a wrong perception of the FAC or the environment ministry as subjective, unpredictable, capricious or worse. The problem appears to be, not so much that the forest criteria are defective, as that the user ministries simply refused to accept any outcome that did not conform to their prior plans. 

Moreover, the user ministries did not seem to realize that whatever the criteria, whether purely based on forest density and cover, or also including biodiversity mapping, surely the problem before the coal ministry could not be addressed without, in effect, over-ruling the FAC, which would therefore obviously have to be decided at the political (possibly the Cabinet) level.  According to the report by Rajeev Deshpande in the Times of India, 3 January 2011: “…meetings have been held at the level of secretaries but have failed to provide any middle ground between the environment ministry on the one side and ministries like coal and power on the other. Sensing that more consultation is likely to prove fruitless, senior officials feel that the matter would be best settled by the collective view of the CCI headed by the PM.”

The political decision was achieved through a series of meetings between the ministers themselves, a process assiduously followed by the media (see, for example, Chetan Chauhan’s report in Hindustan Times, 9 February 2011). The environment minister offered to relax the ‘no go’ criteria to make available more areas (up to 71%) for coal mining, “but rejected the demand for completely doing away with the classification” (as reported by Amitabh Sinha and Priyadarshi Siddhanta in the Indian Express newspaper, 8 April 2011). Any projects that had been conferred Stage I clearance as on 31 December, 2009 would not be recalled, even if they came within the ‘no go’ zone. These concessions were still not enough for the coal minister, who was quoted as saying that “it was imperative that all proposals on green clearances be cleared without any reference to ‘go’ or ‘no-go’ areas” (ibid.). Newspaper reports on the looming coal shortages and consequent power famine put pressure on the GoM (see, for instance, Priyadarshi Siddhanta’s article in the Indian Express, 7 April 2011).

Ultimately, the environment minister had to give in, and in June 2011 issued Stage I FC clearance for the coal mines in the Hasdeo-Arand area that had been stalled by the FAC rejections, Tara, Parsa East and Kente blocks, “on the grounds that they lie ‘on the fringes’ of the H-A forest”, in the face of the FAC’s recommendations against mining in the belt, and after the ministry “had reportedly  rejected the proposal thrice in 2010” (Fernandes, op. cit., p.53). One of the justifications or conditions recorded in the minister’s order was that the state government would not seek any more blocks in the H-A coalfield, which obviously cannot be expected to be honoured. Final clearance for the Parsa East and Kante Basan blocks was given in March 2012.

In a bid to resolve the inter-ministry issues, a Group of Ministers had been set up under the then finance minister, and somewhat inexplicably, the GoM asked the MoEF to draw up criteria for categorization of certain areas as “inviolate” to safeguard such valuable forests which can never be regenerated to the desired quality, to replace the now disputed ‘go- no go’ scheme. The environment ministry dutifully appointed a committee by its order dated 30-03-2012, which in due course came up with a complicated proposal that involves an elaborate exercise employing satellite images, biodiversity and ecological mapping, biological richness and wildlife values, sinks and corridors, landscape integrity, water cycle value, socio-economic value, aesthetic value and so on (in addition to forest cover percentage, crown density, forest type, and proximity to wildlife PAs). How this would resolve the dispute on dense forest blocks like Hasdeo-Arand or Saranda in Jharkhand, is not clear, but it is doubtful that such a scheme can be implemented or followed in practice.

Alternative institutions for forest clearances

Another attempt to divest the MoEF of its discretionary powers was to create a separate National Investment Board at the highest level, with over-arching powers to countermand any individual ministry and take final decisions, which was welcomed by party and industry spokespersons (report by Avishek Dastidar, Indian Express, 19 October 2012). The environment ministry, as could be expected, did not see much merit in this (Nithin Sethi’s report in the Times of India, 10 October 2012), as the clearances were already being processed by statutory bodies under the relevant laws. Any perceived weakening of these institutions would possibly attract adverse notice of the Supreme Court itself, as had been experienced in the past. Interestingly, transfer of the ministry’s and FAC’s role and powers to an independent authority was sought from the other end of the equation by an application before the Supreme Court by the amicus curiae, Harish Salve during the course of the “Lafarge” case hearings. While the transfer of the FAC’s responsibilities to an independent authority has not been agreed to, the Supreme Court has ordered that the MoEF should “appoint an Appropriate Authority, preferably in the form of Regulator, at the State and at the Centre level for ensuring implementation of the National Forest Policy, 1988” (Supreme Court order dated 6-07-2011 in the “Lafarge” case). If the ministry does not consistently nominate eminent environmentalists and conservationists to the FAC, however, there is no guarantee that the Supreme Court may not decide to create an independent body in place of the FAC, which after all is a captive of the ministry and the government.

However, this is not the end of the story, as the FC clearance given by the MoEF to the H-A coal blocks was challenged before the National Green Tribunal “on the grounds that the conditions specified in Stage I clearance have not been met” (Fernandes 2012, p.53). The NGT gave its orders in March 2014, cancelling the FC clearance to these two blocks, asking the ministry “to revisit the proposal from scratch based on all factors” (see, e.g., Nitin Sethi in The Hindu, 25 March 2014), and stating further that the Minister when rejecting the recommendation of “such an expert body” as the FAC “must bear in mind that he is countering an expert opinion/ viewpoint and in doing so, he must meet it with such opinion or viewpoint which it would outweigh both by content and quality as aforesaid” (op. cit.). The minister concerned was reported to have reacted “strongly” to the NGT’s “censure” (Anupam Chakravarty in Down To Earth magazine, 26 March 2014, accessed online). He is quoted as saying that “after having been pilloried for not allowing projects, now I am being attacked for having cleared projects” (report by Nitin Sethi in The Hindu newspaper, 26 March 2014), and that as the minister, he has made his own assessments and given a detailed note explaining the reasons for his decisions. The NGT, however, has noted that the Minister seemed to have relied on his own “understanding and belief”, without any “basis either in authoritative study or experience in the relevant fields”, and also that the “anthropocentric” considerations like the linkage to super-critical thermal power plants were not valid criteria to evaluate the forest clearance. (The order of the National Green Tribunal in the Hasdeo-Arand coal blocks case is available at their website: www.greentribunal.gov.in/judgement/73_2012(Ap)_24Mar2014_final_order.pdf, accessed on 22 April 2014). From the environmentalists’ point of view, however, what was disappointing was the apparent  shift in stance of the minister, who initially seemed, in the words of Ritwick Dutta, to have introduced a “new dimension” in the “rubber stamp” ministry which now was “taking the issue of forest and environment with some degree of seriousness” (Dutta and Yadav, 2011, p.xiii).

Learning from the Hasdeo-Arand case: the difficulty of saying no

What learnings, if any, can we draw from this, and other similar, cases? One is, of course, of the extraordinary difficulty of saying “no” to forest clearances, when the stakes are so high (see PTI report in the Economic Times, 20 November 2010, “Courage needed to say ‘no’: Ramesh”). The only correct policy for an environmentally sensitive public administrator, it would seem, would be to follow sound environmental principles consistently, with a reasonable expectation that posterity would approve, although disgruntled elements might cavil and revile in the short run.

Further, the correct reaction of the affected user ministries would have been to accept the FC rejections with grace and dignity, as an example of sound procedure and good governance, and as a decision taken with no reference to the parties involved or their interests. They could have recognized that it was just bad luck that the rejected forest diversion proposals were linked to large power projects, but that the responsibility for this impasse lay with the project proponents and the state governments for having gone ahead without the forest clearances in obvious contradiction to the express injunction against creating fait accompli situations in the FCA Guidelines. They could have forthwith identified alternate coal linkages and done the necessary reworking of contracts and agreements, rather than challenging the basis of the rejections. Instead, by calling into question the rejections, the user ministries only succeeded in eroding public confidence in a ministry (and hence by implication a government) that was doing its assigned job with responsibility and integrity, with the disastrous effects on good governance and general public trust that surely contributed to the disenchantment with the government of the day and its subsequent ouster at the 2014 elections.

Nothing new: coal mines and dismissal of the US forest chief

Before concluding, it is impossible to resist the opportunity to draw a delicious parallel in the experience of the first American forest chief, Gifford Pinchot, at the beginning of the 20^th century (Pinchot, 1947, ed. 1998). Pinchot had publicly come out against allocating certain coal mines in the pristine Alaskan forests, and the legislators jumped on him for having overstepped his boundaries. According to Miller and Sample in their introductory essay,

 “(President) Taft did not share Pinchot’s belief in an activist government, and he was further angered when the forester and Secretary of the Interior Richard A. Ballinger fought over the lease of federal coal lands in Alaska… known as the Ballinger-Pinchot Affair… In 1910, Taft had had enough and dismissed Pinchot for insubordination.” (Miller and Sample in Pinchot, ed. 1998, p.xiv)

Pinchot got his poetic revenge by entering the political arena and getting elected as the governor of Pennsylvania (twice). Of course, it is not open to all public servants who are in similar situations to make the grand gesture, and it is apparent that even the best political actors are at peril if they espouse too strongly or openly the environmental agenda. In India, however, it is the staunch support (and goading) by the judiciary that has enabled whatever little respect there is for forest conservation to persist and grow strong.

References

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Chakravarty, Anupam. 2014. In Down To Earth magazine, 26 March 2014, accessed online.

Chauhan, Chetan. 2011. Ramesh, Jaiswal shake hands on coal-mining policy. Hindustan Times newspaper, 9 February 2011. New Delhi.

Dastidar, Avishek G. Cong backs NIB, says will expedite projects. Indian Express newspaper, 19 October 2012. New Delhi.

Deshpande, Rajeev. 2011. PM may decide on ‘no-go’ green policy. Times of India newspaper, 3 January 2011. New Delhi.

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Sethi, Nitin. 2014. Green tribunal cancels forest clearance to captive coal blocks in Chhattisgarh. The Hindu newspaper, 25 March 2014. New Delhi.

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Sharma, Supriya. How elephants got hauled over the coals. Times of India newspaper, 23 January 2011. New Delhi.

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