Environmental Impact Assessments of Hydropower Projects in the Himalayas. Law, Policy and Practice

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1 Envirnmental Impact Assessments f Hydrpwer Prjects in the Himalayas Law, Plicy and Practice Tarini Mehta Advcate, Envirnmental and Human Rights Law

2 The Guardian 10 August 2013 The Ecnmic Times July 5, 2015

3 Envirnmental Impact Assessments shuld: Frm the basis f the decisin t take up a prject In India there is a pattern f: Bias EIAs lack rigr They d nt analyse all impacts including Cumulative impacts Dwnstream impacts Climate change Key impacts n bidiversity, wildlife and frests are excluded Lack transparency The prcess is nt sufficiently participative These issues are acrss the bard; nt just in the case f hydrpwer prjects, but in ther infrastructure and develpment prjects as well. Case Study: Pancheshwar Dam Issues with the EIA, as well as with the public cnsultatin cnducted in India. A transbundary impact assessment, as mandated under internatinal law, has nt been cnducted. India s Expert Appraisal Cmmittee n River Valley and Hydrelectric Prjects (EAC) has set aside this requirement, citing the prblem f delays. This is a bi-natinal scheme prpsed n Mahakali river (knwn as Sarada river in India) n the brder between India and Nepal. It is t be cnstructed n a stretch f the river that frms the internatinal bundary between the tw cuntries. It will have 2 undergrund pwerhuses with a ttal installed capacity f 5,600 MW (as stated by the prject prpnent t the EAC). The ttal submergence area is 11,600 ha (India - 7,600 ha + Nepal - 4,000 ha). The prject cmprises a rck-fill dam f 315 m height frm the deepest fundatin level.

4 PUBLIC PARTICIPATION The law alne cannt enfrce the cmmn interest. It principally needs cmmunity knwledge and supprt, which entails greater public participatin in the decisins which affect the envirnment. This is best secured by decentralising the management f resurces upn which lcal cmmunities depend, and giving these cmmunities an effective say ver the use f the resurces. It will als require prmting citizens initiatives, empwering peple s rganisatins and strengthening lcal demcracy. Infrmatin Sharing Infrmatin gathering Cnstructive Discussin Cllabrative partnership - Reprt f the Brundtland Cmmissin

5 CRISIS OF ENVIRONMENTAL GOVERNANCE In the 2016 Envirnmental Perfrmance Index (EPI), a jint prject between Yale and Clumbia Universities that ranks 180 cuntries in terms f hw they perfrm with regards t prtectin f ecsystems and human health frm envirnmental harm, India has ne f the prest rankings it is ranked 141. Lack f rule-based envirnmental decisin-making internatinal nrms and principles are als set aside, as seen in the case f the Pancheshwar Dam. Lack f a rbust fllw-up mechanism t mnitr the implementatin f Envirnmental Clearance cnditins. Lack f standard setting by the NGT divergent decisins in cases with equally flawed EIAs and serius prcedural irregularities. Relatinship f the state with natural resurces: The state has legal wnership f natural resurces as a trustee and has the right t use and distribute natural resurces as it deems fit fr the public gd/public interest. Differing cnceptins f public gd: Fr the state hydrpwer prjects are fr the public gd, a psitin that is challenged by sustainable develpment and envirnmental cnsideratins. Envirnmental nrms are seen as bstacles in the way f develpment and effrts are made t dilute envirnmental and EIA nrms, fr instance: Office Memrandums by the Ministry f Envirnment and Frests attempting t lay dwn a methd t give pst fact clearance (struck dwn by the curts) and recently a ntificatin dated March 14, 2017 t that effect. Office Memrandum by the Ministry f Envirnment and Frests instructing the EAC t refrain frm asking fr additinal infrmatin, unless it is fund that the infrmatin given by the prject prpnent n the basis f which the TOR is given (cntained in Frm 1) is wrng and misleading. Often infrmatin given in Frm 1 is incmplete. It is nt clear whether this wuld amunt t misleading. As key infrmatin culd be revealed at a later stage, t uphld the integrity f the EIA prcess the EAC shuld nt be stpped frm asking questins and seeking fr further studies in such cases. The planning cmmissin has recmmended relaxing envirnmental nrms fr develpment prjects in the Himalayan regin. This recmmendatin has been incrprated int the Draft Natinal Plicy fr Indian Himalayan and Hill Regins in India 2017.

6 STRENGTHENING EIAs IN INDIA Revise the cnceptin f: The rights and rle f the state in relatin t natural resurces The rights f lcal cmmunities ver natural resurces and their rle in its management Public gd Strengthen prcedural aspects: T make the EIA prcess mre thrugh, rigrus, transparent and unbiased Frm 1 which frms the basis fr the Terms f Reference fr the EIA shuld als include an assessment f climate change impacts, dwnstream impacts, as well as scial impacts including displacement. The need t highlight alternative ptins shuld be made a cmpulsry part f the EIA prcess De-linking f prjects frm cumulative impact assessments where there is mre than ne dam in the river basin shuld nt be allwed. Envirnmental cst-benefit analysis shuld be made cmpulsry Transfrm public cnsultatin int public cllabratin, and with all cncerned persns Impse penalties fr vilatins f EIA nrms

7 THANK YOU