NGT (Principal Bench): What to do with increasing violation of EIA Notification, 2006

The Principal Bench of the NGT in New Delhi delivered a judgment to keep in check the large number of violations of the Environment Clearance procedure as laid down under the EIA Notification of 2006.

Two petitions were filed by filed by Shri. Manoj Mishra of the Yamuna Jiye Abhiyan and Mr. Muthuraman, resident of Tirunelveli, which sought to challenge the Office Memoranda dated 12th December, 2012 and 27th June, 2013 issued by the MoEF, which allowed the consideration of proposals for Environment Clearance, even when such an application was made after the commencement of the projects requiring such clearance. The Tribunal held both OMs to be  ultra  vires  the provisions  of  the  Act  of  1986  and  the  Notification  of  2006 and declared them to be ineffective.

The bench has also been dealing with issues pertaining to the construction of green belts and their permitted uses, appeals against environmental clearances (Tidong –I HEP) and consequences after the construction of HEPs with regard to effect on the surrounding housing societies, among others.

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Delhi High Court: Forest cover in the Capital

In the matter, Court On Its Own Motion (Air Pollution In Delhi) vs. Union of India (W.P.(C) 1346/2015). The court is hearing a PIL initiated by it on the issue of rise in air pollution in the national capital and ways to reduce it. The matter was taken up by the Court after the Air Quality Monitoring Report of a study conducted in June which indicated that, the concentration of carbon dioxide and volatile organic compounds were far beyond the maximum limit in most areas on the court premises. The Court has asked the MCD to indicate the extent of annual consumption of free supply of timber from the various authorities which have been used up in the crematoria managed/ owned by them.

Delhi High Court: How much water is being supplied to Dwarka?

A matter filed before the Delhi H.C, Delhi EPDP CGHS LTD. Vs. Delhi Development Authority (W.P.(C) 5480/2013), is going on to seek for directions to the authorities, including DJB, to provide more water to the area. The Court asked the DDA and the Delhi Jal Board for current status of water supply, status of the 16 borewells, water being supplied through tankers and the extent of water supply in the Dwarka area on account of the functioning of the Dwarka Water Treatment Plant in the Dwarka Sub City.

Wildlife Rescue and Rehabilitation Centre & Ors v. UOI

Writ Petition(s) (Civil)  No(s).  743/2014 Wildlife Rescue and Rehabilitation Centre and Others versus Union of India & Ors

The present matter involves the issue of captive elephants especially in the State of Kerala. The Hon’ble Supreme Court vide order dated 18.08.2015 directed the temples or Devaswom to register to the District Committee under the Kerala Captive Elephants (Management and Maintenance) Rules, 2012 for keeping the captive elephants. That further the Hon’ble Court directed the Chief Wild Life Warden  to ensure that all the captive elephants existing in the State of Kerala are counted and in the absence of obtainment of requisite certificate under Section 42 of the 1972 Act and the declaration made under Section 40, appropriate action shall be initiated against the owners.

Green Highways (Plantation & Maintenance) Policy, 2015

To boost the industrial empire in India, national highways play an important role. Loss of vegetation is one of the inevitable consequences of Highway Development. The Green Highway Policy aims to develop eco-friendly National Highways with participation of the community, farmers, NGOs, private sector, institutions, government agencies and the Forest Department. The intent of this policy is to have plantations along the national highways to trim down impact of air pollution, dust noise pollution, soil erosion, prevent glare from head light of incoming vehicles, etc. It will also provide shade on roads during summer, generate employment to local people and enhance biodiversity.

Policy lay down guidelines for plantation. Single species should be planted over long stretches of road so as to enhance the aesthetic quality and also for easier management. For its efficient implementation, it lay down parameters for selection of plants. Under the policy, an action plan is to be prepared regarding additional landscaping measures and traveller amenities. If the land is insufficient to implement this program, acquisition of additional land should be seriously considered.

Its implementation can be conducted either by the forest department or through private agency through bidding for management purpose or naturally grown trees. MoRTH /NHAI will appoint the authorised agency for empanelment of Plantation Agencies. Only empanelled agencies will be allowed to bid for planting work on the National Highways. For few areas, permission for tree cutting might be required to be undertaken from the forest department under the Forest Conservation Act, 1980. While granting the permission, the forest department stipulates the conditions not only for compensatory afforestation (CA) but also for avenue plantations. In these cases, the amount for avenue plantation is conducted with the Forest Department.

The local forest department shall be consulted before starting any plantation, for ensuring compliance to any regulation in force that may affect raising, maintenance, and harvesting of the raised plantation. Necessary modifications will be made in the plantation scheme, in consultation with the forest department, to ensure compliance to law and to avoid complications at the time of harvesting and transportation of forest produce. In case the State Government has any provision for registration of such plantations, the same will be ensured under the relevant scheme.

For roadside plantations, nodal agencies will be encouraged to involve the local institutions like Panchayats, JFMCs & SHGs for plantations as per these guidelines.

The Nodal agency for forest areas will be the concerned forest range office. In case of Public Funded Projects the concerned Regional Officer of MoRT&H/NHAI will be the nodal agency. In cases where roadside plantation is included in the concession agreement, the concerned concessionaire will be the nodal agency.

Ministry of Road Transport & Highways reserves the right to renew or amend the policy from time to time. There will be an Advisory committee which will meet once in a quarter and give its recommendations/advice to the monitoring cell. The ROs of MoRTH/NHAI in the district will be the convener of this committee.

(Blogger: Krishna Srinivasan)

Forest Governance Strategy Group: An integrated vision of forest management in India

The Forest Governance Strategy Group (FGSG) is an attempt to take forward the Forest Governance Learning Group (FGLG), an initiative supported by International Institute for Environment and Development (IIED), U.K. During the course of FGLG discussions, the members realized and agreed that forest administration in India is currently stuck in a vicious circle where it is the lowest priority in the political spectrum. The members stressed on the need for taking forth the focussed group discussion forum to pioneer legal and administrative solutions to change the status quo in forestry in India. Accordingly, following the successful completion of FGLG in March 2013, IIED and Enviro Legal Defence Firm (ELDF) decided to build on the discussions and lessons learnt from FGLG with a newly formulated national level peer group, team to be known as “Forest Governance Strategy Group” (FGSG), on sustainable forestry in India and South Asia.

The FGSG’s primary objectives would be to:

  • Constitute a ‘think-tank’ to strengthen forest governance in India and South Asia;
  • Build an all-encompassing platform of forestry experts for an ongoing dialogue on the challenges, knowledge exchange, potential solutions, and dissemination of information with the stakeholders;
  • Bridge the huge communication gap between the executive and the legislature and amongst the executive also, as far as forest governance is concerned.

The group has already met twice this year. First meeting was held at ELDF office in New Delhi on March 24, 2015, and the second brainstorming session was organized at M.P. Bhawan in New Delhi on June 29, 2015. Both the meetings were successful to define the objectives, structure, working themes, approach, and membership concerns of forming a new national-level expert group on forest governance. By the time the second FGSG meeting concluded, the group had committed to produce knowledge products such as technical papers and policy responses on identified key forest issues. The group meetings planned the specific activities under the core thematic focus of the group. These activities have been undertaken in the six months period from April to October 2015.

The proposed key working themes decided by the group are:

  • Forest & People: Participatory Forest Management,  Livelihoods & Forest Settlements
  • Law, Policy, Regulatory & Institutions on Forests (including International laws)
  • Climate, REDD+ & PES
  • Markets & Private Sector: Agroforestry and Forest-based Enterprises

The FGSG would build upon the completed activities and accumulated experience of FGLG India. Each of the members of the FGSG would use their expertise on different aspects of forest governance, to contribute to what is already acknowledged as a useful platform for responding to new policy developments, bringing emerging issues to the attention of policymakers and ensuring that national level proposals affecting forest governance are well-informed by field-level reality. Further, a new website dedicated to FGSG (fgsgindia.org) was launched on the second meeting (June 29, 2015) linking FGLG website to the signal the new entity and approach. FGSG website would be further developed into a storehouse of South Asian forest law and policy-related data and discourse for the rest of the world. The concept note and the minutes of the FGSG meetings can be accessed on the website. Further, the policy inputs by the various members would be published on the IIED and FGSG website.

(Blogger: Naysa Ahuja)

Levying access fees on companies- The best approach to conservation? A critique on the Access and Benefit Sharing Guidelines, 2014

A wide range of industries such as biotech, pharma, forestry, herbal, food, etc., use biological resources which are regulated under Biological Diversity Act, 2002 (BDA) and related Rules of 2004. This legislation also laid down provisions pertaining to access and sharing of benefits (ABS) from commercial utilization of these resources. A legislation which came pursuant to the Convention on Biological Diversity until recently did not have clear provisions on how exactly the ABS mechanism would work in India. After ratifying the Nagoya Protocol on ABS, it became imminent for the National Biodiversity Authority to come out with guidelines in 2014 which is following the Protocol to some extent as the Preamble to these guidelines state.

Providing for benefit-sharing in both monetary and non-monetary modes, the guidelines have slabs for different ranges of companies. The benefit-sharing slabs for domestic companies are 0.1 per cent, 0.2 per cent and 0.5 per cent on annual ex-factory gross sales of a product, depending on if the sales are less than Rs.1 crore, between Rs.1-5 crore and above Rs.5 crore, respectively. Foreign companies have to pay double the rate — so between 0.2 per cent and 1 per cent — in the three slabs. For bulk exports, benefit-sharing is 3 to 5 per cent of the total Free on Board value of resources. For different categories of transfer of research and intellectual property rights, benefit-sharing ranges from 0.5 to 5 per cent. Benefits described above will contribute into the National Biodiversity Fund for sharing with the State Biodiversity Boards (SBBs), Biodiversity Management Committees (BMCs) and local communities from whom resources or related knowledge were accessed.

Following the notification of these guidelines on November 21st, 2014, several SBBs started sending notices to companies utilizing biological resources with special focus on Ayurvedic companies, creating chaos and confusion amongst these companies due to lack of sensitization and awareness creation. For instance, there is no clarity on the year from which tax will be levied. Many of the companies are only paying out of fear, because according to Section 7 and 24(2) of the Act, organisations extracting plant based material for commercial purpose without intimation to State Biodiversity Board are liable under Section 55(2) of the Act and shall be punishable with imprisonment which may extend up to three years with fine or five years with fine or both. Ayurvedic industry in the state of Gujarat has urged the Centre to postpone the implementation of ABS tax so that the industry can better adjust to these changes. They also urged the government to consider reducing the percentage on the tax levied, especially for the small-scale manufacturers so that they are not burdened by the same. Their most important advice to the government is to sensitise the industry clearly on the tax structure and the modalities of it, so that stakeholders are clearly informed on all the aspects.

Worst hit are the Ayurvedic medicines’ manufacturing companies which are mostly made up of small scale or cottage scale industries with an annual turnover of less than Rs.1 crore. On a perusal of the BDA, Rules and Guidelines, it can be seen that as per section 7 of the Act, a ‘citizen resident in India’ is supposed to give only prior intimation to the Board on access of biological resources for commercial utilisation. The guidelines framed under section 18(1) and 21(4) of BDA, 2002 covers only activities under sections 3, 4, 5, and 6 which does not include domestic manufacturers, thus taxing them under these guidelines seems to be an incorrect approach.  Moreover, as per section 23 and 24 of the BDA, there is no specific mention about collection of ABS from Indian companies. Further, under section 32 there are only 3 sources of revenue specified for State Biodiversity Fund and none of them refer to the collection of ABS fees. Under section 21, subsection (2), there is a clear mention about NBA charging benefit sharing, however, this section is applicable only to non-Indian companies as described in section 3(2) of the Act.

Another lacuna with respect to the guidelines is that a proper distinction has been made between biological resources and value-added products with the latter being exempted from application of these guidelines. Definition of “biological resources” clearly indicate plants, animals and micro-organisms or parts, their genetic material and by-products with actual or potential use or value; and “value added products” means products which may contain portions or extracts of plants and animals in unrecognizable and physically inseparable form. Now it is unclear whether Ayurvedic medicines or for that matter, any of the processed food products come within the former or latter category.

There is also no clarity on whether cultivated bio-resource comes within biological resources or not. Unless these matters are not resolved, the guidelines will only create more hurdles to the true purpose of BDA, i.e. conservation.

(Blogger: Shyama Kuriakose)