The signs of a failed environmental regulatory system

Last week, the Uttarakhand High Court ruled that hydropower operators and road developers in the state have used ‘rivers as dumping sites’. Urgent action was needed as the problem had persisted despite repeated warnings. Through its judgment on June 11, the court has halted all construction activities on riverbanks and directed the environment ministry to identify muck-disposal sites 500 metres away. The ministry has three weeks to respond.

Earlier this year, the National Green Tribunal reminded state governments to immediately prepare action plans for the utilisation of fly ash generated from coal power. The government in Chhattisgarh, where close to 50 power plants operate now, has published a ‘declaration’, which requires every new coal power plant to have an action plan for utilisation of fly ash. It also announced the creation of a fly ash utilisation fund as a mechanism to address the acute problem in the state.

These two examples are symptomatic of a failed environmental regulatory system, where harmful energy projects are approved behind the rationale of mitigation measures. These poorly designed safeguards add to the dangers faced by people and the environment. It is no wonder that environmental mitigation measures are seen as a ‘Trojan horse’ by social activists and organisations.

Old problems

In the case of a public sector hydropower project in Kullu district of Himachal Pradesh, the environment ministry’s regional office had recorded that the quantum of muck, the number of dumping sites and their locations disclosed by the project proponents were both incorrect and inadequate. Yet, the project was approved with conditions. These conditions required the proponent to secure debris sites and protect river flows. Over the years, existing dumping sites were used beyond capacity. Their retaining walls were broken and the river was polluted. The company had to acquire and purchase additional land, often agricultural land, to fill the gap. These new areas were never assessed for impacts.

The problem of fly ash or muck dumping is not new. It has been unmanageable for decades and there are many mountains of dumped material on the Indian landscape. According to the environment ministry’s 2013 estimates, 163 million tonne of fly ash has been generated during 2012-13, which is likely to be twofold by 2022. There have been several governmental and non-governmental assessments since the 1990s that have pointed to the urgent intervention needed to control this menace.

The environment ministry has acknowledged fly ash to be a problem in various guidelines and the CAG of India audited the failure of the environmental compliance system in 2016. Their conservative estimates say that improper fly ash storage was noticed in 33 per cent of the pool of thermal power plants assessed by them. Non-utilisation was found in 21 per cent of the cases. When it came to hydropower, the CAG report noted that “consolidation and compilation of muck in the designated muck dumping sites” were not done in 33 per cent of the pool of river valley projects that were assessed.

Where does this all go finally? Both muck debris and fly ash are highly polluting. Fly ash contains several heavy metals that are extremely hazardous to both the environment and human health. These have ruined air quality, soils in farms, surface water, and groundwater in so many power-generating regions and beyond. Retaining walls of debris and ash dykes eventually collapse, causing accidents due to the creation of artificial dams in rivers, and mudslides into villages.

No more space for impacts

Regulatory approvals have so far relied on the logic that impacts arising out of infrastructure, industrial or mining projects can either be mitigated or managed. Utilisation of fly ash, secure disposal of muck, afforestation of mine overburdens, are all assurances that project proponents have made at the time of securing approvals. Governments and courts spring into emergency action when these mitigation measures have not been able to curb impacts. But it is all too late. Polluted rivers, groundwater decline, and bad air are not a probability but problems experienced by our entire population.

Governments and technical experts involved in these decisions may give opinions that this form of doing things can go on with little tweaks here and there. We have heard our international climate negotiators say that India was a late entrant to development and that we should be allowed to catch up with the West. But seriously, we ran out of development time and space long ago. This ‘catch up’ model has already exhausted the good, healthy environment around us. Now, we must necessarily change course.

The courts know that allowing development projects the space to dump their impacts means legalising the severe abuse of other rights. So, we will see more and more of such punitive judgements to curb project activities. Our development is in a phase of severe disorder.

The authors are with the CPR-Namati Environment Justice Program. Views are personal.