Biodiversity and People: Contexts, Responses Audits

Kanchi KohliICED, Jaipur

9th February 2015

CONTEXTUALISING BIODIVERSITY

SPECIES AND HABITATS

KNOWLEDGE, USE, CULTURES

BIODIVERSITY, THREATS AND REGULATION IN

INDIA:

THREE KEY NARRATIVES

1. LARGE SCALE CHANGE IN LANDUSE AND WATERSCSAPES

Environmental Kuznet’s Curve

It is claimed that many environmental health indicators, suchas water and air pollution, show the inverted U-shape: in thebeginning of economic development, little weight is given toenvironmental concerns, raising pollution along withindustrialization. After a threshold, when basic physicalneeds are met, interest in a clean environment rises,reversing the trend. Now society has the funds, as well aswillingness to spend to reduce pollution. (Wikipedia)

2. CONSERVATION ENCLOSURES

• Conservation imperatives and impacts on ecosystem based livelihoods

• Diversion of PA land for industrial/infrastructure use

• Relocation: processes and push

• Debates around non PA conservation categories for biodiversity: BHS, ESAs

3. BIOPIRACY AND BIOBASED TRADE : Germplasm and knowledge

• Commercial use in biotech, pharma sectors• Exclusive rights through IPRs• Access to people’s biodiversity knowledge• Legalising digitisation and access• Monetising benefit sharing

RESPONSES: Laws, Calculations and

Institutions

• Range of laws and related notifications: EPA, FCA, Air and Water Acts, WLPA (currently under review), BDA

• Federalism: Centre-State sharing of powers

• Regulatory Design: facilitative, partially restrictive, increased emphasis on efficiency, quick decisions despite local complexities (e.g. FC Rules: 45 days)

LAW AND REGULATION: Operational aspects

• Utilising Legal spaces: citizen’s participation in public hearings, government expert committees, redressalmechanisms

• Interface with other laws: Land Acquisition, FRA (chronological hierarchy and conflicts)

• Trade Offs: decisions outside of environmental considerations (go/no-go)

• Conditional Approvals [more details in next session]

COMPENSATION and VALUATION

Compensatory Afforestation (Forest): moving into revenue land, compensate and hand over for industrial use

Conservation Offsets through court orders or clearance conditions (creation of PAs, if existing forest transferred to industrial use ?)

Access and Benefit Sharing (ABS) regimes

• New Models of Valuation: NPV, Biodiversity Offsets

INSTITUTIONSInstitutions and Ministries: part of a larger government system with contradictory priorities

Challenged functioning of SEIAA, SCZMAs, SBBs, SPCBs at the state level related to national environmental laws, but joint centre-state funding?

Judicial Intervention: Interpretations by Courts and NGT [the power tussle]

Proposal for Environment Regulator (to resolve the fundamental problems with the environment clearances)

CHANGES IN LAWS: IMPACTS ON BIODIVERSITY AND FORESTS

Emphasis on speedy approvals, “removing” administrative hurdles

Public interface clauses changed or proposed to be changed

Go, No-Go, Inviolate Forests Debate (to be or not to be)

Changes through Ordinances

Financial Compensation and Fines as detteranceagainst non compliance of law

QUESTIONS FOR ENVIRONMENTAL AUDITS( interfacing qualitative aspects

of environmental audit)

How do current policies resulting in landusechange or biodiversity extraction fair in their conservation and livelihood protection objectives ?

Is the current framework of environment law and regulation adequate to ensure positive environmental outcomes?

Is the framing of environment conditions and its compliance positioned towards environment protection? [More in the next session]

Are the processes associated with Protected Areas (PAs) fair and persuasive towards ensuring biodiversity conservation? If yes, how do they address the livelihood loss?

Do compensatory practices and valuation methods contribute to protection of biodiversity and improving social lives of people?

Are legal regimes being overloaded with too many objectives and outcomes? E.g. ABS, EIA. Would specificity help environment audits

How do existing institutions fair in monitoring and regulating biodiversity/environment? Are new institutions the answer for lack of capacity or commitment?

Kanchi Kohli

ICED, Jaipur

9th Feb 2015

POST APPROVAL COMPLIANCE: BIODIVERSITY, PEOPLE, HABITATS

Environment Regulations and

Conditional Approvals

o Multiplicity of Laws and Regulatory approvalso Different but overlapping framing of conditionso Monitoring and Compliance protocol differentially

definedo Range of responsible institutions (including courts)o Biodiversity: a missing elemento Compliance of conditions: much to be desired

o Forest Diversions: FCA, 1980

o Environment and CRZ Approvals: EIA, 2006;

CRZ, 2011

o Pollution related consents: Air Act, 1981 and

Water Act, 1974

o Wildlife Area Diversions: WLPA, 1972

o Access to Biological Material and related

knowledge: BDA, 2002

Forest Diversions (Stage 1 and 2): nature of conditions for prior approval

Ecological:

• Studies related to quality of forests, wildlife presence, impacts on forest corridors

• Impacts on water sources, streams, catchments

Social

• Processes and Recognition related to the FRA, 2006

• Managing impacts on loss of livelihoods, rehabilitation/relocation

Compensation and Valuation

• Identification of land related to compensatory afforestation

• Payment of Net Present Value, Wildlife Restoration Funds etc

Environment and CRZ approvals: nature of conditionsEnvironmental

• Adhering to pollution parametres and setting up regular monitoring stations

• No dumping of muck, fly ash, overburden in areas otherwise designated

Social

• Continued access to a forest or a fishing harbour

• Adequate facilities for construction labour

• Managing impact on agriculture or forest produce (Jaigad: alphonsomangoes)

Compensation

• Rehabilitation and Resettlement

• Financial Payments, if any (occasional)

Compliance and Monitoring

Agencies and Protocols:

Reports, Visits, Notices, Actions

o FCA: State Forest Department and MoEFRegional Offices

o EIA: MoEF, SEIAA and MoEF Regional Offices

o CRZ: MoEF, SCZMAs o Air and Water Acts: SPCB,

CPCBo BD Act: NBA, SBBs, BMCso FRA: DC/DM, MoTA, FRCs

CASE STUDY: Findings of a 2009 study on compliance of environment clearance conditions (and follow up thereafter)

o Institutional Capacity and Coordination

o Framing of conditions and Monitoring Challenges

o Lack of will comply and no deterrence for non compliance

Institutional Capacity and Coordination

o 80-100 projects granted environment clearance every month only in MoEF Delhi. At State Level [2009-11: 97 projects/month]

o Six regional offices have over 8000 projects to monitor with 2-3 officers each. Additional responsibility to SEIAAs in 2013-2014 (OM)

o Each project monitored once in 3-4 years

o Revocation clause never exercised, despite repeated non compliance

o Inter departmental coordination on compliance

o Poor record keeping of notices

Framing of conditions and Monitoring Challenges

o Multiple conditions within one condition: e.g. setting up of fuel

depots and recreational facilities for labour; Stacking of OB Dumps and of rehabilitated area; treatment of spentwash and soil/groundwater quality monitoring

o Vague Condition, Vague compliance: e.g. “adequate width and

density” or appropriate measures” or “frequent health check ups”

o Conditions not possible to comply with: e.g. Large green belts

within industrial estates, project authorities express inability to comply

o Modification of Conditions to Ensure Compliance (Mumbai-Pune Expressway: break up of project components, costs

Lack of will comply and no deterrence for non compliance

o Copy-Paste Compliance Reports: (all projects in one

industrial estate, same compliance report)

o Lack of regular submission of compliance reports or

comprehensive compliance report (single word answers)

o Discrepancy in reporting in Monitoring reports and

compliance reports

o Conditionality Bailouts: Post facto assessment and addressing

of impacts (projects with 131 conditions or conditions such as no

destruction of mangroves while constructing a port)

Relating Non- Compliance with Impacts (need for environmental audits)

Muck dumping and tree felling in sensitive forests during dam construction or road building

Mangrove destruction despite clear

conditions

Filling up, drying of ash dykes: leakage and dust impacts

Living next to mine overburdens

No green belt,

compound walls