Post Facto Environment and Forest Clearances: Exceptions or the Rule?

New Delhi: A Central government expert agency tasked with formulating impact mitigation measures for areas affected by mining and industries has recommended the regularisation of 96.868 hectares of a reserved forest under illegal occupation of a public sector unit for the past 44 years without any punishment for the violators. No official of the public sector unit, National Mineral Development Corporation (NMDC), has been held accountable for encroaching upon the wildlife-rich forestland – equivalent to over 180 football fields – lying just outside an iron ore mining project in Donimalai area of Karnataka's Bellary district.

The patch of illegally occupied land is near Narsinghap village of Bellary. Following a meeting held on October 20, the Forest Advisory Committee (FAC) has recommended to the Union Ministry of Environment, Forests & Climate Change ("the ministry") that a post facto clearance be provided to the mining company subject to payment of a penalty. The proposal was cleared despite the FAC also taking cognisance of the presence of rich wildlife over the patch of reserved forest.

Conservationists have questioned the arbitrary manner in which post facto clearance has been recommended and have also questioned the lack of accountability itself on the part of the public sector company.

"Officials responsible for illegal occupation of forest land should have been imprisoned apart from the imposition of penalties. It is not at all clear as to how the government agencies have arrived at the conclusion that there are no endangered species in the area despite listing out several wild animals found there," said Debi Goenka of the Mumbai-based non-profit organisation Conservation Action Trust.

Wild animals, including "leopard, sloth bear, jackal, four-horned antelope, hares, wild pig, Indian porcupine, monitor lizard, state tortoise, pangolin, grey partridge, painted bush quail and peafowl," are present in the forestland that has been encroached, as per the minutes of the FAC meeting. However, thereafter, the minutes go on to state that "no rare/endangered/unique species" of flora and fauna are found in the area proposed for diversion.

As per the minutes of the meeting of the FAC, the density of vegetation upon the encroached plot of the reserved forest is 0.01; a ratio arrived at by dividing the total number of trees by the total number of sample plots. The number of trees that will be affected by virtue of the diversion of forest land has been calculated as 17,631.

Following the decision of the FAC, the state government shall impose a penalty of five times the Net Present Value (NPV) of the number of trees upon the encroached land. In addition, the NMDC will also be liable to pay 12% simple interest till the NPV deposit is made, as calculated from the year 1997 – the year in which the original forest clearance was renewed in favour of NMDC for the first time – as an additional penalty for violation of rules in the Forest Conservation Act (FCA), 1980. Besides, mandatory compensatory afforestation will also be undertaken by NMDC over an equivalent plot of land identified by the state government in Appenalli village in the Bellary district.

"It is not clear how the NPV will be calculated if the existing density after 44 years of illegal occupation is 0.01. It is also surprising that there is no wildlife clearance. The land identified for compensatory afforestation should be in one contiguous block and should also be notified as Reserve Forest," added Goenka.

A questionnaire was emailed by this correspondent to senior officials of NMDC asking, amongst other queries, as to what action, if any, has been initiated against officials responsible for the illegal occupation of reserved forest land. No responses had been received at the time that this article was published.

The peculiar manner of encroachment by NMDC has fragmented a larger patch of reserved forest. These fragmented patches, in the form of honeycombed islands, add up to another 138.778 hectares of forest land.

Earlier, the BJP-led state government of Karnataka had recommended that the entire 138.778 hectares of honeycombed forest lands be handed over to NMDC along with the 96.868 hectares upon which constructions have already been raised. These constructions include railway lines, roads, water tanks, water pipelines, tunnels, water treatment plants, power lines, stockyards and control rooms.

However, the ruling Congress state government decided against handing over the entire 235.648 hectares of forest land to the mining company. The state government, instead, recommended that NMDC be made a stakeholder in the protection and management of the 138.778 hectares of fragmented forests while its ownership will continue to remain with the forest department.

"… it is decided that, it is better to keep the landlocked area of forest land having an extent of 138.778 hectares with the forest department, instead of giving it to the User Agency [the NMDC]. However, considering the fragmented nature of this interlocked forest area and the vulnerability of the forest from incidence of forest fires, it is advisable to rope in the M/s NMDC in fire management in these forest patches during the summer season."

Thus, in a nutshell, the protection and management of these interlocked forest patches will primarily be done by the forest department (sic.) with the assistance of M/s NMDC Limited whenever required. Accordingly, the effective area for regularisation is 96.868 hectares of forest land, the Karnataka government said in a letter dated October 15.

Ironically, over the past four and a half decades, successive governments in Karnataka have never penalised nor held any official accountable for encroaching upon land belonging to the state's forest department.

"The state government has not provided any information/report on the action taken against the officials responsible for the violation. From the additional information forwarded, it is learnt that the state government has not taken any action against violation of FCA 1980 [Forest Conservation Act, 1980]," the minutes of the FAC meeting further state.

The justification put forth by the Karnataka government to recommend a penalty upon NMDC in lieu of regularisation of illegally occupied forest land is a case in which the mining company had been previously granted forest clearance over an area of 53.67 hectares.

Granting ex post facto clearances for industrial and mining projects has been a bone of contention between conservationists and the corporate lobby.

On March 22, 2022, the ministry issued a circular clarifying the process that needs to be adopted for granting ex post facto clearances in cases of violation of the FCA, 1980. The ministry has said that all cases of violation of the FCA, 1980 are to be referred to it by its regional offices in various states for the purpose of appraisal.

In a significant judgement issued on March 25, 2022, the Supreme Court examined the issue of violation of environmental laws vis-à-vis the security of livelihood of significant sections of the population. In a case pertaining to a chemical industry in Haryana, which employed roughly 8,000 workers, the Supreme Court had interpreted that the Environment (Protection) Act, 1986, does not prohibit the issuance of ex post facto environmental clearances.

A division bench comprising Justices Indira Banerjee and JK Maheshwari ruled that industries which make significant economic contributions and provide livelihood to hundreds of people but do not constitute pollution hazards cannot be shut down for want of pending prior environmental clearance.

In September 2022, after hearing upon a case of violation of the Environment Protection Act, 1986, for the establishment of a biomedical waste treatment in Mysuru district of Karnataka, the same division bench had yet again issued a judgement stating that post facto environmental clearances were not entirely "impermissible". Justices Indira Banerjee and JK Maheshwari had said that some relaxations and even grants of ex post facto environmental clearances "in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible."

Conservationists and activists have pointed out to a Supreme Court judgement of August 2017, in a case pertaining to the illegal mining of iron ore in the Keonjhar district of Odisha, in which another division bench had held that the "concept of an ex post facto or a retrospective EC [environmental clearance] is completely alien to environmental jurisprudence." In this judgement issued by Justices Madan Lokur and Deepak Gupta, it was held that the concept of ex post facto clearances could "be detrimental to the environment and could lead to irreparable degradation of the environment."

The apex court had frowned upon the concept of retrospective clearances in another judgement in April 2020 while deciding upon the fate of three chemical industries that had been operating in Gujarat without the necessary environmental clearances. A division bench comprising Justices DY Chandrachud (the sitting Chief Justice of India) and Ajay Rastogi had noted that ex post facto clearances are contrary to the "precautionary principle" as well as to the need for "sustainable development."

Recently, the Modi government has moved the Supreme Court challenging an order of the Bombay High Court that has granted a stay upon post facto clearances to projects in Coastal Regulation Zone (CRZ) areas. The high court issued the stay order in May 2021 while hearing a petition filed by Mumbai-based public trust Vanashakti. The ministry had waived all restrictions in seeking post facto CRZ clearances through an office memorandum issued in February 2021, vide which it had justified its action "for the purpose of protecting and improving the quality of the coastal environment and abating coastal environmental pollution."