Public Hearings During COVID-19, the Gujarat Way

The number of confirmed COVID-19 cases in our country has crossed the 13 lakh-mark this week, with the largest recorded daily jump of 50,072 cases on July 25, 2020. State governments, district administrations and municipalities throughout the country are resorting to measures like strict curfews and categorised lockdowns whenever there is a spurt of cases in a particular location.

The situation is no different in the state of Gujarat, where there were 55,822 confirmed COVID-19 cases on July 26, 2020, with the state’s highest single-day rise recorded on the same day. The state administration has now announced a change in their COVID-19 management plan as it struggles to contain the surge of the virus in the state. Amidst this situation in the state however, the Gujarat Pollution Control Board (GPCB) has been scheduling several public hearings required under the Environment Impact Assessment (EIA) Notification, 2006, for the environmental approval for various projects.

On June 26, 2020, the GPCB had published a public notice declaring a public hearing for the expansion proposal of the second largest oil refinery in the country, Nayara Energy Limited (the project) on July 28 and 29 this year. Gafarbhai Hajibhai Sandhi, a resident of Nana Manda, Khambaliya, which is in the vicinity of the project, is one of the people who had sent in his written submission to the GrCB to cancel this public hearing which had been scheduled for the third time. Replying to his inquiries in the past few days, the GPCB had indicated that a cancellation order is on its way. However, even with COVID-19 cases rising in the state, the GPCB, instead of cancelling the public hearing, has now rescheduled it for a fourth time on August 28 and 29, 2020.

PART I: Bypassing the Public Hearing Process

Nayara Energy Limited had come into existence after the debt-ridden Essar Oil Limited (EOL) in Gujarat was rebranded and went through huge changes in its holding in August 2017. The Russian Oil major Rosneft, through its subsidiary Petrol Complex Pte. Limited acquired 49.13% of EOL, and a special purpose joint venture between the commodity trading company Trafigura and the UCP Investment Group, called Kesani Enterprises Company Limited, acquired another 49.13% of EOL. The sale of EOL gave its new owners an oil refinery of 20 MMTPA capacity, a power plant and the port and oil terminal at Vadinar, Gujarat, and the new owners expressed their intention to evolve the refinery into a global player.

True to their intention, Nayara Energy Limited proposed an expansion in the capacity of its oil refinery, from 20 MMTPA to 46 MMTPA, and the addition of a 10.75 MMTPA petrochemical complex in 2018. The project approached the Ministry of Environment, Forests & Climate Change (MoEFCC) in June 2018 for an Environment Clearance (EC). As per the EIA Notification of 2006, which lays down the process for obtaining an EC, the project was issued Terms of Reference (ToR) in August 2018 by the Expert Appraisal Committee (EAC), for which the project needed to prepare the draft EIA report.

This draft EIA report is used for conducting a public consultation with the communities who would get affected by the project. The concerns raised by the people during the consultation are then incorporated into the draft EIA report along with mitigation measures for those concerns before finalising the report. In their application for the ToR, the project had asked for an exemption from the public hearing process. However, the EAC, while recommending the ToR, categorically mentioned in clause 6 (i) that the project needs to carry out the public consultation process as per the EIA Notification, which consists of two elements – conducting an on-site public hearing, and inviting written responses from other stakeholders.

On June 2, 2019, the GPCB published a public notice in the local newspaper Gujarat Samachar, inviting written submissions for the public consultation of the expansion proposal of the project to be sent to the GPCB by August 5, 2019. The notice however made no mention of an on-site public hearing, a crucial part of the public consultation process. The affected communities from around the project sent in a written submission to the GPCB, expressing their objections to this public notice on June 23, 2019. They pointed out that apart from the notice violating the ToR issued to the project and the public consultation process as laid down in the EIA Notification, it also denied them their right to be heard as an affected party. Such a notice excludes the people who cannot send in written submissions from expressing their concerns about the project and renders the public consultation process meaningless. Although this submission was addressed to the GPCB, surprisingly, the communities received a response to their letter from Nayara Energy Limited instead. They wrote to the GPCB pointing out this fact and reiterating their objections and demands against the public hearing notice. They received no further response from the GPCB and information on the status of the notice.

In September 2019, Special Civil Application No. 15322 of 2019 Dilipsinh Bhikabhai Jadeja Vs State of Gujarat was also filed at the High Court of Gujarat against the public hearing notice. The petition stated that the notice violates the EIA Notification of 2006 and the fundamental rights accorded under the Constitution of India. Meanwhile, it was discovered that the expansion proposal was listed to be taken up in the agenda for the 17th meeting for the Industry-2 EAC on February 26, 2020. The final version of the EIA report submitted by the project for appraisal only included the written responses received by August 5, 2019. The project had proceeded to apply for an EC without a complete public consultation process, despite being prescribed the same in their ToR. The petitioners of SCA No. 15322 of 2019 filed an application with the High Court of Gujarat, asking for an urgent hearing in the matter, which was also scheduled on February 26, 2020. The concerned local communities from Kathi Devadiya, Sodha Taraghadi, Timbadi, Bharana, Zankhar, Mota Manda and Nana Manda, who live in the vicinity of the project, also wrote to the EAC raising concerns over the project bypassing the public hearing process as well as their environmental concerns with the project. The EAC, while hearing the expansion proposal for grant on an EC, acknowledged the ongoing matter in the Gujarat High Court. They also observed that “the project proponent has not carried out the public consultation as per the provisions contained in EIA Notification, 2006”. They asked the project to carry out a public consultation as per the notification and accordingly revise the EIA and EMP reports. The EAC then returned the expansion proposal as submitted by the project.

PART II : Insistence on a Public Hearing During a Pandemic

The recommendation by the EAC came as a relief to the communities, who now had an opportunity to raise their concerns regarding the project in a public hearing. This relief, however, faced a big setback as the GPCB issued a public notice for the public consultation regarding the expansion for a second time, exactly two days after the national lockdown due to the COVID-19 pandemic on March 24, 2020. The notice, published on March 26, 2020 in the local newspaper Gujarat Samachar and in The Times of India, scheduled the on-site public hearing on May 1, 2020, at a time when the country was grappling with the fear of a growing pandemic, a sudden shutdown of all economic and social functions and uncertain times. Amidst this situation, the communities wrote to the GPCB again to withdraw the notice for public hearing and postpone the same till safety to public health and well-being is restored again. Pursuing this letter, the GPCB issued an order on April 18, 2020, postponing the hearing till further notice.

The idea of ‘till further notice’ did not last very long as the GPCB yet again issued a public notice a third time on June 26, 2020, rescheduling the postponed public hearing for Nayara Energy Limited on June 28 and 29, 2020. The notice was issued when the number of COVID-19 cases in the state was close to 35,000. The notice mentioned that the hearing would be carried out as per all the guidelines issued by the government for the pandemic. However, the notice is in clear violation of the Guidelines for Unlock 2 issued by the Ministry of Home Affairs, Government of India, which is in force up to July 31, 2020. The guidelines prohibit any kind of public gathering, except of a limited number of people for the purposes of marriage or cremation. The guidelines also clearly mention that every state and Union Territory shall strictly follow the guidelines and shall not dilute or weaken the rules in any manner. The notice was also a violation of the EIA Notification, 2006, as it restricted ‘widest possible public participation’ required for a public hearing. These points and objections were raised by the local communities before the GPCB in a letter. As COVID-19 cases in the state have crossed the 50,000 mark and people are at a greater risk of contracting the virus than ever before, the communities of Jamnagar and Devbhoomi Dwarka are awaiting for the GPCB to understand the situation and cancel the public hearing, instead of postponing it repeatedly.

The writers are associated with The Centre for Policy Research. The views are personal.