INFRASTRUCTURE DEVELOPMENT AND ENVIRONMENT-EXISTING LAW AND POLICY

-The term infrastructure generally refers to the physical framework of facilities through which goods and services are provided to the public. The extent of infrastructure affects not only production and consumption directly but also will have an impact on every sector of economy.  Historically World over the infrastructure provision is predominantly done by Govt. or Government agencies with little involvement of private sector. However, the scenario has changed with times and India too has joined the band wagon of other Countries in involving private sector after 1991 liberalization as investments for developing infrastructure to World standards are very high. It is estimated an amount of Rs.11,700 billion would be required by year 2005-06 at 1995-96 prices. To enable the country to raise these resources the only option Government foresee is involvement of Private sector. Too woo the private sector Government has to provide lot of incentives sometimes at the cost of natural resource management and environment.

Though the infrastructure sector include wide spectrum of activities/services, the present paper focus only on power, roads and ports development since these are the areas which has direct and indirect short term as well as long term impacts on environment and natural resource management.

ENVIRONMENTAL CLEARANCE IN INDIA :*

The environmental clearance after EIA study was started in 1978 as a directive of Planning Commission for Government of India funding. This was to be done by NCEPC under Department of Science and Technology, Govt. of India. After formation of Department of Environment 1980 the same job has been transferred to DoEn from DST. In the Country Environmental clearance and EIA has become mandatory only in 1994 for selected projects whether they are executed with State funds or private funds. A copy of the notification is given as annexure-l. The projects to be cleared one subjected to appraisal by Environment Appraisal Committee (EAC) formed in DoEn as a substitute to NCEPC originally conceived. The projects requiring forest/wildlife clearance are cleared for environmental clearance only after these are obtained. The EIA regulation has been amended in 1997 including mandatory public hearing to these project. A copy is provided as Annexure-11. The projects requiring environmental clearance under this regulation has to obtain NOC from the respective State Pollution Control Board under Water and Air Acts, Land and Water Availability approvals from State Government. While assuring the project the DoEn (MoEF) looks at both short term/long term implications on environment and natural resource management. The environmental clearance so given is valid for 5 years for taking up construction/operation. Also if a project cleared with a scope under go change require fresh assessment.

The environmental clearance so given under Environment (Protection) Act, 1986 could be appealed to National Environmental Appellate   Authority constituted as per the National Environment Appellate Authority Act, 1997. As per this act any person aggrieved by the order of granting environmental clearance for industry process in the prohibited areas or granted any conditional clearance, may approach authority within 30 days from the date of such order as per the procedure and form prescribed.  The authority has however has discretion to entertain such appeal even after 30 days but not after 90 days from the date of order/clearance, provided they are satisfied there is sufficient ground for filing the appeal.

The authority shall dispose the petition within 90 days from the date of filing the appeal. The authority while processing or hearing the petition shall be guided by principles of natural justice and subject to the provisions of the Act and rules made Central Government could be there is a bar of Jurisdiction that no civil Court or other authority not to entertain any appeal on this matter, the interested parties have rarely preferred public interest litigation's over appeal to this authority.

Though there are no site assessment required in EIA Notification except for site specific projects like River Valley projects, pit head Thermal power projects, ports the site appraisal committees of State Government should clear the site of all power generating units, there are no specific prescriptions under Factories Act for site selection. However, Ministry of Environment and Forests, Govt. of India in 1987 has issued environmental guidelines for thermal power plants which contain siting criteria for Thermal Power Projects for its environmental acceptability. As per this :

1.Location of thermal power plants should be avoided within 25 Km of the outer peripheries of the following : a. metropolitan cities b. national parks and wildlife sanctuaries and c. ecologically sensitive areas like tropical forests, biosphere reserves, National Parks and Sanctuaries, important lakes and coastal areas rich in coral formation.

2. In order to protect the coastal areas above 500 m of HTL a buffer zone of 5 Km should be kept free of any TPS.

3. The site (chimney) should not fall within the approach funnel of the runway of the nearest airport.

4.The site should be atleast 500 meters away from the Flood Plain of the Riverine Systems.

5. The site should also be atleast 1/2 Km away from Highways.

6.Location of TPS should be avoided in the vicinity (say 10 Km) of places of archaeological, historical, cultural, religious or tourist importance and defence installations.

7. The TPS should be surrounded by an exclusion zone of 1.6 Km and located on the leeward side of the exclusion zone with respect to the predominant wind direction, residential/commercial development should be regulated in the exclusion zone on the basis of strict land use zoning.

8. No forest or prime agricultural land should be utilised for setting up of TPS or for ash disposal.

The legal sanctity of these guidelines have been questioned in various counts as guidelines are not mandatory but only optional. No effort has been made by Govt. of India so far to give any legal sanction to these guidelines for power plants, though a draft notification for siting of industries was circulated in 1999. As far as port and harbour projects is concerned the provisions of CRZ notification would apply for site selection.

DEVELOPMENT OF POWER SECTOR :

Total electricity generation capacity in India is 101500 MW out of which 72000 MW is thermal, 24500 MW is Hydel, 2800 MW is nuclear and the rest is renewables. Out of this generation around 30 is from Central Sector and around 62 from State Govt. and the rest is by private sector generation. The approximate energy consumption pattern in the country is as below :
 Domestic :    21%

 Industry :     35 %

Agriculture :   31 %

Commercial :  7 %

Overall transmission and distribution losses in the Country on an average 22 but losses are much higher in distribution. For example, in the State of Karnataka these losses is reported to range from 33-36 out of which 40 is non technical losses due to theft, improper metering, billing, collection etc. The utilization of generating plants in India (PLF) varies from as low as 20 to as high as 91. Peak power shortages are around 14. Over and above the quality of power is poor which is prompting captive power generation by industry. No doubt that power sector need to be developed to meet the needs of the society. But any decision on this development should be based sustainable use of Natural Resources with little damage to environment.

Electricity is in the concurrent list of the per constitution of India. As such the responsibility for administration/legislation of electricity is shared between Govt. of India and the States. Electricity generation, transmission and distribution in the Country is primarily governed by Indian Electricity Act, 1910, Electricity (Supply) Act, 1948. There are other legislation indirectly governing the project upcoming. These include Water Act, 1974, Air Act, 1981, Forest (Conservation) Act, 1980, wild Life Act, 1972, Environment (Protection) Act, 1986. Factories (Amendment) Act, 1988, Town and Country Planning Act, 1952 etc. List of clearances required for a power project under these statutes is given in An nexu re-Ill.

These environmental legislation require the power projects to get environmental clearance and consent for establishment after due EIA study. As per the EIA Notification 1994, power project with investment more than 50 Crores require approval from Govt. of India.

However, the notification has been amended on 10.4.1997 delegations the powers to State Government's to expedite power projects establishment in the wake of reforms initiated by the Country. Copy of this amendment is in Annexure-IV. If the project is coming within 25 KM from sensitive areas/reserve forest area and 50 KM from inter-State boundary the same has to obtain approval from Central Government. Similarly, the other fuels than for which the delegation is given, is used for power generation the project cost if it exceed 50 Crores require Govt. of India clearance. Though while clearing any power project issues like transmission of power from the project are looked at, no formal approvals are required in this Country for transmission lines from environment point of view though approvals under Forest (Conservation) Act, 1980 are obtained if these lines pass through forest areas.

DEVELOPMENT OF PORTS SECTOR :

India has a vast coast line to the tune of 6000 Kms and there are 11 major ports and 39 minor ports in the country classified based on traffic handled. Administratively major ports are under the control of Govt.of India and minor Ports under the control of State Govt. An estimated 424 million tons of traffic handling is required by 2002 and today what we have is around 215 million tons capacity to be expanded to 252 million tons capacity by 2001. It is proposed to implement schemes in major ports to handle 122 million tons and 50 million tons in minor ports which may require an investment of Rs. 16000 Crores. Principal legislation's governing Indian Ports are the Indian ports Act, 1908 and the Major Ports Trust Act, 1963. For investment upto 200 Crores, the Ministry of Shipping is empowered to clear without referring to Finance Ministry.

After liberalization India has embarked on privatization Ports (as there is no legal bar to privitise like in power sector) on priority either component wise or through Joint Venture route with foreign Ports. The Joint venture with foreign ports include construction of new port which include construction of new port within existing ports and development of altogether new port. Joint ventures arrangement can be finalized without any tender, however require approval of Central Govt. The major ports identified would prepare feasibility report and the cost for which to be recovered from successful tenderer.

The identified area of development should match with port perspective plan/master plan/land use plan the Port. The major/minor port would obtain all the required statutory clearances including environmental clearances to facilitate and expedite the privatization process.

The activities and development of Ports are governed by Environment (Protection)Act, 1986 and the regulations of EIA and CRZ therein, though the applicability of Water and Air Act is still questioned by Ports/Ministry of Shipping with an amendment of CRZ Notification on 9th July, 1997 the MoEF has delegated the powers to the empowered committee of Ministry of Surface Transport for all developments within port area. A copy of which is enclosed as Annexure-V. However, after due deliberation. Ministry of Environment and Forests has with drawn presumably thinking that Ministry of Surface Transport themselves are proponent/developers of the project, who can not possess the powers to clear the same. A copy is provided as Annexure-VI. One of the important requirement of the port development is that the proposed development should confine with the Coastal Zone Management Plans of the State and activities should be as permitted under Coastal Regulatory Zone classification activities. Most of the times CZMP classify/convert the port areas to CRZ-II though some exceptions are found.

DEVELOPMENT OF ROAD SECTOR :

Indian road network is around 3 million KM length and third largest in the World. However, due to increase of traffic at an annual rate of 8-10, it is felt India needs more roads and improve the road infrastructure which may require Rs.30,000 Crores by 2005. The National Highways in the Country are governed by National Highway Act, 1956 which has been amended in June, 1995 after liberalization to provide for private participation in this sector. As a support for development of this sector by private developer government has made special provision for speedy land acquisition and made it mandatory that competent authority decision is final on compensation and this will be provided in quantum. The Govt. will also meet the cost of preparing detailed feasibility report, land for right of way and enroute facilities, clearance for right of way land, relocation of utility services, cutting of trees, resettlement and rehabilitation of the affected population, establishment and cost responsibility of getting environmental clearance. In addition to this the policy also provide grant of property rights to the private investors in respect of the land adjacent to the highway land stretch. In addition any profit occurred due to ware housing and other developmental activities is eligible for tax benefits. Government has also removed the ceiling on the tolls to be collected for expressways, major bridges, new by passes and tunnels giving free hand to the developer to charge toll as they like. Construction equipment used for highways is also exempted from customs duty.

With regard to environment clearance the provisions of EIA notification, 1994 apply to all highway projects including expansion, modernization project with investments more than Rs.50 Crores and all other tarred roads passing through reserve forest areas and sensitive areas immaterial of the cost. However, the EIA Notification has been amended on 10.4.1997 (Annexure-ll) relaxing the schedule attached to the original notification as

"Highway projects except projects relating to improvement work including widening and strengthening of roads with marginal land, acquisition along the existing alignment provided it does not pass through ecologically sensitive areas such as national parks, sanctuaries, Tiger Reserves and Reserve forests".

MoEF has also clarified separately that marginal land acquisition means 20 meters width on either side together and by passes are to be considered as stand alone projects which would be subjected to EIA Notification if the cost of by pass project is more than 50 Crores. A copy of the circular issued by MoEF is given as Annexure-VII. This amendment takes away most of the highway projects to be out of EIA requirement if they can restrict the land acquisition to less than 20 Mts. width either side put together. For Highways in India the Indian Road Congrers recommended right of way as below :

OPEN AREA

                                                           NORMAL____________RANGE   

a. National Highways and State Highways      45                           30-60                     

b. Major district roads                                25                          25-30

c. Other district roads                                15                          15-25

d. Village roads                                         12                          12-18

These width include carriage way and shoulders. Going by these standards of IRC no single lane to double lane or strengthening of double lane by increasing shoulder or marginal expansion would not come under purview of EIA. Similarly, if any double lane State/National Highway is in possession adequate land width and acquire less than 20 meters either side put together to make 4 lane will also be out of environmental impact assessment purview. Hence, for all practical purpose only the projects executed by NHAI, new by passes, and express ways are subjected to EIA provided their cost is more than 50 Crores or if they are passing through reserve forests/sensitive areas. By suitably amending cost and width of the project one would get enough room for not carrying out EIA study. This one of the major compromise from environment point of view, as any development of highway project would have long term environmental impacts.

PUBLIC PARTICIPATION IN INFRASTRUCTURE DEVELOPMENT DECISION MAKING :

The role of Public Participation and consultation in the development decision-making process is to not only ensure the quality of decision and transparency but also winning the trust of people.   This would also provide openness in consideration all possible options for the development.  In India there is a provision in many statutes for public participation but rarely and effectively utilized. A serious and sincere attempt has been made to incorporate public hearing/consultation in the decision making through an amendment of EIA Notification, 1994 on 10th April, 1997 making it mandatory for selected developmental projects to have this public consultation/hearing. (Annexure-ll). One of the reason though the Public Participation is provided in the law, the same is not effectively used is because public participation had connotations of extremism, confrontation, delays and generally perceived as blockade to the development process.

As far as power sector is concerned the opportunity for public opinion/consultation is available in the following statutes.

1. Town and Country Planning Act,1952 - At the time of change of land use for proposed development.
2. Electricity supply Act, 1948 Section 29 Notification - Seeking objections on the establishment and locating power project.

3. EIA Notification, 1994 under Environment (Protection) Act, 1986 - Formal public hearing before decision is taken on environmental clearance.

There exists also a provision in the Factories Act amendment, 1988 for compulsory disclosure of information by the occupier/project authority to the workers of the factory and general public in the vicinity, if he is dealing with hazardous process. As per First Schedule of the Act, these processes include power generating industries too. However, the same is not enforced effectively and complied.

For development of Ports and Road projects unless the projects are coming under the purview of EIA Notification, 1994 the scope of public consultation is limited to land acquisition process only. Many of the port projects which are to get approval under CRZ Notification under Environment (Protection) Act,1986 require no public hearing unless the activity is included in EIA Notification, 1994.

 NEED FOR CHANGE :

Economic development and environmental management are complementary aspects of the same agenda.  Without adequate environment protection, development will be undermined and without development environmental protection fails. Due to technological advancement we have multiple choices on the development path. One can choose policies and investments which has environment benefits of efficient use of natural resources there by adopt technologies/options leading to sustainable development. This is the place where professional approach to the development decision making, political commitment, and administrative ability matters.

It is a fact we at developing countries massive and daunting problems of meeting power needs for development. Traditional strategy of relying on new generating capacity need to be relooked at. The areas to be tackled on priority is

 1. Improving the existing plants productivity.

2.  Reduction transmission and distribution losses both technical and non-technical

3. A strategy on demand side management with both command and control as well as economic incentive mix

The above strategy needs technical, institutional, attitudal and policy changes coupled with strong political support.

Similarly, for additional of capacity generation there is a great need to look at optimal generation mix of modes of power generation, emphasis on renewables and technology assessment of options so decided. It is estimated there is good potential of renewable energy in India which can be economically exploited with little shift in policies and implementation.

Potential(MW)     Achieved(MW)

Wind Power                                           45000                    1267

Biomass (Bagasse) co-generation             3500                     273

Small Hydro Power                                 15000                     1341

Biomass gasification                               16000                     1700

Power from solid waste                           35                          15.2

Solar Power                       3 times to total energy

demand of the country                  Negligible
(500,000 Tera KWH)

Due to cost constraints and low PLF some of these technologies may not suit immediate needs. But shift in power policy and greater inputs on technology development one could realize atleast 40-50 of others except solar power. In addition it is estimated that by improvement of technology, O&M coupled with better practices of billing/collection and Demand side management we would be able to enhance our power position considerably.

While looking for alternatives for ports too priority is to be given for improvement in the existing ports, decreasing turnaround time of ships, automation of the facilities, modernization of infrastructure. While establishing new ports and expanding existing ones ecological sensitivity of the area of operation and socio cultural impacts are to be scrutinized thoroughly. Utilization of Inland waterways and Railways could be an attractive alternative to road transportation pipeline transportation of goods where ever possible should be encouraged in place of road transport which would greatly reduce, road traffic and requirement of new investment in road sector. This would not only benefit environment but also conserve natural resource.

In the legal frame work it is there is need to relook at the requirement of Environmental Assessment. All infrastructure project should have certain degree of environmental and social assessment compulsory either at State or Central level. Public participation/consultation is to made compulsory and a manual of procedures to conduct this task has to be prepared on priority. It could also be considered to give certain level of legal protection for the projects where such public consultation

is adequately done following the manual of procedure. It is also necessary to have a national level policy on rehabilitation and resettlement for infrastructure projects.  The existing policy measures which encourage plendering of natural resources like land, water, forests etc. to be considered for amendment to encourage optimum use of these resources.

Last but not least is to have a committed enforcement of these policies and legislative provisions in an effective and professional manner, which might need revamping and strengthening of the enforcement agencies other institutions.

REFERENCES

1. Meeting India's future energy needs - Planning for Environmentally Sustainable Development, The World Bank (1998)
2. India mean Business - Investment Opportunities in infrastructure. Ministry of External Affairs, Govt. of India, 1997.
3. Dr. David Jhirad "Power Sector innovation in Developing Countries" - Energy Policy (1992)
4. N.Panaji "Policy to encourage private investment in the Indian power sector" TIDE, 4(2), 1994
5. S.L.Rao, "Policy and reform initiatives Global and regional perspectives". Paper presented in High level WIS on power sector reforms, Bangalore, 1999
6. 116th power survey report of CEA, Govt. of India, Sept, 2000.
7. Gazette of India, Notifications under Environment (Protection) Act, 1986.

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Contact Address   :   Kendriya Sadan, IV Floor, E&F Wings, II Block, Koramangala, Bangalore-560 034. Phone No.080 5537185, Fax : 080 5537184. e-mail : g-u-bhaskar(a),yahoo.com. Views expressed in this paper are personal and not of Ministry of Environment and Forests or Govt. of India.

ANNEXURE – 1

GOVERNMENT/STATUTORY APPROVALS SANCTIONS REQUIRED TO SET UP POWER PLANT

A number of statutory and non-statutory clearances are required for setting up a Thermal Power Project. The purpose of these clearances and the authorities responsible for according these clearances/sanctions are also indicated against each.