The big black hole-The Lafarge mining case has highlighted the appalling weakness of the environmental clearance procedures

Date of publication: 
8 April 2010

New Delhi – David Copperfield, described by Forbes as the most successful magician in history, is an illusionist par excellence. He can make things disappear, even structures as large as the Statue of Liberty, for instance, leaving his audiences gasping in wonder. Copperfield’s illusions, however, don’t last for long —- a few seconds, usually, at best a minute. In India, the illusionists are more accomplished: They can make entire forests disappear for years on end.

In Meghalaya, an area of rich virgin forest in the East Khasi Hills district was neatly turned into “a rocky wasteland” in official documentation provided by forest officials and reputed environmental consultants, gulling the Ministry of Environment and Forest (MoEF) into issuing clearances for a cross-border limestone mining project of the Bangladeshi company Lafarge Surma Cement (LSC) that was patently illegal, as the Supreme Court of India has just declared. This is now posing an unusually thorny diplomatic problem for India which does not want relations with neighbouring Bangladesh that are just shaking off decades of entrenched suspicions and friction, to be dented by problems relating to an illegal mining project.

The history of the project and its clearance by the MoEF throw into sharp relief the inherent weaknesses of the environmental clearance process in the country. At almost every level, procedures have been compromised, subjecting the fragile environment of the area and the local population —- these are tribes that come under the Sixth Schedule of the Constitution —- to serious ecological risks. Documents filed before the MoEF, in the court and to different departments in the governments of India and Bangladesh, reveal a shocking state of collusion and inertia.

Limestone mining in Meghalaya was being carried out in a 100-hectare lease area in the East Khasi Hills by Lafarge Umiam Mining Pvt Ltd (LUMPL), a fully-owned subsidiary of LSC, till February 5 when the Supreme Court put a stay on its operations once again after an initial stay in 2007. LSC is a joint venture between French multinational Lafarge, the world’s largest producer of cement, and Cementos Molins of Spain, and its 1.5-million-ton capacity plant works on raw material supplied entirely by the Meghalaya mine through a 17-km long conveyor belt that carries limestone and shale to Chhatak in Sylhet. The $255 million high-profile project —- it is bankrolled by the likes of Asian Development Bank, International Finance Corporation (IFC), the European Investment Bank (EIB) and Deutsche Investitions (DEG) —- turned controversial in 2006 when it was discovered that environmental clearance had been given on fraudulent information.

This has turned the spotlight on the procedures that are employed by promoters to mine in ecologically-sensitive areas and the lax monitoring by the MoEF. The genesis of the problem is in the quality of the environment impact assessment (EIA) reports submitted by project developers. Here’s how it happened in the case of LUMPL. In April 2000, LUMPL submitted a Rapid EIA on mining in Nongtrai, East Khasi Hills prepared by ERM India, a member of the reputed Environmental resource Management Group. The report, among other things, said the mining site was a rocky, boulder-strewn area. To quote: “Being a rocky region, the site dismisses any possibility of natural growth of a forest. Present status of flora at the site is due to clay present in the cavity that is a fragmented component of shale… This is an area of low botanical and floral diversity. Covered with rocks and debris, this area can be termed as a near wasteland.”

The MoEF then made a specific query to LUMPL on the status of land and sought a certificate from the local Divisional Forest Officer (DFO) that the mining did not fall within the definition of forest land as laid down by the Supreme Court in a famous 1996 judgment. Shillong-based DFO A Lyndgoh certified that Nongtrai mining project area was not a forest area and that vegetation was sparse in the area “with a tree crop density of 0.0009 per hectare”.

The true state of affairs came to light only in June 2006 when the Chief Conservator of Forests (CCF) Khazan Singh visited the area, well after a sizable portion had been cleared for limestone mining. Singh wrote to the MoEF that the lease area was surrounded by thick natural vegetation and that trees of huge girth were being felled by the company. He recommended that LUMPL should be asked “not to expand mining activities any further” till the company had sought clearance under the Forest Conservation Act (FCA), 1980.

The MoEF did nothing. Ten months later, the new CCF B N Jha was shocked by what he discovered on a visit. The mining lease, he wrote in April 2007, “lies in the midst of virgin and natural forest”, with a tree density of 0.4 to 0.5 a hectare. Some of the trees were 50-60 feet high. This exposed Lyndgoh’s false declaration but although both senior forest officials said action should be taken against Lyndgoh, none has been taken against him —- or the consultant who prepared the EIA report. Jha’s report is a strong indictment of both Lyndgoh and LUMPL. “By no stretch of interpretation and imagination can the area be called other than a natural/virgin forest. The fact is so simple and clear on the site that calling such an area other than a forest can only be assigned to an ulterior motive to cause exemption or avoid taking prior approval of the FCA.” Therefore, it attracted the penal provisions of the FCA, according to Jha.

The MoEF ordered LUMPL to stop fresh clearing of vegetation and not to take up any non-forestry activities, following which LUMPL and LSC approached the Supreme Court. In response to the petition filed by the companies, the Supreme Court’s own Centrally Empowered Committee (CEC) was brought into picture and its report is even more damning. At the time, LUMPL had extracted 1.1 million tonnes of limestone from a little over a fifth of the lease area.

“The CEC is unable to comprehend as to how the project authorities could have taken the view that the area does not contain any forest and that no approval under FCA is required.” While flaying the company for “flagrant violation of FCA”, the CEC did not spare the MoEF or the executive committee of the Khasi Hills Autonomous District Council for allowing mining in a forest area. It was particularly scathing about the MoEF which had been conducting periodic site visits since August 2003. At no stage during this period till the CCF’s June 2006 visit had the state government or the Centre taken the stand that the mining area was forest land and required FCA clearance.

As CEC points out, this is a typical case where post-fact clearance is being sought by the company after the mine has been allowed to operate illegally and “without any value addition, employment generation … consequential taxes, revenues and other economic benefits to India”.

But is the MoEF doing anything to tackle the root of the problem? As it prepares to introduce an accreditation system for EIA consultants, leading environmentalists and legal experts have written to Environment Minister Jairam Ramesh pointing out serious flaws in the move to register EIA consultants. In a memorandum submitted on April 1, they say that proposed move will legitmise the very factors enumerated as being problematic with the current system of EIA reports filed by consultants whose role is questionable.

Apart from clearly defined norms of independence to avoid conflict of interest, the experts have sought blacklisting of those consultants who have provided flawed EIAs in the past. India’s environmental security will hinge to a large extent on Ramesh’s response to these concerns.