Biodiversity and People: Contexts, Responses Audits

Kanchi KohliICED, Jaipur

3rd August 2015

STRUCTURE

PART A: INTRODUCTION TO BIODIVERSITY

PART B: CHALLENGES AND RESPONSE (THREE NARRATIVES)

PART C: ENSURING LEGAL COMPLIANCE AS FOR PROTECTION OF BIODIVERSITY

PART A: Introduction to Biodiversity

HABITATS AND ECOSYSTEMS

SPECIES

KNOWLEDGE AND USE

THREATS

BIO means LIFE | DIVERSITY means VARIETY

HABITATS AND ECOSYSTEMS(wild and domesticated)

India’s 5th National Report to the CBD, 2014:

India, a Megadiverse country with only 2.4% of the world's land area, harbours 7-8% of all recorded species

This includes 45,000 species of plants and 91,000 species of animals.

Of the 34 Global biodiversity hotspots, four in India: the Himalaya, the Western Ghats, the North-east, and the Nicobar Islands

SPECIES

India’s 5th National Report to the CBD, 2014:

About 4045 species of flowering plant (angiosperms) endemic to India

Global ranking: 10th in birds, with 69 species; 5th in reptiles, with 156 species, and 7th in amphibians, with 110 species

811 cultivated plants and 902 of their wild relatives

Considered Centre of Origin for Rice and Brinjal

Native breeds of cattle (34), buffaloes (12), goat (21), sheep (39) and chicken (15).

KNOWLEDGE AND USE SPECTRUM

Photos accessed from Google images on 23.3.2015

PART B: CHALLENGES AND RESPONSE

(THREE 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 “packages”

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

3. BIOPIRACY AND BIOBASED TRADE • “Illegal Access” post international framework and legislation

Commercial use in biotech, pharma sectors• Exclusive rights through IPRs• Access to people’s biodiversity knowledge (ABS Guidelines:

Does it promote commercialisation?)• Legalising digitisation and access• Monetising benefit sharing (Conservation?)

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 PART C]

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 [Royalties, not Benefit-Sharing]

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?

Judiciary: Interpretations by Courts and NGT

- the power tussle between executive and judiciary

- Challenge of implementing good judicial pronoucemens

CHANGES IN LAWS: IMPACTS ON BIODIVERSITY AND FORESTS

Emphasis on speedy approvals, “removing” administrative hurdles

Public interface clauses changed or proposed to be changed (consent, public hearings)

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

Changes through Ordinances (Land Bill)

Financial Compensation and Fines as deterrence against non compliance of law

Source: Outlook Magazine, 10th August 2015 [http://www.outlookindia.com/article/red-signal-for-greens/294968]

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 Part C]

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?

PART C: ENSURING LEGAL COMPLIANCE FOR PROTECTION OF

BIODIVERSITY AND LIVELIHOODS

Environment Regulations and Conditional Approvals

oMultiplicity of Laws and Regulatory approvalsoDifferent but overlapping framing of conditionsoMonitoring and Compliance protocol

differentially definedo Range of responsible institutions (including

courts)o Biodiversity (impact assessment): 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 conditions

Environmental

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: alphonso mangoes)

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 STUDIES:

1. Study on compliance of environment clearance conditions (2009) [Calling the Bluff]

2. Community led Groundtruthing-Mundra, Kutch (2012-2013)

3. CZMAs, CRZ and Non-Compliance (2015)

Key Findings of the 2009 Study on Non-Compliance of EC Conditions (Calling the

Bluff)

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 (now increased to 10) 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, no impact

assessment and mitigation

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)

What the Community led Ground truthing revealed?

Construction on

Kotdi Creek Area

Mangrove destruction despite clear

conditions

CZMAs and Coastal

Environments: Two Decades of

Regulating land Use Change on India’s

Coastline

No. of State Coastal Zone Management Authorities (CZMAs): 9

Since 1998 more than 4500 Proposals examined by the SCZMAs

On an average 15 proposals reviewed per meeting,. Meeting lasts approx 4 hours.

80%- Rate of Project Approval

Only 8%- Proposals decided upon after site visits

52%- Projects approved with conditions

No clear procedures for identification, verification or taking action on violations

Some states have “enabled” District Level Coastal Committees (DLCCs) set up under the notification to take action (Gujarat, Maharashtra, West Bengal)

National Green Tribunal Order of 11th April 2013, suggests a specific procedure for identifying and acting on violations (yet to be implemented)

Ensuring Compliance to restrict Biodiversity and Livelihood Loss(a case for environmental audits)

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

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

Living next to mine overburdens

No green belt,

compound walls

Legal Compliance : “Necessary but not sufficient condition for Conservation of Biodiversity and Protection of

Livelihoods”

o Addressing Institutional Capacity and Coordination

o Addressing the Framing of conditions and Monitoring Challenges (procedural lapses/deliberate abetment)

o Checking the lack of will comply and no deterrence for non compliance

o Recognising the Impacts of Legal Non compliance: Biodiversity and Livelihood loss

o Third Party Monitoring and Protection of Biodiversity and Livelihoods

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