Friday, January 16, 2015

05 Forest conservation clearances in India-II. Avoiding fait accompli situations

(A long version of the article is available at this link)

Avoiding fait accompli situations

One of the chronic problems for the Forest Advisory Committee (and the MoEF) has been that proposals usually come up at the fag end of the project cycle, when massive investments have already been made in plant and machinery, roads and other infrastructure, and so on. Thus the FAC and MoEF can easily be made to appear as the ‘villain’ of the play, and the very fact that all other clearances have been already given, private and public investments already secured, bank clearances given, and production about to start, makes it almost impossible for the forest clearance to be denied. The user industry and the other ministries, imminent visits of national and international figures and international agencies are also there to bring some sort of pressure, moral if not direct, for acquiescence to the situation. Moreover, the project entities are usually willing to agree to any ameliorative or mitigative measures imaginable, at any cost, to get the project going, which makes the grounds for refusal of forest clearance appear trivial and specious, in comparison with the enormous gains to be made from commissioning the project;

These are termed fait accompli situations, and there are explicit exhortations in the FCA  Guidelines to avoid, or obviate, them.  In para 4.4, for instance, on “Projects Involving Forest as well as Non-forest Lands”, it is pointed out (disapprovingly) that work is often started on the non-forest components “in anticipation of the approval of the Central Government for release of the forest lands required…” (Handbook, p.36). In this context,

“Though the provisions of the Act may not have technically been violated,  by starting of work on non-forest lands, expenditure incurred on works on non-forest lands may prove to be infructuous if diversion of forest land involved is not approved. It has, therefore, been decided that if a project involves forest as well as non-forest land, work should not be started on non-forest land till approval of the Central Government for release of forest land under the Act has been given. (Handbook, p.36-37, emphasis in original).

It is not very clear what statutory force this “decision” has, as the Guidelines are usually considered to be of an advisory, rather than a binding, nature. In the real world, of course, almost no state government or, for that matter, project proponent, actually follows this advice, well aware that the best bet for getting forest clearance is to create as huge a fait accompli as funds will permit. Desperate ends, in other words, call for desperate measures, and the price to be paid will be only the odd project here and there suspended for making a moral example by (rarely) the ministry, or more usually by the courts in response to public interest litigation (PIL).

Government of India. 2004. Handbook of Forest (Conservation) Act, 1980 (with Amendments made in 1988), Forest (Conservation) Rules, 2003 (with Amendments made in 2004), Guidelines & Clarifications (Up to June, 2004). Ministry of Environment & Forests, New Delhi

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