- The recent stay order of the Uttarakhand High Court, on the de-notification of the Shivalik Elephant Reserve, is a small victory for the cause of environment, though time will indicate how long the interim safeguard can protect the Asian elephant habitat.
- The de-notification of the state’s only Elephant Reserve to facilitate the expansion of the Jolly Grant Airport at Dehradun was struck down for imminent and irreparable loss to the rich ecology and critical elephant habitat due to proposed diversion of 87.085 hectares of forestland.
- The proposed airport expansion project highlights only one of the several development and construction projects in India that attempt to bypass environmental regulations in place.
- The views expressed in this commentary are that of the author.
The recent move to denotify Uttarakhand’s Shivalik Elephant Reserve, the only Elephant Reserve in the State, was thwarted by the Hon’ble High Court of Uttarakhand vide its Stay Order dated 11.01.2021 in the case of Reena Paul v. State of Uttarakhand. This notable decision closely followed the earlier Stay dated 08.01.2021 granted on the recommendation for such de-notification by the Uttarakhand Wildlife Board on 24.12.2020. A closer analysis of the proposed airport expansion project speaks abundantly of state priorities in the larger debate of development versus environment.
Conservation of elephants
The Shivalik Elephant Reserve was declared on 28.10.2002 under the aegis of Project Elephant, 1992, for conservation of the pristine and unique wildlife habitat of the Schedule-I of the Wildlife Protection Act, 1972, endangered and IUCN red listed Asiatic elephant. This is the only Elephant Reserve (ER) in Uttarakhand out of 32 across India. It is notable that till date ERs in India do not enjoy any legal sanctity under the Wildlife Protection Act, 1972 (WLPA, 1972) or any other law in force. The issue of legal sanctity of Elephant Reserves is only presently being considered by the Central Government and an amendment has been proposed in 2020 to the Wildlife Protection Act, 1972, to accord the Elephant Reserves a legal status.
The Elephant Task Force, constituted by the MoEF&CC, released the seminal ‘Gajah Report’ in August, 2010, which addressed the crucial issues pertaining to securing elephant landscapes, including Elephant Reserves, especially in view of development activities. The Report identified that only upto 40% of the total 65,000 sq. kms area of Elephant Reserves in India, were preserved as ‘Protected Areas’ (PA) under the WLPA, 1972. Therefore, conservation of elephants through ERs extends beyond the boundaries of a PA, and only in some cases are these ERs awarded the protection of an ‘Ecologically Sensitive Area’ (ESA) under the Environment Protection Act, 1986. Eco-sensitive areas (ESAs) or Eco-sensitive zones (ESZs) have not been defined, however, the Central Government notifies these areas under Section 3(2)(v) of the Environment Protection Act, 1986, for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution by “restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards”.
These ESAs are categorised in two manners. First, the buffer areas surrounding PAs are declared as ESAs vide a Gazette Notification. Secondly, in the absence of such ESA notifications, a default 10 km radius around the PA is observed as an ESA. The latter was stipulated by the Hon’ble Apex Court in the case of Goa Foundation v. Union of India & Ors vide order dated 04.12.2006. In several cases these Elephant Reserves are neither covered by any PA nor fall within a notified or default ESA. The conservation of elephants in such ERs is entirely dependent on the conservation priorities of state governments. In Uttarkhand, out of the 5405 sq. kms of Shivalik Elephant Reserve, about 1340 sq. kms falls within Rajaji National Park, Corbett Tiger Reserve and the Sona-nadi Wildlife Sanctuary. Therefore, most part of the Reserve survives on state discretion and conservation efforts. The present decision to denotify the Shivalik ER for airport expansion will expose the species to further severe loss and fragmentation of habitat due to development activities.
The airport expansion project involves construction of a new terminal building, apron extension and development of commercial facilities. The Hon’ble High Court, vide Stay Order dated 11.01.2021, observed the “irreparable loss to the ecology, environment and to the lives of the wild elephants” due to such denotification, stating further that the “diversion will cause further fragmentation and would reduce the area for the elephants.” The order relies upon the response of the MoEF&CC dated 09.10.2020 to the Uttarakhand Forest Department regarding Forest Clearance for “expansion of the Jolly Grant Airport” by diverting 87.085 ha of forestland. It notes that the project falls under High Conservation Value area (habitats/areas of outstanding significance or critical importance due to their high biological, ecological, social or cultural values), within 1 km of the Shivalik ER and 10 kms of the Rajaji National Park, lacks appropriate Compensatory Afforestation Plan, and accordingly the state government should explore alternative areas for the project. Pursuant to the above observations and in the absence of requisite clearances to be obtained by the project proponent the stay order was issued on the denotification of the Shivalik Elephant Reserve.
Read more: Uttarakhand eyes a part of Rajaji Tiger Reserve for Kumbh
Expansion of Jolly Grant Airport
Under the existing legal framework, the Dehradun airport expansion project is required to obtain the Environmental Clearance (EC), the Forest Clearance (FC) and the Wildlife/NBWL Clearance.
The project must secure an EC as per Item 7(a) of Schedule I of the EIA Notification, 2006, pertaining to ‘Airports’. The provision mandates that “All projects including- air stripes which are for commercial use” must secure EC as ‘Category A’ projects. The expansion of the Jolly Grant Airport falls within Section 2 of the EIA Notification, 2006, which requires expansion projects listed in the Schedule to obtain a fresh EC. Presently, the project proponent has not applied for an EC.
The project must also secure a Forest Clearance as per Section 2 of the Forest Conservation Act, 1980 (hereinafter FCA, 1980), since it seeks to divert 87.085 ha of forestland for non-forest purposes. The proposed land is part of the Thano Reserved Forest and overlaps with the Shivalik Elephant Reserve. The FC Application form (Form A Part I) submitted by the project proponent on 14.05.2020 acknowledges, as part of the proposed Wildlife Mitigation Plan, that the project falls within the Shivalik Elephant Reserve and abuts the Rajaji NP in a highly ecologically fragile area with massive scope for human-wildlife conflict. Surprisingly, the Site Inspection Report by the District Forest Officer (DFO) dated 20.08.2020 contradicts the application form. It states that no rare/ endangered/ unique species of flora and fauna are found in or near the proposed project area and that project is recommended in public interest. Further, the Reports submitted by the CCF and Nodal Officer/ PCCF on 04.09.2020 and 08.09.2020, respectively, also recommend the project in public interest without conducting any site inspection. Template recommendations for projects in public interest proposed by state governments raise serious questions on any effective evaluation of the impact of the project on ecologically sensitive areas. Further, the project seeks to fell an estimated 9745 trees, and the promoter states in its FC Form that no cost-benefit analysis is required for the project since it is in ‘public interest’. This position is in complete contravention to the MoEF&CC guidelines on cost-benefit analysis of projects in forest areas to determine when diverting forestland for non-forest use is in overall public interest. This crucial analysis is missing from the FC application. The project has presently not obtained an FC.
The project requires a Wildlife/ NBWL clearance as per WLPA, 1972, since the project falls within the 10 kms of the Rajaji National Park. As stated earlier, in the absence of any final notified ESA a default 10 km radius applies as a buffer zone for conservation around PAs. The MoEF&CC has clarified the procedure for development projects located within 10 kms of National Park/ Wildlife Sanctuary seeking Environmental Clearance. In cases where the ESZ Notification has not been notified, prior clearance of the NBWL for development projects is mandatory. In the present case, the ESZ of the Rajaji National Park, proposed vide Draft Notification dated 22.05.2018, has still not been finalised, and therefore a simultaneous EC and an NBWL clearance must be obtained. The project proponent has failed to apply for EC and application dated 11.08.2020 for obtaining the NBWL clearance is pending adjudication from the Standing Committee of NBWL. It was in light of the above circumstances that the Hon’ble High Court imposed a Stay on the denotification of the Shivalik ER.
Fate of the Asian elephants hangs in the balance
The proposed airport expansion project highlights only one of the several development and construction projects in India that attempt to bypass environmental regulations in place. These regulations intend to ensure sustainable development and are relevant especially in the context of areas with highly sensitive ecologies. Concerns for sustainable development often become secondary to ‘public interest’. Large projects proposed by the state are begun without any due process and requisite clearances under the law. This results in massive irreversible loss to ecologically sensitive areas, forestlands and biodiversity. These projects often achieve a fait accompli situation. Large sums of public money are utilised for construction of massive infrastructure. The project is later regularised in the garb of ‘public interest’ and allotted ex-post facto clearances. The present case of the Jolly Grant airport has followed the same pattern. Nearly 80% construction of Phase-I has been completed, in the absence of requisite clearances. Although, the Stay Order of the Uttarakhand High Court is a small victory for the environment in its constant tussle with development, the next few months will tell how long this interim safeguard can salvage the glorious Asian elephants from diminishing one ‘public interest’ project at a time.
The author is an Advocate at the Supreme Court of India, specialised in the field of national and international environmental law.
Banner image: Herd of elephants captured in the Jim Corbett National Park, Ramnagar, Uttarakhand in 2016. Photo by Vivek.vks12/Wikimedia Commons.
