[Interview] Renewable energy goals can’t be met by excluding people or making them hostile, say founders of LIFE

From fighting for the protection of migratory birds in northeast India to the protection of the rights of mango farmers in western India, the duo of Ritwick Dutta and Rahul Choudhary has covered a long journey related to environmental litigation over the last two decades. They established the Delhi-based Legal Initiative for Forests & Environment (LIFE) in 2005 and since then they have consistently represented communities and individuals in cases where their rights were not respected or environmental concerns were being ignored.

Last month, LIFE was chosen for the 2021 Right Livelihood Award, which is widely considered the alternative Nobel Prize. In the past, Chipko movement and the Narmada Bachao Andolan have been among the Indian recipients. The award to LIFE notes that how it has “continued to stand up against powerful interests threatening the wellbeing of people and nature, securing better environmental protections for communities across India.”

Since its inception in 2005, LIFE has taken a conscious decision not to work with either the corporates or the government. In a conversation with Mongabay-India, its founders Ritwick Dutta and Rahul Choudhary recall some of the landmark cases and how the judiciary deals with environmental cases. The duo who started their legal career in the early 2000s, highlight how their work with LIFE coincided with India’s energy transition and how many of their cases relate to the power sector. They also cautioned about increasing conflicts due to renewable power projects.

Edited excerpts: 

Mongabay: How has the journey with LIFE been so far? Was there any moment when you thought about taking up commercial litigation instead of environment litigation?

Ritwick Dutta: A lot of people talk about doing environmental law as if it is kind of a sacrifice but what I can say is that I was made only to do environmental law. If I had done any other branch of law, I would have actually been a flop lawyer. Environment law is not just a passion but it is only the most viable profession for me.

Rahul Choudhary: In the beginning, I tried some of the other fields but at the same time I was also working on environmental issues. It was at that time I got involved with some groups that were working on the issues of dams, displacements, and then with the environmental rights groups. After 2005, I have not taken any other case. Also, since the beginning of LIFE, we took a conscious decision that we will not take up any case for any government or corporate because that would mean a conflict of interest.  Many times, other lawyers have asked that why are you not appearing for the corporates or for the government. The issue is simply that we cannot take such cases because we want to maintain the faith of the communities for whom we are appearing in the courts.

Ritwick Dutta: There can be instances where the corporate sector or others, for example, are harassed by a corrupt police pollution control board or some wrong may have been done, but we were very clear that we will not entertain them at all irrespective of the merit as a matter of principle. It is simply because once we get into that domain, what really happens is that time available to do work for the communities will reduce. You have to dedicate yourself because the other side always is more lucrative when it comes to money. We decided that irrespective of merit or the resources, we will simply not cross to the other side. That is why, since LIFE’s inception in 2005,  we have never appeared for any corporate entity. The only instance when we appeared for a government entity was in the High Court of Uttarakhand when we appeared (on a pro bono basis) for the state biodiversity board which had imposed access and benefit-sharing fees on Divya pharmacy of Ramdev, and the company had challenged that decision. We appeared because the biodiversity authority had actually taken strict action against a corporate entity violating the law. Similarly, we have colleagues in LIFE who have assisted the forest department and others in cases related to big poachers to give legal support only because it strengthens the rule of law as their existing lawyers were not trained in wildlife. Basically, we come in if it is about defending the environment or strengthening environmental law.

Mongabay: Did LIFE face a financial crunch during this journey? 

Ritwick Dutta: Contrary to general belief, it is not very expensive to do environmental litigation. We have a strategic base in Delhi and all the courts are within a distance of five kilometres and most of the challenges are done usually on the basis of documents where you are trying to prove the illegality in the decision-making process. Also, LIFE is never a litigant, petitioner or applicant in any of the cases… we are essentially the lawyers for the community-based groups or individuals. LIFE’s strategy has been that we will be in the background and there has to be a community or an individual who’s willing to raise this issue … and that individual need not be an environmentalist or from an environmental NGO. That person can be any affected person who wants to fight to protect either the environment or the livelihood.

If you see our first litigation on coal, it was an accidental case. Before that, we never had an idea about what is a coal-fired power plant or how does it work? It was the case against the JSW power plant in Ratnagiri (Maharashtra) where fairly well-to-do Alphonso mango growers approached us. Their contention was that they are exporters of Alphonso, which are expensive, and if a power plant comes next to their farms the quality will get affected and their exports will take a hit. That is when we realised that environmental litigation need not be always through the mode of a struggling environmental activist or an NGO who wants to raise an issue. It can be someone who is earning a profit and whose profit is going to be affected because of the destruction that could take place. We ultimately secured orders for the installation of FGD (a system to remove harmful gases from emissions of power plants).

Similarly, there was a case of an aquaculturist, a well-to-do prawn exporter, who complained that the power plant in Nagapattinam (Tamil Nadu) coming up next to his farms will affect his business. Now, in the entire Environmental Impact Assessment (EIA) report there was no mention of the impact on his aquaculture farms. Even though our view on aquaculture is that has a detrimental impact but in this case, it was about approval to a power plant based on a faulty EIA without looking into its impacts.

Whether it was this case or the case of mango growers, they were willing to put in the resources to challenge projects not because they had an ideological issue but because the projects were directly impacting their livelihoods. Some of our litigants are able to pay and some are not. Those who are not able to pay are subsidised through the money that we get from others. As an institution, this is our model but as an NGO we receive grants for research and training on issues related to forest rights or coastal rules. We also do in-depth research on various subjects including the green clearances because that information is important to understand the trends and counter the official narrative.

Rahul Choudhary: There are also perks of getting regular supplies of mangoes or apples when you are successfully dealing with such cases.

Mongabay: LIFE’s journey also coincides with India’s energy transition – from an intense focus on coal to rapid progress on renewable energy. A significant portion of cases taken up by LIFE has been related to the energy sector whether it was hydropower, thermal power plants or renewable projects now. How did this happen?

Ritwick Dutta: Many times, during discussions in India and globally, people ask what is LIFE? I simply say that LIFE is an organisation that specialises in the power and energy sector. It was never a planned thing or a conscious decision but it happened just due to a continuous learning experience.

It started with cases like that of the mango growers from Maharashtra and then slowly we found that a disproportionate number of environmental issues are linked to power projects. For instance, if you look deeper in a case against a railway line, you realise the line is actually to transport coal. In some instances, you get a case against a new barrage and then you find out it is supplying water to a coal-based power plant. Then there are cases of transmission lines going through forests. If one looks at environmental issues related to dams in the Himalayas at present, there are big road projects that are required to move huge turbines. So, in the bulk of the litigation, there’s a very close relationship with the power sector.

Mongabay: Is there increasingly a trend about conflicts related to renewable power projects that are considered a source of clean energy? Do you see a spurt in cases against such projects?

Ritwick Dutta: A project doesn’t become clean by only focusing on the fuel or the chimney … the process has to be clean, transparent and democratic. Today, for example, there is no EIA requirement for solar and wind projects and that is not right. Even in the case of small hydropower projects (of less than 25 megawatts capacity), which otherwise maybe even getting carbon credits, have devastating impacts either individually or cumulatively. One is clearly aware of what wind energy is doing to the population of the Great Indian Bustard.  You cannot finish off an entire species and say that we are ‘green’. In many parts across India, for solar, there is a huge land requirement. Yes, it is clean in terms of carbon but it does not mean that it has no impact. Many such projects are coming in the way of movement of the grazing or nomadic community? Also, where do you get the water to clean the solar panels? Then, there are larger issues of evacuating power. In order to transition to cleaner power, there is nothing wrong with taking community views. There is nothing wrong with doing studies to ensure the least environmental and social impact. These are important to meet renewable energy goals. The renewable energy goals cannot be met by creating community and groups hostile to it or by leaving them out of the process. What is needed is proper social, environmental and cumulative assessment.

Rahul Choudhary: Cases against renewable energy projects are already coming up. If you are taking up the farmland for the purpose of setting up the solar panels, then certainly the rights of farmers are getting affected. There are cases related to windmills where the population of wildlife in a sanctuary has gone down because of the windmills. Such projects are comfortably under the definition of renewable projects but their impact is significant. I think there would be serious land conflicts because we don’t have enough land.

Mongabay: In your experience, have you seen any transition in the judiciary’s attitude towards environmental cases? 

Ritwick Dutta: So there are two ways to look at it. I think the first major change that has happened, I would say is that over the last few years is that, at least among some judges, there is some appreciation of the fact that they need to look at the issues also from the environmental and social perspective. For example, 15-20 years back, it was impossible to question a coal-fired power plant on the ground that it needs cumulative impact assessment or due to the non-installation of pollution-controlling devices. Then, till about 10 years back, the moment you would get an order from the National Green Tribunal on grounds such as studies not being done, it used to get a stay overnight. However, things are changing. For instance, there was a recent judgement of the NGT regarding a power plant of NTPC where the tribunal stayed the environmental clearance and directed them to do a cumulative study. The NTPC went to the Supreme Court where, in a normal situation, the judgement would have got a stay. But in this, the SC said that they can continue with the work but if the study shows that the project will be detrimental the company will not be able to claim a “right to run”. Now, this would have been impossible a few years back.

This is a positive change. I would say that though the judiciary is aware of the environmental issues it is still lost in the 1980s and the early 1990s. Even if there is a mention of climate change, it is usually in the form of a footnote. The jurisprudential shift that climate change should have brought in has not yet happened at any level of the judicial system, whether it’s the NGT or the High Court or the Supreme Court. Courts have to play a very proactive role. For instance, why should we build coal-based power plants in coastal areas when we know that the sea levels are rising and cyclones are increasing. We need to shed this obsession with protecting the environment for the next generation … it needs to be looked at from the perspective of the present generation because given climate change the next generation may not be there.

We need a radical shift in judicial thinking. Whether you look at the case related to the Central Vista or Mopa judgment, there is a deference to the views of the experts…there is an assumption that the government is composed of experts and once they have decided it is not fair for the courts to intervene. That is the dominant thinking with some aberrations of some judges taking a different view. But largely there is an utmost faith in the wisdom of the executive and the expert, without actually looking at who is the expert. That is a serious concern. We do not have a judiciary or a judicial system that is able to think beyond pollution issues directly affecting and is still not tuned to the larger issue, whether it is energy transition, clean energy, or climate change.

Rahul Choudhary: When you go to the court on environmental matters, sometimes it’s very difficult to challenge them on those issues rather we get an entry point from procedural lapses. For instance, if you raise an issue about a public hearing related to a project, it would be difficult to challenge it on the basis of its content but easier on the basis of procedures not followed.

Mongabay: During your journey, have you seen litigation bringing a shift in the system and triggering a change? Do you remember any major cases?

Ritwick Dutta: There are several instances. It was our litigation on the functioning of the national environment appellate authority which actually led the Delhi High Court to give an order that these tribunals should be actually be headed by judges and not by retired bureaucrats. That was the first landmark intervention. Then there is Mopa judgement related to an airport in Goa which actually laid the entire jurisprudence on cases related to the EIA. Though we were not successful and the project got a go-ahead, the court laid down the law on how data should be collected for EIA studies and what it should be. Another significant one was where the NGT directed the government to have guidelines for decontamination of polluted sites.

Personally, one of the most significant successes is regarding the biodiversity act because I don’t think without litigation it would have been possible to create 255,000 biodiversity management committees across India. Because of the litigation, the National Biodiversity Authority admits they managed to set up in three years what they could not have done in 13 years. Now, even if 20 percent of these 255,000 committees do their work seriously in the next 3-4years, things will change.

Rahul Choudhary: In the case of the 2013 floods in Uttarakhand, I can say the intervention ensured compensation for hundreds of people. While in the case of the impact of metro trains, the NGT agreed metro lines should have assessed the environmental impact but it was challenged in the higher court and the decision is still pending. During this time, the metro projects are coming up everywhere and if the environmental impact assessment would have been done certain areas could have been avoided on the basis of their negative impact.

Mongabay: Are there any cases related to defending the rights of species that you remember? 

Ritwick Dutta: The list is fairly long but personally on the top of the list is related to black-necked crane at the site of Nyamjung Chu in Arunachal Pradesh because in that case, we were able to highlight important things such as ecology, culture and wildlife. For me, that was very important as we were able to use litigation to save an area. Even the case related to the POSCO project in Odisha was a landmark case because we highlighted that the studies required need to be done properly. How can an EIA report to assess the impact on flora and fauna be prepared by a chartered consultancy firm through a low flying helicopter? There were cases where the impact on olive ridley turtles was assessed in the EIA through a phone call to the Chief Wildlife Warden who assured that there would be no impact. For us to get those victories in such cases was very satisfying in the sea of many of the defeats that we have had.

Mongabay: Increasingly, people defending land or the environment are under scrutiny and facing pressure. How do you deal with that and what next for LIFE?

Ritwick Dutta: First and foremost, legally challenging anybody anywhere is problematic. There is an element of threat. Therefore, one has the greatest respect and admiration for community members, groups and individuals who are able to resist, face threats, and yet are willing to challenge destructive projects. I would say that one of the greatest things today of the environmental movement is that though there may be individual petitioners in most of the cases there is whole community support that comes in. There’s huge unofficial support that comes from government functionaries as well maybe from political background somewhere or parts of bureaucracy too to protect the communities or individuals challenging such projects. So, there are good actors within the government. Despite many threats from corporates or others, very few ever withdraw the cases.

We continue doing this work but would like to definitely expand to newer areas which we have not looked at so far. For instance, we want to look at the agriculture sector a little more because, with regard to adaptation, resilience, and climate change, the agricultural community is seriously getting impacted and needs to seek compensation and damage for activities beyond their control. There’s one more area that we have not directly gone into and that is animal welfare and animal rights. We are also definitely looking at how litigation can be used creatively to deal with climate change.

Banner image: Ritwick Dutta (R) and Rahul Choudhary (L) of the Legal Initiative for Forest and Environment (LIFE). Since its inception, LIFE has fought more than 1,000 cases in different courts across India to safeguard the environment and the rights of the communities affected by developmental projects. Photo by Mayank Aggarwal/Mongabay.