Green India

Changing the face of enviro law

Rahul Choudhary speaks with communities in Himachal Pradesh whose villages are threatened by a hydroelectric projectPhoto courtesy Rahul Choudhary

Rahul Choudhary and his work sound like the basis for a Bollywood meets Erin Brockovich film — a tall, dark and handsome Indian attorney fights dirty coal, polluting industries and problematic dams while saving lions and elephants. Environmental protection in India may be undergoing a sea change, and Choudhary and fellow attorneys at the Legal Initiative for Forest & Environment (LIFE), based in New Delhi, are leading the charge. The attorneys of LIFE are successfully arguing cases in front of India’s Supreme Court and National Green Tribunal (NGT) that are saving endangered animals, giving a voice to communities and protecting people, land and water from industries that could harm them. Choudhary recently came to Oregon to meet with the staff of the Eugene offices of the Environmental Law Alliance Worldwide (ELAW) and tour Lane County’s dumps, wetlands and enviro initiatives.

What is remarkable about the cases Choudhary deals with in India is not how different they are from what we face here in the U.S., and Oregon in particular, but how similar: endangered animals, coal plants that affect local communities, field burning, hydroelectric dams, mining and power. While America-centric enviros might think of India as “backward” with images of the 1984 Union Carbide Bhopal disaster and its toxic effects lingering, India just might surge ahead of us when it comes to its system for litigating development and the environment thanks to its relatively new National Green Tribunal, which adjudicates environmental cases. The NGT is made up of legal and scientific experts who decide on natural resource, forest and environmental cases. While the U.S. wrings its hands over Obama’s latest climate change effort (or lack of it) Choudhary and LIFE have been remarkably successful arguing key green cases before the NGT as well as India’s Supreme Court.

Of animals and tribunals

There are no tigers in Africa, despite a popular misconception. There are tigers in India, as well as leopards and lions, and some of those big cats, such as the Asiatic lion, need protection. (Asiatic cheetahs went extinct in India more than 50 years ago.) That many Americans don’t realize what continent wild tigers live on or know that nearly all wild lions live in sub-Saharan Africa points to how little we know about the wildlife and environment of areas such as the Indian subcontinent.

There are about 400 Asiatic lions left in the wild, and they are found in only one place — Gir Forest National Park in the western state of Gujarat. These lions once roamed through India, the Middle East and Greece, and they are said to be the ones Romans used in gladiatorial battles at the Colosseum.

Scientists say that with the last of the lions in only one place, an epidemic could wipe out the whole population, and conservationists made a plan to move half the lions to Kuno-Palpur Wildlife Sanctuary in the neighboring Indian state of Madhya Pradesh, part of the lion’s historic range. Moving the lions was met with resistance by the Gujarat state and locals who worried that sharing the lions would affect the tourism they depend on.

After years of battle, Choudhary says the case, which he worked on with fellow LIFE attorney and ELAW partner Ritwick Dutta, won in the Supreme Court this spring. The ruling doesn’t just direct the translocation of the Asiatic lion. Choudhary says it marks a move to a more eco-centric viewpoint in Indian jurisprudence. The Supreme Court decision says such a viewpoint “supports the protection of all wildlife forms, not just those which are of instrumental value to humans but those which have intrinsic worth.”

Rahul Choudhary. Photo by Todd Cooper.

As in the U.S., it’s not unusual for legal disputes to be dragged out in India, but Choudhary says the National Green Tribunal, which began functioning two years ago on July 4, is making a difference not only in the speed by which cases get heard, but also in the legal decisions that are made. Most cases are heard within five to seven months, according to Indian newspaper The Hindu, and 70 percent of the cases dealt with by the tribunal “are megaprojects such as the construction of dams and thermal power projects.”

India is the third country, after Australia and New Zealand, to have a court like this. Legal and scientific experts make the decisions, which can be appealed to the Supreme Court only if the tribunal got the law wrong, according to ELAW scientist Mark Chernaik.

Indian media reports say that the NGT is still underpopulated — there can be a maximum of 20 judges and 20 scientific experts on the bench and a minimum of 10 of each, but the NGT website shows while it has the requisite 10 scientific experts, it has only four judicial members. Yet decisions are flying out of the court, keeping Choudhary and LIFE busy. Choudhary easily has four cases a day.

Chernaik, who has worked with Choudhary for years giving him scientific support, met him in person for the first time on the attorney’s recent trip to Eugene. Chernaik says he hopes he can convey some of the excitement of the NGT. “They have something we don’t — decision makers that are not just judges but also scientists.”

Bringing the NGT into being wasn’t easy. Chernaik and Choudhary say that when the NGT was first set up, the National Environmental Appellate Authority was abolished, but the Indian government lagged on setting up the NGT, leaving no court to rule on environmental petitions. With support from ELAW in Eugene, the Indian attorneys went to the Supreme Court of India to force the government to comply with the NGT Act and won.

No sea lions in India

Mining is an environmental sore point internationally, and India is no stranger to battles over resource extraction. Choudhary is bringing a case before the National Green Tribunal from the state of Uttarakhand in which an environmentalist is trying to halt in-stream rock and gravel mining in the Gaula River — a known corridor for Asian elephant migration. Chernaik says the mining would have an unacceptable impact on endangered Asian elephants in the last remaining forests of Uttarakhand and that ELAW is also assisting Choudhary in arguing against the claim that “stone and boulder mining of the Gaula River provides the benefit of minimizing flood risk.”

Choudhary speaks in a British-tinged accent of the wide variety of cases he works on, from lions to coal in a single day. Thanks to a history of colonial rule, English is the language used in India’s Supreme and high courts. With English as a legal language, this can lead to confusion for people in communities who speak their native tongues and may not read English. Choudhary cites an instance in which a gold mining proposal, written in Hindi, described how the mine would use “foam water” to extract the gold, which sounds fairly benign. In the English version, however, the mine admitted the gold would be extracted using cyanide.

In another case, Choudhary sent Chernaik an environmental impact assessment for a bauxite mine. Chernaik pulled up an older, similar proposal to compare it. It wasn’t just a comparison; the Indian proposal was a cut-and-paste version of the same exact proposal for the Russian mine, Chernaik says, and had sentences such as, “The primary habitat near the site, for birds, is the spruce forests and the forests of mixed spruce and birch.” Not only are spruce trees not present in that tropical part of the country, the proposal referred to sea lions and other species that “you would never see in India.” Choudhary says that before the NGT, clearance for proposals such as these sailed through all the time, and in fact this one did.

Communities at risk

Though headquartered in New Delhi, Choudhary and the three other attorneys of LIFE spend their time in smaller Indian villages to help give voice to those communities’ needs when faced with industries that could devastate them. In one case that may sound familiar to Oregonians, given the current focus on coal exports and the impacts of coal trains, a coastal fishing community is up against a proposed coal-fired power plant near Mundra, Gujarat.

As in the Northwest, coal is not easy to fight in India. OPG Power Gujarat’s 300-megawatt coal-fired power plant first proposed a wet-cooling system, using seawater, then proposed a dry-cooling system. The dry system would use groundwater in a place where that water is scarce, create air pollution and greenhouse gases due to the increased energy need for cooling in a hot area and use a great deal of land, creating conflict with the nearby village of Bhadreshwar. This coal plant will be decided when the NGT reconvenes next month and “hopefully keeps this pretty bad project from going forward,” Chernaik says.

In another case, Choudhary and Dutta represent residents of the village of Lippa, high in the mountains of Himachal Pradesh, who are fighting a dam that would divert a snow-fed Himalayan waterway. Forestland will be taken as the stages of the Kashang hydroelectric project are built, but Choudhary says the rights of the forestland dwellers to forest resources come before that of a project. The villagers have seen what has happened downstream, he says. “The beauty is destroyed,” houses have cracks, orchards laid to waste. In addition, the high-altitude forests that would be cut contain slow-growing chilgoza pine, which Choudhary says cannot easily be replanted and grown.

People and the environment in India, as in many countries, are up against foreign companies looking to make money or to use the natural resources. Just as Oregon’s coal train controversy is largely fueled by Asian countries looking to import coal, some of India’s environmental woes stem from foreign investors. In a win before the Green Tribunal in May, Choudhary’s legal arguments stopped trees from being cut for a controversial $12 billion steel project in Orissa by a South Korean company called Posco. The plant is the largest foreign direct investment in the country, involving high-level government officials from both countries, and has been held up for eight years. If the several-thousand-acre Posco plant comes to fruition, it will result in communities being forced to relocate from their lands and more deforestation. Posco is still fighting to build the steel plant.

Constitutionally green

Though LIFE has had many successes arguing in front of the NGT — the wins are a huge turnaround from before the tribunal existed when Choudhary says 99 percent of environmental cases were dismissed — the legal battles continue.

It hasn’t been that long since field burning ended in Oregon, and many communities here still remember the choking smoke from the burning of grass-seed fields that made people sick and led to car accidents and deaths. Some Indian communities face the same thing.

The burning fields are so legion in Punjab and Haryana that, Choudhary says, a NASA photo shows a red spot that can be seen from space. Burning fields hadn’t historically been a large-scale practice in India, but he says that when harvesting wheat and rice by hand, leaving very little stubble, was replaced by machines, farmers began to burn fields to get rid of the leftover plant matter. The thick haze, with all its commensurate health problems, envelops Delhi, Chernaik says. He says his research shows that a practice called zero- or no-tillage farming “is a very feasible alternative.” This solution is also one that is used in Oregon now that the state ended field burning in the Willamette Valley.

While in Eugene at the beginning of June, Choudhary toured Short Mountain Landfill and the Glenwood disposal site to see how Lane County deals with waste in order to inform his work. He also went out to the West Eugene Wetlands. He says wetlands are called “wastelands” in India and laughs ruefully at a clearance letter he dealt with that said a seasonal wetland “was not a nesting site for migratory birds, nor a proposed migratory route for the birds.”

The birds, whether or not they develop an ability to legally propose their own migration routes, have some hope, as do India’s forests and small communities as Choudhary and the attorneys of LIFE continue their legal work. This is not only because of the fledgling National Green Tribunal, but also, as Choudhary points out, because India’s Constitution says, “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country,” and “it shall be the duty of every citizen of India … to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.”

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