Efectos del déficit hídrico en las plantas

Cases against the bauxite project and appeals on approvals were launched at virtually every possible instance by a wide range of actors, at times even in the same court independently by

several actors, as summarised in the table below. The list is testament to the very active vigilance on the issue but also of an almost completely disorganised approach to litigation.

The route taken for ordinary cases is via lower courts to the High Court of the States, and then on to the Supreme Court. For environmental matters it is possible to appeal decisions by the MoEF to the National Environmental Appellate Authority (NEAA), also in Delhi. This is a somewhat dysfunctional one-man entity proceeding while plans for a new green tribunal are being worked out (Interview activist Delhi 13/10 2009).¹¹⁶But the possibilities for appeal do not end here since creative lawyers have realised that also the NEAA can be appealed. The Delhi High Court has command over the functioning of central government offices and if it can be shown that a fair hearing was not conducted by the NEAA the case can be returned for a re-hearing. This has happened for the ANRAK-APMDC bauxite mine and the case is ongoing.

The current status of the Supreme Court case launched by the former TDP MLA is not known.

The other cases are briefly discussed below.

Table 11: Ongoing cases on the bauxite project in Andhra Pradesh

Court Petitioner Respondent Issue

AP High Court Sakti GoAP Mining not according to land transfer rights.

AP High Court 4 tribal MLAs 9 respondents in total including GoI

A case was launched by NGO Sakti in the AP High Court shortly after plans for the JSW project became known based on violation of tribal land rights in the project setup.¹¹⁷ Given how the MoU directly confronts the Samatha Judgement and the land transfer regulations this case would

116The Delhi High Court has instructed the Centre that it has to staff the NEAA properly but a separate case is ongoing to find out why this is still not happening despite a court order (Interview activist Delhi 13/10 2009).

117Writ Petition No 1571 of 2006

have surely been anticipated by the project promoters (See Chapter 4 for details of the MoU).

The key issue in the court case was whether the agreement entered into by the State government over bauxite mining with a private company is against the law which only allows mining in operations owned or controlled by the State or central governments.

After only four months of deliberations on the issue, something which could be considered very quick for the Indian court system, the case was denied on a technicality saying that it was too early to evaluate the agreement since it was yet to come into effect. The brief court order gives very little information about its reasoning:

In view of the stand taken by [GoAP, Mines & Geology Dept] and [GoAP, Energy, Forest &

Environment Dept], it is clear that so-called agreement entered into between [JSW Holdings Ltd.] and the State Government cannot be implemented till the Central Government grants permission ... and environment clearance is granted by the competent authorities. Therefore, the writ petition is liable to be disposed of as premature (High Court of Andhra Pradesh 2006, 2).

By avoiding a judgement until all the administrative approvals have been secured, it is hard not to think that the judges were trying to avoid making a judgement on this sensitive issue. The court left it open for the case to be re-opened at a later stage by saying that:

[T]he petitioners shall be free to file fresh petition as and when the Central Government grants permission … and environment clearance is given by the competent authorities (High Court of Andhra Pradesh 2006, 2).

But by the time all approvals have been secured it would most likely be too late to approach the court again. Significant investments would be used to argue why the project should be allowed to go ahead. Once mine clearances have been secured the refinery will be ready for operations and this will exert a lot of influence on the judiciary to come out with an approval of plans. Is it the case that a new principle is being worked out, that economic development projects, however these may be defined, are allowed to carry on work while matters are being heard in court? Does this show the reluctance of courts to intervene?

Appeal of Jerrila Bauxite Mine environmental approval

It is in the appeals against environmental approvals where almost all issues can be discussed due to the, as previously mentioned, very wide set of requirements with additional demands created by Terms of Reference documents and other reports. The APMDC-JSW and APMDC-ANRAK bauxite projects in Andhra Pradesh have both had very similar requirements, but since it is only

the APMDC-ANRAK mine at Jerrila which has been cleared it is here discussed for its shared characteristics with the APMDC-JSW mines. CPM filed appeal on Jerrila in the NEEA independently from Samatha for not holding the public hearing in the area where mining was proposed (Patnaik 2009). It seems like CPM and Samatha later came to cooperate in the appeal based on Samatha’s longer experience with litigation.

Environmental clearances are routinely appealed to the National Environmental Appellate Authority (NEEA), and almost as routinely turned down. But this court is only semi-functional with a single staff member, and has only allowed one appeal, on the Polavaram dam, in its entire history. Of importance was that the Polavaram case was launched by the same activists who are fighting bauxite mining indicating that some key experience exists.

The appeal against the Jerrila mine environmental approval was launched 26/3 2009 and hearings were held on six occasions until August the same year (National Environment Appellate Authority 2009c). The grounds of appeal were:

1. The public hearing did not ensure widest possible participation 2. The EIA report is faulty

3. The environmental clearance will negatively affect the local environment

Each of the above grounds of appeal included a very wide set of issues, ranging from technicalities about the way the EIA report was made, to the size of economic compensation from mining, and a lack of local participation. All these claims were rejected by the NEAA in its verdict on 28/8 2009, but a further discussion on public deliberation and PESA below reveals some interesting features of how claims and counter-claims are used in the environmental litigation process.

PESA

As part of item number 1 above on participation in the public hearing the point was raised that local Gram Panchayats had issued statements against mining and should be heard. Panchayats are not mandated to be heard in environmental regulations but this point was nevertheless discussed in the NEEA appeal for unknown reasons. CPM’s statement against the environmental approval highlighted (among other things) a lack of local consultation:

[T]he Gram Panchayat[s] of G.K. Veehi and Galikonda Mandal Parishad of Chintapalli have passed resolutions opposing the proposed activities of mining and transmitted those resolutions to the collector Visakhapatnam and to the member secretary AP Pollution Control Board (National Environment Appellate Authority 2009a, 4).

APMDC had to respond in court and did so differently to the claims presented in chapter 6 by saying it had indeed taken the Panchayats into account. Crucially it had done so already in the year 2000 during the earlier TDP government according to the following statement:

[T]he resolution dt. 19.02.2000, duly signed by 130 people, passed by the Jerrila Gram Panchayati conclusively expresses the intent of the local body in favour of the proposed bauxite mining. The said Gram Panchayat after considering the proposal made by this respondent passed another resolution dt.02.10.2008 affirming its earlier resolution dt.

19.02.2000 (National Environment Appellate Authority 2009b, 5).

The APMDC statement was supported by documents in Telugu only half legible due to poor photocopying. The original statement from 2000 was from a Gram Sabha meeting and included a list of 130 names with fingerprints for each person to show people approved of bauxite mining.

Crucially the 2008 statement which verified the earlier resolution was made by the much smaller Gram Panchayat only consisting of elected Panchayat representatives.

It is not clear how the NEAA in Delhi evaluated which resolutions are valid between those presented by the CPM and the ones by APMDC. In the end, the NEAA chose to believe APMDC and the resolution passed in 2000 was accepted (National Environment Appellate Authority 2009c).

Tribes Advisory Council

A case was launched by the excluded tribal MLAs when the two bauxite projects of the State moved ahead without them being consulted (case filed August 2008). The Tribes Advisory Council case is similar to the one about consulting Panchayats not only in the demand for local representation but in the government response of having held earlier consultations in 2000. One can not place too much hope on the council since it has approved of the Polavaram dam which threatens to become a larger source of displacement than even the Narmada dam.

Challenges were supposedly also made against the Gram Sabha approval for land acquisition at the refinery which respondents in the villages had never heard of (Interview, Visakhapatnam 17/3 2008). But the current status of the case is not known. There are only a few organisations with the capacity to access needed information and then go to court and it seems like it was not possible to give the refinery case enough attention since the priority was to challenge the mining part of the project.

Water for the refinery

The case of water allocation for the alumina refinery has been moving as slowly as possible in the High Court of AP since it was felt that the present judges were not positive to the case. Various procedural technicalities have been referred to in order to delay the case. Sooner or later the judges will either retire or get transferred and this is when an opportunity might arise to move the case forward towards a (for activists) positive outcome (Interview activist, Visakhapatnam 26/3 2010).

Other legal ‘opportunities’

Since the APMDC-JSW project has been stalled for the last five years even before it could reach the critical environmental clearance for the mine, this possibility has not been utilised yet by activists. As the Jerrila mine is currently under environmental appeal this also looks certain for APMDC-JSW though legal opportunities might be very different in case the proposed Green Tribunal replaces the NEEA as has been proposed for some time. A case would also be expected on the implementation of the Forest Rights Act since forest land is being diverted for mining before the settlement process according to this Act has been completed. Another unexpected possibility is the implementation of the old AP State Forest Act from 1967 where the settlement process was not done properly despite being open until 2005. A recent judgement has ordered that the entire process should be thrown open again to properly set rights including private land titles in the Agency area currently settled as forest (Interview activist Visakhapatnam, 26/3 2010).

The most appropriate description of the litigation strategy against the bauxite project seems to be a mass flooding of cases in as many courts as possible with the hope that at least a few of these will be able to find support from the judges, or at any rate will require (the usually time-consuming) deliberations which will slow project implementation down. The case which seemingly required immediate attention of the courts, whether or not the signed agreement is in line with the State land transfer law, was deferred to a later point in time when it might no longer have any practical meaning, whereas the case on environmental approval of Jerrila mine allowed deliberations on a matter like PESA which is not part of the legal requirements of the Environmental (Protection) Act or as far as is known any other requirements which have been set for the mine approval. These almost endless possibilities for legal challenges, and the unpredictability of court judgements, might imply that this is indeed the best available strategy for individual activists looking for ways to achieve justice. And yet additional possibilities exist in finding faults in procedural issues related to, for example, land acquisition.