Losing our biodiversity, systematically and greedily

Lessons from Baghjan: India’s Environmental Regulatory Processes Are Broken

M.D. Madhusudan and Prerna Singh Bindra

In the floodplain of the Brahmaputra, hemmed by its tributaries Dangori and Dibru, a stone’s throw from the Dibru Saikhowa National Park and the Maguri Motapung beel, is the village of Baghjan in Assam’s Tinsukia district. On May 27, an oil well belonging to Oil India Limited (OIL) blew out in this small village, uncontrollably spewing a mix of oil and gas, shrouding homes, farms, ponds, lake and river alike in a toxic condensate for nearly a full fortnight. Oil sheathed the wetland, seeped into soil; vile condensates coated grasslands and trees, slowly choking all life. Birds began dying, as did fish and frogs. A burnt carcass of a young Gangetic dolphin – our endangered national aquatic animal – floated up on the murky waters.

Then, on June 9, a fire started at the blowout site, and soon, nearby grasslands, fields, orchards, homes and even waterbodies were on fire. Two persons, Durlov Gogoi and Tikeshwar Gohain, died in the fire while four more were injured. Grasslands, even wetlands, burnt, and in these fires, countless creatures perished.

This ill-fated oil well is just one among many in the region belonging to OIL, a public-sector company owned by the Government of India.

As with every such catastrophe, we must ask if this was not foreseeable or preventable. Contemplating this question takes us back to September 2013, when we were serving on the National Board for Wildlife (NBWL). A statutory body created under the Wildlife (Protection) Act, the NBWL is chaired by the prime minister, and delegates its functions to a smaller standing committee comprising a selection of members and chaired by the environment minister. It is tasked with regulating human activities carried out in the pursuit of development or economic growth, which can pose risks to wildlife and their habitat in or around nearly 700 protected areas that cover about 5% of India.

Given its precarious location – cheek-by-jowl to a national park, a large waterbody and two rivers, besides scores of homesteads – the Baghjan oil well is precisely the kind of project the NBWL is mandated to regulate.

This now-infamous oil well was already in operation well before our tenure on the NBWL, between 2010 and 2013. We were however involved in inspecting the area around Baghjan in 2013 to assess the risks of laying a crude oil pipeline from this well via Makum to a gathering station in Madhuban, some 40 km south. As per a Supreme Court order, all projects proposed within a 10-km ecologically sensitive zone (ESZ) around protected areas (PAs) require a clearance from the NBWL, in addition to all other required regulatory permissions, unless the PA had an already demarcated ESZ. The latter had not been done in this case.

Although it lay within the Dibru Saikhowa National Park’s ESZ, OIL’s pipeline had been granted clearance by the NBWL in 2012, on the plea that most of the pipeline would run within tea estates and other non-forest lands where OIL had purchased right-of-way. This was opposed by local citizens and NGOs, who pointed out that the pipeline would actually pass through the sensitive wetland ecosystem of Maguri Motapung beel located within Dibru Saikhowa’s ESZ, and on which local fishermen and many unique species depended. They also recalled widespread local opposition to the pipeline’s alignment during public hearings for grant of the project’s environmental clearance and asked the NBWL to review its decision. Subsequently, the clearance was withheld, and as members of the standing committee, we were asked to undertake a site-inspection and file a report.

The Dibru Saikhowa landscape simply took our breath away. A mosaic of wetlands, swamp forests and grasslands, it is home to endangered fauna such as clouded leopards, Chinese pangolins, slow lorises, pig-tailed macaques, Bengal floricans, hoolock gibbons and Asian elephants, among others. Dibru Saikhowa is one of the last haunts of the deo hans, or ‘spirit duck’, as the critically endangered white-winged wood duck is known here, and a stronghold of the black-breasted parrotbill, one of India’s rarest birds. In its waterways that encompass a myriad wetlands like the Maguri Motapung beel, there are over 300 bird species and 80 species of fish, including the ‘tiger of the river’, the endangered golden mahseer.

What we uncovered during our site inspection shocked us. Although OIL had approached the NBWL ostensibly seeking permission to lay their crude oil pipeline, they had already completed most of the pipeline-laying work, leaving only a small unfinished stretch across the Dibru river and Maguri beel. We were horrified that a public sector corporation of the Government of India had blatantly flouted the country’s environmental regulations.

What was worse was that at no point when the NBWL was considering this project, nor during our field inspection when we were seeing the installed pipeline, did OIL disclose this violation, let alone attempt to put it right. Even when specifically questioned, OIL reiterated that the construction had been done only after the initial 2012 NBWL recommendation. However, a letter by the district forest officer to the district collector, both of Tinsukia, written three years prior to our site inspection recorded how OIL had laid their Baghjan-Makum pipeline without obtaining environmental clearance, and effectively in violation of the law.

Here was our quandary: how does one either allow or disallow the laying of a pipeline that had mostly already been laid years before the permission for it was being sought? Unfortunately, the NBWL and other regulatory bodies are routinely presented with such fait accompli. Often, large sums of money – sometimes running into thousands of crores – are already sunk into a project without all regulatory approvals being in place, and used to put undue and unfair pressure on regulatory committees like ours.

For instance, we had before us the example of the 800-MW Koldam hydroelectric project that would submerge 125 hectares of Himachal Pradesh’s Majathal Wildlife Sanctuary, which came to the committee for approval when over half of the construction was done and over Rs 2,100 crore already spent. The NBWL denied permission, but undeterred, construction continued and the proponents came back to the table for clearance, this time with over 80% of the project complete. Our rejection – the decision of a statutory body under the Union government – clearly was of little relevance or consequence.

In the report we filed about the crude-oil pipeline to the NBWL, we documented and highlighted foremost the violation by OIL. We urged the NBWL to inform the Supreme Court of the trend of absurd fait accompli situations, where the NBWL was being tasked to consider projects that had commenced work without receiving permissions, and to direct states to prevent such lapses.

Given the fait accompli presented to us, how were we to approach the present case? Our strong instinct was to simply refuse permission, and for good reason. The mandate of the NBWL is, above all, to safeguard and conserve wildlife, and this area, with its unique mosaic of habitats that hosted rare and endemic wildlife, faced significant threats from oil pipelines criss-crossing it. Besides, we were also concerned for the livelihoods of the people, directly or indirectly dependent on the beel, and mindful of their continued efforts to protect this landscape.

But most of the work on the Baghjan-Makum pipeline had already been completed, albeit in violation, and the public exchequer had underwritten this huge expense. Therefore, we strived for balance. First, we urged the NBWL that OIL be asked to work with the management of Dibru Saikhowa to develop a long-term and detailed conservation plan for the park, and to fund it. Only on the presentation of such a plan to the NBWL, we said, could they be permitted to complete the last stretch of pipeline through the fragile Maguri beel.

Significantly, we recorded our apprehension of serious ecological and human risk in the event of leakage/spillage from the pipeline, and sought that OIL be required to publicly disclose their environmental safeguards as well as declare the nature and extent of their liability in the event of accidents. Finally, we recommended that the work be undertaken by OIL under the supervision of a committee that included local community members and environmental organisations.

However, no meeting of the standing committee was called after the submission of our report in late 2013. In its next meeting on August 14-15, 2014, a new NBWL constituted by the newly-elected government summarily cleared – among 133 other proposals – the pipeline project of OIL, recording in its minutes that “as the site inspection team had recommended the [OIL] proposals, the Standing Committee decided to recommend the proposal.”

Neither our documentation of OIL’s violations, nor a single one of the caveats and conditions we had urged seemed to have been considered. Effectively, OIL not only got away with barefaced violation but also seemed to receive validation via the unquestioning clearance granted.

Our experience with the OIL pipeline is a classic and all-too-common case of environmental misgovernance. As we saw repeatedly, ‘conditions’ stipulated in various environmental clearances are not worth the paper they are written on, their enforcement or compliance being extremely rare, and audits being virtually non-existent.

Looking back now, we deeply regret and are ashamed that we allowed OIL’s status as a public sector company to matter, instead of regarding them more narrowly in light of their track record of environmental violations. Our decision to conditionally recommend OIL’s project was not intended to condone their violation, but attempted to take into account the vast amounts of public money that would go waste, and in the knowledge that an already laid pipeline would almost certainly not be dismantled. So our report tried to reconcile the country’s need for fuel while also imposing essential environmental safeguards, and compelling OIL to become a stakeholder in the conservation of ecological values in their neighbourhood.

In hindsight, we might have laughed at our naivety – were it not for the massive ecological devastation currently taking place, leaving us horrified and regretful.

Here we were, trying to be mindful of the public money spent, but failing to adequately defend the real wealth – of myriad ecosystems, their biodiversity, the wildlife it nurtured and the people it sustained – that was at stake here. This wealth is both priceless and perpetual, and its loss utterly irrevocable.

Environmentalists are often seen as taking extreme positions, as unreasonably opposed to projects that are purported to have great economic potential. But these extreme positions are almost invariably a result of experiences like ours, where reasonable middle ground as well as essential safeguards are entirely disregarded, paving the way for disasters like Baghjan.

The blowout clearly shows why the government’s new plan to allow “a self-regulation mechanism” of environmental safeguards for industry is a cruel joke, and is likely to lead to more such disasters.

There is worse to come. OIL has recently been granted environment clearance to drill in seven locations inside Dibru Saikhowa National Park. Such clearances, which aid environmental destruction rather than avert it, undermine the very spirit of environmental regulation. And if we, as a people, do not speak up against such state-led disdain for the rule of law, our silence will fuel many more fires, far more destructive than the one that burned Baghjan.

M.D. Madhusudan has worked on ecological research and wildlife conservation projects for nearly three decades, and has served on the National Board for Wildlife and the Karnataka State Board for Wildlife. He co-founded the Nature Conservation Foundation and worked there for 23 years.

Prerna Singh Bindra has worked in wildlife conservation for about two decades focusing on protection of wildlife habitats, policy and communication. She has served on the National Board for Wildlife and Uttarakhand’s State Board for Wildlife.  She is a widely published author and her books include The Vanishing: India’s Wildlife Crisis.