Introduction
It is a fact well noted and accepted, that hydroelectricity, or electricity derived from the force of naturally existing water in rivers and dams, has the potential to exponentially become a solution for the crisis of energy shortage in the world. Channeling the force of the naturally flowing rivers of the mountainous regions of India, hydropower has been considered to be successful as a clean source of energy with very low carbon footprint. However, the catch in the situation is that slowly, with the focus of energy generation going back on to thermal power, and the declaration of eco-sensitive zones in the rapids-harnessing regions of Himalayas in the North of India and North-East sector, hydropower has gradually lost its vigor and has been termed as one source of electricity with the largest ecological-footprint.
Having been divided into two distinct categories of Large Hydro projects and Small Hydro projects, within the category of Renewable Energy, only the Small Hydroplants are counted in. As has been evident from the past many years, and as is supported by the Central Electricity Authority’s documents on the distribution of the electricity mix, hydropower which became the second largest provider of electricity, has hit a plateau and now become dormant, with no new plants been commissioned.
The states of Uttrakhand and the North-Eastern States, especially Arunachal Pradesh have the highest potential for hydroelectricity as the rivers in these regions have natural rapids, and the making of an unnatural dam, to throw water into the turbine is not required. The Small Hydropower Plants are also considered environmentally benign as they don’t require excessive construction.
The contention, however, points us into the direction of the medium-sized hydropower plants, especially in the State of Uttarakhand, where according to various NGOs and news articles, more than 21 hydro projects have been stalled at various stages of construction due to irregularities in following of the environmental impact assessment studies. The locals have raised rallies and hostilities towards the construction of dams on the river Bhagirathi, citing religious reasons and the disruption of the flow of water in the lower ends of the region.
In Arunachal Pradesh, the biggest hydropower plant (“HPP”) of the country which was to be set up, was part of a multi-purpose river valley project, situated in the Dibaang Valley area. The project, even though granted permission from the Ministry of Environment, Forest and Climate Change, was not allowed to go forward due to numerous protests from environment activists, locals and others who did not support the construction of the project as it would have disturbed the natural ecosystem of the place.
Thus, it is the intention of the authors, to point out in this particular article, that stalling of these HPPs when they’re more than fifty per cent complete, causes more environmental damage, than what is expected of them to cause, when they’re commissioned.
Understanding Hydropower Projects: Implications of the Applicability of the Law
Hydropower as a potential source of high yielding electricity was developed by the British and few plants were setup in the North East and in the State of Karnataka. Slowly as their potential was realised, for the first time, a statutory body, in the form of a cooperative was started, by the name of Damodar Valley Corporation Act.[i] It was to regulate the production of electricity for the Provinces of Bihar and West Bengal. The river Damodar and its tributaries having the potential of generating a lot of electricity and sustainable electricity, the government at the time found it necessary to form a Statute, and thus laid the perception for hydropower in the country.
Not only did it further the cause of electricity, but also furthered the cause of supply of water for irrigation, water supply[ii] for domestic and industrial purposes and laid out the tariff for the same as well. Section 18 of the Act, laid down extensively about the supply and generation of electrical energy, and contained the non-obstante clause, making this Act lex specialis, informing that the provisions of the Indian Electricity Act, 1910 shall not affect or overrule the generation of electricity as governed in this Act.
A brief understanding here is clear that hydropower was developed in India, with the aim of enabling its growth as one of the main contributors to the energy mix. However, ever since 1948, no improved version of the Act was brought out, but recently, only a Draft National Hydropower Policy was released, which seems to be very distant from the sustainable development of hydropower in the country. Why it seems to be distant is, because the plan is highly ambitious, but the law and regulations to govern and regulate the same, are still obsolete with very little consideration towards the environmental footprint of the mega-projects. Thus, it is important to understand the methodology behind hydropower in India, legally and procedurally.
The first and foremost application of the law and regulation is that of the Environment Protection Act, 1986 under which the Environmental Impact Assessment notification of 2006 has been formulated. The legislative and judicial intent of this particular law is merely to access the damage which a project shall be causing to the environment, once commissioned and whether that much of damage to the environment would be worth the benefits of this project to the society at large.
Before we analyse the application of the procedures of the EIA Mechanism, it is important to glance at how exactly HPPs are constructed. In a nutshell, most medium size hydro projects, require the river, to be tunnelled briefly, and then with the fall which is created in the course of the river, the turbines are placed and the electricity thus is created. While the process of electricity generation does not generate any carbon footprint, but the construction of the supporting infrastructure for a HPP, is not only having a carbon footprint, but also the potential of affecting the natural environment.
Concentrating in the state of Uttarakhand, the area is largely mountainous with occasional valleys and plain areas in between, while the hydroplants are all constructed and proposed to be constructed on the rivers with natural rapids in the mountains. As these projects are very small in nature, which is below 25MW and up to 100MW of capacity, the State carries out the Environment Impact Assessment. It has been widely evident that citing religious reasons, for the sacred river Ganges, the “damming” of the river is not acceptable to the locals, who want that the river must flow freely, without any hurdles in between.
Gradually, the activists went to the High Court and the National Green Tribunal with a plea to declare the area as an Eco-Sensitive Zone and no construction activity are permitted in the area. With the same now sub judice[iii] as after the NGT order, the projects have been halted and some are being contested in the Higher Judicial courts, there has not only been defacing of the environment, but also the continued washing away of sludge, cement and rubble into the course of the river.
The part of the river which had been tunnelled for the purposes of the construction of the dam, remains tunnelled, causing depravement of the natural oxygen content of the water, causing loss of water quality. Instance of the dams which have been constructed over seventy percent such as the Pala Maneri (480MW) and the Bhairo Ghati Dam (381 MW) which are fully owned by the State Government and from which maximum electricity is hoped to be generated, they have been stalled by the Central Government, owing to pressure from the local people. Tax-payer money amounting to hundreds of crores which has been invested into these projects, along with the hope of becoming a state with excess electricity, the issue has been left grappling.
Jawaharlal Nehru, describing the Bhakra Nangal Dam as the new temple for a resurgent India and the one reason for the flourishing greenery of Punjab and Haryana, HPP is not only carbon-free sources of renewable energy but are the only sources where no effluent or waste is generated. Taking the example of the Mulla-Periyar Dam in Kerala, the wildlife and biological hotspot did not exist in such affluence before the reservoir was constructed for the dam.
Other examples such as the greatly controversial, Sardar Sarovar Dam, which were envisioned with an initial investment of $200 million from the World Bank, by the time it was commissioned, the cost, had risen exponentially to $8 Billion. While this project was largely criticised for having displaced hundreds of people, the project today irrigates 17,920 square kilometres of land, spread over 3,393 villages in the dry and arid areas of Gujarat and Rajasthan, along with providing flood protection and generating 1,450MW annually. Thereby, positively affecting millions of lives, hydropower projects all over the country have benefitted in ways more than one. Still, having the potential to become equally potent as a source of energy as is thermal power, the question of foul-play cannot be completely ruled out.
In 2013, when the unfortunate tragedy struck in Uttarakhand, where due to a cloudburst in Kedarnath, there were flash floods and thousands of people were killed and many thousands were rendered homeless, the scientists and experts did come forth, mentioning that had the stalled dams on the Bhagirathi and Alaknanda rivers in Uttrakhand’s higher reaches been commissioned, the flow of the water when the rivers flooded, could have been comparatively controlled and the loss of life and property could have been scaled down. The tragedy became worse for the reason that the stalled and deserted projects which had all the rubble and stones got picked up when the force of the water came suddenly and that caused even more destruction.
Truth of the matter is that Tehri Dam’s reservoir played a pivotal role in the flood control and did not let level of the Ganges rise enough to flood the whole of Haridwar and Rishikesh. [iv] It also is true on one hand, that following pursuit of the positive aspects of hydropower in the State of Uttrakhand, where the Run-of-the-river dams are most feasible (are less than 2MW in capacity), there have been over 450 such proposed projects from the State Government, and the excessive proposals shall cumulatively cause much change in the natural course and flow of the rivers, which will eventually be distressed. It is thoroughly suggested here, that a correct and balanced approach towards capacity installed of hydroplants be taken. Solar power, not so effective in terms of continuity in the mountainous region has lesser chances of becoming successful, thus leaving Hydropower the only source of effective clean and viable source of electricity.
Similarly, such events have been witnessed in the State of Arunachal Pradesh, where the Dibaan Valley Project has been in the garbs of controversy from the past many years. Facts presented before the Court are that the Dibaang Valley Project, the biggest hydro multipurpose valley project in the country, had been granted permission in a very arbitrary manner and no proper environmental assessment has been conducted.[v] The 3000MW project has met with stiff resistance from the locals as they protested that their woes were not addressed properly during the public hearing and project proponents were rather silent on the question of displacement and rehabilitation. This project which aside from generating a massive amount of electricity, shall be multipurpose, as it aims at creating ‘flood control’ during the monsoon season, where the river Brahmaputra floods every year.
Though inaugurated in 2008 during the Manmohan Singh government, the project was assigned to the National Hydropower Corporation (NHPC) and the quantum of forest to be cleared, the number of people to be relocated and the impact on the amount of wildlife and biodiversity were not addressed specifically. In the year 2013 and 2014, the Forest Advisory Committee of the MoEF&CC, refused to grant permission to this project, owing to the sluggish application of the environmental regulations. Later in 2019, after having worked out the details, Prakash Javdekar, the Cabinet Minister for Environment, Forest and Climate Change announced that Rs. 1,600 crore shall be spent as pre-investment of this project and compensation to the displaced people, carrying out of compensatory afforestation and construction of roads and bridges to access this dam site shall be carried out with the money.
Twelve percent of the power generated shall be given to Arunachal Pradesh free of cost, and the local area development fund for the local people shall receive one percent of the power without charge. As per the environment ministry’s clearance report sent to NHPC in May 2015, the total land requirement for the project is 5,349 hectares. “Out of which, 4,577.84 hectares is un-classified state forest, 701.30 hectares is community land without forest cover and 70 hectares is land with wet rice cultivation,” the report states. The compliance to the settlement of the rights of the tribal population, a must for such projects as per the Forest Rights Act, 2006, was also ignored by the state government. FAC had also pointed out that there was no clarification on the non-suitability of the land identified for compensatory afforestation. Besides, it underlined that the proposed site is a prime habitat for animals such as hoolock gibbon, elephants, Mishmi Takin, clouded and snow leopard, fishing cat and mithun among other species. The project site is also close to Mehao Wildlife Sanctuary.
There were two petitions filed in the National Green Tribunal[vi] which were disposed of by Justices Adarsh Kumar Goel, Jawad Rahim and SP Wangdi, stating that adequate studies and steps have been undertaken to ensure sustainable implementation of the project. The government’s press statement said the Cabinet Committee on Economic Affairs [CCEA] also approved the proposal for the Dam Safety Bill, 2019, in parliament. This Bill would talk safety measures for surveillance, inspection, operation and maintenance of all specified dams across the country. A National Committee on Dam Safety will also be established to advance dam safety policies and endorse crucial regulations. The minister told correspondents that the Bill will also have provisions for a ‘National Dam Safety Authority’, a regulatory body to device the safety policy. Every state will set up a ‘Dam Safety Organisation’ which will be run by the officers on field duty.[vii]
Concluding Remarks: Is Renewable Energy Sustainable and Is Sustainable Energy Renewable?
A rather interesting debate thus arises, whether or not the terms, sustainable energy and renewable energy are similar or different. Hydropower, in the present state, does not guarantee any return on investment, as new projects are met with fierce resistance and they may or may not be stalled at the time of their near completion, thus, making new investment into these projects, very risky. The private players, under renewed vigour of the Central Government to foster Public Private Partnerships, the risk allocation for these projects shall fall completely on the Public entity, thus making this project a debt-ridden venture, instead of a profit making one, thus, overall, a non-viable and non-sustainable project.
On the other hand however, hydropower holds the key to the woes of climate change as it is highly secure and once operative, guarantees continuous provision of electricity and can independently support the country’s power grid with supporting input from smaller sources such as nuclear energy, solar and wind energy. Coal, may actually be phased out completely, should the country foster and develop and actually meet its full potential for Hydropower. This renewable source of electricity, still, is met with reduced confidence, and the one reason on which the finger may be pointed is, ‘regulation’, both, in terms of the legal regulations which are not enforced properly, as well as regulating the number of such projects which may be allowed on one single river.
A conclusive rehabilitation and resettlement plan must be culled out to suit the needs of the people affected by the mega hydropower plants, as for the smaller projects, much of resettlement is not required. So far, with the only major impact being the requirement of excessive forestland in the mountains and the levelling of the mountains to construct the megastructure, hydropower does not have any other environmental impact situation. This source of electricity is not only reliable, but also secure as it generates a huge volume of electricity with naturally flowing and collected water.
Many environmentalists have highlighted the concern of dams being risky as they induce seismic activity in the mountainous regions with the precedent of the Latur Dam incident in the past where a huge tragedy had struck causing unprecedented damage. However, we must not overlook the example of the Tehri Dam which is the highest gravity dam constructed in the country in a region which is proved to be one of the highest ranking on the Himalayan Seismic Belt, and for the past two decades, there has been no such instances despite having borne a number of small to medium scaled earthquakes in its lifetime.
Since the year 1948, hydropower has proved to be a semi-sustainable infrastructure project and one of the most reliable sources of sustainable electricity which must be revived in full force for all its glory. The National Hydropower Policy needs be developed mainstream with an inclusion of environmental concerns, economic concerns and economic concerns as well. Drawing this balance, between development and state of environment, is eternal and never ending, it does not mean though, that the nation’s law and policy-makers quit thinking about it altogether. It becomes the task of the country’s able institutions of academia, to foster research, conduct studies and draft policy and regulatory documents, which may then be deliberated upon by the experts and made into enforceable framework, which may collectively address all issues and challenges as are related to a particular sector, be it infrastructure, economy or even the ever robust, energy sector.
[i] ACT NO. XIV OF 1948
[ii] Section 13, Damodar Valley Corporation Act, 1948
[iii] Alaknanda Hydro Power Co. Ltd. v. Anuj Joshi & Ors.
[iv] Collective Reports in Newspapers from Dehradun, Garhwal Post, Amar Ujala [Mr. Avadhesh Kaushal, Chairperson, Rural Litigation and Entitlement Kendra available at : https://economictimes.indiatimes.com/opinion/et-commentary/uttarakhand-floods-why-damning-the-dams-is-himalayan blunder/articleshow/20868150.cms?from=mdr
[v] Disquiet in Dibang, Down to Earth Report, June 2015 available at <https://www.downtoearth.org.in/coverage/disquiet-in-dibang-4539 >
[vi] Pradip Kumar Bhuyan versus Union of India and Ors and Pradip Bhuyan & Anr versus Union of India and Ors
[vii] Sangeeta Pisharoty, The Controversy Surrounding Dibang Dam, India’s Largest Hydropower Project, The Wire [July 2019]
Authored by-
Prof. [Dr.] Sairam Bhat is a Professor of Law, National Law School of India University and the Co-ordinator for NLSIU’s Centre for Environmental Law Education, Research and Advocacy [CEERA] and has recently launched the Research Cell for Energy and Environment Laws.
Ms. Raagya Priya Zadu, Research & Teaching Associate [CEERA] and Doctoral Scholar (Energy and Environmental Laws), National Law School of India University