How the Modi government used a legal loophole to escape environmental scrutiny of the 900-kilometre Char Dham Highway Project in Uttarakhand

On 27 December 2016, Prime Minister Narendra Modi laid the foundation stone for the Char Dham highway project in Dehradun, Uttarakhand. The project, estimated to cost Rs 12,000 crore, aims to improve road connectivity to four revered Hindu pilgrimage sites in the Himalayas. It involves widening 900 kilometres of national highways leading to the Char Dham spots—Gangotri, Yamunotri, Badrinath and Kedarnath. The government’s stated goal is to make the journey to these sites safer and faster by building all-weather roads as well as a series of tunnels, bypasses and bridges.

A day before the inauguration, Modi tweetedthat the Char Dham highway project will give a “strong boost” to connectivity and tourism in the region. “I assure you that whenever you will come for Kedarnath, Badrinath yatra, you will remember this government and Nitin ji like Shravan is remembered,” Modi said at the inauguration. He was referring to Nitin Gadkari, the union minister for road transport and highways, and Shravan, a character in the Ramayana known for taking his aged parents to pilgrimage sites despite great obstacles.

“This is the prime minister’s pet project,” Mallika Bhanot of Ganga Ahvaan, an environmental non-governmental organisation based in Uttarkashi, told me over the phone. “The Char Dham circuit is one of the most significant pilgrimage spots for Hindus and the road building is meant to increase religious tourism to the shrines.”

News reports have suggested that Modi may launch his campaign for the 2019 general elections from Kedarnath, an ancient shrine in the Garhwal Himalayas that is significant for many Hindus. The Prime Minister’s Office has reportedly been directly monitoring the Char Dham project, and the Bharatiya Janata Party government wanted it completed ahead of the general elections next year. Modi had announced a March 2019 deadline for the project, while Gadkari had set a more ambitious timeline, targeting completion by the end of this year and even urging the Ministry of Environment and Forests to expedite the necessary clearances. According to a government press release issued in March this year, the project has since been delayed—though the reason for this remains unclear—and is now likely to be completed by March 2020.

However, environmental organisations and activists have raised concerns about the project, stating that no environmental impact assessment (EIA) was conducted even though the highways are located in an eco-sensitive zone. They argue that the government has misused a technical loophole in the law to escape environmental scrutiny of the project. “Bypassing the whole EIA process was to execute the project faster without giving any consideration to the vulnerability and fragility of this disaster prone area,” Bhanot said.

In February this year, Citizens for Green Doon, an environmental NGO based in Uttarakhand, filed a petition in the National Green Tribunal in Delhi, seeking a stay on the Char Dham project. According to the petition, the project entails deforestation, tree cutting, and the destruction of mountain slopes through blasting, drilling, and dumping of construction debris. As evidence, it points to the diversion of 373 hectares of forest land for construction and the felling of 25,303 trees. In addition, it states that debris from the blasting has been dumped into the Bhagirathi river in contravention of environmental norms.

The petition further adds that human activity in the Ganga-Himalaya basin—where this project is located—is causing a strain on the region’s fragile eco-system. As a result, it argues, natural disasters such as flash floods, landslides and glacial lake bursts are increasing in severity.

Ironically, Modi has pitched the Char Dham project as a “tribute” to the victims of the 2013 Uttarakhand flash floods, in which at least 5,000 people died. A reply filed by the Ministry of Road Transport and Highways (MoRTH) before the NGT, of which I have a copy, states, “In the unfortunate incident which took place in 2013, large number of people died due to no road connectivity and washing away of existing roads. These areas cannot be left unattended. They are to be refurbished and re-done for the purpose of facilitating pilgrimage travel.”

However, the environmentalists’ petition argues that the very act of construction in a fragile zone, without assessing the environmental damage, may increase the severity of such disasters in the future. In support of their arguments, the petitioners submitted a report on the 2013 flash floods by the National Institute of Disaster Management, the government's apex body for monitoring natural disasters.

The report states: “In the hilly terrain, the construction of roads is the main factor disturbing the ecological balance. It also causes serious problem to the drainage pattern, increases soil erosion. Road construction leads to excavation of steep and unstable slopes, felling of trees and dumping of debris down the slope resulting in damage to the drainage system of the area.”

Responding to the petition, the MoRTH told the NGT, in March, that the Char Dham project is exempt from the requirement for EIA because of a 2013 environment ministry notificationstating that expansion work of up to 100 kilometres on existing national highways would not need environmental impact assessment. The ministry introduced this exemption by amending a 2006 EIA notification concerning environmental clearance processes.  It also exempted land acquisition of up to “40 meters on existing alignment [roads] and 60 meters on bypasses” from the EIA requirement.

The MoRTH argued before the tribunal that the Char Dham project was not one single 900-kilometre stretch, but a series of 53 individual projects, none of which exceeded 100 kilometres in length or 40 metres in width. It thus claimed that no section of the project required an EIA. According to documents filed by the ministry in the case, the work length varies from 0.7 to 39 kilometres, with an average of 25 kilometres. As a justification for the fragmentation, MoRTH saidthat “none of these works are continuous and are separated by 16 bypasses.”

But the petitioners have contested these claims, stating that the project does in-fact involve continuous stretches of road greater than 100 kilometres, spread over five national highways. “When we mapped the Chardham project we found that the entire 900 kilometres stretch will be worked on without any breaks,” Himanshu Arora, secretary of Citizens for Green Doon and one of the petitioners in the NGT case, told me. “The entire stretch is being widened. In that sense, it is a continuous project and should be treated as such. The government's argument that there are breaks and therefore they are separate projects is fraudulent.”

Further disputing MoRTH's technical argument, the environmentalists said that dividing the project into 53 sections did not take into account the overall impact that the construction would have on the ecology of the state. In a rejoinder, they submitted that the MoRTH had failed to address the most significant point of their original petition. “The fact that this entire project is a total of 900 kilometres and thus entails a massive impact on the overall ecology of the most sensitive valleys of the Himalayan mountains needs to be studied and understood on a cumulative basis and not by a stretch by stretch basis, has been conveniently brushed aside by the MoRTH.” Describing the government’s categorisation of the project as “extremely irresponsible,” they added that the MoRTH has misused the environment ministry’s amendment “to avoid detailed cumulative [environment] assessment for an extremely weak and fragile area,” where the residents “face numerous deadly disasters.”

Breaking up the Char Dham project into smaller sections has effectively allowed the government to hide behind a technicality and escape any environmental impact assessment at all—whether of the individual road sections, or of the project as a whole. This is even more significant because of the project’s location and the backdrop of the 2013 Uttarakhand floods.

Environmental experts caution that this approach undermines the entire process of environmental regulation. “The objective of environment regulation was to comprehensively assess impacts of projects, so that ecologically sound and socially just decisions could be taken,” Kanchi Kohli, the Legal Research Director at the Centre for Policy Research-Namati Environmental Justice Program, told me. “In the first phase, project authorities went around this requirement by breaking up components of the projects and pursuing separate approvals for otherwise integrated components of a project. The [Vedanta mining project in] Niyamgiri and the POSCO steel plant cases are classic examples of this. Today, the environment ministry has gone a step ahead and not just approved fragmentation of projects but changed the law to enable such a practice. This completely undermines the need for due diligence in appraisal. It also outright violates the precautionary principle critical for environmental decision making that broadly means to err on the side of precaution.”

Arora added that this sets an unhealthy precedent. “If the government flouts its own rules to bypass environmental regulations then you are striking at the very roots of sustainability, safety and people's lives,” he said. “If they can do this in the hills, where construction is difficult, they could use loopholes like this across different projects anywhere in the country. What happens to our ecology then?”

According to Dr Ravi Chopra, an environmentalist and the former director of Dehradun-based People's Science Institute, such project fragmentation is being done to “evade responsible and sustainable development.” Chopra also headed an expert committee constituted by Supreme Court in the aftermath of the 2013 Uttarakhand floods. “People work very hard to do environment impact assessments. But governments in power want to evade these checks,” he said. “What’s worse is that in this particular case, Mr Modi in his flamboyant style announced that he will make this an all-weather road, not recognizing the nature of difficulties on the ground. This area is extremely prone to landslides. Scientists and engineers have tried for years to stabilise it, but haven't succeeded.”

Chopra said that the Geographical Survey of India has marked 37 landslides in a short stretch from Dharasu to Gangotri. “When you do blasting, you make the slopes more unstable,” he added. “The second hazard is that they are cutting down a lot of trees, which hold the soil. They want to increase tourists, but has anyone done a carrying capacity study?”

But the regulating authorities appear focused on the narrow technicalities.Balendu Shekhar, a lawyer for the environment ministry, told me, “Whatever proposals we got from MoRTH was under 100 kilometres, and as per the prevailing policies, we approved it. The approvals mean that they do not require EIAs and were granted stage 1 forest clearance.”  An official in the environment ministry, who asked to remain anonymous, said that the project was split into smaller sections to allow faster execution. “Whatever is the stand of the MoRTH has been put in the affidavit,” BV Niren, an advocate representing MoRTH, said. “We are waiting for the NGT judgment.”

Planned and unplanned development in Uttarakhand has often resulted in construction debris being dumped onto riverbanks. Although there are designated muck-dumping sites, Bhanot of Ganga Ahvaan said that the volume of construction debris generated is so high that it is often simpler for contractors to tip it along the sides of the mountain slopes.

In June, Common Cause, a Delhi-based NGO, filed a separate petition in the NGT regarding muck dumping in the Char Dham project. It submitted that debris from the construction along the National Highway 108 is “being directly thrown along the [mountain] slopes adjoining the road,” as a result of which the debris slides down into the river. This violates the disposal norms which state that muck-dumping sites should be located at least 500 metres away from the riverbank. The petition also carried photographic evidence of “illegal and unscientific disposal of muck.” However,  MoRTH has stated, “Proven and time tested techniques are being adopted to carry out excavations and disposal of muck with scientific methodologies”.

The importance of the proper disposal of debris can be gauged by the report of the expert committee constituted by the Supreme Court after the 2013 disaster. The report states, “Muck management is a crucial issue. Current practices need to be reviewed and technically sound and ecologically sustainable ways of muck management in Uttarakhand have to be proposed to protect the people and the terrain from a June 2013 type of situation.”

Significantly, last month, the Uttarakhand High Court stayed all construction activity along riverbanks in the state until a proper disposal mechanism for debris had been instituted. An official at MoRTH confirmed that work at the Char Dham project has since been halted to comply with the court order. Meanwhile, the arguments in the National Green Tribunal have been completed in both cases and a judgment is awaited.

“This project is meant for opening up the Char Dham sites to the wider mass of pilgrims,” Sanjay Parikh, a senior advocate who represented Green Doon before the NGT, said. “It is in line with this government's ideology and connected with their vote bank ahead of the elections.”

The possibility of political gains is not something the government has acknowledged. Instead, it advanced two other arguments in favour of the project. The MoRTH stated that the project will improve connectivity to “strategic border areas” in the Himalayas, although this was not mentioned in the original press release. Pointing to the state’s development deficit, it added that construction would also spur jobs and employment in the hill districts of Uttarakhand.

But the locals in state are not willing to accept the livelihoods argument. Keshar Singh Panwar, a petitioner in the Green Doon case before the NGT, said that such projects generate few employment opportunities within the region. “The labour and capital on these infrastructure projects is from outside, while our children have to migrate out of the state in search of jobs,” Panwar, a resident of Uttraon village on the banks of the Assi Ganga river, told me over the phone. The Assi Ganga is a tributary of the Bhagirathi river. In August 2012, a cloudburst in the Assi Ganga valley destroyed everything in its path. Panwar’s home was swept away by the river that night. The next year, he lost his second home in the flash floods.

Sushila Bhandari, another petitioner in the Green Doon case, is a resident of the Kedarnath valley, one of the worst affected areas during the 2013 floods. Apart from construction, hydro-power projects here have resulted in extensive blasting of the hills. Tree cutting has loosened the slopes further. “If you remove the first step of a ladder, will the 99 steps on top survive?” she said, over the phone.

This year 30 million tourists are expected to visit Uttarakhand. “Where is the parking space for the vehicles that will come in once the roads are completed?” Bhanot asked. “How will the sewage be disposed, how will they cater to the increased tourists, is there a plan for any of this?”