RIGHT TO INFORMATION ACT AND

THE ENVIRONMENT IMPACT ASSESSMENT REGIME:

A CASE STUDY1

KALPAVRIKSH ENVIRONMENTAL ACTION GROUP2

1. INTRODUCTION:

The introduction of the Right to Information Act 2005 has substantially changed the
manner in which groups have been able to demand for and access information,
documents, decisions related to the Environment Impact Assessment (EIA) regime which
governs the process of grant of environment clearance to development and industrial
projects.

The preamble of the RTI legislation states that a democracy requires an informed
citizenry and transparency of information for its functioning and also to contain
corruption and to hold governments accountable to the governed. When applied to the
environment clearance regime, it allows citizens to get direct access to information from
the Ministry of Environment and Forests (MoEF). Prior to the RTI Act, obtaining
information was ofcourse a tedious, lengthy process, but more importantly, information
used to be made available differentially to those who sought it. ’Influential’ individuals,
well known organizations and those with the ‘right contacts’ received information sooner
and more easily than others. Post RTI too, the experiences in accessing information have
been mixed as cited in the examples mentioned in sections that follow

It is uncontested that India’ s current development paradigm is transforming the social,

cultural, economic and environmental landscape in favour of industry and large scale
investment, like never before. The environment clearance regime is clearly aiding this
trend In this scenario activists, environmentalists, researchers, lawyers and others have
begun to use the RTI legislation to uncover facts about decision makers and processes,
partnerships, alliances, schemes and programmes, otherwise not disclosed and bring it
under public scrutiny. This includes information related to the clearances of specific
projects, EIA reports, minutes of meetings of expert committees as well as the numbers of
approvals , sectorally and regionally that the MoEF has granted in the last several years.
At another level efforts have also been made to seek direct access to the lists of projects
rejected clearance, data on which has never been disclosed on the MoEF website.

Our experience of using the RTI with respect to the EIA regime can be broadly
categorised at four levels:
1
This case study is based on the RTIs filed by Kalpavriksh members since 2005. It does not claim to
highlight the entire body of work being done vis a vis RTI and EIAs, as other groups are also using this
tool. Some of the initial RTIs were filed as part of the national level Campaign for Environment Justice-
India (more details on www.kalpavriksh.org).
2
The members who have worked on this case study are Kanchi Kohli, Manju Menon and Vikal Samdariya.
We would also like to acknowledge he contribution of our colleagues Divya Badami and Sanchari Das who
have given substantial amount of time to the RTI related effort in Kalpavriksh.
 a) EIA as a notification: its amendments, interpretations
b) Implementation of the EIA notification
c) Impact of the EIA notification on the ground
d) Project specific decision-making

The present case study will deal with the above sectors under which environment
clearances are recommended and granted like industrial projects, nuclear projects, River
valley and Hydro-electric projects SEZs. .

Even though the RTI Act has a clear instruction for uninterrupted flow of information
from authorities to public as part of clause 4(c) and 4 (d) of suo moto disclosure, the
experiences cited below highlight a tedious experience in demanding the same out of the
Ministry of Environment and Forests (MoEF). Our experience with the use of RTI reveals
interesting and disturbing realities about the attitude of public authorities towards
providing information under the Right to Information Act as well as information seekers.

Environment Impact Assessment (EIA): An over view

Obtaining environmental clearance for developmental projects from the Ministry of

Environment and Forest (MoEF) was an administrative requirement till January 1994.
This was when the Environment Impact Assessment (EIA) Notification issued under
Environment Protection Act, 1986. The Notification made it mandatory for 29 Industrial
and Development activities (Increased to 32 by subsequent amendments) to get
environment clearance from the central government before establishing or starting
operations. Several Projects/ processes/operation identified in Schedule I of the
notification need to follow a procedure laid down in the notification, which includes
preparing a detailed EIA report and organizing a Public Hearing. The notification went
through a major change in 2006 and it is this version of the EIA notification which is
under implementation today. This happened amidst stiff protest from civil society groups
as the text and intent of the this substantive amendment drew itself to favour clearance of
projects, rather than sound and honest impact assessment of projects and public
participation before grant of such clearances It continues to form a critical basis for
environmental decision making with regard to developmental projects in the country. The
EIA process was introduced with the purpose of identifying/ evaluating the potential
beneficial and adverse impacts of development projects on the environment, taking into
account environmental social, cultural and aesthetic consideration are critical to
determine the viability of project and to decide if a project should be granted
environmental clearance.

2. TRACING THE ISSUE: EIA AND USE OF RTI.

On the whole we have filed 533 RTI applications related only to the environment
clearance process. There have been multiple sets of information that we have sought
3
See Annexure 1 for status of each RTI.
through the RTI process. These include applications to understand how decision-making
related to particular projects take place. For.E.g. the correspondence between the project
proponent and MoEF related to the Pala Maneri Hydro Electric project, Uttarakhand.;
accessing and analyzing the comments from various sectors like industry, construction
sector, NGOs and state governments related to the amendments of the EIA notification;
the tracking the policy trends, interpretations of terms, proposed amendments, extent of
clearances and so on.

In this case study we have tried to bring out that the 53 RTI related to the EIA regime
have aimed at addressing various aspects of the notification, as is evident in the table
below:
Table: 1 Aspect wise breakup of RTI applications
Areas Number of RTIs
EIA as a notification, its 15
amendments/interpretations,
implementation
RTI application on arenas related to 6
the EIA notification (redressal,
advocacy efforts etc)
Project specific decision-making in 24
EIA
RTIs with MoEF regional offices on 8
compliance
Total 53

45% applications have been submitted to get information on project specific decision
making , 28% applications have been submitted to get information on EIA as a
notification, its amendments/interpretations, implementation, 15% applications submitted
to get information on environment compliance reports from regional offices and 12%
applications have been submitted on arenas related to EIA notification for redressal and
advocacy efforts..

All applications are categorized in broad sectors such as industrial project, nuclear
project, dams, SEZs and EIA Policy in table 2.

Table 2 Categorization of applications according to subject of applications

Categories Number of Applications
Policy (EIA) 29
Industrial Projects 5
Nuclear Projects 3
Dams (Hydro Electric Projects) 12
Special Economic Zones (SEZs) 3
Mining 1
Total 53
Table 2, shows that considerable number of RTI applications have been filed to get
information on EIA Policy related matters. It is interesting to know that in all these
applications, the respondents are the second party. Though the matter is directly placed
before the authorities, the nature of responses is inadequate, disappointing and frustrating
and it has compelled us to file applications repeatedly on same matters.

2.1. Right to Information applications related to EIA Notification at a National

Level

In the last 14 years of the existence of EIA notification, there have been several
amendments to the law. Some of these amendments have had far reaching implications
for people and the environment. Many activities have been removed from the purview of
notification, or have been exempted from certain important process like Public hearings.
This is diluted the very spirit of the notification. All the changes or dilution take place
with minimum transparency about proposals for changes in the EIA notification during
the process of change. But, after implementation of RTI Act getting information is
possible but the nature of response is so minimal and generalized that it is difficult for
information seekers to draw any conclusion on the concerned matter. So, it would be
interesting to know how partial, confusing information is provided to applicants.

One of the first set of RTIs that were filed on the EIA notification was soon after the RTI
Act was passed. These were filed by Kalpavriksh as part of the Campaign for
Environment Justice-India in November 2005. The applications aimed at seeking
information related to the process of amending the EIA notification. There was no
response from the MoEF, till second appeals were filed before the CIC on 2.05.06 by
Kanchi Kohli. The MoEF provided close to 2000 pages of information free of cost to the
applicant, even before the CIC hearing could take place. The documents included eight
reports on consultations with various stakeholders, comments on draft notifications of
State environmental secretaries, civil society, state and Central Government
ministries/departments and real estate. See section c for more details on these orders.

As mentioned earlier a total number of 29 RTI applications were filed under different
subjects like rules stipulated to EIA notification, implementation of EIA notification and
amendments on EIA notification relating to the working and implications of the EIA
notification at the national level. The applications include those related to amendments to
the notification; interpretation of clauses, enquiries on the number of projects granted or
rejected clearance and so on. The information was sought in the current time frame as
well as over a period of time. For instance, one application was filed seeking information
on the number of environment clearances granted by MoEF since 1994 till date.

Out of 29 RTI applications we have got 18 complete responses, 8 incomplete responses

and no response for 3 applications. Out of the 18 instances, the responses were
insufficient in 2 cases and therefore they were sent for the intervention of the Appellate
Authority at the MoEF. Against 8 incomplete responses, applicants filed first appeals
before the concerned AA. An RTI was filed on 27.08.2008 regarding implementation of
EIA notification 2006 at MoEF and State levels by Kanchi Kohli. The response from the
PIO dated 4.09.08 was incomplete. The respond indicated that the EIA notification was
issued for 21 State Level Assessment Authorities and State Environment Appraisal
Committees, and also forwarded the application to the concerned SEIAA, It failed to
respond to those questions which are directly related to the MoEF. In another instance,
response from PIO dated 27.02.08 related to an RTI filed by Manju Menon on 5.02.08
regarding amendments of EIA notification was incomplete. The response from concerned
PIO did not respond to query raised by applicant regarding any proposal or plans for any
amendments to EIA notification by MoEF. Moreover, the PIO rejected the request to
provide correspondences related to amendment process saying that it was “…an evolving
process”.

In 11 instances the PIO failed to provide satisfactory responses at the very beginning.
Response from the PIO on the RTI application filed by member of Kalpavriksh for the
Environment Tribunal Bill on 14.11.06 was also not acceptable. The response states
“Information asked for cannot be provided at this stage as the matter relating to
preparation of Environment Tribunal Bill is Under Process”

Out of 29 applications, 11 cases have been referred to Appellate Authority for

intervention. It is interesting to know that out of 11, in 5 appeals, the AA has not taken
any action.

One of the key areas of concern with the EIA notification have been the changes,
amendments that have been brought forth by the MoEF. Most often citizens come to
know of the proposed amendments only after the ministry has finalized a draft and
decides to seek public comments. In the past we have used RTIs to get information on
what were the consultations carried out by MoEF before it finalized a very significant
change to the notification in 2006. The response to the RTI application had indicated that
the consultations were essentially carried out with industry associations and central
government departments and a revised draft was also shared with them. This had then
become a significant tool in the political and media lobbying of the Campaign for
Environment Justice-India, a civil society network campaigning against the issuance of
this notification.

It is critical to know much before a draft amendment is issued as to what discussions are
being carried out amongst various “stakeholders” in order to be able to effectively
campaign for environment protection and a just environment clearance regime. We have
filed 7 RTI applications in different ways seeking the information related to the proposed
amendment directly or indirectly. None of these applications has received a
straightforward response from the MoEF. 2 of these are currently pending with the CIC.

Some examples are:

 Response from PIO on an RTI application filed on 17.04.2008 by Kanchi Kohli is

disturbing. Although application did not ask for provided and requested
information has been refused to provide on ground of assumption that information
 has been shared or is being sought for only seeking information related to
amendments. In his response dated 22.05.08 the PIO states that all the document
desired by the applicant have already been furnished in response to an earlier
application (referred to a previous application whose context was different from
this application). Against the response from PIO, the applicant had filed first
Appeal on 11.06.08 and sought the intervention of the Appellate Authority (AA).
In the appeal, the applicant brought to the notice of the AA, section 19(1) of the
Right to Information Act, 2005 and that the RTI Act lays down legal obligation on
the public authority to suo moto provide such information. In response to first
appeal the applicant did not receive any response from AA till 30.08.08. On this
date applicant had file second appeal before the CIC. Currently matter is with
CIC.

 On 5.02.084 an RTI application was filed by Manju Menon on the amendments

proposed to the EIA notification with two questions i.e. Has MoEF proposed or is
it planning any amendments to the EIA notification 2006 and asked to share all
correspondences, draft notification and presentations related to any such
proposed/cleared amendments. Applicant received response from PIO stating that
“amendments to various Notifications including the EIA notification, 2006 is
evolving process. Based on the experience gained in implementation of the
concerned notification……..” Such a response from the MoEF misleads the
applicant by not granting a straightforward response to the applicant as to whether
amendments are proposed or not. The information related to amendments cannot
be shared, the MoEF has pointed out further during a personal hearing on the
application on 30.05.08. Such a response is also an example of where information
has been indirectly denied without mentioning any valid reason or provision of
Right to Information Act. In fact, there is no such provision in the RTI Act and
denying information PIO is in violation of the RTI Act.

Therefore a first appeal was filed on 10.4.08, following which the AA invited the
applicant for a personal hearing at the MoEF. The appeal invoked sections 4(C), 4(d),
7(2), 7(6) apart from Section 19(1). Section 4(c) and 4(d) of the Right to information Act
2005 where in it is clearly stated that the public authority shall “publish all relevant facts
while formulating important policies or announcing the decisions which affects public;
and provide reasons for its administrative or quasi judicial decision to affected persons.”
Section 7(2) states that “If the Central Public Information Officer or State Public
Information Officer, as the case may be, fails to give decision on the request for
information within the period specified under sub-section (1), the Central Public
Information Officer or State Public Information Officer, as the case may be, shall be
deemed to have refused the request.” Section 7(6) deals with “Notwithstanding anything
contained in sub-section (5), the person making request for the information shall be
provided the information free of charge where a public authority fails to comply with the
time limits specified in section 7(1).” While section 19(1) states that” Any person who,
does not receive a decision within the time specified in sub-section (1) or clause (a) of
sub-section (3) of section 7, or is aggrieved by a decision of the Central Public
4
See copy of application on Annexure 6
Information Officer or State Public Information Officer, as the case may be, may within
thirty days from the expiry of such period or from the receipt of such a decision prefer an
appeal to such officer who is senior in rank to the Central Public Information Officer or
State Public Information Officer as the case may be, in each public authority.” . During
the hearing of first appeal, the PIO and Appellate Authority indicated to applicant that the
information regarding amendments cannot disclosed to applicant as it was an “evolving
process” and that when a draft amendment is ready it will be put for public comments for
60 days as stipulated by laws. Applicant clarified to them that it is in public knowledge
that these amendments are being drafted as the MoEF has had discussions with several
stakeholders on the same. It is impossible for the public to intervene in these discussions
if there is no transparency in the process of law making. Following this an order was
passed by the AA upholding the PIO’s response. It also reiterated the fact that the
amendments to the EIA are an evolving process and details of the requested information
will be made available only when the action of drafting is completed. Such an order is
highly retrograde and totally against the spirit of transparency and public interest. It is
critical for citizens to have access to discussions going on within the ministry which
determine the basis of changes in laws and policies. Currently there is absolutely no
possibility of public scrutiny on the same.

Now this matter is before the Central Information Commission (CIC) with the hearing
held on 23.10.2008.

There has been a delay for almost nine months at the time this case study is being written.
This application seeks critical information related to the formulation of the Government
of India policy towards EIAs and to the amendment of notification, which has a bearing
on environment decision making of developmental and industrial projects. It is not just
important for the public to get access to final notification/amendments but also
information related to process through which decisions or amendments have been arrived
at, as provided for in the RTI act.

 In subject of implementation of EIA notification 2006 at MoEF and State Levels

with information sought for Number of project granted and rejected environment
clearance on 27.08.08 an RTI has been filed before the MoEF by Kanchi Kohli.
An initial response from PIO indicated that ministry had issued notices to State
level Environment impact Assessment Authorities(SEAA) but PIO did not reveal
about those projects which were cleared and rejected at MoEF level. A first appeal
has been filed before the Appellate Authority (AA) on 18.08.07. After 9 days of
filing the first appeal another response was received by applicant stating that the
matter is transferred to concerned sections of MoEF. Text of response indicates
that, Ministry has taken some actions.

 First response from PIO on an application dated 27.08.08 filed by Kanchi Kohli
gives details of the information sought. The response dated 4.09.08 states
“reference is invited to your application dated 27.08.08 seeking the following
information under RTI Act, 2005 regarding implementation of Environmental
Impact Assessment Notification, 2006 at MoEF and State Level. The ministry has
 issued notification for constitution of state Level Environment Impact Assessment
Authorities and State Environment Appraisal committees……” This response only
gives answers to half the points for which information was sought and therefore
remains incomplete. It meant that the applicant needed to go into appeal.
Following the first appeal responses were received from various expert
committees of the MoEF.

 An RTI was filed on 27.3.08 by Kanchi Kohli relating to the applicability of the
EIA notification to chromate industries and response from PIO dated 3.4.08 5
indicating that the RTI application does not fall within the purview of the RTI Act
with a section being quoted for the same along with copies of 1994 and 2006 of
EIA notification and indicating that application has been disposed off. It was very
ironic that that despite a very specific nature of application seeking direct opinion
(as stated in the RTI Act and MoEF’s response) of the MoEF, the application was
dealt with in vague and careless manner. While the MoEF letter mention sections
on what kind of information can be sought, it fails to recognize that application
clearly falls under the purview of same. This application since then gone on to
first and second appeal.

The above examples indicate that there are several instances where the MoEF has given
incomplete or misleading information. The amount of time the applications have been
pending, and also the nature of responses have often meant deemed refusal of
information. It is also clear through such responses that often a careless or casual nature
is adopted by the PIOs, despite the information dealing with laws and policies which are
directly related to the lives of so many people. Such an approach of PIOs in central
agencies puts a question mark on government intentions on implementation of RTI as
well as on transparency in formulation of environmental policies as whole.

Out of 11 cases, 5 cases have been referred to Central Information Commission (CIC) for
consideration. Two cases have been disposed off so far. Following are the orders of CIC.

A CIC order dated 22.03.07 regarding mining around Kataldi Village, Tehri Garhwal,
Uttarakhand during 2003-2006 states “ we have examined the record and heard the
respondents. It is unacceptable that a letter sent on 16.03.06 even this is sent by ordinary
post had not reached its address by 22.01.07. I was shown the file in which the dispatch
of the letter is referred to. However taken together with the fact that even the first appeal
is not traceable in the records of the Ministry, this is a very dismal comment on the
functioning of the public authority. While therefore, we hold the information sought in the
original application now stand supplied, before we take any further decision with regard
to any liability for penalty for deemed refusal or delay in supply of information, The
Assistant Registrar, Central Information commission will inspect the dispatch register of
the Ministry of Environment and Forest so that we may satisfied that the letter stated to
have been sent was actually sent on the date claimed. For this dispatch register will be
submitted to us on 29.03.07 at 10:30 a.m. for inspection and return.”

5
Copy of response is attached in annexure 5.
The CIC has given some very critical orders in its initial phase of working. For instance
in the RTI application related to the comments from various sectors on the re-engineering
of the EIA notification 1994, when there was a lack of response from the MoEF second
appeal filed before the CIC on 30.03.2006 case which was related to “Reengineering” the
environment Clearance Process, CIC had ordered on 31.07.06 “ As requested by the
applicant and agreed to by the respondents during hearing the information supplied will
be provided free of charges as per section 7(6). Appellant has not pressed for penalty.
This kind of delay that had taken place without intimation to the applicant is un
acceptable, although the plea taken that this was amongst the earliest cases before the
Ministry and, therefore, there was an office failure is, insofar as the PIO is concerned,
taken as reasonable cause for the delay. Hence while no penalty is imposed, the ministry
is cautioned to ensure strict adherence to time limits prescribed u/s 7(1) of the Act to
avoid invocation of section 20.”

Multiple RTIs to seek a response: Newer dimensions unfold

On 3.05.2007 an RTI was filed by Divya Badami seeking Year wise and sector wise list
of project that have been rejected environment clearance under EIA notification” . In
response the MoEF provided copies of its annual report, which did not have consolidated
information as the applicant had sought. Instead of taking this to appeal stage,
subsequently on 7.09.07 by Kanchi Kohli another RTI was filed clearly specifying the
details of the information sought, and including a question which indicated that: “ please
do not give copies of the annual report as they do not give a clear number/list of projects
have been rejected Clearance”. This was precisely so that the previous experience of
getting a response from the MoEF which included nothing else but the annual reports,
would not be repeated. The other three questions were:

 Please give information about the total number of projects have been rejected
environment clearance (please do not include those that were closed/exempted/returned)
environment clearance following application under the EIA notification
 Please give list indicating the name, project proponent and type of project for all the
projects that have been rejected environment clearance.
 Please give in a table showing year wise and sector wise information (e.g. River valley,
industry etc as per the expert appraisal committees)

The response to this RTI states “the information sought by you is voluminous and spread
over a number of files over a period of several years, hence it falls under the ambit of
section 7(9) of the RTI Act. Which says inter-alia that information ordinarily be provided
unless it would disproportionately divert the resources of the public authority or would
be detrimental to the safety or preservation of records in questions.” In next point PIO
states “ Moreover, as per the RTI Act, only information available on the files in the
Ministry like records, documents, memos, e-mail etc. need to be provided to applicants
and no information needs to be processed. The information sought by you would involve
culling out of information from large number of files as well as register and other
documents which amount to processing of information. In view of above we regret our
inability to accede to you request.”

A first appeal was filed and the response of the AA was apologetic and provided current
information. In the first appeal a question was raised as to whether the MoEF is implying
that they don’t maintain a record of projects rejected clearance. It also highlighted that in
the past, information has been sought from the MoEF on sector wise information on the
number of projects granted environment clearance and ministry has readily provided the
same.

The response from AA stated that “we share your concern regarding the non-availability
of data base. We are trying to develop system. This will take time. However, we could lay
our hands on files of 2006-2007 and as per record available, we are enclosing the
requisite information……delay is regretted.”

2.2 RTI application on arenas related to the EIA notification (redressal, advocacy
efforts etc)

[Note: This section is designed differently than the previous ones and deals with cases in
their entirety.

a) National Environment Appellate Authority (NEAA): The EIA notification does not
operate in isolation. Sometimes the RTI process has been used to access information
related to allied arenas. For instance, the National Environment Appellate Authority
(NEAA), where the environment clearance of projects are challenged. The NEAA was set
up as an independent body to address cases in which environmental clearances granted by
the Ministry of environment are challenged by civil society. This authority was
established in 1997 through legislation but has since then not functioned in its full
capacity. Since 2005 there has been no Chairman or Vice Chairman and currently the
NEAA functions only with three administrative members. The NEAA has in all instances
except one rejected the applications challenging clearances, despite substantial procedural
or scientific grounds highlighted. Campaign groups had thereby lost faith in the member
of the NEAA and wanted to seek more information about their competence and
background.

An RTI filed to seek information on process of constitution of NEAA. However, this

matter is related to public and public has right to know process of constitution of this
body. But, response from PIO was inadequate. In his response PIO pointed the applicant
to section 5(3) NEAA Act, and the qualification specified therein. the response also
indicate that as per section 2(f) of the RTI Act, information in documented form only may
be provided in place of information as is requested.. PIO had ignored the time period of
information and ignored the wording of application by saying that information is
mentioned in NEAA Act. Later, this matter transferred to Appellate Authority for their
intervention on the grounds that applicant requested the qualification of the current
members and not what the Act provides and not generic information as has been provided
and time period also ignored. And, applicant also mentioned that PIO has wrongly
interpreted the section 2(f) of RTI Act. But, AA has also ignored the matter and not
responded to applicant sofar.

Another RTI was also filed to seek access to the Biodatas of the NEAA members, which
was responded to directly by the MoEF.

b) Open Letters from individuals/groups/organizations received by the MOEF and

PMO: Since 2004, civil society organizations had got together and sent a series of Open
Letters to the MoEF, on various issues including those related to the EIA notification. A
total of 8 Open Letters were sent. The time period was September 2004 to December
2006 where in 8 Open Letters had been sent. Two RTI applications were filed listing the
titles of these open letters and asking both the MoEF and the Prime Ministers Office
(PMO) as to whether the MoEF had received these letters and also what action was taken.

The response of the PIO dated 26.03.07 was both inadequate and confusing. Information
requested in the application pertained to 8 open letters (mention above) sent to the
Secretary, MoEF. Response showing that matter has not been considered properly by
PIO. Response states any information which is under process and where decision is yet to
be taken, cannot be given to applicant. Subsequently, Applicant filed first appeal to AA
highlighting the fact that the PIO has sent an incomplete response to the application, The
PIO has also denied that the receipt of one of the Open Letters regarding which the MoEF
has even responded in the Parliament. However, the AA stated, “ I have perused the
factual position regarding the case. It appears that some delay took place due to
multiplicity of subject matter raised in “Open letters”, which cover almost the whole
Ministry and also because file concerned was misplaced and retrieved recently. I also
note that all the division have been asked to respond immediately. As regard the “Open
Letters” at Sl. No.4,5, &8 the information has been sent that letters at No. 4 and 5 were
not received by IA division. Let these letters be searched once again by IA division. I
direct also that all divisions send information to GC section on matters concerned them
with due priority within 15 days.”

Despite of AA order PIO failed to provide any response within 15 days. On this regard
applicant again wrote a letter to AA and informed about no action by MoEF on their
order. After 56 days of AA order one response received by applicant that “you are
informed that information which is under process and where decision is yet to be taken,
cannot be given to the applicant. In your application you have sought replies in respect
of 8 open letters indicating actions to be taken by this ministry on a number of
issues……”

It is both disturbing and frustrating that central ministries are responding regularly to
applications stating that files are misplaced and/or information cannot be provided. Even
CIC has commented on this issue that” It is unacceptable that a letter sent on 16.03.06
even this is sent by ordinary post had not reached its address by 22.01.07. I was shown
the file in which the dispatch of the letter is referred to. However taken together with the
fact that even the first appeal is not traceable in the records of the Ministry, this is a very
dismal comment on the functioning of the public authority.

CIC fixed the hearing for 3rd October 2008 for hearing, almost 21 months after the RTI
was filed and 16 month after the second appeal was filed on 17.06.07 by applicant The
intention of the RTI application was to collect information to support public voices that
had been raised on most critical environmental issues of the current day and the dilutions
of laws and policies. It highlights that a lackadaisical and bureaucratic attitude is
undermining the true spirit of Act which seeks transparency and suo moto disclosure of
information in a speedy manner.

c) EMCB project related to EIA notification re-engineering: On 29.6.2007, Kalpavriksh

members filed an RTI seeking all documents, including agreements, minutes of meetings
etc related to the Environment Management Capacity Building (EMCB) Project of the
MoEF. This project, funded by the World Bank had a substantial role to play in setting in
motion a process through which significant changes in environment law and policy were
introduced. The changes in the environment clearance regime are critically linked with
the findings of the EMCB project which mandated such re-engineering or streamlining.
This was an important issue that groups working on EIA issues had been raising.
However, this was also being denied or its importance undermined in the responses when
concerns were raised. By procuring critical documents, the idea was to draw clear
references from project documents to vehemently state the fact. And this indeed
happened. One was able to substantiate that the slow process to manipulate India’s laws
and policies in the favour of large investments and the role of International Financial
Institutions (IFIs) was critical in this regard. These documents were also used to
formulate a deposition at the Independent People’s Tribunal on the World Bank organized
in New Delhi in September 2007.

d) National Environment Tribunal

As a response to newspaper reports and information from colleagues in the media,

Kalpavriksh filed RTIs on 14.11.06 filed by Divya Badami related to the documents
related to proposal of the National Environment Tribunal Bill which was being discussed
within the MoEF. This information was critical as the introduction of the Bill would
imply a complete change in the way redressal for environment clearance would be
framed in the country. Despite its far reaching implications there was no public debate on
the issue. Regarding this RTI, PIO stares “ It is informed that the information asked for
cannot be provided at this stage as the matter relating to said report of the Law
commission is under process and a final decision yet to be taken.”

e) Quality Council of India process for registration of EIA consultants

This the new initiative of the National registration Board for Personal and Training
(NRBPT), a constituent of the Quality Council of India. It is scheme to register agencies
that prepare Environment Impact Assessment report for the development projects, a step
was completely missing in the environment clearance process thus seriously under
mining the quality of reports and the clearance decision taken on the basis of these
reports. Regarding this, on 13.02.07 an RTI filed by a member of Kalpavriksh related to
Accreditation of EIA Consultants through the QCI initiatives. Response dated 5.03.07
from PIO on this application indicates that a meeting on this matter held on 24.10.05 and
26.07.06 along with presentation made by QCI. Both the meeting chaired by the
Secretary (E&F) and the draft scheme prepared by QCI was discussed. The scheme was
finalized based on these two meeting and a number of discussion with QCI. After
receiving this response, members of Kalpavriksh along with 50 signatories had sent a
letter to Pradipto Gosh, Secretary (MoEF) by acknowledging their serious concern
against the registration of EIA consultants.

2.3 Project Specific EIA related RTI applications

Other than the national level tracking of the EIA notification and its implementation,
amendments etc; our efforts have also been to use the RTI process to assist campaigns
around specific projects whether dams, industries, mining and so on. These have either
been directly filed by us, or as a result of a request from a local group from across the
country. A total of 18 such project specific RTIs have been filed.

 5 RTIs have been filed related to industrial projects to collect information on

private industries from environmental prospective. Every industry has to take
environment clearance from Ministry of Environment and Forest (MoEF) before
establishing any unit or any activities on the ground. We had filed application on
Chemplast (Tamil Nadu), POSCO (Orissa) and for Monnet Ispat (Chhattisgarh) .
In two cases (Chemplast and POSCO) the applications sought details related to
the environment clearance of the projects and documents related to the same. The
PIO has responded promptly in both these instances. In the case of Monnet Ispat,
two applications were filed. One application sought details of the Form 1
provided by the project proponent prior to the preparation of the EIA report. the
second RTI was about the note sheets and questionnaire related to the decision on
the environment clearance of the project. The second application was filed

The second application related to Monnet Ispat filed on 10.06.08 before the MoEF. No
response was received within 30 days of the receipt of the application. Subsequently,
within prescribed time limit applicant has been filed first appeal on 23.07.08 for which no
response was received. The applicant, filed a second appeal, with a copy to the AA. In
response to this second appeal, the AA passed an order dated 11.09.2008 wherein it was
stated that “I have perused the records available on the file for the RTI application of
10th June, 2008 seeking information on the note sheets and questionnaire related to M/s
Monnet Ispat and Energy Ltd. for Integrated Steel Plant at Raigarh. I have also noted
that in advertently the information has not been sent by CPIO concerned. At this stage I
am directing the CPIO to keep constant vigil and make full efforts to trace and locate the
note sheet for the project of M/S Monnet Ispat and Eenergy Ltd. So that our file records
are complete. I am also directing him to forward the copy of note sheet, free of cost as
soon as it is traced.”

The concerned PIO also sent a partial response indicating that the questionnaire desired
by the applicant was pre-requisite under the EIA notification 1994 but not under 2006.
There was no mention of the note sheets. However, AA had mentioned in order “ I have
further reviewed the matter and it is brought to my notice that the note portion of the file
No. J.11011/196/2006-IA-II(I) regarding the project of M/s Monnet Ispat and Energy Ltd.
is lost/misplaced and therefore, all sections, all officers were requested to look for same
vide notice of 29th August 2008. A copy of this also placed on the Notice Board for
information of all.”

The information has not been received over four months after the application has been
filed.

The experience in the case of nuclear projects has been unique. An RTI filed by Manju
Menon on 6.09.07 regarding documents related to Kaiga Atomic Power Station.
Response from PIO on this RTI indicating that Information sought attracts the section
8(1a) of RTI Act 2005 which states “information, disclosure of which would prejudicially
affect the sovereignty and integrity of India, the security, strategic, scientific or economic
interests of the State, relation with foreign State or lead to incitement of an offence” We
had filed three RTI applications6 on the status of environment clearance of Nuclear Power
Projects. While the responses have been prompt and within the prescribed time limit, they
have not rendered the relevant information. Other groups that have sought information
such as the economic costs of fuel in nuclear power projects and their status on
compliance of environment clearance conditions have met a wall.

A separate case study has been carried out for RTI experience in dam projects. 12 RTI
applications have been filed for dam related projects with respect to environmental
clearance and monitoring reports.

These RTI applications cover Teesta Low Dams 3&4 HEP (West Bengal), Teesta V HEP
(Sikkim) Athirapilly HEP (Kerala), Tipaimukh HEP (Manipur), Lower Subansiri and
Kameng HEPs (Arunachal Pradesh), Parbati Stage II project (Himachal Pradesh) and
Pala Maneri HEP (Uttarakhand). An RTI related to Athirappily HEP was filed by Kanchi
Kohli on 21.07.2008 to get information on forest clearance and afforestation for proposed
Athirappily HEP in (Kerala). Response dated 31.07.08 from PIO states that information
sought for can be provided only after the payment of requested photocopy charges.
Documents dated 16.12.1999 on this HEP indicating that 60 ha forest land diverted to
construction of HEP without examining the ecological importance of diverted land. The
EIA was carried out twice but did not look at the whole range of impacts or the impacts
on rich biodiversity of the area. The present RTI was part of Kalpavriksh’s effort to
support the ongoing campaign against the project. The documents received through RTI
were immediately passed on to the local groups prior to the court hearing in Kerala.

6
See Section Nuclear Project in RTI status table for Date of applications and subject, Annexure 1
An RTI filed by Neeraj Vagholikar on 26.09.08 related to 1500 MW Tipaimukh Hydro
Electric project regarding the diversion of forestland. Response from dated 20 10.08
indicating that applicant can get information after deposit of requested fee.

An other RTI filed by Neeraj Vagholikar on 26.09.08 related to 2000 MW lower

Subansiri HEP regarding all communications received by National Board of wildlife and
its standing committee in year 2006,2007,2008. Response from PIO dated 7.10.08 asked
applicant to deposit requested fee as photocopy charge.

An RTI was filed by Rahul Saxena member of Lok Vigyan Kendra on 25.08.07 on
Parbati- II HEP regarding compliance, monitoring reports and monitoring process of
project. The response from PIO dated 17.09.08 indicated that the monitoring process
follows “ The thumb rule applicable to all regional offices of MoEF that all projects
accorded Environment Clearance should be visited once a year. However polluting
industries as identified by CPCB are to be monitored twice a year. This office has/ had
only two field officers for inspection of projects to monitor environmental conditions in
our jurisdiction against sanctioned of four posts. Hence project visits are done barely
once a year.” Regarding environment clearance and monitoring report PIO had asked to
deposit fee.

Four different RTIs filed by members of Kalpavriksh on Kameng Hydro Electric Project
On 4.04.2007.06.09.07, 13.11.07 and 28. 11.07 first three RTI had filed before the MoEF
and third RTI filed before the MoEF. The questions were different : the MOEF related
RTIs were filed to collect environment clearance letters, forest clearance and monitoring
reports and the RTI filed before the North Eastern Electric Power Corporation was
regarding correspondences between NEEPCO and MoEF and asked for whether fresh
environment and forest clearance has been sought for by NEEPCO?. For all four RTI,
PIO had responded and asked to deposit fee for photocopy of information. A field visit to
the project site revealed that all critical parameters of the project had been altered.

An RTI was filed by Kanchi Kohli dated 8.02.06 on Pala Maneri Hydro Electric Project
to collect information on all correspondences related to Forest and environment
clearance. But PIO had provided only environment clearance and forest clearance letter
and requested correspondences were not provided. Against incomplete information
applicant had filed first appeal but has not received any response from AA.

All collected information on HEP through RTI has been used to assist court cases against
dam projects and use for campaigns at local and national level.

 An RTI filed on 23.0.2.2006 regarding mining in Kataldi village, Uttarakhand.

The application dealt with the following subject matter. “Has the MoEF received
any communication/application with regard to mining in and around the Kataldi
Village, Tehri Garhwal, Uttaranchal?”

No response was received within 30 days. There was also no response to the first appeal.
Finally a second appeal was filed before the CIC on 5.06.06. Before the CIC hearing the
applicant received a phone call from a secretarial help in the MoEF requesting the
applicant to withdraw the appeal as the onus of the lack of response and the letter being
misplaced from the dispatch was coming on him. Prior to that the applicant was sent a
response on the same on 27.03.06 The CIC issued a strong order on 22.03.07:
“ We have examined the record and heard the respondents. It is unacceptable that a letter
sent on 16.3.06 even when this is sent by ordinary post had not reached its address by
22.01.07. I was shown the file in which the dispatch of the letter is referred to. However,
taken together with the fact that even the first appeal is not traceable in the records of
Ministry, This is very dismal comment on the functioning of the public authority. While,
therefore, we hold the information sought in the original application now stands
supplied, before we can take any further decision with regard to any liability for penalty
for deemed refusal or delay in supply of information, The assistant Registrar, Central
Information commission will inspect the dispatch register of Ministry of Environment and
forest so that we may be satisfied that the letter stated to have been sent was actually sent
on date claimed. For this purpose the dispatch register will be submitted to us on
23.03.07 at 10.30 a.m. for inspection and return.

2.4 RTIs with MoEF regional offices on compliance of environment clearance

conditions

An RTI filed by Divya Badami on 24.01.07 regarding projects granted environment

clearance in 2003. This RTI application had filed before the MoEF. Reference to RTI
application joint secretary intimated through a letter on 23.02.07 that matter is closely
related to regional offices of MoEF and suggested to contact Public Information officer of
the concerned regional offices for seeking information about any specified compliance
report/ monitoring report for a particular project. As per the suggestion of the joint
secretary, applicant requested to North, South, East, West, Central and North East Zone to
send requested information. Responses from regional offices are indicating that PIOs
from regional offices were confused about the information sought for. Western region
PIO was so confused that he had taken eight months to understand the matter despite the
applicant’s constant intimation by letters dated 14.03.07,17.04.07, 4.07.07 about actual
information sought for by applicant. In one letter dated 15.05.07 PIO had mentioned that
information sought regarding ECs and monitoring reports are not available in digital form
in their office. Hence it would disproportionately divert the resource of public authority
of the RTI Act 2005. Therefore, requested to specify the projects. This type of response
from PIO was surprising that public authority was perusing matter wrongly and
mentioning RTI act to justify their responses. This type of instances during the
implementation of RTI Act raises serious issues about whether PIOs are confused,
incapable or this is a bureaucratic approach to control information.

3. EIA AND RTI: CATALOGUING THE ISSUES

The above set of RTI responses can be summarized into a key set of issues and problems
that have been faced. Many of these experiences cannot be isolated with a particular
issue, but could reflect multiple problems within one instance. This implies that a vague
and incomplete response could also be misleading and also be deemed denial of
information. To highlight a few:

1. Complete Lack of Response: There have been instances where there has been
absolutely no response from the PIO or the Appellate Authority. Examples of
applications related to the EIA reengineering, Kataldi mining are examples that
have been stated above. These cases have then gone to the CIC and favourable
orders have been issued there. However, there has been delay of eight months for
EIA reengineering case and twelve months for Kataldi Mining case in getting the
relevant information.
2. Vague and Incomplete response: There have been instances when the authority
has not had the intention of providing information; there are vague and
incomplete responses which delay the process unnecessarily. Instead of providing
subjective information they would provide those one that were not asked by
applicant E.g. In response to one of the RTI application related to Monnet Ispat
discussed in the previous section, authorities provided FORM-I which is totally
out of context of subject matter of application which asked for questionnaires and
note sheets related to the project. The other instance is the RTI related to the
number of projects which have been rejected clearance
3. Deemed Denial of information: When the MoEF has used responses like
disproportionately divert the time and energy of the of the public authority, for a
straightforward RTI which seeks information on the number of projects for which
environment clearance is rejected; then it clearly amounts to deemed denial of
information. A more relevant example of this are the RTIs related to the
amendment to the EIA notification; or the correspondence between MoEF and
PMO on the EIA notification. Yet another example was when an RTI was filed
seeking information on the compliance and monitoring reports related to the
environment clearance conditions of the Kaiga nuclear power project in
Karnataka, the response indicated that the information cannot be provided as it
goes against public interest.
4. Faulty/Misleading information: Very often responses from the PIO and the
Appellate Authority have given faulty and misleading information. For instance,
the response to the RTI on the receipt and action on the 8 Open letters. While
there was evidence from MoEF’s responses to the Parliamentary questions that
they have received the Open Letter related to the expert committees that
recommend environment clearances, the response to the RTI application denied
the receipt the particular letter. Similarly, in Monnet Ispat related RTI, AA had
admitted that note sheet related to Monnet Ispat project is lost or misplaced.
5. Time period taken for responses: As is evident that most of the cases that go up
to the AA or the CIC lead to massive delays in the information that is required. In
some instances it is critical to receive information at a particular point of time,
e.g. amendments proposed to a particular law or project specific information like
in the case of Monnet Ispat which can point to important facts if the environment
 clearance of the project needs to be challenged. Such information is otherwise not
available in the public domain. The Western regional office unnecessarily returned
the application without understanding the contents of the application and PIO take
9 months to understand the matter of RTI application.
6. Lack of clarity: There is a lack of clarity on several aspects of the RTI law itself.
The first is to where and in whose name to send the Demand Draft. For instance,
in the case of the information from the Regional Offices of the MoEF in six
different parts of the country, there is no uniform system. Demand Drafts have
been sent in the name of Account Officer, Ministry of Environment and Forest to
get information from four regional offices while eastern regional office asked to
pay fee in favour of the Deputy Conservator of forest payable at Bhubaneshwar. .
Further each regional office adopts a different process. while seeking compliance
and monitoring reports of all projects granted clearance in 2003, some regional
offices like Northern RO provided information almost immediately. The Western
region office sought third party clearances from the project proponents to provide
the compliance reports that they submitted, when there was no requirement for the
same. Information related to the compliance of environment clearance conditions
needs to be within public scrutiny.
7. Data being misplaced/lost: One of the most disturbing aspects of the responses
has been MoEF’s admission that note sheets and files within the MoEF have been
misplaced or lost and therefore the data cannot be provided.
8. Bulky information, electronic option: There is a need to ensure that
information is stored the in cheapest a most convenient medium to the applicant.
E.g. compliance reports sought from all regional office are all typed on the
computer and could been given in electronic form. Soon after the RTIs were filed
seeking monitoring and compliance reports the MoEF started a process of
uploading it on their website. But the applicant had to pay huge amounts to get
access to photocopies, despite the RTI application requesting that the information
be provided electronically.

4. OUTCOMES AND CONCLUSION

Groups like Kalpavriksh have been working on EIA related issues even before the 1994
notification. Seeking information and documents related to the process was very tedious
and also blocked in many ways. RTI Act has sure opened doors, but the varied
experiences show that the complete transparency and speedy information is still very far
from reality. More importantly, the process of suo moto disclosure is what that needs to
be put into motion.

It is now more than three yeas since the RTI Act has been in place, and has tremendously
changed the manner in which citizens can ask for information. Even as an appellant, one
is no longer pleading for information but asking for it as a due right; which itself is a
substantial change in the politics of access to information. For instance, the filing of a
first of second appeal sometimes ensures that the information is provided to the applicant
by the concerned PIO, without a hearing on the appeal or an order being passed on the
same.
Another important issue that availability of the RTI Act in the environment clearance and
decision making regime allowed is to ensure that there is constant vigil on the actions and
decisions being taken within the relevant ministries and departments. It is hoped that
sooner than later this pressure will render itself to greater transparency and participation
in decision making, with internal actions being under constant scrutiny.

The CIC has surely passed some critical orders. But the question is whether the relevant
ministry is drawing lessons from such orders. However, very often CIC is also under the
pressure of the quantum of cases or has not understood the issue in hand completely and
therefore there is either delay in a hearing or an unfavourable order.

The vision of Right to Information Act is very strong and holistic. It works towards
availability of real time information to the public so that relevant action and/or redressal
can take place immediately. However, even public authorities need to feel the importance
and relevance of the same, for the use and implementation of the Act can be ensured in
the spirit with which it was enacted.
Anexxure-1
List of RTIs Filed
S.No. Subject List of RTI under each Subject Level ( RTI
application was
taken
1 EMCB Project 1. Regarding the Environment PIO
Management Capacity Building Project.
2 EIA/CRZ clearance 1. EIA and CRZ Clearance for SEZs PIO
Data
2. EIA and CRZ clearance documents for
SEZs First Appeal
3 EIA Implementation 1. Implementation of EIA Notification First Appeal
August 07 Onwards 2006 at MoEF and State Levels. Time
Period: Sep.2006 to August 2008

2. All the information regarding the EIA Second Appeal

notification 2006: Time Period:
Nov.2007 to April 2008

3. Information Regarding rules stipulated Second Appeal

in EIA notification 1994 and 2006 for
Chromate based Industry. Time Period:
1994-2008

4. Correspondence and decisions related to PIO

EIA notification. Time Period: Sept
2006 – Feb 2007

5. Amendments Proposed to the EIA Second Appeal

 notification. Time Period: Jan2006 – Jan
2008

6. Implementation of EIA Notification PIO

2006 at MOEF and State levels. Time
Period: 14th September 2006 – 13th
November 2007.

7. Authorization/Rules/Guidelines to be PIO
followed where a Public Hearing is
postponed, and EIA consultant
acknowledges his faults in the report.
Time Period: 2006-2007.
4 EC Granted/ 1. Information regarding number of PIO
Rejected Projects Granted environment
Clearance in various zones of the
country.

2. Project granted Environment PIO

Clearance between 2001-2006.

3. Environmental Clearance of
Projects. Time Period: 1986-2006. PIO

4. Year and sector wise list of project First Appeal

that have been rejected EC under
EIA notification

5. EIA 1994 1. Temporary working Permits PIO

Implementation
6 Koodankulam 1. Koodankulam Nuclear Power Project. First Appeal
Time Period: 2007
7 Kataldi 1. Mining in Kataldi village, Tehri Second Appeal
Garhwal, Uttaranchal/Uttarakhand.
8 Monnet Ispat 1. Information regarding Monnet Ispat and Second Appeal
engineering Ltd. for integrated stell
Project at Raigarh. Time Period: 2006-
2008.
2. Information regarding Monnet Ispat and
engineering Ltd. For integrated Steel PIO
project at Raigarh. Time Period: 2006-
2008.
3. Clearance of Monnet Ispat and
engineering Ltd. for Integrated Steel
plant project at Naharpali, Tehsil PIO
Kharsia, Raigarh.
9 MOEF Monitoring 1. Monitoring of Projects done by the PIO
Protocol (Central Regional offices, MOEF. Time Period:
and Regional 2004-2008*
Offices) 2. Issuance of show cause notices by ROs PIO
in case of violation of condition
observed.
3. Details of Non Compliance of PIO
conditions for environment clearance
under EIA notification, by project
authorities. Time Period: 1994-2007.
*Five RTIs had filed on same
subject for S,W,E,N,C region

10 Mangalore SEZ 1. Information regarding application form PIO

and DPR of the MSEZ as the Executive
summary of the EIA report.
11 NEAA –National 1. Process of appointment and First Appeal
Environment qualifications of the current members of
Appellate Authority the National Environment Appellate
Authority (NEAA)
12 Nuclear Project/ EC 1. Documentation related to Kaiga Atomic PIO
Clearance Power Station Karnataka. Time
Period:1992-2007
2. Environmental Clearance for Power PIO
Projects.
13 National 1. Information regarding the cabinet PIO
Environment decision taken in 2003 for winding up
Tribunal Bill and the authorities setup using section
3(3) of the e environmental Protection
Act, 1986.Time Period: 2003-04
2. Action of Ministry of Environment and
Forest (MOEF) in Pursuance of the 186th
Report of the Law Commission for PIO
setting up environmental courts. Time
Period: 2003-07

14 QCI ACCR of EIA 1. Accreditation of EIA consultants. Time PIO

Consultants Period: 2006-07
15 Responses to Open 1. Open Letters from Second Appeal
Letters individuals/groups/organizations
received by the MOEF
16 EIA Reengineering 1. Meeting on Draft EIA Notification 2005 PIO
2005 - 06 and the EIA notification 2006. Time
Period: 2004-06
2. Regarding preparation of Draft EIA
Notification and consultations to seek First Appeal
 public comment
3. Regarding process and document on the
subject of reengineering the
environment clearance process. First Appeal
17 Regional Offices for 1. Projects granted environmental PIO
2003 environment clearance in 2003. Time Period: 2003-07
clearance data
18 TERI 1. MOEF projects/ consultancies with PIO
TERI. Time Period: 1997-2007
19 POSCO 1. Status of environment and forest PIO
clearance MTPA and Port of POSCO
Time Period: 2006-2007
20 Chemplast 1. Chemplast Greenfield PVC project at Second Appeal
Cuddalore
21 Athirappily HEP, 1. Information on forest clearance & PIO
Kerala compensatory afforestation for proposed
Athirappilly HEP in Kerala
22 Pala Maneri HEP, 1. Pala Maneri Hydro Electric Project, PIO
Uttarakhand Uttaranchal
PIO
2. All the documents, Correspondences,
minutes of expert committee meeting
related to EC OF The Pala Maneri HEP
Constructed by UJVN

23 Lower Subansari 1. Information regarding the NBWL and PIO

HEP, Subansari Project HEP
Arunachal Pradesh
24 Parbati_-II HEP, 1. Correspondence related to environment PIO
Himachal Pradesh Clearance and monitoring reports
25 Tipaimukh HEP, 1. All correspondences related to PIO
Sikkim Tipaimukh HEP
26 Teesta III and IV 1. Monitoring and Compliance Reports of PIO
HEP, Teesta lower dam III and IV
West Bengal
27 Kameng HEP, 1. Location of Bichom dam, Tenga dam First Appeal
Arunachal and Kimi power, official communication
Pradesh between NEEPCO and MoEF, fresh
sought of environment and forest
clearance by NEEPCO
2. Compliance and Monitoring Reports PIO
3. Environment Clearance, Monitoring and PIO
Compliance reports
4. Environment and Forest Clearance, PIO
Monitoring and Compliance Reports