Proposed Legal Framework for Climate Induced Disaster like the Wayanad Landslide
– Sairam Bhat* & Gayathri Gireesh**
In the wake of recent landslides in Wayanad, the authors argue that the declaration of certain parts of the Western Ghats as Ecological Sensitive Areas under the Environmental Protection Act, 1986, will be a futile exercise and highly unlikely to be effective in disaster management. The need of the hour is to strengthen the legal framework under the Disaster Management Act, 2005 to enhance preparedness, prevention, mitigation and management, especially in cases of climate-induced disasters.
INTRODUCTION
In response to the landslides in Wayanad Kerala, a region within the Western Ghats, the Central Government issued a draft notification on 3rd August 2024, intending to declare over 56,800 square kilometres of the Western Ghats across six states – Maharashtra, Tamil Nadu, Goa, Kerala, Karnataka, and Gujarat – as “Ecologically Sensitive Area” (ESA).[1] This notification is the latest in a series of efforts to conserve the ecologically significant areas of Western Ghats. The first draft notification was issued in March 2014, based on the recommendation of the High-Level Working Group (HLWG) formed by the Centre in 2012. In 2022, the Centre established another panel to review the recommendations from the six concerned States and to consider balancing the need of conservation and developmental aspirations of the region. The draft based on the recommendation of this panel was issued on July 6, 2022, however, it eventually lapsed due to lack of a consensus between the Centre and States specifically regarding the extent of ESA. Despite numerous revisions, previous drafts have failed to entered statute books due to persistent objections from the affected states of Gujarat, Maharashtra, Goa, Karnataka, Kerala, and Tamil Nadu. Each State has expressed objections about the classification of specific areas as ESAs, with Kerala being particularly concerned about the potential impacts of the draft law on its agricultural plantations, hydroelectric projects, and potential migration issues due to the high population density.
The efforts for the protection of the Western Ghats have been guided by two prominent commissions. The most notable is the Western Ghats Ecology Expert Panel (WGEEP), popularly known as the Madhav Gadgil Commission. The Commission was constituted in March 2010 and submitted its report in August 2011. Considering the relevancy of Western Ghats in ecology and weather patterns in India, the report had recommended stringent measures for the conservation of the Western Ghats. The most emphatic recommendation of this report was declaring 64% of the Western Ghats as ‘eco-sensitive areas’. However, in response, the developmental enthusiasts argued that a balance between development needs and ecological preservation should be considered. This led to the formation of a High-Level Working Group (HLWG) under the Chairmanship of Dr. K Kasturirangan (popularly known as Kasturirangan Committee) with the task of examining and reviewing the Gadgil Report and suggesting a holistic approach for sustainable and equitable development and the need for ecological conservation in the Western Ghats.[2] The most significant recommendation of the Kasturirangan Committee was the reduction in the eco-sensitive area to 37% of the Western Ghats.
The present proposed draft notification by the MOEF is sixth iteration of the law within a decade.[3] The latest draft notification is open for public comments for a period of 60 days. Some of the significant and critical highlights of the draft notification 2024; include a complete ban on Mining, quarrying, and sand mining and the existing mines have to phased out within 5 years[4] or on the expiry of the mining lease, whichever is earlier. Further, the draft notification also prohibits the construction and expansion of thermal power plants and “Red Category” Industries. The draft notification also prohibits the construction and expansion of buildings with a built up area of 20,000 sq. meters and above. Furthermore, construction and expansion of large scale township and area development projects (50 hectares and above or built up area of 1,50,000 square meters and above) are also prohibited. However, the existing residential houses in the ESAs can be repaired, renovated and even extended provided they comply with prevailing laws and regulations.
THE ECOLOGICAL IMPORTANCE OF WESTERN GHATS
The Western Ghats, designated as a UNESCO World Heritage Site[5] is one of the world’s eight “hottest hotspots” of biological diversity. It stretches around 1,600 km (990 mi) along the western coast of the Indian peninsula and has a coverage of 160,000 km² (62,000 sqm) across six states – Gujarat, Maharashtra, Goa, Karnataka, Kerala, and Tamil Nadu. The Western Ghats play a crucial role as the rain catchment area for complex river systems of the region.[6] With an average elevation of around 1,200 metres (3,900 ft), this mountain range influences the Indian monsoon by blocking rain-laden winds from the southwest, which generates substantial rainfall on the western slopes accounting for around 40% of the total rainfall in India, and thereby contributing to the region’s unique climatic conditions.
A defining characteristic of the Western Ghats is the phenomenal level of biological diversity and endemism.[7] According to UNESCO World Heritage,[8] “Western Ghats reflect the Outstanding Universal Value of the property and capture the range of biological diversity and species endemism in this vast landscape.” At least 325 globally threatened species (IUCN Red Data List)[9] are found in the Western Ghats.[10] The forests of the Western Ghats feature among the few non-equatorial tropical evergreen forests of the world. This mountain range also plays a pivotal role in climate regulation and, most notably, in carbon sequestration. The highly dense forests of the Western Ghats act as major carbon sinks that aids in mitigating climate change by absorbing large amounts of Cardon Dioxide (CO2). The rich forest cover also helps in preventing soil erosion, thereby reducing the risk of landslides in the landslide-prone area and maintaining soil fertility. Additionally, the wetlands found in the Western Ghats region contributes significantly in temperature and humidity level regulation. Moreover, the cumulative forests in the region act as natural buffers against floods by absorbing excess rainfall and regulating water flow.
The ecological capital of western ghats is made of different components of its diverse biogeographical blueprint, and therefore, any conservation strategy has to represent and reflect both the regional biodiversity and the needs of local inhabitants. Due to the high degree of endemism, declaration of Western Ghats as one large protected area will not produce desirable results. The significant variation in species composition and presence across the 1,600 km long mountain range makes it a highly intricate and intertwined ecosystem system and contributes towards the natural climatic conditions, and hence necessitates a nuanced approach towards conservation.
LEGAL FRAMEWORK FOR WESTERN GHATS
The Western Ghats are India’s second most landslide-prone region after the Himalayas. Initially, the lack of ESA designation allowed for extensive deforestation and unregulated construction, leading to soil instability and environmental mismanagement. Landslides constitute a “major natural hazard in our country, which accounts for considerable loss of life and damage to communication routes, human settlements, agricultural fields and forest lands”.[11] Notably in India, Landslides mainly affect the Himalayan region and the Western Ghats of India.
The Western Ghats are home to numerous protected areas,[12] such as tiger reserves, national parks,[13] wildlife sanctuaries, and reserved forests, all of which are administered by the State Governments but are also subject to various central legislations such as the Wildlife (Protection) Act,1972, the Indian Forest Act, 1927, and the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980[14] [hereinafter VSESA, 1980]. VSESA provides the regulatory framework to protect the diversion of forest land for non-forest activities such as infrastructure development. Western Ghats Natural Heritage Management Committee (WGNHMC), under the auspices of the Ministry of Environment of Forests (MoEFCC), Government of India, was set up to deal with coordination and integration of the ecology. The local communities and their livelihood aspects are regulated by the Forest Rights Act, 2006, and their participation in governance is determined through Village Ecodevelopment Committees (VECs).
Furthermore, the Environment (Protection) Act, 1986 allows the Central Government[15] to restrict many human-induced activities to keep ecological integrity intact. Using the powers under the EPA, the Central Government has regulated the “Eco-Sensitive Zones”, even though term is not explicitly mentioned in the Act. “The Ecologically Sensitive Areas are regions recognized for their environmental significance, where human activities are regulated to protect biodiversity, ecosystems, and natural habitats”.[16] ESAs are regions within 10 kilometres of Protected Areas, National Parks and Wildlife Sanctuaries.[17] They can extend beyond 10 km if the area is ecologically important and acts as a transition zone from fragile to non-fragile areas. There are also provision to regulate activities to reduce the human impact in these zones. Hence, ESZ are important to restrict human activities and to regulate development. However, can these prevent and respond the disaster or even manage them, especially with local, and State political establishment opposing the over centralisation of environmental law? Also, the real question is whether the MOEF has the administrative machinery to deal with climate induced disasters, especially taking human life and property into consideration? Further, by merely reserving and declaration ESA, would further landslides be prevented? While protection of ESA land is the first most important step, this itself would ensure climate protection as a human right.
THE NEED IS NOT ESA
By issuing the draft ESA notification, the Central government may have intended to strengthen forest governance in good faith. However, given severity of the ecological challenges, and the urgent need to restore the ecology of the terrain the focus of the legal response should shift towards a more effective mitigation and resilience strategy. The reliance on the forest legislation to bring about conservation in the Western Ghats is a monotonous strategy that may not address the underlying issues.
Firstly, designations of areas as ESA, while valuable for regulating certain activities, is unlikely to prevent landslides, nor will it effectively safeguard life and property if any extreme weather events occurs. Moreover, the ESA declaration will also not equip the MOEF&CC or even the Forest Department Officials, with either the financial or human resources to effectively prevent, prepare, and respond to disaster through a disaster management plan. In contrast, the Authorities established under the Disaster Management Act, 2005, at both the Central and State levels, already have a better management framework for responding to such challenges. The Disaster Management Authority (DMA) has reinvigorated its planning from being a mere response machinery to a proactive institution. The mandate of DMA is “To build a safe and disaster resilient India by developing a holistic, proactive, multi-disaster oriented and technology driven strategy through a culture of prevention, mitigation, preparedness and response”.[18] Hence, with their robust and resilient mitigation methods, these authorities are likely to prove more effective from an ecological perspective than simply declaring the Western Ghats as ESA.
Secondly, it is imperative to clearly demarcate the ecological areas as forests, national parks, or sanctuaries to regulate human activity and keep it to a minimal extent. This will bring out the much needed clarity in the jurisdiction of the authorities to effectively implement their respective legislations. At the same time, one must also appreciate that landslides can occur even in forest areas and impact lives and property downstream, which are under the jurisdiction of revenue administration. Hence, the need of the hour is to rope in the civil administration to take a more active role in responding to and be prepared for climate change induced disasters. An alternative and wiser strategic course of action would be to make the civil administration the primary disaster response force, whereas the Forest administration focuses on in conservation and protection efforts.
Thirdly, there has been a paradigm shift in the functioning of the DMA from being a “relief-centric response to a proactive prevention, mitigation and preparedness-driven approach for conserving developmental gains and to minimise loss of life, livelihood and property”.[19] The Disaster Management Act mandates the State Governments, inter alia, to undertake measures for preparation of Disaster Management Plans, integration of measures for prevention of disasters or mitigation into development plans, allocation of funds, establishment of early warning systems, and to assist the Central Government and other agencies in various aspects of Disaster Management.[20] Thus, these institutions are bound and unified by a coherent legal and institutional framework. Such an integrated management system is highly required for the management of the Western Ghats, due to their high ecological imminence in influencing the Indian weather and climate patterns, and also to achive a balance conservation and development especially with different States across the Western Ghats having different priorities.
Thus, the Disaster Management Act, 2005 can serve as the machinery having the integrated system for effectively addressing environmental and safety concerns. Furthermore, it is also vital to underscore that mitigation strategies also require an early warning system for rain forecasts in landslide-prone areas.[21] The existing machinery under the DMA can effectively handle the sustainable practices as part of their Disaster Risk Reduction (DRR).[22] The DDR could also include coordination with the Ministry of Tribal Affairs to relocate and prepare Tribal communities in disaster-prone areas. Thus, making the DMA a preferred institution to gather better information and financial support, and to ensure effective involvement and coordination among agencies. Lastly, the DMA in collaboration with the local governments of respective States can effectively promote reforestation and sustainable agriculture, which is crucial for maintaining hillside stability and reducing soil erosion.
CONCLUSION
Thus, a wise legal response by the executive to effectively address the issue of recurring landslides in Western Ghats would be the effective utilisation of the time-tested existing mechanism under the DMA, 2005, for the larger benefit of the entire Western Ghats region in terms of both development and ecological restoration. The adoption in 2015 of three landmark global agreements – the Sendai Framework for Disaster Risk Reduction [DRR], Sustainable Development Goals (SDGs) and COP21 Paris Agreement on Climate Change has opened a significant opportunity to build coherence across DRR, sustainable development and response to climate change. Hence, it is recommended that instead of the ESA notification, the Disaster Management Act should be amended to include a proactive, positive and affirmative role for the NDMA in effectively managing Disaster Vulnerable Areas, planning and preparing for climate-induced disasters, and relocating the population of such areas. The right to be protected against the adverse impact of climate change is now a human right. Such an approach also aligns with the true spirit of the Vikshit Bharat vision by ensuring proper proactive disaster management planning to save precious lives and prevent the loss of human lives in the face of extreme climatic events.
***
* Sairam Bhat, Professor of Law, National Law School of India University, Bengaluru.
** Gayathri Gireesh, Advocate, Bengaluru.
[1] PTI, Fresh Draft Notification Declares Over 56k Sq Km of Western Ghats Eco-sensitive, The Economic Times (Aug. 03, 2024), https://energy.economictimes.indiatimes.com/news/renewable/fresh-draft-notification-declares-over-56k-sq-km-area-of-western-ghats-eco-sensitive/112237788.
[2] Nalme Nachiyar, Explained | The Draft Notification of ESA in Western Ghats and Karnataka’s Stiff Resistance to it, The Hindu (July 27, 2022), https://www.thehindu.com/news/national/karnataka/explained-the-draft-notification-of-esa-in-western-ghats-and-karnatakas-stiff-resistance-to-it/article65685603.ece.
[3] PTI, supra note 1.
[4] Five years from the date of issue of the final notification.
[5] Government of India, Serial Nomination of The Western Ghats of India: Its Natural Heritage – For Inscription on the World Natural Heritage List (Nomination Report submitted to UNESCO by India, 2009), https://whc.unesco.org/uploads/nominations/1342rev.pdf.
[6] Sanjay Molur et al., The Status and Distribution of Freshwater Biodiversity in the Western Ghats, India (IUCN, 2011).
[7] Endemism can be defined as the condition of organisms or species which are native to a single defined geographic location such a mountain, lake, river, an island, country or other defined zone. Those condition is influenced by ecological process through the evolutionary biology (morphology, genetic, adaptation etc.) of the species.
[8] Western Ghats, UNESCO World Heritage Convention, https://whc.unesco.org/en/list/1342/ (last visited Aug 11, 2024).
[9] Id.
[10] The globally threatened flora and fauna in the Western Ghats are represented by 229 plant species, 31 mammal species, 15 bird species, 43 amphibian species, 5 reptile species and 1 fish species. Of the total 325 globally threatened species in the Western Ghats, 129 are classified as Vulnerable, 145 as Endangered and 51 as Critically Endangered.
[11] National Institute of Disaster Management, Country Profile: India, https://nidm.gov.in/easindia2014/err/pdf/country_profile/India.pdf (last visited Aug. 14, 2024).
[12] Major Protected Areas are Nilgiris Biosphere Reserve and Silent Valley National Park which is One of the last remaining untouched tropical evergreen forests in India.
[13] 13 National Parks.
[14] Previously known as the Forest (Conservation) Act, 1980.
[15] Eco-Sensitive Zone (ESG), Ministry of Environment, Forest and Climate Change, https://moef.gov.in/eco-sensitive-zone-esz (last visited Aug. 14, 2024).
[16] In Re: T.N. Godavarman Thirumulpad v. Union of India, (2024) INSC 178.
[17] In Re: T.N. Godavarman Thirumulpad v. Union of India, I.A. No. 131377 of 2022, in Writ Peition (Civil) No. 202 of 1995, Judgement dated Apr. 26, 2023 (SC).
[18] National Disaster Management Authority, Annual Report 2022-23, https://www.ndma.gov.in/sites/default/files/PDF/Reports/Annual_Report_NDMA_2022-2023.pdf.
[19] National Policy on Disaster Management, 2009.
[20] The Disaster Management Act, 2005.
[21] Landslide Hazard Warning Geological Survey of India (GSI), established in 1851 is a government organization under the Union Ministry of Mines with the Headquarter at New Delhi for conducting geological surveys and studies. The input from GSI as nodal agency help the Ministries and Departments concerned in the Central Government as well as the State Government for taking appropriate preventive and mitigation measures for reducing landslide hazard.
[22] National Disaster Management Authority, Annual Report 2022-23, https://www.ndma.gov.in/sites/default/files/PDF/Reports/Annual_Report_NDMA_2022-2023.pdf; See also National Policy on Disaster Management, 2009.
Features Images Sourced From: India Today, https://akm-img-a-in.tosshub.com/indiatoday/images/story/202408/wayanad-landslide-143044792-16x9_0.jpg