Right to Environment v. Development

The age old unending controversy between right to environment and development continues more or less in all countries. To be frank Bangladesh is not an exception to this contradiction rather right to development is valued here with heightened priority than that of environment which is treated as a mere secondary issue. The recent conflict as to compliance and non-compliance of environmental norms and standard with the proposed joint venture Rampal Power Plant project close to the Sundarbans, the world's largest mangrove forest has ignited high voltage conflict of interest between the stakeholders with developmentalist and environmentalist approaches. This article endeavours to look into the pros and cons of the proposed Rampal power plant along with its construction as boon or bane for the nation and entails the feasibility as well as construction obligations in compliance with domestic and international environmental law.
The UN Declaration on the Right to Development 1986 identifies the responsibilities and duties of states with regard to right to development. However, the striking balance between right to environment and development rephrased as sustainable development is a concept of the UN Brundtland Commission's report titled as 'Our Common Future' published in 1987. The report denotes sustainable development as a development that meets the needs of the present without compromising the ability of the future generations to meet their own needs. Later on, in 1992 the Earth Summit echoed the same term and subsequently some principles like intra- and inter-generational equity, common by differentiated state responsibility evolved for its materialization accompanied by domestic laws.
The preamble, fundamental principles of the state policies and fundamental rights of Bangladesh Constitution do not expressly mention neither any right to sustainable development nor any right to safe and healthy environment but a leading public interest environmental litigation group of the country in Dr. Mohiuddin Farooque vs. Bangladesh, (1997) 49 DLR (AD) 1 was able to convince the Apex Court to widen the concept of right to live extending protection and preservation of ecology and right to pollution free environment maintaining holistic and harmonious construction of the Constitution. The 15th Amendment has increased pro-environment attitude of the state adding article 18A which envisages that the state shall strive to protect and improve the environment and to preserve and safeguard the natural resources, bio-diversity, wetlands, forests and wild life for the existing and future citizens. Unfortunately the added part in the Constitution is not enforceable as per article 8(2).
The country is not lacking environmental legislation because at present there are about 200 laws directly or indirectly involved with environmental issues. Even there are special laws such as Bangladesh Environment Conservation Act 1995, Bangladesh Environment Conservation Rules 1997, and Environment Court Act 2000 for the conservation and protection of environment with supremacy clauses. Moreover, the country is a party to many international environmental documents such as The Ramsar Convention 1971, the Climate Change Convention 1992, the Bio-diversity Convention 1992 and the Kyoto Protocol 1999. Because of being party to the Ramsar Convention, it is obliged to take initiatives for the conservation and protection of the world's natural forests and wetlands. In 2011, the Ramsar Convention Secretariat expressed concern about the Rampal power plant proposal.
Pertinent to mention as per experts opinion that to produce 500 megawatt of electricity from a coal-fired power plant the waste produced is an astounding medley of 37 lac tonnes of carbon dioxide, 10,200 tonnes of nitrogen oxide, 220 tonnes hydro carbon, 720 tonnes carbon monoxide, 170 pound mercury, 225 pound arsenic, and 114 pound lead. So the amount of chemical waste this plant is going to generate can easily destroy the biodiversity and the ecology of the Sunderbans- the hub of mangrove forest and Bengal Tigers, two national heritage components we are so proud of. Undoubtedly, once implemented it will meet a large portion of the demand for electricity by the consumers but not without considering the balance of convenience and inconvenience we reckon. No cause can be greater than the very existence of the mangrove forest and Bengal Tigers, two national heritage components we are so proud of.
Under section 8(3) of the Right to Information Act 2009, green bodies have sought the EIA report which was approved by the DoE on August 5 and the DoE also issued Environment Clearance Certificate to construct the power plant after eight revisions in three years and imposing a number of conditions to protect the world heritage site and river Pashur which is a sweet-watered dolphin sanctuary. They also sought minutes of the meeting where it was decided that the environmental clearance certificate would be issued coupled with the documents showing why the DoE had earlier rejected seven EIA reports provided by PDB. Basically, EIA is an assessment of the possible positive or negative impacts that a proposed project may have on the environment, consisting of the environmental, social and economic aspects. It is alleged that the PDB started works on constructing the power plant even before getting the environmental clearance certificate and has completed over 70 percent of the land filling. After questionable approval of the EIA report the independence and impartiality of the DoE are questioned.
Bangladesh and India in 2009 signed a deal to set up two power plants and in 2010 it was finalized after Indo-Bangla joint communiqué. A total of 1,834 acres of land has already been acquired to set up the 1320 megawatt power plants with 50:50 shares and the project is expected to be inaugurated next month at Rampal in Bagerhat district near the Sundarbans.
The Indian state-owned national thermal power corporation (NTPC) is not allowed to set up any thermal power plant within 25 kilometres of any of India's forest reserves, wildlife sanctuaries, agricultural plots and others but Bangladesh government has allowed PDB to set up a coal-fired plant at Rampal in Bagerhat, just 12 to 15 kilometres off the ecologically critical area of the Sundarbans. Indian Supreme Court in M.C. Mehta vs. Union of India (Taj Mahal Case), AIR 1997 SC 734 delivered a historic Judgement in December 1996 to uphold the sanctity of the Taj Mahal from pollution. The apex Court also gave various directions including banning the use of coal and coke and directing the industries to switch over to Compressed Natural Gas (CNG).
The Sundarbans, the world's largest mangrove forest and UNESCO declared heritage site is a unique place of bio-diversity and safe home to a few extremely endangered species of Bengal Tigers and also a natural shield against natural disaster. If the coal-fired plant is set up so close to the forest then the ecosystem, ecology of flora and fauna of the forest, biodiversity and wildlife will eventually be perished. As a result, environmentalist groups including NGOs along with eminent citizens, academics and environment experts, have been urging the government to weigh the pros and cons of constructing the coal-fired power generation plant close to the Sundarbans and reconsider its decision for the sake of national interest.

The writer is a Senior Lecturer of Law at Southeast University, Dhaka.