Biodiversity | Development | Forest Conservation | Mega Infrastructure
THE DENSE FOREST OF NIJGADH, the proposed site for a massive international airport which is envisaged as an airline hub, is at the center of the environment-development equation debate in Nepal. While environmentalists argue that the chopping of 2.4 million trees constitutes an environmental disaster with serious repercussions, developmentalists advocate in favour of the project highlighting the economic benefits that come with the new airport. All things considered, an international airport at the dense forest of Nijgadh is an environmental disaster.
Moreover, such reckless projects were why international and domestic laws on biodiversity protection were enacted in the first place. Though the proposed Nijgadh airport relates to numerous domestic and international laws on environment protection, in this opinion, I discuss how Nijgadh’s rich and protected biodiversity is overlooked by a flawed EIA and a politically biased process, and Nepal’s legal framework for biodiversity preservation.
A ritualistic EIA
The central idea of Environment Impact Assessment (EIA) is to ensure that decisions that might cause adverse impacts on the environment are taken after a careful and comprehensive evaluation. A careful examination of Nijgadh project’s EIA however shows that it itself is deeply flawed, and the whole process was perfunctory and biased. Evidence shows the EIA is clearly conducted in favor of the airport rather than to provide a real picture of the project’s environmental impacts.
The EIA for such a massive project proposed at a place of a dense forest was approved within two months after submission, which experts say usually takes at least six months.
Nijgadh is a home to protected sati sal trees (some of which are nearly 400 years old), around 500 species of birds, 37 mammals, 13 reptiles/amphibians and 8 species of fishes
Before the approval, a High-Level Moderation Committee meeting on 3rd May 2018 chaired by the Minister of Culture, Tourism and Civil Aviation Rabindra Adhikari ‘decided’ that the Ministry of Forest and Environment (MoFE) would approve the proposed EIA report within a week, which is actually is a prerogative of the MoFE. The EIA was approved 20 days later.
Earlier, the government initiated land acquisition activities during 2016 and signed a Memorandum of Understanding with Nepal Army on 4 September 2017 assigning them to build access and perimeter roads and clear trees. The arrangements were made long before the EIA work and project finance were finalised.
The EIA was then prepared by GEOCE Consultants, a local firm specializing in conducting EIAs for hydropower projects, which went as far as to identify a hydro-electricity power project as an alternative to Nijgadh. For instance, all EIAs need to provide a comparison with other available alternatives to the project that might require a less environmentally invasive approach. In Section 7.3 under comparison with other alternatives, the Nijgadh EIA talks about Nepal’s hydroelectricity potential and relocation of a powerhouse, suggesting that the EIA was copied from a template of a hydropower project. Additionally, the EIA mentions about the animals that are not found in the forest of Nijgadh such as the Himalayan Goral.
While conducting an EIA is an international legal obligation, the content details of the EIA are left to the domestic laws. In Nepal, the EIA is mandated under the Environment Protection Rule 2077, which requires the study to include ‘alternative analysis’—an analysis of an alternate site. This key element in any EIA should answer whether the proposed project site is the best option when environmental impacts are accounted for.
It is important to note here that the Directive for the use of Forest 2006 requires the government to explore ‘no forest option’. Without any exploration of ‘no forest option’, the EIA provides no valid grounds to assert that Nijgadh is the best location considering that nearby locations — Simara and Murtiya — require much less deforestation while providing a similar landscape.
As a matter of fact, the EIA itself repeatedly acknowledges the Nijgadh area’s richness in biodiversity and environmental sensitivity, which is also recognized by the International Union for Conservation of Nature (IUCN) in 1994.
This raises a key question—why the very dense forest of Nijgadh?
It is apparent regardless of the environmental-development balance an EIA is meant to serve the Nijgadh EIA was politically influenced to serve one purpose—the clearing of the Nijgadh forest with no regard to the environmental cost.
It wouldn’t be wrong to say that the EIA was a farce, nothing more than a procedural formality that the government undertook to be in accordance with the legal requirements.
The protected biodiversity
Nijgadh is the last remaining patch of Charkose Jhadi in the Eastern Nepal, a home to protected sati sal trees (some of which are nearly 400 years old), around 500 species of birds, 37 mammals, 13 reptiles/amphibians and 8 species of fishes (ICIMOD, 2019). IUCN listed this area as an ‘environmentally sensitive zone’ in 1994.
Among these species, 10 animals and birds are protected under IUCN red lists as well as Annex-I of National Park and Wildlife Conservation Act, 1973. Seven animals are under Annex-I of Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), meaning they are internationally considered endangered. Nijgadh is also home to 22 endangered plants, including sati sal trees.
The EIA has also acknowledged that the construction of the airport will have an immense impact on biodiversity and will lead to an ecological imbalance. The destruction of the forest is essentially a destruction of the habitats and ecosystem of countless flora and fauna. Because the destruction of habitat causes the species to decline in numbers, it is prohibited when it comes to the habitats of protected endangered flora and fauna.
The protected status of a number of flora and fauna found in the region, both internationally and domestically, attracts numerous legal obligations. To begin with, the preamble of the National Park and Wildlife Conservation Act clearly states that the purpose of the Act is to protect habitats of the wild animals as well as protect and promote areas of scenic natural beauty. Section 15(d) of the Act outlines that the role of the government is to protect the paths used by protected animals even outside national parks and conservation areas. This is particularly relevant to the Nijgadh case as the proposed site infringes upon a migratory route of elephants that they use to reach Koshi-Tappu.
Animals communicate with each other through sounds. The ability to hear sounds is important for babies to reunite with mothers and to search mates, among others. Bigger mammals like elephants depend on vibrations which they sense through their feet
The Act also prescribes a punishment of up to 10 years for those who commit acts to affect the natural composition or beauty of national parks and conservation areas. It is not that hard to see how the construction of an international airport adjoining the border of Parsa National Park affects the natural beauty and structure, which essentially includes the biodiversity within, of the national park.
Additionally, the Act also prescribes an imprisonment of 3 to 9 months and a fine of NRs 15,000 to 30,000 for injuring or killing birds protected under the Act and 6 to 9 months imprisonment and NRs 20,000 to 50,000 for injuring or killing the protected animals. Reading the Act in line with its purpose, the destruction of habitats of the protected animals living in Nijgadh, the infringement upon the migratory routes of elephants and the fact that Nijgadh is of scenic importance as the last patch of Charkose Jhadi in eastern Nepal makes the clearing of Nijgadh unlawful.
Apart from domestic obligations, Nepal also has international obligations to protect the endangered wildlife as part of international biodiversity protection efforts. Notably, as a party to the Convention on Biological Diversity (CBD) 1992, Nepal has an obligation of in-situ conservation of the protected wildlife which essentially calls for the protection of their habitat (Article 8 of the CBD). It is Nepal’s international obligation to ensure that any development projects avoid or cause minimal impacts on biodiversity. Nepal will be in violation of its commitments under CBD along with its domestic biodiversity protection laws if we proceed with the construction of Nijgadh airport at the very site proposed today.
Government's absurd afforestation plan
As a mitigation plan, the government has proposed to plant 25 trees for every chopped tree. This plan is absurd for a number of reasons. It clearly lacks the simplest understanding of what makes a forest. The Nijgadh forest is not merely a bunch of trees—it is a complex and co-dependent ecosystem. Animals and plants have an intricate and symbiotic relationship with their habitat, which cannot be recreated. The trees proposed to be cleared are protected sati sal trees which cannot be cultivated in nurseries. Previous efforts in doing so have failed. Due to the difficulty in regeneration, sati sal is today a protected species.
What’s more the government has not made clear what kind of trees will be planted and where. It is important to stress here that the cost of plantation, including land, at the scale proposed by the government is tremendous—almost NRs 14 billion (as mentioned in the EIA report). Around 8,000 hectare of forest will be cleared, requiring at least 38,294 hectares of empty land to plant the proposed 61.27 million trees, but there are no indications as to where such a vast land is available in Terai region.
Once such a massive number of trees are chopped, it will kill the thriving ecosystem, which cannot be regenerated by mere afforestation. Patch of new trees, which will take years to mature, might mimic a forest, but it will not recreate a natural ecosystem that of Nijgadh’s.
In 2020 the Supreme Court of India held that elephants have ‘the right to passage’, and thus ordered the demolition of a section of the wall that blocked their way. Justice Sharad Bobde eloquently said ‘the area is a fragile ecosystem where the will of men must give way to elephants’
Also, looking at other compensatory afforestation projects implemented by the government, they show that the afforestation proposal of the government is just lip service. The compensatory afforestation land under Annapurna Cable Car project is today covered with bamboo and other small shrubs. The one for Sinohydro-Sagarmatha Hydropower project is cultivated with maize cultivation while the land for a Nepal Electricity Authority project in Manahari, Makawanpur is covered with tall grasses with no trees in sight.
This lack of proper vision and understanding of ecosystems and habitat run against Nepal’s international obligations to protect biodiversity.
Loss of elephants’ migratory corridor and tiger habitat
The proposed airport site falls in the migratory route of elephants that have been using the same route for generations. The incidents at Kaziranga National Park where elephants banged their heads against a wall built in their route, collapsed and even died show that elephants are not going to change their routes. In that case, in 2020, the Supreme Court of India held that elephants have ‘the right to passage’, and thus ordered the demolition of a section of the wall that blocked their way. Justice Sharad Bobde eloquently said ‘the area is a fragile ecosystem where the will of men must give way to elephants’.
Nijgadh is a mirror of Kaziranga National Park in this regard. As an integral part of Parsa National Park and the migratory route of internationally endangered elephants, it is only feasible that we agree that our will of building an airport must give way to the elephants. This has been envisioned and protected under the National Park and Wildlife Conservation Act (Section 15(d)).
Habitat protection and efforts to protect biodiversity essentially need a proper understanding of in-depth composition of habitats where biodiversity fosters, something the EIA has clearly failed at. The proposed airport site is a part of TAL (Terai Arc Landscape) in which the Chitwan-Parsa-Valmiki corridor is important not only for elephants, but also for tigers. Nijgadh airport will create habitat fragmentation, disrupting the migration of animals that depend on routes within the TAL.
TAL is critical for tigers. The grasslands in the TAL are their major habitats. Only 9 out of 235 tigers were found outside TAL in 2018. Thus, Nijgadh as a part of TAL can essentially be called the life support of tigers. Fragmenting the habitats of tigers will be nothing less than condemning them to death, which grossly runs against Nepal’s tiger conservation efforts.
Airport noise and animal health
Apart from the more direct impact of habitat destruction and fragmentation, obstruction of migratory routes and bird collision with aircraft, the indirect impact of the noise pollution on animals in Parsa National Park must also be seriously considered.
Animals communicate with each other through sounds. The ability to hear sounds is important for babies to reunite with mothers and to search mates, among others. Bigger mammals like elephants depend on vibrations which they sense through their feet.
Loud airplane sounds and vibrations will inevitably disrupt the communication of animals. Such disruption will affect mating, and thus the animal population. Loud noise will also cause animals to be continuously alert causing mental strain on them.
To mitigate this disturbance, the United States requires airplanes to fly at an altitude of 2,000 ft over national parks. As Nijgadh adjoins Parsa National Park, it is impossible to maintain this altitude.
Since Parsa National Park is known for its birds, birds-airplane collisions are also inevitable. Some may favor hiring professional shooters to solve this problem. But some of the birds in this region are legally protected (internationally as well as domestically) making their killings punishable by law (up to nine months imprisonment and NRs 30,000 fine for killing one).
A criminal law lens
As a lawyer, I cannot help but see the construction of a massive airport in Nijgadh as a crime, both under the Forest Act 2019, National Park and Wildlife Conservation Act 2029 as well as the Criminal Code 2017.
Section 49 (c) of the Forest Act criminalizes destruction of a national forest for which the perpetrator can be punished with up to five years of imprisonment and/or up to NRs 100,000 fine. Similarly, sub-section 4 of the Act criminalizes cutting of trees in national forest (which by definition under the Act includes community forest–something included within the proposed Nijgadh airport site) for which one can be punished with up to two years imprisonment. Here, we are talking about cutting down 2.4 million trees and wiping out an entire forest along with its ecosystem and habitat of protected flora and fauna.
Section 290 of the Criminal Code criminalizes cruelty against animals which calls for three months imprisonment. A loss of habitat causes chronic stress in animals. As the loss of habitat is deliberate and with knowledge of severe suffering of animals, it is only reasonable to expand the understanding of the term ‘cruel’ of Section 290 and thus this cruelty against animals is criminalized under the Criminal Code.
Now, the question here is, in a rule of law, are the laws passed by the legislature only applicable for citizens and/or common people like us? Or is it equally applicable to the government?
The Nijgadh airport is a disastrous dream to conceive of in a conscious mind. We cannot afford such an offense against the already depleting biodiversity. Out of the 20 targets set for 2020 under Aichi Biodiversity Targets (under CBD) in 2010, including the target to halve the loss of natural habitats, including forests, we failed to achieve even one of them, which is alarming. We are now eyeing similar targets for 2050. Achieving these targets depends on the choice we make—the habitats of other species or developmental projects regardless of the costs.
It is only sensible we take a step back and understand that once this disastrous project is realized, there is no going back. The forest will disappear. Its biodiversity will perish, and there will be consequences for us as well. The ethical question of Nijgadh again brings us at the cross-road of whether all development should essentially be ‘us against the rest’, and whether humans should be so inconsiderate that we give up on the survival of the rest of the species just to make our lives better.
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