Baghjan Blowout: A lawyer's account

The 2020 Assam gas and oil leak — also referred to as the 'Baghjan gas leak' — happened in Oil India Ltd's Baghjan oilfield in Tinsukia district, on May 27, 2020.
Baghjan Blowout: A lawyer's account

The 2020 Assam gas and oil leak — also referred to as the 'Baghjan gas leak' — happened in Oil India Ltd's Baghjan oilfield in Tinsukia district, on May 27, 2020. It was only on June 9, 2020 — after 14 days of leak – that the major blowout incident happened at well No. 5 leading to the deaths of two OIL employees and severe environmental damage in the nearby Dibru-Saikhowa National Park.

To secure public interest, my colleague Mrinmoy Khataniar along with Amar Jyoti Deka, preferred a Public Interest Litigation (PIL No. 35 of 2020) before the Gauhati High Court espousing the cause of the people of Assam and the severe damage which was caused to the fragile ecology of the areas under the Dibru-Saikhowa Biosphere Reserve.

Even more alarming was the proposal of the OIL India Ltd. to drill for seven new hydrocarbon projects, which was granted approval by the Ministry of Environment, Forest and Climate Change (MoEFCC) on May 11, 2020.

The important thing to understand is the legal nitty gritties involved in the matter. Under the 'Environment Protection Act-1986', a clearance process is required as prescribed in the 'Environmental Impact Assessment (EIA) Notification-2006' prior to any kind of exploration and excavation of oil in the vicinity of a reserved forest area.

Such assessment has four stages – Screening, Scoping, Public Consultation and Appraisal. Further, the EIA, 2006 categorizes projects into A and B.

While the 'Category A' projects are appraised by the Centre, the 'Category B' Projects are appraised by the State. On receiving initial application from a project proponent, an 'Expert Appraisal Committee' (EAC) issues the 'Terms of Reference' (ToR) to a project and on the basis of such ToR, the project proponent prepares a 'Draft EIA Report' and conducts public consultation on the purported project.

The purpose to conduct such a public consultation is only to obtain views of those who will be or are likely to be affected by such a project. The EIA report is finalized only after conducting the public hearing.

Further, the 'B projects' are classified into two categories: The 'Category B1 projects' which mandatorily require EIA; and the 'Category B2 projects' which do not require EIA.

Now, if we look into the principal issues involved, we must go back to June, 2016 when the OIL applied for ToR for extension drilling and testing of hydrocarbon at seven locations under the Dibru Saikhowa National Park area. The EAC discussed the application in its meeting held in July, 2016 and granted ToR on August 3, 2016. After acquiring ToR, it was claimed by the OIL that they had conducted public hearing in respect of the said project. However, it is important to note that the OIL had conducted public hearing in Tinsukia district as far back as in July and August 2011 for a different project.

It is more surprising to note that the EAC did not even bother to verify the projects and took out the requirement of public hearing from the proposed drilling project by amending the ToR in February, 2017. Thereafter in 2019, the Ministry of Environment, Forest and Climate Change raised objection to the EAC recommendation to grant environmental clearance to the OIL without public hearing.

However after several discussions, the EAC once again recommended the hydrocarbon projects for grant of clearance without public hearing. While all along, the MoEFCC had objected to the public hearing exemption, strangely and very surprisingly it was the MoEFCC itself who made an amendment to the EIA-2006 on January 16, 2020 and thereby converted all oil and gas exploration, development and production projects from 'Category A' to 'Category B2' projects. The motive behind the amendment can only be assumed to take out the mandatory public hearing required by EIA-2006 and provide easy bypass to OIL for the proposed projects. Such an act of the Ministry has not only curtailed the rights of people to participate in public hearing but also has vigorously violated the basic principles of democracy. Thereafter, the last requirement for the OIL to start its hydrocarbon projects was to acquire environmental clearance from the MoEFCC; and the Ministry without much delay granted environmental clearance to the OIL on May 11, 2020 by a virtual meeting held when the whole country was under lockdown due to the ongoing pandemic.

The MoEFCC has given the environment clearance as per the amendment made to EIA- 2006 and provided a clear path to the OIL to carry out further drilling operations at the expense of the protected biosphere reserve and the people at large. Such clearance itself is illegal and impermissible in law.

The probability and possibility of favouring the OIL at the cost of flora and fauna and citizens of Assam and necessary future destruction cannot be ignored because of such illegal action of the Ministry allowing the OIL to carry out its drilling operations in the ecologically fragile areas. Considering such prevailing circumstances and illegalities committed by the Government authorities, the petitioners have challenged the notification of MoEFCC dated January 16, 2020 by which the Ministry, by amending the EIA notification of 2006, categorized all off-shore and onshore oil and gas exploration as 'B2 Project' where public hearing is not a mandatory requirement. Further, challenge was made against the validity of the environmental clearance/approval dated May 11, 2020 to M/S OIL India Ltd. for extension drilling and testing of Hydrocarbon at seven locations under the National Park area. The PIL was moved by Advocate Debajit Kumar Das which came up for consideration on August 17, 2020 and the High Court directed the OIL and the Forest Department to file their respective affidavits by September 21, 2020 and listed the matter for further consideration on September 30, 2020. After witnessing the large illegalities committed by the Ministry and the irreparable loss and damage caused to the biodiversity of the State now the hopes and aspirations of the people of Assam vests in the Court for adjudicating upon the matter.

(The author is Advocate, Gauhati High Court)

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