India: Renewable Energy And Biodiversity – Legal Framework

With the increasing reliance on renewable sources of energy, India is leaving no stone unturned to fulfil the targets set forth by it in COP26. This rapid transition to renewable energy is causing an irreversible impact on biodiversity which merits adequate attention from relevant quarters. This article seeks to map the effect of growth in renewable energy infrastructure on biodiversity and the legal framework in this regard.

The need for renewable energy in India

At the start of the era of Independent India, India was a power deficit country; With constant efforts in the right direction, it has become a power surplus country with a total installed electricity capacity of over four lakh MW ¹. India is the world's third-largest energy-consuming country, owing to rising incomes and improving living standards. Energy use has doubled since 2000, with 80% of demand still being met by coal, oil, and solid biomass. It is predicted that by 2040 India will see the most significant increase in energy demand amongst all countries owing to the increasing population, urbanization, and rapid growth in industrialization.²

India relies heavily on coal to fulfil its electricity needs. The demand for coal nearly tripled between 2000 and 2019; today, it meets 44% of India's primary energy demand, up from 33% in 2000.³ The Intergovernmental Panel on Climate Change, which the World Meteorological Organization set up in collaboration with the United Nations Environment Programme to provide an objective source of scientific information related to climate change, released a comprehensive report on the role of humans in climate change and the report concluded that the "climate change is real and human activities, largely the release of polluting gases from burning fossil fuel (coal, oil, gas), is the main cause." ⁴ After the deliberations on climate change in the 26th session of the Conference of the Parties (COP26) to the United Nations Framework Convention on Climate Change (UNFCCC) held in Glasgow, United Kingdom, India laid down five principles towards its contribution to the cause –

1. Reach 500GW non-fossil energy capacity by 2030.
2. Meet 50 percent of its energy requirements from renewable energy by 2030.
3. Reduction of total projected carbon emissions by one billion tonnes from now to 2030.
4. Reduction of the economy's carbon intensity by 45 percent by 2030, over 2005 levels.
5. Achieving the target of net zero emissions by 2070.⁵

India's renewable energy targets and the corresponding policy and regulatory framework have established the country as one of the leaders in renewable energy. As of August 2022, installed renewable energy capacity (including large hydro) increased from a few megawatts (MW) in 2010 to almost 163 GW. The proactive shift to renewable energy has also led to a rejection of coal power capacity, with additions reaching an all-time low in FY 2021/22. In India, between 2010 and 2022, more than 606 GW of coal-fired power projects were abandoned or cancelled, and 15.6 GW were retired.⁶

Central Electricity Regulatory Commission Renewable Energy Tariff Regulations, 2020, issued under the Electricity Act 2003, defines 'Renewable energy' or 'RE' to mean the electricity generated from renewable energy sources; and 'Renewable energy source' to mean 'renewable source of energy such as water, wind, sunlight, biomass, bagasse, municipal solid waste, and other such sources as approved by the Ministry of New and Renewable Energy'; Today India stands as the world's third largest producer of renewable energy, 4th globally in Renewable Energy Installed Capacity (including Large Hydro), 4th in Wind Power capacity & 4th in Solar Power capacity (as per REN21 Renewables 2022 Global Status Report). Only 40% of India's installed electricity capacity is derived from non-fossil energy sources.⁷

Expansion of renewable energy generation and preservation of biodiversity – conundrum

India will need to take rapid steps to deploy infrastructure for renewable energy to fulfil its goals outlined in the 26th session of the COP26. While doing so, it is imperative to consider the environmental impact and impact on biodiversity. Usually, renewable energy projects are based on locations with the highest resource potential, i.e., the sun shines the brightest and the wind blows the hardest. Most often, these locations are also best suited for wildlife, and the infrastructure deployed for acquiring renewable energy is possibly done at the cost of wildlife. A study conducted by The Nature Conservancy (TNC) and the Centre for Study of Science, Technology, and Policy (CSTEP) found that unless careful planning is done, unhindered expansion of renewable energy generation could impact more than 11,900 square km of forest and 55,700 square km of agricultural land in India. If development proceeds in this fashion, potential risks could emerge, creating conflicts that delay projects and jeopardize investments.⁸ The research titled 'Renewable Energy to Responsible Energy: A Call to Action', undertaken by the Forum for the Future with six other organizations, discusses the environmental and social impacts of renewable energy development in India. Large-scale land acquisitions would be required to construct infrastructure for renewable energy; the land is likely to be sourced primarily from 'wastelands'. These wastelands include waterlogged areas and marshes imperative to groundwater recharge; grasslands and pasturelands upon which the lives and livelihoods of millions of livestock and pastoralists depend; as well as deserts, rocky outcrops, and plateaus that are rich in geological features and are also home to a unique set of fauna and flora. Solar parks need 7,000–20,000 litres of water per megawatt (MW) per wash. Many solar installations in India are in arid and semi-arid areas bringing significant risk to the local ecosystem and communities.⁹ Two case studies are examined to understand this problem more clearly.

The Saga of Great Indian Bustard

In the case of M K Ranjitsingh v. Union of India,¹⁰ a PIL was filed by two environmentalists raising concerns for the protection of two rare species of birds, namely the Great Indian Bustard ('GIB') and the Lesser Florican, which are on the verge of extinction.¹¹ The part of western Rajasthan where these birds are found has been identified as a major hub for wind and solar energy generation and hence was excluded from the scrutiny of environmental impact assessments before the installation of power stations. The problem arose when these stations were connected to the primary power grid. The installed transmission lines cut across the GIB Arc – a swathe of habitat that starts at the northern end of Desert National Park, grazes Jaisalmer City and ends close to the Jaisalmer-Jodhpur border. The bird Great Indian Bustard moves across this area all year round and is being killed at an unsustainable rate by collision with the power lines.¹²

The Supreme Court directed (i) the installation of bird diverters in priority areas by 20 July 2022; and (ii) the States of Rajasthan and Gujarat and private power producers to ensure that within the priority areas, a comprehensive exercise is completed within a period of three weeks to assess (a) the total length of transmission lines; and (b) the estimated number of bird diverters required for this purpose, in its order dated 21 April 2022. The Supreme Court also constituted a committee that was directed to prepare quality standards for bird diverters in consultation with the Central Electricity Authority so that uniformity is observed in the standards that will be followed.¹³

Impact of the solar park in Pavagada, Karnataka

In 2015, Pavagada, a town in Karnataka where temperatures soar above 40 degrees in the summer, was chosen as the perfect location for the dream solar project of Karnataka named Shakti Sthala. It was envisioned as India's biggest solar park and the world's second most prominent in terms of capacity, at 2,050 megawatts (MW). Pavagada was a backward district, and with the installation of this solar project, it was believed that it would usher the area into the era of development. However, even after so many years, the village suffers from unemployment, lack of electricity, and illiteracy ¹⁴, and the environmental and social impact of the project is alarming. Pollinators like bees and butterflies disappeared during the park's construction, affecting farm yields. Large mammals like bears, leopards, and jackals, once seen frequently in Pavagada, are no longer around. There is a decline in bird population as well. There is concern about what happens when the park is decommissioned. A study says that at the end-of-life stage, if not appropriately handled, toxic elements from disposed of PV panels can adversely affect ecological systems.¹⁵

Renewable Energy and Biodiversity: Key Legislations

In India, the regulation of renewable energy falls within the ambit of the Electricity Act of 2003, but there is no specific law in place for the development of renewable energy. The protection of biodiversity in the process of growth in renewable energy needs to be addressed effectively. Some laws indirectly provide a layer of protection to the biodiversity and environment from the behemoth expansion of renewable energy happening in the current times. A brief discussion of such laws is as under:

Biodiversity Act, 2002

In pursuance of its obligations under the United Nations Convention on Biological Diversity 1992, India enacted the Biodiversity Act 2002. The primary objective of the said Act is to conserve biodiversity and promote sustainable use of its components.

The National Biodiversity Authority constituted under the said Act has the following functions and powers:

1. advise the Central Government on matters relating to the conservation of biodiversity, sustainable use of its components, and equitable sharing of benefits arising out of the utilization of biological resources;
2. advise the State Governments in the selection of areas of biodiversity importance to be notified under sub-section (1) of section 37 as heritage sites and measures for the management of such heritage sites;
3. perform such other functions as may be necessary to carry out the provisions of this Act.

Section 24(2) of the said Act empowers the State Biodiversity Authority to prohibit or restrict any such activity that it deems to be detrimental or contrary to the objectives of the said Act.

Section 36 of the said Act empowers the Central Government to undertake any national strategies, plans, or programs for the conservation, promotion, and sustainable use of biological diversity.

We are yet to witness any visible initiative under the said Act. In the matter of Basanta Deka v. Union of India¹⁶, which is currently pending resolution before the Gauhati High Court, the issue of sustainable use of biological resources in the country has been raised. It has been over a year since the Gauhati High Court has repeatedly asked the Assistant Solicitor General of India to inform the court about the measures adopted by the Central Government under Section 36 of the said Act.

Land Acquisition Act 2013

Acquiring land to produce renewable energy at a large scale is a prerequisite. The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ('LARR Act') applies to the whole of India except Jammu and Kashmir. The LARR Act includes within its ambit stringent requirements for consent from private landowners whose land is being acquired. Section 4 requires Social Impact Assessments ('SIAs') to be conducted within six months of the commencement of the acquisition process and for these to be evaluated by a government-appointed multidisciplinary expert group.

The subject 'acquisition and requisitioning of property' falls in the concurrent list of the 7th Schedule of the Constitution of India. Therefore, both the State and Centre have the power to make laws in respect thereof. Article 254(2) of the Constitution of India allows States to overrule Central legislation subject to their receiving the assent of the President. To override the stringent provisions of the LARR Act, several States have enacted their land acquisition laws by seeking the assent of the President. For example, Tamil Nadu has enacted the Tamil Nadu Land Acquisition Laws (Revival of Operation, Amendment, and Validation) Act, 2019, which revives the application of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978. Section 2(3) under Part I of the Tamil Nadu Land Acquisition Laws Act, 2019, lays down the provisions relating to the determination of compensation as mentioned in the First Schedule, rehabilitation, and resettlement as mentioned in the Second Schedule, and infrastructure amenities as specified in the Third Schedule of the Central Act, i.e., the LARR Act shall only apply to the land acquisition proceedings under the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978. The provisions mentioned under the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 will apply in all other subject matters.

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 ('Forest Rights Act, 2006')

The Forest Rights Act 2006 seeks to address the adverse living conditions of tribal families living in forests. Section 3(2)(ii) of the said Act states that the diversion of forest land will be made only on the recommendation of the Gram Sabha. It is reported that at the ground level, due to the high level of illiteracy prevalent in the community, the Gram Sabha may only sometimes be aware of its rights. For example, in the case of Bhima Shankar Wildlife Sanctuary, the communities are still fighting to gain control of the forest land that was acquired for wind projects many years ago. It is alleged that no consultations were held with the Gram Sabha to discuss the diversion of forest land for non-forest use, breaching Section 3(2)(ii) of the said Act.¹⁷

Environment Impact Assessment: Environment Protection Act, 1986

Environmental Impact Assessment (EIA) notification 2006 lays down the rules for obtaining environmental clearances for projects across most sectors. There are various sectors that have been exempted from the purview of the notification, like mineral prospecting, thermal power plants up to 15 MW based on biomass or non-hazardous municipal waste, and using auxiliary fuel such as coal/lignite/petroleum products up to 15%, which harm the environment. Section 7 of the said notification lays down stages in the Prior Environmental Clearance Process for new projects. There are a total of four stages in the process.

'Public consultation', the stage where the local people whom the project will directly impact, is placed as the second last step in the process. The first step, 'Screening', segregates projects requiring Environment Impact Assessment (EIA). The second stage, termed 'Scoping', determines detailed and comprehensive Terms of Reference (TOR) addressing all relevant environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report. At the stage of Scoping, the application can be rejected. After going through all these changes, Public Consultation, which is the third step in the process, does not hold much significance.

Viewpoint

As reliance on renewable energy increases, the need to protect biodiversity and the environment also rises. It is imperative to balance the exploration of the untapped potential of renewable energy and the protection of biodiversity.

A focused regime to address renewable energy and biodiversity issues, particularly the social, environmental, and economic impact of renewable energy projects, would be helpful.

In France, Article 29 of the Law on Energy and Climate Law, 2019 casts an obligation on all financial institutions to reveal the biodiversity-related and climate-related risks in their investment strategy. They are also required to give information regarding the level of their investment in favour of the climate and their contribution to comply with the international objective of limiting global warming and achieving the goals of energy and ecological transition. The European Union passed a Nature Restoration Law on 12 July 2023. This law aims to increase biodiversity, achieve the European Union's climate mitigation and climate adaptation objectives, and meet international commitments.

The Government may consider modifying existing legislation to align with the goal of minimizing the adverse impact on biodiversity on account of renewable energy projects. For instance, the indigenous people living in an area that is being consulted at a second last step under Section 7 of the Environment Impact Assessment Notification 2006 should be consulted before beginning any stage of environmental clearance. The aim of the consultation should be to carefully evaluate the concerns surrounding the adverse impact on biodiversity and identify mechanisms to address the same.

A robust information ecosystem for sensitizing the community towards the goal of biodiversity and means to achieve the same would go a long way towards India's march towards sustainable development.

Footnotes

1. Growth of the electricity sector in India from 1947-2020, available at: https://cea.nic.in/wp-content/uploads/pdm/2020/12/growth_2020.pdf(last visited on 02 July 2023)

2. India's energy outlook 2021, available at: https://iea.blob.core.windows.net/assets/1de6d91e-e23f-4e02-b1fb-51fdd6283b22/India_Energy_Outlook_2021.pdf (last visited on 02 July 2023)

3. Id

4. Facts about the climate emergency, available at: https://www.unep.org/facts-about-climate-emergency (last visited on 01 July 2023

5. Facts about the climate emergency, available at: https://www.unep.org/facts-about-climate-emergency (last visited on 01 July 2023)

6. India's renewable energy journey short term hiccups, long-term trajectory intact, available at:https://ieefa.org/resources/indias-renewable-energy-journey-short-term-hiccups-long-term-trajectory-intact?gclid=EAIaIQobChMIt66g5s_0_wIVUU5gCh0BkQUHEAMYAyAAEgJXivD_BwE (last visited on 03 July 2023)

7. Renewable energy, available at: https://www.investindia.gov.in/sector/renewable-energy (last visited on 03 July 2023)

8. Renewable energy to responsible energy: A call to action, available at: https://wwfin.awsassets.panda.org/downloads/renewableenergytoresponsibleenergy_fullreport_lr.pdf (last visited on 04 July 2023)

9. Renewable energy to responsible energy: A call to action, available at: https://wwfin.awsassets.panda.org/downloads/renewableenergytoresponsibleenergy_fullreport_lr.pdf (last visited on 04 July 2023)

10. M.K. Ranjitsinh v. Union of India, (2021) SCC OnLine SC 326.

11. M.K. Ranjitsinh v. Union of India, (2021) SCC OnLine SC 326.

12. Saving the Great Indian Bustard, available at: https://www.sanctuarynaturefoundation.org/article/saving-the-great-indian-bustard (last visited on 04 July 2023)

13. Saving the Great Indian Bustard, available at: https://www.sanctuarynaturefoundation.org/article/saving-the-great-indian-bustard (last visited on 04 July 2023)

14. Given land for power pavagada residents now powerless,available at:https://india.mongabay.com/2022/02/given-land-for-power-pavagada-residents-now-powerless/ ( last visited on 04 July, 2023)

15. Pavagada solar park busts notions of renewable energy as inherently good, available at: https://india.mongabay.com/2022/02/pavagada-solar-park-busts-notions-of-renewable-energy-as-inherently-good/(last visited on 04 July, 2023)

16. Basanta Deka v. Union of India, PIL/36/2020

17. Mapping dilutions in India's 2013 land acquisition law, available at: https://cprindia.org/mapping-dilutions-in-indias-2013-land-acquisition-law/(last visited on 05 July, 2023)