Indian Communities ask U.S. Court of Appeals to hold World Bank Group Accountable

Press Statement - August  11, 2016

Indian Communities ask U.S. Court of Appeals to hold World Bank Group Accountable

August 11, 2016, Mundra, Gujarat – This week, fishing communities and farmers, affected by the Coastal Gujarat Power Limited (CGPL – Tata Mundra) represented by EarthRights International (ERI) asked the D.C. Circuit Court of Appeals to hold the International Finance Corporation (IFC) accountable for its role in funding a destructive coal fire powered plant in India. In March, a federal district court judge dismissed the case after ruling that the IFC, the private lending arm of the World Bank, was entitled to “absolute immunity” from suit and could not be sued.

The communities, organised as Machimar Adhikaar Sangharsh Sangathan (MASS - Association for the Struggle for Fisherworkers’ Rights), filed suit against the IFC last year over the loss of their livelihoods and property and threats to their health caused by the IFC-funded Tata Mundra coal-fired power plant in Gujarat. The IFC moved to dismiss the case, arguing that it is not subject to the authority of U.S. courts, no matter how harmful or illegal its actions may have been. The district court concluded that it was required to find that the IFC is entitled to absolute immunity based on previous decisions from the D.C. Circuit Court of Appeals.

In their appeal this week, the Plaintiffs argue that recent Supreme Court cases addressing immunity overturned the D.C. Circuit’s decisions and made clear that the IFC was not entitled to the immunity is claimed.  “The IFC's sweeping claims of immunity are inconsistent with Supreme Court caselaw, and deeply flawed from a policy perspective,” said Michelle Harrison, Staff Attorney at ERI.

From the start, the IFC recognized that the Tata Mundra project was a high-risk project that could have “significant” and potentially “irreversible” adverse impacts on local communities and their environment. Despite knowing the risks, the IFC provided a critical $450 million loan, enabling the project’s construction and giving the IFC immense influence over project design, implementation and operation. Yet the IFC failed to take reasonable steps to prevent harm to the communities and to ensure that the project abided by the required environmental and social conditions for IFC involvement, according to the complaint.

Construction of the plant resulted in displacement of local communities and contributed to saltwater intrusion into the groundwater, destroying vital sources of water used for drinking and irrigation.  Coal ash contaminates crops and fish laid out to dry and has led to an increase in respiratory problems. The plant has destroyed the local marine environment and the fish populations that fishermen like Budha Ismail Jam, a plaintiff in the case, rely on to support their families. “The IFC promises its projects will reduce poverty, but this project has only made things harder for us,” he said. “The IFC must be held accountable for the harm that it has caused. We feel confident that we will prevail in our appeal.”

The Compliance Advisor Ombudsman (CAO), the IFC’s own compliance mechanism, issued a scathing report in 2013, confirming that the IFC had failed to ensure the project complied with the environmental and social conditions of the IFC’s loan. Rather than take remedial action, the IFC responded by rejecting most of its findings, and ignoring others. As the district court noted in its decision, “the CAO is not a court” and it “cannot compel the IFC to right its wrongs, or to provide remedies to individuals who have been harmed by IFC-financed projects.”

The IFC is required to ensure there is broad community support for projects like the Tata Mundra Plant before it can provide financing.  But communities will have little reason to trust the IFC now, according to Dr. Bharat Patel, of the MASS, which is also a plaintiff in the case.  “The CAO found that the IFC had failed to comply with the environmental and social conditions of the loan, but the IFC has failed to take any steps to remedy the harm the communities have suffered,” said Dr. Patel. “Rather than take responsibility, it is trying to hide behind immunity. How can communities trust the IFC to uphold its promises?”

 “The IFC believes it is above the law and accountable to no one,” said Ms. Harrison. “Our clients disagree and the law is on their side.”

The case is Jam v. International Finance Corporation, No. 16-7051.

Read the Court of Appeals Brief.

Contacts:

Bharat Patel, General Secretary, MASS
+91-9426469803 

Michelle Harrison, Staff Attorney, ERI
+1-202-466-5188 x 110

###

EarthRights International (ERI) is a nongovernmental, nonprofit organization that combines the power of law and the power of people in defense of human rights and the environment, which we define as "earth rights." We specialize in fact-finding, legal actions against perpetrators of earth rights abuses, training grassroots and community leaders, and advocacy campaigns, and have offices in Southeast Asia, the United States and Peru. More information on ERI is available at http://www.earthrights.org.

Machimar Adhikaar Sangharsh Sangathan (MASS - Association for the Struggle for Fisherworkers’ Rights) is a trade union working among the fisher people of Kutch, Gujarat. http://masskutch.blogspot.in 

Press Statement: ADB Action Plan on Tata Mundra rejected: Communities Demand Robust Remedial Plan

Press Statement: 13.7.2015

ADB Action Plan on Tata Mundra rejected: Communities Demand Robust Remedial Plan

Kutch, Gujarat: Communities affected by the Tata Mundra (Coastal Gujarat Power Ltd) coal power plant in Kutch rejected the action plan developed by the Asian Development Bank (ADB), calling it “non-serious, lacks genuineness, commitment or imagination.”

ADB developed the remedial action plan in response to its accountability mechanism, Compliance Review Panel (CRP) finding serious violations of ADB’s policies while approving the loan to Tata Mundra.

In its Report, published in April 2015, CRP found several areas of noncompliance with ADB operational policies and procedures. Some of them were:

·         failure to conduct adequate and comprehensive consultations with fisherfolk during initial project design phase and consider their views in assessing project impacts.
·         noncompliance with ADB operational policies and procedures for thermal and chemical pollution of wastewater discharged through its outfall channel leading to harm people fishing on foot.
·         noncompliance with air pollution standards, and unless continued violations of prescribed air standards were not checked or brought into compliance, further harm would result.
·         noncompliance with ADB operational procedures and resulting harm by not surveying and compensating people impacted by longer access routes to their traditional fishing grounds as plant premises now stood enclosed.

In a written response, Machimar Adhikaar Sangharsh Sangathan (MASS - Association for the Struggle for Fishworkers’ Rights), the local community organisation of fishworkers, and farmers who complained to CRP, questioned the process of developing the action plan. The ADB team which visited the project site for preparing the action plan never met or consulted the people. They termed the consultation process proposed in the action plan a “hogwash”.

Responding to the proposal that National Institute of Oceanography (NIO) would undertake studies to assess the impacts of thermal discharge, citing the observations of CRP on erroneous Rapid Marine Environment Impact Assessment which NIO did in 2007 and 2009, MASS said “To depend on NIO’s findings again to develop a mitigation plan would be a non-starter.” MASS further said that NIO   “…lacks credibility, acceptance and whose initial reports have misled ADB is wrongly assessing the impacts.”

Reacting strongly against Livelihood Improvement Plan in the action plan, restricted only for people who had practiced foot fishing General Secretary of MASS Dr. Bharat Patel asked “Why is ADB trying to discriminate the affected population, when CRP in its report has been eloquent on the loss of livelihood for the fisherfolk?

MASS expressed serious concern on the $1.2 mn (INR 7 crore) budget it has allocated for the Action Plan. They said 57% of the budget is set aside for studies and even when there is no plans for the Livelihood Improvement Plan, nor an idea about the number of people who require alternative livelihood, the action plan predetermined $3,00,000 for it. MASS said that by doing that “the management is making its insensitive attitude amply clear.”

Expressing extreme anguish at this action plan, Gajendrasinh Bhimaji, Sarpanch of Navinal Panchayat and one of the complainants said, “We were hopeful when CRP confirmed the concerns that we raised and expected the ADB to develop an action plan based on the findings of CRP. We are utterly disappointed. With the project fully commissioned, impacts on fisheries and horticulture becoming serious, we are staring at an unsure future.”

MASS in its statement said, “From a position of self-sufficient communities we are made to seek charity from the company and ADB now. Our dignity is ripped off. Whatever is prepared in the name of an Action Plan is insult to injury. We do not have any option but to reject this Action Plan. Unless we see an action plan which addresses the fundamental findings of CRP, where we are a part of the planning, implementation and monitoring, we will continue our struggle for justice.”

They urged the ADB to “to engage in a process, in consultation with the affected people, to develop an action plan based on the findings of CRP and with a genuine intend to mitigate the impacts resulted from their investment in Tata Mundra project.”

Contact: Bharat Patel - +91-9426469803

MASS’ Response to ADB’s Action Plan On Tata Mundra

MASS’ Response to ADB’s Action Plan On Tata Mundra
The much awaited Action Plan of Asian Development Bank (ADB) on Tata Mundra is finally out! The Action Plan was looked forward to by a large number of people, negatively affected by the Mundra Ultra Mega Power Project (Tata Mundra), since it was preceded by a Report by the Compliance Review Panel (CRP), ADB’s accountability mechanism. 

In its Report, published in April 2015, CRP found several areas of noncompliance with ADB operational policies and procedures. Some of them were:
·         failure to conduct adequate and comprehensive consultations with fisherfolk during initial project design phase and consider their views in assessing project impacts. ·         noncompliance with ADB operational policies and procedures for thermal and chemical pollution of wastewater discharged through its outfall channel leading to harm people fishing on foot. ·         noncompliance with air pollution standards, and unless continued violations of prescribed air standards were not checked or brought into compliance, further harm would result.

·         noncompliance with ADB operational procedures and resulting harm by not surveying and compensating people impacted by longer access routes to their traditional fishing grounds as plant premises now stood enclosed.

What the people were expecting was an Action Plan based on these findings. Instead, what was presented to them was a “Studies Plan”, as the CRP calls it, plagued with too little “Action” and cherry-picking the findings.

As suggested by the management, MASS had prepared a detailed ‘People’s Action Plan’ based on each findings of CRP (see appended). Nearly none of them are addressed in the Action Plan.

Machimar Adhikaar Sangharsh Sangathan (MASS - Association for the Struggle for Fishworkers’ Rights) finds the current Action Plan problematic for the following reasons:

Erroneous Process

In May 2015, when MASS and other organisations met with the management (Todd C. Freeland DG PSOD, Michael Barrow DDG PSOD, Don Purka, Director) we were told that a team from ADB have already made a field visit in preparation to developing an Action Plan. It shocked us since there was no information about this visit, or the said team met anybody who filed the complaint to CRP, or the communities which the complainants represented in their complaint. If the Action Plan is prepared in consultation only with the company and not with the people, whose complaint led to the CRP report, that clearly shows that ADB is not interested in any course correction. It proves that ABD not holding adequate consultation with people initially was intentional. And it continue with the intent.

Plans that are hardly plans!

Consultation

If the intention of holding consultation with all stakeholders is genuine, especially after the project is completed and is made a fait accompli on the people, it should be to assess the spread and depth of damages caused and plan a robust mitigation plan. Without a real assessment how can one develop a budget? Or, whether putting up a budget is to put a limit to the extent of planning ADB could do? We fear that this consultation process will be yet another hogwash and that is clear right from the beginning of Action Plan preparation.

Studies by NIO

The Marine Environmental Impact Assessment (MEIA) and the Rapid Environmental Impact Assessment (RMEIA) for the project was carried out by National Institute of Oceanography (NIO) in 2007 and 2009. A few of their conclusions led to catastrophic results. Consider this:

“Evidently, no large scale of commercial fishing operations prevail off Tunda-Vandh and surrounding region except for minor based hand-net and gill-net operations.” (MEIA, Pg 52)

“Since there are no commercial fishing operations off Tunda-Vandh except shore based local fishing, the impact on fisheries would be minor and non-consequential” (MEIA, Pg 87)

It would be worthwhile to consider CRP’s observations on NIO’s reports:

“The presence of fisherfolk who practice traditional fishing has also been noted in the RMEIA. The report states that there are no commercial fishing operations in Kotdi Creek except shore based local fishing. The RMEIA further refers to some limited fishing in traditional boats. Internal ADB commenters in the preparation phase of the SEIA also pointed to the likelihood that the outfall channel might impact on people fishing in the area.

It is thus puzzling that the SEIA states: “Despite the fishing potential of the gulf, there are no local fishing activities in the coastal waters fronting the project area. This could be because most villagers are vegetarians and the presence of a vast intertidal mudflat. The nearest small fishing community is located outside the project areas at about 2.8 km from Modwa creek, where the spent cooling water will be discharged.” (emphasis added) The same statement can be found in the Resettlement Planning Document (para. 18): “Although the fishing potential of the Gulf of Kutch is significant, there are no local fishing activities in the coastal waters directly fronting the project area which has vast intertidal mudflats, The nearest small fishing community is at Kotdi Creek bank located outside the project area …”(emphasis added). The CRP does not agree with the statement that no fishing takes place in the coastal waters fronting the project area. ADB staff explained to the CRP that this statement was made, as the RMEIA states that there is no large scale commercial fishing in the shallow waters in front of the plant. But ADB policies and procedures are not only directed towards large scale operators. It is the poor and vulnerable who in particular need to be consulted and for whom negative project impacts can seriously affect their livelihood and fisherfolk who fish in front of the Tata Mundra plant are mostly poor.” (CRP Report Pg 18-19)

“The CRP is of the view that the RMEIA and MEIA reports present a somewhat incomplete picture.” (About thermal pollution from water discharged from the outfall channel) (CRP Report Pg 25)

To depend on NIO’s findings again to develop a mitigation plan would be a non-starter. NIO was again engaged by the company in 2013 after the Compliance Advisor Ombudsman (CAO) of International Finance Corporation (IFC), a co-financier of the project, came heavily down upon the IFC for its blatant violation of its own policies. IFC adopted whatever the company said they are doing as their own Action Plan. ADB, in an effort to dodge responsibility and fool people, is just piggybacking on something which lacks credibility, acceptance and whose initial reports have misled ADB is wrongly assessing the impacts.

Temperature Monitoring

We welcome the automatic temperature monitoring device at the outflow channel to be made accessible to the public. However, CRP found non-compliance of ADB policies vis-à-vis thermal discharge. How does the monitoring alone address this non-compliance? If ADB is genuine to address this non-compliance, it has to ask the company to change the open cooling system of outfall channel to a closed cooling system.

Livelihood Improvement Plan

Why is Livelihood Improvement Plan restricted only for people who had practiced foot fishing? CRP in its report has been eloquent on the loss of livelihood for the fisherfolk. Why discriminate the affected population? Or, does ADB consider that the thermal pollution the outfall channel is causing can be contained in a limited area?

Any livelihood improvement plan should consider all affected communities; wide consultations with them should be fundamental to developing a plan and plans should be made public. CRP identified affected communities can only be a beginning and not the end. CRP talks about impacts of coal dust, fly ash and air pollution. There is no data available on the spread of its impacts.

What one is witnessing here is that instead of ADB trying to make an effort to assess the actual impacts and develop an Action Plan, it is trying to narrow down its ambit and discriminate among the affected communities.

Missing the woods for the trees

May be in this case it should be said ‘missing the sea for the water’!

By not taking appropriate actions on the CRP report, apart from undermining the accountability mechanism of ADB, it is also sending a stern message to all communities who will ever consider of seeking redressal from CRP that ADB do not care about their miseries, or CRP’s findings, it will defend its client, and at best, they will hogwash the communities and public with some studies and ornamental actions, and continue with its business.

We are disappointed with the Board which approved this Action Plan, which is non-serious, lacks genuineness, commitment or imagination, and is a joke on the affected communities.

ADB has missed another opportunity to look at the real impacts and develop a remedial action plan. Instead of realising its vision of an Asia free from poverty, with its attitude towards the affected communities in Tata Mundra ADB is making the self-sufficient communities poor.

Budget

The lack of commitment is reflected also in the budget allocation. 57% of the budget is going for studies (for discredited agencies like NIO and other consultants). With allocating only $300,000 for livelihood improvement plan, without even knowing the actual number of people who needs alternative livelihood and without even knowing what the plans are, the management is making its insensitive attitude amply clear.

Key missed opportunities

Who implements the plans and monitors the progress of all these proposed actions? The same company and the same M&E consultants, whose failure hitherto has led to such a situation? There is no attempt from the management to learn from the past mistakes. Unless the affected communities are part of the implementing and monitoring process, however good the plans look on paper (in this case, it looks a non-starter even on paper!), it will never be implemented on the ground and the ones who has suffered so far will continue to do so.

A genuine consultation process with all stakeholders is lacking in the Action Plan. CRP has listed policy violations on consulting affected communities at various stages of impact assessment studies. Why is the management still not trying to consult people, to understand the spread and depth of impacts?

Having repeatedly established by agencies like CAO and CRP that the Social and Environmental Impact Assessment is erroneous, why is there no attempt to do a fresh SEIA? Without which how can anyone ever draw a remedial plan?

Why nothing is proposed on health facilities, despite CRP reporting about air pollution, dust and ash contamination? What about the dust and ash deposited on grazing land, which is consumed by the livestock? ADB do not want to address the genuine impacts and is only interested in some publicity stunt?

Who in ADB is accountable for this situation? Shouldn’t the accountability for the mess that is left in Tata Mundra stop at somebody’s doorstep? Or does ADB want to continue to incentivise through perks and promotions the ones who took wrong decisions, ignored the required studies, failed in upholding ADB’s policies, put people’s livelihood and health at stake and caused irreversible damage to environment?

Role of CRP

We want to acknowledge here the positive role played by CRP. We appreciate CRP being proactive in ensuring that the management is complied with the policies and the impacts on the communities are minimal.

Conclusion

Our worst fears have come true!

Our livelihood is stolen. From a position of self-sufficient communities we are made to seek charity from the company and ADB now. Our dignity is ripped off. Whatever is prepared in the name of an Action Plan is insult to injury. We do not have any option but to reject this Action Plan. Unless we see an action plan which addresses the fundamental findings of CRP, where we are a part of the planning, implementation and monitoring, we will continue our struggle for justice.

We urge ADB to engage in a process, in consultation with the affected people, to develop an action plan based on the findings of CRP and with a genuine intend to mitigate the impacts resulted from their investment in Tata Mundra project.

Machimar Adhikaar Sangharsh Sangathan

July 2015

Communities Sue World Bank Group In U.S. Federal Court for Destructive Coal-Fired Power Plant

April 23, 2015, Washington, D.C. – Today fishing communities and farmers from India represented by EarthRights International (ERI) filed suit against the International Finance Corporation (IFC), the private-lending arm of the World Bank Group, in federal court in Washington, D.C. The plaintiffs allege that the IFC caused the loss of their livelihoods, destroyed their lands and water, and created threats to their health by funding the Tata Mundra coal-fired power plant in Gujarat, India.

The 4,150 MW coal-fired power plant, owned by Tata Power, began operating at full capacity in 2013.  According to the court complaint, the plant has already dramatically affected the lives of the people who live in its shadow. The thermal pollution discharged from the plant’s cooling system has led to a dramatic decline in the fish populations that local fishing communities depend on.

“The fish catch has been declining since 2011,” said plaintiff Budha Ismail Jam, a local fisherman who lives in a seasonal fishing village known as a bunder most of the year. “I don’t know what other profession I could do to support my family.”

The substantial coal dust and fly ash coming from the plant and its coal conveyor belt is also harming local farms, the quality of fish and salt from the region, and the health of local people. Another plaintiff, Sidik Kasam Jam, explained: “When the conveyor belt runs, the coal dust blows towards the bunder. People have respiratory problems now. The elderly are the worst affected. You can see the dust on the fish we lay out to dry.”

The IFC provided a critical $450 million loan to the project, enabling its construction and giving it immense influence over project design and implementation. The IFC’s stated goals are to end extreme poverty and to carry out its investment activities “with the intent to ‘do no harm’ to people and the environment.” IFC borrowers are expected to take precautions to protect vulnerable communities’ and the environment, an obligation that the IFC is tasked with supervising, monitoring and enforcing.

“The IFC failed on all counts with the Tata Mundra project,” says Rick Herz, ERI’s Litigation Coordinator. “While the IFC purports to support this project in the name of poverty reduction and development, its impacts fall hardest on the poorest and most vulnerable communities.”

From the outset, the IFC recognized the significant risks the Tata Mundra project posed to local communities and their environment. It predicted that without proper management and mitigation, the project could have “significant” adverse impacts that “are diverse, irreversible or unprecedented.” Despite this, the IFC failed to take reasonable steps to prevent harm to nearby communities and failed to ensure that the project abides by the required environmental and social conditions of the IFC’s involvement. Even the IFC’s own accountability mechanism – the Compliance Advisor Ombudsman (CAO) - agreed. In 2013, the CAO issued one of its most scathing reports, finding that the IFC had failed to ensure the project met the applicable Environmental and Social Standards that had been made binding conditions of the IFC’s loan.

“While the IFC is likely to argue that it is immune from suit, no institution should be above the law in a case where the risks were so obvious from the start, and the failure to act so damaging,” said Herz. The lawsuit seeks compensation for harm to property and economic livelihoods, and asks the court order the IFC to enforce the provisions of the loan agreement which were intended to protect local communities and the environment to minimize future harm.

ERI also represents Mr. Ranubha Jadeja, a local farmer, the fishermen's organization, Machimar Adhikar Sangharsh Sangathan (MASS; in English, the Association for the Struggle for Fisherworkers’ Rights), and the Navinal Panchayat (village), a local government entity.

http://timesofindia.indiatimes.com/india/Gujarat-fishermen-sue-IFC-in-US-Court-for-funding-Tata-Powers-Mundra-UMPP/articleshow/47161150.cms
http://www.corpwatch.org/article.php?id=16026
http://www.coalpost.in/gujarat-fishermen-sue-ifc-in-us-court-for-funding-tata-powers-mundra-umpp/
http://www.allgov.com/india/news/top-stories/gujarati-villagers-sue-world-bank-arm-in-us-court-150424?news=856324
http://int.piplinks.org/india-communities-sue-world-bank-group-us-destructive-coal-fired-power-plant
http://www.networkfix.ca/blog/gujarat-fishermen-sue-ifc-in-us-court-for-funding-tata-powers-mundra-umpp/
http://in.shafaqna.com/EN/IN/410604

Tata Mundra project under fire from ADB Accountability Panel

Machimar Adhikaar Sangharsh Sanghathan

Press Statement – April 9, 2015

Tata Mundra project under fire from ADB Accountability Panel:
People Demand Immediate Action on the Findings

Mundra, Gujarat: In a major breakthrough, the Compliance Review Panel of Asian Development Bank has come down heavily upon the ADB for committing major violations in financing the 4000 MW Coastal Gujarat Power Ltd (Tata Mundra), in Gujarat. This is the second major financial institution which is coming under harsh criticism for its lending to Tata Mundra, by their own accountability mechanisms, after the Compliance Advisor Ombudsman of World Bank’s International Finance Corporation found serious violations resulting in harm to the people and environment.

Failure to adequately disclose information about the project and potential harm, absence of timely public consultation with all stakeholders, erroneous Social and Environment Impact Assessment (SEIA) resulting in failure to identify potential impacts, absence of baseline data and monitoring systems; failure in adhering to the ADB policies on discharge of water to the sea at a higher temperature resulting in heavy loss to livelihood to fisherfolk; violation for ambient air quality standard are some of the serious violations found in the investigation by CRP. The Report was made public on April 7.

These policy violations are manifested on the ground as, heavy drop in the fish catch due to discharge of water to the sea at a higher temperature, resulting in serious livelihood issues among the fishing community; inadequate compensation for the fisherfolk, since they were not counted in the SEIA; and increasing respiratory illnesses among the children and the old.

ADB management’s response to the CRP findings were mostly dismissive and tried to justify the violations and safeguard their client, the company.

CRP chose not to look into the impacts of the inlet channel of the project, citing that it is shared with the adjacent Adani power project, nor did it look adequately the impacts of coal dust and fly ash pollution on dry fish put in the open, or acknowledge the impacts on horticulture, blaming on the “multiplicity of factors”.

“This is a major victory for the people’s struggle against Tata Mundra and other destructive power projects in Kutch” Bharat Patel, General Secretary of Machimar Adhikaar Sangharsh Sanghathan (MASS), one the complainants to CRP said. “Since two of the world's largest development banks have come under fire from their own accountability mechanisms for gross violations on the ground, it has only strenghtened our resolve to intensify our voices and struggle for justice and fight this dirty energy,” he added.

In October 2013 CAO released its findings citing violations for IFC policies. Among them, Environmental and Social risks and impacts of the project were not considered and addressed; There is no social baseline data; IFC’s policies for land acquisition not applied, despite physical and economic displacement; Inadequate attention paid to the requirement of biodiversity conservation; IFC failed in its review and supervision of the impacts on airshed & marine environment; and IFC failed to examine the cumulative impact of projects around Tata Mundra.

A monitoring report after one year, which was made public by CAO in January 2014 found that no action was taken by the IFC or company to address the findings of CAO an year back.

“The project is up and running and people, our crops and cattle are suffering from its impacts. ADB finding violations about non-compliance but not taking any action on its will be a joke on the people. The violator should be taken to task and suspend all work till the issues are adequately settled”, Gajendrasinh Bhimaji, one of the complainants said.

“No other project in the country has received such serious flak from its financiers as Tata Mundra in recent times. Not taking any meaningful action on the findings will erode people’s faith in institutions like World Bank and ADB further, and will be left with no choice but the challenge them at all fora”, Madhuresh Kumar, National Convenor of National Alliance of People’s Movements said.

"This audit report by CRP reconfirms the earlier CAO findings that both the ADB (and other financiers) and Tata-Mundra/ CGPL had faltered on anticipating multiple impacts on communities and planning right measures to mitigate these. It is high time ADB, IFC and Tata Power sincerely engage in serious damage repair mechanism in consultation with the affected communities", said Soumya Dutta, an energy expert.

Souparna Lahiri of NGO Forum on ADB, a watchdog of ADB said, “We welcome the findings of the CRP. We hope the findings will not remain on paper and the management will translate it into bold actions, sending a strong message to their clients”.

The people’s struggle against Tata Mundra demands that:

· ADB should suspend their funding to Tata Mundra immediately, pending strict compliance to the policies
· Should compensate people for the loss they have incurred already, and
· Take punitive actions against the company for violating the policies.

Contact:
Bharat Patel: +91-96010 71983 / bharatp1977@gmail.com

For background resources: http://masskutch.blogspot.in/
Images: http://tinyurl.com/kupcysq

IFC Hide behind Tata’s False Claims: No Actions Taken on CAO Findings yet

President Dr.Kim’s claims about Accountability Goes for a Toss!!

Six months after the Compliance Advisor Ombudsman (CAO) of the International Finance Corporation (IFC) of World Bank Group published its audit report on the Coastal Gujarat Power Ltd (CGPL – Tata Mundra), IFC, or the WBG President Dr. Jim Kim, is yet to take any action.

In August 2013 CAO submitted its findings to Dr.Kim on a complaint filed by the Machimar Adhikaar Sangharsh Sangathan (MASS - Association for the Struggle for Fishworkers’ Rights) in June 2011. Dr. Kim who is mandated to recommend actions on the findings of CAO sat on the report for an unprecedented four weeks before he approved the report without recommending even one action on CAO’s findings and supporting IFC’s rebuttal of the findings and their defense of their client.

Having done nothing on the CAO report so far, IFC is trying to pass the buck to the company and started projecting the supposed CSR work as a response to the CAO findings and proudly display it on IFC’s website. This is not only shameful, but smacks of complete disregard to CAO and contempt for communities who, against odds, dared to bring the issues to the attention of CAO.

IFC passing the buck

Betraying their indifference to the affected communities as well as the findings of WBG’s own CAO, IFC continues to support the company as ever before. They continue to defend their client, and the ‘Factsheet’ posted on IFC’s website reads like a company CSR brochure! The Factsheet parrots what the company is claiming to be doing in the villages without even taking any effort to check facts. It is shameful not just because IFC is risking its own credibility in defending their client and their actions, but is trying to hide behind the purported CSR the company is doing and claiming that everything is hunky dory. It also sends a strong message to communities around the globe and to CAO that whatever the complaint is, whatever the CAO findings are it is business as usual for IFC.

What Dr.Kim said in his public statement of Dec 2013 that “these independent bodies (the Inspection Panel and CAO) ensure that our policies are credibly and effectively applied. They open up a channel for people affected by the World Bank Group financed investments and give them an opportunity to be heard” is farcical. Neither are they heard, nor are the findings of CAO acted upon is proved in the case of Tata Mundra.

Company’s false claims

MASS did a thorough examination of all the activities stated on companies website, which are referred to by IFC and other financiers repeatedly to dodge accountability. What MASS found instead is a shocking bunch of wish-list, twisted facts and imagination put together as great CSR work undertaken in the villages.

The company tries hoodwink the financiers and through a well-oiled Public Relations exercise on how it is improving the lives of communities impacted by the project. The financiers, particularly the IFC, is a victim of this is evident from their echoing what the company says. Strangely enough, IFC fails to ask the company in what way spoken English courses and Bal Pravetsov programme - distribution of educational kits to new entrants in the school, school notebooks distribution, well recharging, drip demonstration, and Promotion of local artisans through exposure visits and sponsoring of the handicraft fair etc can mitigate the loss of livelihood of thousands of fishwokers, or the destruction of mangroves and sand-dunes.

More importantly, even the little the company is claiming to be doing in the villages is not addressing the findings of CAO. That the company is doing a set of such activities with little impact on their livelihood and restoration of environmental damages is understandable, and that they have been doing this for profits all along is beyond doubt. But, what is surprising is how can IFC let their money be used, and then let it go unchecked for these gross violations – both human rights and environmental?

Looking more closely at their claims:

CGPL Claim[1] [2]	Reality
Residents of 15 villages in the Mundra and Mandvi blocks of Kutch district of Gujarat state benefit from the project’s community outreach initiatives. These initiatives aim to improve education, promote health, build infrastructure, improve access to natural resources, create livelihood opportunities, and empower women.	The company has only worked in 4 villages, out of the reported 15 villages. They are Tunda, Tunda Vandh, Mota Kanbagara and Bhadiya. In the temporary settlement of fish-workers in badly impacted Kutadi bandar, there is only a tent as school started long before – that too run by a NGO, Yusuf Mehrauli Center. Sweet ground water sources – a vital natural resource, permanently damaged by CGPL construction. Breathing related health problems sharply increased due to coal dust & ash – little effort in mitigation. Even agricultural livelihoods badly affected – Palm-dates & Sapota particularly badly.
Village-level development advisory committees formed to ensure wider village participation in conceiving, developing, and implementing improvement initiatives.	While the claim looks like village level committees are up and running in all 15 villages, in reality, they are formed only in Tunda and Kanbagra villages. Another case of gross discrepancy in numbers.
Fodder provided to dairy cattle through the Gaushala initiative.	Again, it sounds like for the entire 15 villages. But this is done only in Tunda and Kanbagra. Even there it is not sufficient to all the cattle since there are about 2500 cattle and CGPL providing fodder for 1000 to 1300 cattle. Clearly then, reality and claims have a numerical disconnect.
Priority to local community members for project-related jobs or contracts.	Only menial jobs are offered to locals. And only few in numbers. Contract jobs were given to locals earlier during construction phase, and now even they have dried up.
Community infrastructure through construction of modern roads, stadium, community halls, drainage lines, clean drinking water and sanitation, boat lights, and street lights.	Only in Tunda Vandh roads are made. The reason of constructing the new road was because the old road was acquired for for the project. Kanbagra has a cricket ground, but no stadium. Tunda and Kanbagra have a community hall. Drainage lines are made by the government. Bhadreshwar, Kanbagara and Tunda villages have one RO plant each for drinking water. This is kept at the Panchayat house and Panchayat charges Rs. 5 / 20 liters. Tragdi Bandar has boat lights. Not any other. Tragdi Bandar has solar street lights. No other village is provided claimed amenities and facilities by the company.
Improved health facilities through periodic medical camps.	Medical camps were held a few times. There has been no further information on sending for diagnosis or treatment since.
E-learning stations (computer kiosks) in schools.	Computers given in 2-3 schools. Govt also has schemes to do the same.
Microfinance opportunities and training for self-help groups.	No Micro finance groups formed yet.
Drip irrigation, pond renovation, well recharge, and check-dam programs.	2-3 check dams made – in villages Bhadiya and Tragadi. The interesting fact is that the company destroyed an existing check dam to construct their power plant and CAG estimated a loss to the Govt exchequer to the tune of Rs. 1.92 crore (Rs. 19.2 million).[3] No well recharging done yet and nothing done for drip irrigation.
Better fishing nets to fisherfolk, solar lights for fishing boats, and fishing equipment.	“The truth of this claim could be gauged by the fact of dwindling of traditional livelihood, depleting fish catch, and increasingly inaccessible fishing grounds. These issues cannot be fixed with what company purports to be doing. Money has indeed been distributed to 20-25 people in Modvani and Trugudi (or Tragadi) Bandar, but there has been no distribution of fishing gear whatsoever.
Sagarbandhu project for development of fisherfolk in association with the Aga Khan Society for Rural Development Program (India).	There is no AKRSP work in these villages and nobody has paid a visit from AKRSP yet.
Addressing indebtedness and livelihood enhancement for seasonal migrant fishing communities living near the plant in association with Fisheries Management Resource Center, a non-governmental organization.	Nothing has been done on this front.

Looking at the more detailed versions of the activities[4], one can only wonder how has it escaped a critical referential analysis of the IFC? How has the IFC missed out on company’s purpoted claims of improving the lives of the fishing community? Isn’t this callous?

It claims “striking the right balance between development and climate change concerns is crucial and Mundra UMPP is a step in that direction”, while the reality is that this single massive coal fired power plant is adding about 31 million tons of carbon dioxide (if only high calorific value imported coal is burned) to the atmosphere every year, as estimated by Ernst & Young, making it India's 3rd largest point-source CO₂ emitter. To put in perspective, entire CO₂ emission from a country like Bangladesh, with 155 million+ people, is around 55 million tons (IEA figure).

The company’s ‘development’ USP of cheap /affordable power to millions – also publicized by IFC, fell flat on its face, when CGPL forced a massive financial burden on its approximately 16 million (as per its own claim) domestic consumers, by hiking tariffs by a huge 27%, coercing CERC – the govt regulator – into permitting it to do that, and opening the flood gates for other power plants to follow suit. The cascading effect of this will be on small consumers in India.

It claims that “CGPL will take up a massive tree plantation programme on 430.4 acres of project land and a total of 1076000 trees of indigenous species will be planted” conceding that the company acquired more land than it required. This was confirmed by the CAG as well.

The company says, “Every year ‘Environment Day’ is celebrated with great fervour and wide participation” as part of the Environment Awareness Campaign. It holds a series of consultative dialogues with village elected representatives, opinion leaders and the community at large.” Formation of Self Help Groups (SHG) for those engaged in handicrafts- Linkages with markets for sale and many such actions neither have any bearing on any mitigation or action plans, nor can compensate the loss they have caused to people and the environment.

A visit to the area could clearly spell out the hollowness of these claims. What is more fundamental is that these are only claims, at best wishful thoughts, but at cross purposes with reality. The purpose of putting this up on the website is to veil the reality for the financiers to take note of and mislead the general public.

Violations recognised by CAO neither acknowledged nor addressed by IFC.

What is very interesting is that IFC is completely silent on the violations of its own policies identified by CAO in its report. CAO had mentioned in their report of no social baseline data, that IFC failed to ensure that its client’s E&S assessments adequately considered the risks and impacts of the project on these fisher people, and that IFC paid inadequate attention to the requirements of biodiversity conservation and many others.

President Dr. Kim wants these to be swept under the carpet and move on, as if pretending that nothing happened? Or does he intend to use this a learning opportunity to implement in future projects. Where does the buck stop on this? Who takes responsibility to these heap of violations? Or, are the ones responsible rewarded for doing ‘good business’, thereby sending across a message to all staff that nothing in the Performance Standards, or no findings of any CAO can check their actions and they will be insulated from any possible harm?

Background

CAO Findings

CAO found IFC made serious lapses in funding Tata Mundra project. Some of the key findings are:

· The Complainants, who are from a religious minority and occupy a socially marginal position given their migrant traditions, were not adequately considered as the (Environmental and Social) E&S risks and impacts of the project were considered and addressed.

· There is no social baseline data in relation to the fisher people who reside seasonally in the fishing villages. In the absence of a baseline data IFC was not in a position to ensure the proper application of IFC’s policies related to land acquisition, despite indications that households living on the bunders have been displaced by the project (both physically and economically).

· IFC failed to ensure that its client’s (Tata) E&S assessments adequately considered the risks and impacts of the project on these fisher people.

· IFC paid inadequate attention to the requirement of biodiversity conservation.

· Serious lapses in IFC’s review and supervision of the impacts of the project on the airshed and marine environment.

· IFC has not ensured that its client correctly applied the World Bank’s Thermal Power: Guidelines (1998) in that the project airshed has not been defined as a degraded airshed—a classification that brings with it a requirement that there will be no net increase in the total emissions of particulates or sulphur dioxide within the airshed.

· IFC’s process of E&S review was not appropriate to the nature and scale of the project or commensurate to risk as required by the Sustainability Policy (of IFC).

· IFC has not assured itself that the plant’s seawater cooling system will comply with applicable IFC Environmental, Health and Safety (EHS) Guidelines.

· IFC’s E&S review paid inadequate attention to ensuring that the project’s risks and impacts were “analyzed in the context of [its] area of influence,” as required by Performance Standard 1 (of IFC), including “areas potentially impacted by cumulative impacts…from project-related developments that are realistically defined at the time the E&S assessment is undertaken.”

· IFC should have advised its client that third-party E&S risk emerging from the project’s proximity and relationship with Mundra Port and Special Economic Zone needed to be better assessed, with mitigation measures developed.

Public Response

The rebuttal of IFC and Dr.Kim’s inaction on the serious findings resulted in a series of public responses.

68 groups from 28 countries across six continents sent a letter to World Bank President Dr. Jim Yong Kim condemning the World Bank Group’s continued support for a deadly coal project in Gujarat. The letter said, “Mr. President, you must show that you are serious about your statements at previous WB/IMF annual meetings on climate, accountability and learning from past mistakes. The CAO found massive shortfalls at the IFC, showing that the mechanisms to uncover such issues are working. However, while the Tata Mundra project provided an opportunity to prove your commitment to learning from these failures, your clearance of the IFC response continues the lack of public accountability within the IFC.” http://www.bicusa.org/groups-worldwide-join-indian-people-demanding-kim-pull-ifc-out-of-tata-coal-plant/

Over a hundred prominent Indian organisations expressed shock over World Bank President Dr. Jim Kim’s inaction on the audit report on Tata Mundra Power Project in Gujarat, condemned it and demanded International Finance Corporation’s (IFC) withdrawal from the project.

“People’s movements and their allies in India are shocked that you have cleared the IFC Management’s response to the CAO Audit Report on Tata Mundra Project,” the letter to the President said. “The CAO findings warrant nothing less than IFC’s withdrawal from the project” they added.

They added, “Your endorsement of IFC’s response to CAO findings and thus letting IFC and the company continue the violations merits nothing less than condemnation.” [5]
An online petition with more than 28,000 signatures continues to gather support from people from different parts of the globe. The letter urges Dr. Kim to Recognize IFC policy violations and the serious impacts of its financing after CAO audit reconfirmed community’s complaint; develop remedial action plan that has clear timeline, specific targets and monitorable indicators that address restoration and reparation needs; and withdraw IFC funding immediately from the Tata coal plant and do not consider funding for project expansion. The petition, with 24,000 signatures were delivered by MASS General Secretary Bharat Patel to the Executive Directors of World Bank in April 2014 [6]

IFC action plan and statement

A month after CAO report release and a public outlash, IFC released a statement and a supposed action plan. The local organisation MASS rejected it. They said, “The 1.5 page statement and action plan on Tata Mundra issued by IFC CEO Jin-Yong Cai is a non-serious, non-committal one, and issued under duress from the growing criticism of IFC’s / World Bank President Kim’s inaction on CAO’s findings of serious social and environmental violations. It’s empty and a non-starter. By issuing this, IFC is trying to confuse the public, making a mockery of communities’ concerns and yet again, undermine CAO and its findings. While some of the action plan stated are listing of actions taken pre-CAO time, some other are just suggestions, resulting in nothing particular. Eg: household level socio-economic survey, health survey and testing of ash residue for radioactivity and heavy metals. The action plan fails to say what happens after these surveys and testing. There are no timelines, no specific targets or indicators. Significantly, the statement says that it will bank on the expertise of the company, whose violations are in question.”

Kim’s response

A few weeks later, Dr. Kim himself issued a statement in response to the “concerns expressed by the CSOs about several projects supported by World Bank Group” without naming Tata Mundra. MASS responded to it saying, “Since this was the first statement from you on a report made public by CAO six weeks back, we were expecting a much clearer statement, acknowledging the findings of CAO, laying out a road map for mitigation for the damages already caused and some bold measures, sending a clear message to the staff as well as clients, that you are serious about safeguard policies and there is zero tolerance for its violations. You disappointed us, again, Dr. Kim. Disappointment because you missed the point, chose to act weak and made a mockery of all that communities have been saying about impacts.”

Machimar Adhikaar Sangharsh Sangathan

May 2014

---

[1] IFC has summarised nicely all CSR activities and proudly displayed it on their website, under a question ‘Has the project supported local communities, including fishing communities, near the project site?’ : http://www.ifc.org/wps/wcm/connect/region__ext_content/regions/south+asia/countries/frequently+asked+questions

[2] For details about CSR activities: http://www.tatapower.com/cgpl-mundra/csr.aspx

[3] http://financedepartment.gujarat.gov.in/pdf/audit%20Report_9_10_Eng.pdf Pg 14-15

[4] http://www.tatapower.com/cgpl-mundra/csr.aspx

[5] http://www.bicusa.org/over-100-organizations-demand-world-bank-withdrawal-from-tata-mundra/

[6] https://www.change.org/en-GB/petitions/president-of-world-bank-dr-jim-kim-recognise-policy-violations-in-the-tata-mundra-plant