Achieving sustainable development in practice?: lessons from the Nijgadh Verdict in Nepal

Introduction

On 26 May 2022, the Supreme Court of Nepal gave its final verdict and overturned the government's decision to construct an international airport in Nijgadh in a forest area in the Bara district of Nepal. In the case of Prakash Mani Sharma v The Government of Nepal, ¹ the court has issued an order to the government to seek an alternative site for another airport if required. Prior to this, on 6 December 2019, the Supreme Court had already issued a stay order, where it halted the development and associated construction works due to an improper Environmental Impact Assessment (EIA) being produced by the government. The long-awaited decision of the Supreme Court has divided the public into two different groups. One group of people supports the decision as it aims to preserve natural resources, whereas the other group opposes it, emphasizing the need to invest and develop the nation's aviation infrastructure, in order to deal with the projected increase in air travel and in turn to boost Nepal's economy. Despite the decision in the case, the latter group comprising of pro-developmentalists and politicians has continued to criticize the judgment of the Supreme Court, ² claiming that such a decision is anti-development and represents “judicial activism.” The pro-developmentalists believe that the court should not interfere in this type of situation, and insist that the airport should be built.

Prior to the decision, the fate of the $3.45 billion project had been in doubt since at least 1994 as successive governments actively pushed for it while environmental activists fiercely opposed it, pointing out the “significant harm” that the project would have on the environment, forest biodiversity, wildlife, ecology and nearby populations living in and around the proposed site. Despite the continuing opposition, environmentalists see the decision as a significant win in legal terms as it protects the environment and assists with mitigating climate change. With this in mind, this opinion considers the debate from both sides of the issue, the actual judgment and considers the application of the concept of sustainable development to the situation. Despite the verdict, it is likely that, the debate between the two groups over this issue will continue for some time yet.

A dichotomy of opinions

In parliament, following the decision of the Supreme Court in 2022 as part of his budget speech finance minister Janardan Sharma stated that the Nijgadh project was of national importance to Nepal, which is why despite the decision of the court, a multi-partisan committee still gave it the green light for the project proceed. ³ Indeed, the government along with the Civil Aviation Authority of Nepal (CAAN), though aware of the fact that the topography of the proposed site in the Kathmandu valley would lead to difficulty in landing for even the most highly experienced pilots, still think that the construction of the airport should go ahead. The CAAN argues that it is necessary to proceed with the project because the number of passengers traveling at Nepal's main airport Tribhuvan International Airport (TIA) in Kathmandu has already exceeded its capacity of 9.2 million. It believes that the number of passengers will continue to increase at the rate of 20% every year, and that if nothing is done TIA alone will have to accommodate 25 million passengers by 2040. ⁴

The proposed development of Nijgadh international airport was controversial from the very start. Environmentalists opposed it because the EIA report stated that the construction of the airport could only occur by using 8,045 hectares of forestland (which meant that 2.4 million trees would need to be cut down). They argue that this would result in a devastating loss to forest wildlife, thousands of people having to be resettled and contribute to, rather than mitigate climate change as well as increase the risk of flooding. However, despite this, the federal parliament has once again announced its commitment to building Nijgadh airport. It says that it will be built on about 1,900 hectares of land at an estimated 120 billion rupees which will be spent on Nijgadh airport's initial phase of development. ⁵

The judgment

In the judgment, judges of the five-member panel ruled that Nijgadh should not be used for the airport. It appears the main reasons behind their decision were as follows. First, the proposal was not consistent with the law/Constitution and was therefore deemed to be void. Second, the EIA provided by the Ministry of Forest and Environment on 23 May 2018 was not prepared properly and so they decided to repeal it. Also, they confirmed, the decision to construct the airport had been made before an EIA had even been produced.

In relation to the latter point, commentators have also observed that the mandatory EIA which was provided by the developers lacked “alternative analysis” and that the detailed project report (DPR) had not even been published which made the whole planning process more complicated and even suspicious, because practically an EIA report is not possible without the developers presenting the DPR first. ⁶

Third, in addition to the above, the majority of Justices namely Bishwombhar Prasad Shrestha, Ishwar Prasad Khatiwada and Prakash Man Singh Raut were persuaded by the environmental activists’ argument, that if the airport was constructed in the forest, then there would be a significant impact on the endangered species of wildlife present in the forest and that this, in turn, could result in the desertification of Tarai low land, which is irreplaceable and further Justice Khatiwada also emphasized, the public trust doctrine as well as the concept of “intergenerational justice” that had to be considered in relation to the infrastructure of the airport that was needed. The government argued that a vast amount of capital had already been spent on the project but the majority of judges stated that the bench could not be persuaded by the fact that certain funds had already been allocated to the project. The majority of the judges viewed that the possibility of developing the airport should be examined while taking all reasonable precautions to safeguard the environment, particularly the forest, and to minimize any negative environmental effect whereas, the other two justices—Hari Krishna Karki and Manoj Kumar Sharma—noted their dissent, stating that the government could continue the process just with a new feasibility study. Justice Karki stated that due to the presence of ambiguity in the current environmental laws of Nepal, this actually allowed the construction of the airport in such a vulnerable landscape; that is a landscape full of rich habitats and wildlife. The judges also viewed that due to the fact that a feasibility study had not been produced, the government was impulsive to declare the construction of Nijgadh international airport as a project of national importance. Justice Karki also provided various examples including the construction of the Istanbul airport. The Turkish government was heavily criticized by environmental rights groups for a similar project where an enormous number of trees were felled. Justice Karki also discussed the importance of principle of sustainable development citing the case of R (on the application of Friends of the Earth Ltd) v Heathrow Airport. ⁷ In this case, the United Kingdom Supreme Court mentions the principle of sustainable development and notes that it consists of three overarching elements, namely social, economic and environmental objectives. Lastly, he mentioned that the government had failed to properly assess the potential “risk” posed by the construction of Nijgadh airport, which should have been discussed as part of an EIA.

In considering the situation, the court also took into account the views of experts who were appointed from relevant fields for their input regarding the construction of the airport in the forest. Yubaraj Kumar Bhattarai, Sarita Giri and Baburam Prasad Yadav stated their views that the Aruwa river, Jamuni river, Tiyear river, Kaantghaat river, Thalahi, Badaki, Paini and Jokaha river were considered to be most vulnerable as the water might deplete due to the construction of the airport. Such depletion of water resources would impact the irrigation and access to drinking water of around 216,000 to 440,000 poor and middle-class farmers. The following experts also estimated that the construction of the airport would affect at least 288,427 residents of the Tamagadhi and Sahaj Nath forest area where it is estimated that 27.3 million trees would be cut down in order to construct the new airport. This would they viewed lead to a carbon footprint which would result in a monetary loss ranging from 8 billion to 75 billion. It would also bring an annual loss of 2.31 billion Nepali Rupees due to the emission of CO2, Nitrogen, Phosphorus, Potassium and loss of Non-timber Forest Products. The construction would also lead to the habitat loss of wild elephants and due to this obviously, the elephants might create a nuisance in the near future, that is, trespassing on the runaway, etc. The experts were insistent on the fact that the construction of the airport would lead to the destruction of the ecosystem, loss of habitat and would contribute to pollution. The proposed construction site is in their view a habitat for various plants and animals; and the experts discussed it was home to some 500 different species of bird; and also endangered species such as Aves, Wild Asian Elephant, Gaur Bison, Royal Bengal Tiger, Python, Giant Hornbill, Sarus Crane, etc. which can all be found in the Nijgadh forest. ⁸

In light of the above therefore, in contrast to previous Nepalese decisions concerning the “environment and development,” the decision of the Supreme Court of Nepal, is significant, as it has demolished the capitalist notion, confirming the point that the environment is not something that can be “exploited” in order to meet human needs. The majority of Nepalese have accepted the court's decision positively. Sanjay Adhikari, who was one of the lawyers who brought the case stated that “the court has quashed the construction project by adhering to […] article 30 of the constitution which guarantees our right to a healthy environment.” ⁹ While environmental activist Shrishti Singh Shrestha, who is a member of People's Alliance Nature Nepal, which is an environmental conservation organization, said that “we are not against Nepal's achievement in developmental aspects but we do believe that such large projects are only allowed if it is ecologically viable.” ¹⁰

It is important to note however, despite the above, that the government, environmentalists, pro-developmentalists and airport authorities have to some extent, “interpreted” the decision differently to suit their own agendas.

The way forward

The Supreme Court of Nepal not only stopped the Nijgadh construction project but also provided some flexibility on the question of where a new airport could be constructed. Additionally, it also paved the way forward toward thinking about how best to achieve a balance between development and conservation. In other words, “environmental considerations” and the existing “forests and trees” were not considered to be inconsequential matters in terms of building the new airport. This change of thinking as reflected in the decision is evident more today than ever before, as the principles of sustainable development are considered and applied to modern-day issues ranging from alleviating poverty to mitigating climate change, as well as being applied to legal scenarios such as this one. In this case, it appears that the environment has trumped development, but this is not necessarily always going to be the outcome, and as such it is argued here that “sustainable development” thinking should be applied throughout the various stages of a proposed development right from the design stage, through to the actual construction and post-maintenance of a site. In Nepal in terms of constructing another international airport, it is important to make sure that any airport is “sustainable,” because every year landslides affect the hilly region covering the proposed site area. ¹¹ Indeed if vast tracts of forest and trees are removed then this could actually create a serious environmental problem, and further exacerbate the situation in the future. While the decision by the court was to stop the airport and halt further construction associated with the project, it does not mean that an alternative development cannot be sensitively located in a forest area, if “sustainable development” is the goal; though it is accepted that the environmental impact in the area proposed is just too great.

It is suggested therefore, that in terms of moving forward and constructing mega-developments that it is necessary to: (1) develop innovative approaches to take into account public participation from the outset, (2) introduce incentive schemes by both central and provincial bodies so as to promote Nepal's infrastructural ambitions for developers, but which at the same time take into account the environment and (3) be creative and build sustainable development thinking into every stage of a proposed development, so that a balance between the environment and development can be achieved.

While in general, it can be observed that mega projects and infrastructures in Nepal have tended to be built at the cost of biodiversity and natural resources nearby. Arguably, by applying the concept of “sustainable development,” in similar cases in the future, there are at least additional mechanisms to assure a way in which environmental considerations can be at the forefront or more evenly balanced rather than as an afterthought to development. With this in mind, it is worth noting that various experts have insisted upon expanding Simara Airport without harming the proximate ecosystem at Sarlahi, which is up to 40 km to the east as an alternative location instead of constructing the proposed Nijgadh international airport at Kathmandu. ¹² This could provide a solution to the problem. However, with that said, the legitimacy of actually constructing a fourth international airport is now even more questionable since the other major international airports in Pokhara and Bhairahawa are providing better flight services, ¹³ meaning that an alternative airport may not actually be needed. Moreover, economists have advised that such a large project could trap Nepal in debt when compared to countries such as Sri Lanka, which recently constructed Mattala Rajapaksa International Airport, which is deemed to be a leading cause of its regressing economy. ¹⁴ Notwithstanding the above, the environmentalists and the politicians will no doubt continue to debate the issue, including regarding what is going to happen with the construction works that have already been started and lie dormant.

While not everybody has accepted the decision of the Supreme Court, it has at least confirmed that the construction of Nijgadh airport should not go ahead as too much forest area would be lost and that this in turn would have a detrimental impact on the environment, wildlife, ecology and nearby populations. The search to find an alternative site for an additional international airport, if required in Nepal, therefore, carries on. The judgment makes it clear that if the government does eventually decide to pursue an alternative site, then it would need to take into account the law, previous precedents and jurisprudence, as well as balance the environment with development, which can only be the right thing to do, as the two sectors overlap with one other. ¹⁵