BIODIVERSITY | DEVELOPMENT | FOREST CONSERVATION | MEGA INFRASTRUCTURE | legal | justice

Has the Supreme Court finally put an end to the three-decade long Nijgadh saga?

There is speculation that the Supreme Court’s recent verdict on Nijgadh International Airport still leaves Nijgadh open for building the airport. A legal analyst clears the air.

- By Roshani Giri |

"The Supreme Court of Nepal, Kathmandu" by eriktorner
"The Supreme Court of Nepal, Kathmandu" by eriktorner

The Supreme Court’s five-judge panel - an extended full bench - issued a landmark decision on May 26, 2022, directing the Government of Nepal to explore alternative sites for the construction of the proposed Nijgadh International Airport (NIA). The Environmental Impact Assessment (EIA) and the demarcation of the boundary for the proposed airport were among the judgments the Court invalidated in reaching its decision regarding the proposed NIA.

The court made its decision based on strong evidence of the possible catastrophic environmental impacts (‘ecological imbalance’ used in the text of the EIA itself) in the region as well as the violation of international and domestic regulations. The Court also emphasised the government’s lack of concern for the preservation of the environment and biodiversity.

Despite the blatant verdict, the government has steadfastly pursued the construction, claiming that the project has already consumed a significant amount of resources. Shortly after the decision, the incumbent Prime Minister Sher Bahadur Deuba visited the proposed area for ‘site inspection’ on 2nd July 2022 and instructed the Civil Aviation Authority of Nepal (CAAN) to expedite the construction. 

On the other hand, the media has published their own version of the interpretation concluding that the Supreme Court has left Nijgadh open for building the airport. As a result, there is still speculation that the SC decision still permits the government to build the airport.

Why is it untrue?
In the 115-page final decision, the Court has repeatedly mentioned that there is no dispute regarding the country’s need for an international airport. However, the Court has made it clear that the government cannot neglect the principles of sustainable development, inter-generational equity, biodiversity protection, mandated environmental protection, and so forth.

The Court has emphasised that while some types of environmental damage are unavoidable in development works, all alternatives must be considered in order to minimise such repercussions. Based on this, the Court urged the government to find viable alternatives with the aid of qualified independent experts.

The Court has not explicitly prohibited the intended Nijgadh area as a prospective location. That is true. It has acknowledged that the decision as to whether and where to construct an airport is an executive prerogative, but the judiciary reserves the right to evaluate whether the executive, in making such decisions, has followed or breached the constitution or other laws or when legal issues are brought up in that regard. The Court stated that it has the power to conduct judicial analysis of any premature actions taken without sufficient consideration of all critical variables in a development project. 

Without doubt, it is an executive prerogative to decide where and how to make an airport. However, where the executive decision violates the constitution or legal mandates or questions are raised to that effect, it is up to the Court to evaluate the legal questions. This is one of the important Constitutionally mandated responsibilities of the Judiciary. This segregation of executive and judicial power by the Court and thus falling short of explicitly prohibiting Nijgadh as a site for the airport is what has led to the interpretation of allowing Nijgadh as a potential site for the proposed airport. 

The Court has only addressed the viability of Nijgadh from an environmental standpoint, not from the aeronautical perspective. The court has also noted that despite Nijgadh being hailed as a prospective airport hub of Asia, no credible factual analysis has been put forward to corroborate the claim.

One of the major arguments put forward by the government attorney in the Court was that people have a right to development, and that this right occasionally triumphs over environmental preservation. There is no denying that as humans, we have a right to development, and that occasionally, this right includes a certain amount of environmental destruction. 

But, as the Court pointed out, the right to development cannot be asserted against significant environmental catastrophes. It is pivotal to maintain a delicate balance between environment protection and development. Even from the perspective of international environmental law, the government has a responsibility to prevent ecological damage where the issue is large-scale irreparable environmental damage (Principle 2 of Rio Declaration and Principle 21 of the Stockholm Declaration). 

Additionally, the Court has stated that the development should not merely be considered in terms of financial returns. Development must be sustainable and balanced (the dissenting judges took a different stance on financial perspective, as discussed below).

One of the most notable aspects of the Nijgadh case is its divergence from the conventional approach of environmental preservation from a human rights perspective only. To this, the Court responded eloquently by stating that environmental protection must also be viewed through nature’s perspective in order to be effective. This was essential because it is challenging to link the construction of the airport at the planned site to a violation of human rights in Nijgadh. As a result, only from a human perspective, environmental preservation may not have been effective there.

In reaching its decision, the Court also found violation of Section 42(1) of the Forest Act which provides that a national forest can only be used if there is no ‘no forest option’ and that such use does not cause significant harm to the environment. 

The Court has reiterated in multiple places that there is no adequate evidence that there is no ‘no forest option’, nor that the permission to use the forest as an airport site does not cause significant harm to the biodiversity and environment. 

Pairing it with the principle of Sustainable Development, the Court decided that one of the fundamental aspects of sustainable development is to find alternatives and as long as there are alternatives, the one with least environmental damage should be the priority, which cannot be weighed against any financial gains.

The Court drew attention to the government's lack of concern for the preservation of Nijgadh's biodiversity and environment by pointing out that, despite the EIA's mention of the need to afforest 61.2 million trees and the need for 38,294 hectares of land for the airport construction, no information regarding the land or subsequent planning has been provided.

The Court also stated unequivocally that it is not legitimate to build an airport city by clearing such a dense forest. No prevailing laws of the country permit allotment of forest area for the construction of an airport city. Therefore, the decision, though keeping the path for construction of an international airport at an appropriate site open, has closed any possibility of the airport city by clearing the woodland region.

The Dissent of the two judges
Where the majority of the sitting judges concurred with the main decision of the bench - the violation of international and domestic laws and the need to find appropriate alternatives - the two sitting judges - one of them in line to be future Chief Justice - put forward a different opinion and order. They dissented that Nijgadh is possible, but rather on government owned land located in the South of the proposed area and including Tangiya village.

The dissenting judges too stressed on the importance of keeping the forest intact and that no forest area can be used for the construction of an airport city, but did not fail to make the case that an airport can still be built in Nijgadh with extra precautions for environmental protection and for substantial funds have already been invested on the fast-track project connecting the airport to the capital as well as for other activities. 

To put it forward deferentially, the two judges did not take into account the serious effects an airport can have on the neighbourhood, that even the EIA itself warns of ecological imbalance, and rather made financial cost as a valid ground for allowing significant environmental damage in the area.

The two dissenting judges seem to have accepted a similar, if not the same line of reasoning as made by the government attorney who argued that the protected wild animals of Parsa National Park will learn to cope with the heavy airport noise pollution just like stray dogs and cows around the Tribhuvan International Airport. 

The essence of their dissent is that as long as you do not destroy the pristine forest, an airport even in the adjoining area is acceptable. The judges did not consider the impacts of airport/aeroplane noises on animals, nor looked into the fact that some countries such as the United States of America require aeroplanes to maintain a minimum altitude while flying over a National Park to ensure least disruption in their daily lives.

In sum, their line of reasoning goes against two of the fundamental principles of environmental law - the principle of prevention and the principle of precaution.

Dissent is important, but…..
The Supreme Court of Nepal has historically been environmentally sensitive and protective. In 2015, Supreme Court ordered the closure of the Godawari Marble factory in favour of forest ecology - the factory was established in mid-seventies while the environmentalists had filed the first petition demanding the closure of the factory in 1992. With the decision on the Nijgadh international airport too, the Court has lent its hand to the environment lawyers and activists’ endeavour for environment protection. 

But the dissenting opinion has set back the environmentally protective Supreme Court at a time when the environment needs the most protection. 

The recent overturning of Roe Versus Wade (a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion) by the conservative majority Supreme Court of the United States is a vivid evidence of how a conservative Court can have implications on the stance of the Court on rights protected by the Court for almost half a century. 

With one of the dissenting judges in line to become the future Chief Justice, his recent precedent to the ‘environment-development equation’ may wane environmental jurisprudence of the Court in the coming days. Not to forget, insurmountable challenges already exist in the implementation of the court decisions in protecting the environment.

Has the three-decade long Nijgadh saga ended?
Now, the most important question: is Nijgadh still available for the international airport? Technically, yes. Because the Court did not say otherwise. 

However, while carefully not encroaching on the executive’s power to decide where to construct an airport, the Supreme Court has very eloquently excluded Nijgadh as a potential site by highlighting that constructing an airport at the dense forest of Nijgadh runs against various international obligations and commitments of Nepal such as UN Conference on Human Environment, Stockholm Conference 1972, International Protocol to reduce Greenhouse Gas Emission, 1997 Kyoto Protocol, CITES Convention etc. 

The Court has also reiterated multiple times that constructing an airport at Nijgadh runs against the principle of Sustainable Development. Given that any interpretation allowing construction of the airport at the proposed site in Nijgadh is in clear violation of various international and domestic laws, even without saying so the Court has effectively put an end to an almost three-decade long Nijgadh saga.

Roshani Giri is a lawyer based in Nepal. She was a part of the litigating lawyers’ team for the Nijgadh Airport case. She holds a masters in law from the University of Cambridge.

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