Universal Jurisidction

Paper presented at the 9th International Conference on Sri Lankan Studies, 28-30 November 2003, Ruhunu U.
Do not cite without authors permission.
9th International Conference on Sri Lanka Studies Full Paper Number 005
Defining the Public Interest, Negotiating Rights: The Influence of Environmental Impact Assessment Legislation in Sri Lanka
Cynthia M. Caron
Address for Correspondence Cornell University, Ithaca, NY, USA. Email: cmc14@cornell.edu
Paper submitted for the 9th International conference on Sri Lanka Studies, 28th 30th November 2003, Matara, Sri Lanka
Paper presented at the 9th International Conference on Sri Lankan Studies, 28-30 November 2003, Ruhunu U. Do not cite without authors permission.
Defining the Public Interest, Negotiating Rights: The Influence of Environmental Impact Assessment Legislation in Sri Lanka
ABSTRACT
Environmental impact assessment (EIA) is used to determine a development projects environmental and social costs and benefits. In the 1980' s, environmental groups in Sri Lanka lobbied for, and in many cases won, inclusion of environmental regulations into their legal systems. Simultaneously, many international financial institutions began to require the completion of an EIA for securing funds. The EIA process institutionalizes opportunities for groups to enforce public accountability through a provision for mandatory public hearings. In the case of energysector development, EIA has forced the Ceylon Electricity Board (CEB) to interact with citizens in very direct, and often unpredictable, ways. During public hearings and social protests, disagreements between state officials and local residents over a projects potential costs and benefits frequently arise. Litigation following from such disagreements has increased the influence of the public in development planning and as a result has influenced political culture. Exploring how the EIA process has been used in energy-sector development (i.e., Norachcholai, Morgahakanda, and Ethul Kotte), this paper examines how different ideas of the public interest are constructed and become premised on a notion of citizen rights. Using written documents, participant observation at local protests and public hearings, and stakeholder interviews, I illustrate how the use of environmental legislation reshapes energy-sector planning from a technical exercise to a political process and re-orders relationships of power between state institutions and groups in society. An examination of the struggles over producing power in Sri Lanka has implications for other states in the process of redesigning energy security strategies and for citizen-action groups trying to protect their local environments and maintain access to their livelihood resources.
There is a cost for development. You cant run away from that. (CEB official, 5 December 2000) There are those who live in order to show their superior power Electric power is essential for capitalists In the huts of laborers who toil through farming Anyone who is smart will understand this fact- they do not have a light (Excerpt from a Sinhala poem written by Mr. B. Ranatunga Perera, translated by author)
The introduction of environmental impact assessment (EIA) legislation into Sri Lanka has forced project proponents, including state bureaucracies, to account for the environmental and social impacts of new development projects. As with several national-level policies across the world, there is often a disjuncture between policy and practice. Policy makers should examine this disjuncture as more than a simple dichotomy of success or failure in policy implementation, and be attentive to the processes through which decoupling occurs.
I draw on the disjuncture between policy and practice in three cases from Sri Lankas energy sector to show the types of possibilities the EIA process enables and how citizens collectively engage the state or talk back to the state as a social force that shapes their lifes (Finn 1998). In all of the cases below, the non-governmental organization (NGO), Environmental Foundation Limited (EFL) was involved to a certain extent. Using the states own environmental policies, EFL assists communities in protecting their local environments and addressing the adverse effects of electricity-generation infrastructure on their quality of life. It uses the process as a platform for such collectivities to stake claims, negotiate pre-existing and new rights with the state, and demand that the state recognize alternative meanings of development.
The Environment: Fundamental Rights, Fundamental Duties In the 1940s, Sri Lankas various presidents and parliamentarians began the thirty-year process of crafting a Constitution that could be ratified by the islands ethnically and religiouslydiverse population. The Constitution of the Democratic Socialist Republic of Sri Lanka (1978) defines a number of fundamental rights for citizens and a number of fundamental duties for the State. Fundamental rights and fundamental duties are in a precarious balance. The fundamental rights and duties relevant to this discussion of the EIA process are: Freedom from torture and cruel or inhuman punishment (Article 11), Equality before the law (Article 12), Freedom of speech and expression including publication, the freedom of peaceful assembly, and the freedom of association (Article 14-1a) Freedom of movement and choice residence within Sri Lanka (Article 14 -1h) (1978: 8). The duty of every person to respect the rights and freedoms of others and to protect nature and conserve its riches. (1978: 18)
These fundamental rights are subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony (1978: 9). However, the power of the Executive Presidency empowers the president at his or her discretion to pass Emergency Regulations that restrict rights of mobility, public assembly, and speech. 3
In addition to the fundamental rights granted to citizens, the Constitution provides the state with the broad responsibility of environmental protection. Articles 27 and 28 of the Sri Lankan Constitution outline these fundamental duties. Environmental responsibilities of the state include: the equitable distribution among all citizens of the material resources (emphasis mine) of the community, as well as protecting, preserving, and improving the environment for the benefit of the community (1978: 18). The environment can be defined as a material resource that should be equitably distributed across society. Citizens, though, have no fundamental right to access to the environment. The exclusion of such a right disables citizens who wish to articulate an environmental claim or grievance. In addition, environment is ambiguously
defined. The absence of an official definition provides opportunities for groups in society to construction their own definitions of what constitutes the environment when they argue claims both grounded in or against environmental stewardship. With the liberalization of economy in 1977, hydropower projects, free-trade zones and increased foreign direct investment, the environment has become a site of struggle for groups in society who wish to redirect this dominant development trajectory.
Article 28, calls upon all Sri Lankan citizens to protect nature and conserve its riches, providing environmental NGOs and groups of local citizens with an opportunity to challenge infrastructure planning that alters the environment. The responsibilities of the state as provider of electric power and protector of the environment are often contradictory ones. The state can undo the language of Article 28 by invoking the language of Article 27: subserving the common good. Thus environmental activists have relied on creative legal strategies and the EIA process to assist them in staking claims and negotiating demands with the state.
Elected officials took the wording of Article 27 seriously. In the early 1980s the Sri Lankan Parliament passed an impressive number of environmental laws. 4 The National
Environmental Act (NEA; Act 47 of 1980) validated environmental protection on the island by creating an enabling environment for establishing the Central Environmental Authority in 1981. The NEA is a set of environmental provisions for the protection, management, and enhancement of the environment, for the regulation, maintenance and control of the quality of the environment, [and] for the prevention, abatement and control of pollution (IRG 1998: 1.1.4). The use of the EIA process as part of the National Environmental Act began in 1980 as well. The purpose of an environmental impact assessment was to ensure that development options under consideration are environmentally sound and that environmental consequences are recognized and taken into account early in the project design. The EIA process should also help public officials make decisions that are based on an understanding of environmental consequences, and take actions that protect, restore and enhance the environment (CEA 1995: 1). Initially, the EIA process only applied to coastal zone development in accordance with the Coast Conservation Act of 1981. But with the increased international acceptance of EIA as one of the most powerful tools for creating sustainable development (IRG 1998), by 1984 all high-impact projects1 required an EIA. This mandatory EIA requirement was amended to the National Environmental Act (Act No. 56) in 1988.
With financial assistance from the United States Agency of International Development (USAID) between 1991-1997, the Sri Lankan government refined its EIA standards to fit specific Sri Lankan conditions.2 USAID consultants helped Central Environmental Authority (CEA) officials adapt EIA procedures to the unique environmental characteristics of the country (CEA 1995).3 Today, the CEA together with 14 project-approving agencies (PPA) of the government monitor the EIA process from the initial application through data collection and
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High-impact projects include, for example, highway development, energy-sector projects, and hotels with more than 100 rooms. 2 Rather than reinvent the wheel, the Government of Sri Lanka had based its original EIA legislation on guidelines designed by other countries in the region, the World Bank, and the Asian Development Bank (IRG 1998). 3 The USAID-funded project was called The Natural Resource and Environmental Policy Project (NAREPP).
its final approval. Once the CEA and the appointed PPA have approved an EIA report, project construction may commence. The Ministry of Irrigation and Power, for example, is the PPA for all energy-development projects.
Requiring an EIA for all high-impact projects including electricity infrastructure has had significant impacts on the design of Sri Lankan development projects, in general, and for the role of public participation in energy development in particular. The cases below illustrate how the EIA process helps to redefine the national interest and reconcile contradictions within the state. EIA assists citizens to act on their duty to protect nature and conserve its riches (Article 28) as well as guide the State, to protect, preserve, and improve the environment for the benefit of the community (Article 27). Provisions for Public Participation Public participation is one of the most salient features of Sri Lankas EIA process (Zubair 2001, 1998), providing a 30-day period for public comment that includes provisions for several public hearings. During public hearings, individual citizens and entire communities may come forward to question project proponents about the project or state their concerns about the project for the public record. Public hearings are especially important when the proposed project is highly controversial or threatens a nationally-recognized environmentally sensitive area (i.e., bird sanctuary, national park) (CEA 1995:13). Public hearings are one of the few
institutionalized spaces in the country for concerned citizens and communities to comment directly on the local impacts of proposed development projects. Citizens may argue for or against a project, challenge it, and suggest alternatives in the presence of government officials. Thus, EIA opens up large-scale infrastructure projects to public scrutiny and creates a space for local communities to talk back (Finn 1998) to or engage the state, its officials, and their overall national development program. If the project-approving agency listens to comments and 6
concerns expressed at a public hearing (and quite often do), then local communities and NGOs are able to redirect the countrys infrastructure planning.
Public hearings provide an opportunity for a projects potentially-affected persons to challenge the ways that the authors of an EIA report have describe their area and a projects potential impacts. EIA reports tend to privilege a projects environmental impact over its social and cultural ones. The Norachcholai EIA report included a chapter entitled, Description of the Existing Environment; with a subsection called, Human Population and Socio-Economy. The project impacts on a sacred place such as St. Annes Shrine and the culture of Sri Lankan Roman Catholic Church were not taken into consideration. Respiratory problems were statistically documented at Norachcholai, but the EIA report could not capture the communitys fear that additional respiratory aliments would result from the coal power plants smokestacks.4 The inability of the EIA process to take into consideration cultural impacts or perceptions of risk is a direct result of the process of EIA-knowledge construction: to reduce an areas complexity and homogenize its culture and its population in order to facilitate economic development (Baviskar 1995; Goldman 2001a).
Since public participation frequently blocks or delays project approval, project proponents argue against it. Proposals have been submitted to Parliament to reduce the number of days for public comment from 30 to 14 (Zubair 1998), but such proposals have not passed. As we shall see in the Moragahakanda case, 30 days often is just barely enough time to raise public awareness about a project and to organize meetings and letter writing campaigns.
The EIA teams unfamiliarity with the Moragahakanda project area produced an error in the EIA report that was the subject of a good laugh at one public hearing. In listing the villages that were to be resettled by the project, the writer used the wrong letter for ra in the Mara of Maragama. They wrote Maragama (dead village) rather than Maragama (village of the Mara trees).
Environmental Foundation Ltd. (EFL) interventions in Energy-Sector Development Grid extensions and the siting of power plants occur in urban and rural areas. Since the 1996 power crisis, Environmental Foundation Ltd. (EFL) has assisted many local communities to use the EIA process or has used the process itself to intervene in CEB decisions to expand its electricity-generation capacity. EFL staff travels across the island to guarantee that persons potentially affected by development projects understand the EIA process and know what their constitutional rights and the constitutional responsibilities of the state are.
EFL is the oldest public-interest environmental law group in Asia and a founding member of the Environmental Law Alliance Worldwide (E-LAW), an organization based in Eugene, Oregon.5 EFL staff organize and teach legal-aid clinics and legal-education programs. They maintain equipment in the Community Environmental Laboratory to collect scientific data for litigation. They offer environmental-monitoring assistance for a small fee. They maintain a library and documentation center with government reports and public debates on environmental issues. They publish a quarterly newsletter in Sinhala and English that updates subscribers on current activities and pending court cases. They also publish the quarterly journal, The South Asian Environmental Reporter which provides detailed accounts of evidence and strategies used in environmental litigation in Sri Lanka and other Asian countries. The Reporter is a valuable legal resource that updates environmental activists across South Asia of landmark precedents and new legal strategies.
The legal staff at EFL typically files motions against agencies that have not enforced environmental regulations or used the EIA process. Over the past decade, they have been
E-LAW publishes two electronic documents: E-LAW Advocate and E-LAW E-Bulletin. According to its e-mail correspondence, The E-LAW Advocate is a quarterly newsletter which highlights E-LAW' s work around the world and examines innovative legal strategies E-LAW partners are using to protect the environment; E-Bulletins report breaking news on E-LAW events and environmental victories around the globe (e-mail communication, 30 July 2002).
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involved in eliciting public participation and/or brought suits against the CEB and the central government with respect to several electricity-infrastructure projects. Below I examine three projects: The Ethul Kotte Childrens Case, the Moragahakanda Agricultural Development Project, and the Norachcholai Coal Power Plant to demonstrate how urban and rural constituents and the NGO sector used the EIA process to interact with or experience the state as the CEB pursued power-sector development. As a constitutional mandate, the EIA provided an institutionalized space for citizens to negotiate with the CEB. EFL used it as a platform for the collectivities that would be disadvantaged by electricity-generation projects to stake claims and negotiate rights against the state as well as challenge state-sponsored definitions of national interest and environment. Suing on Behalf of Your Next Friend: The Ethul Kotte Childrens Case In response to the 1996 power crisis, the CEB solicited private contracts for several diesel-powered generators to be connected to the national grid. In July 1996, Koolair Ventures, a firm specializing in industrial electrical goods such as air conditioning and back-up generators began to assemble eight diesel-powered generators (11.2-megawatt capacity) in an open-air shed within the confines of a CEB substation. The substation was located in the lower to middle class residential neighborhood of Ethul Kotte, a Colombo suburb. Koolair Ventures did not carry out an environmental impact assessment for the project. The municipal authority did not clear the generators installation. The CEB substation was adjacent to a bird sanctuary. The National Environmental Act (Section 23 Z of 1995) restricts activity within 100 meters from the boundaries of, or within, any area declared as a Sanctuary under the Fauna and Flora Protection Ordinance (Chapter 469).or a public lake as defined in the Crown Lands Ordinance (Chapter 454). The new Ethul Kotte plant violated both counts.
Residents formed a local committee, the Ethul Kotte-Environmental Protection Association, with the intention of halting the generators installation. By October 1996, they had visited and written to all local government officials and lodged complaints with the police. Although the land was owned by the CEB, planning clearance for any activity in the municipality is at Urban Development Authority (UDA) discretion.6 The UDA was the projectapproving agency for any new development that would occur in the municipality. Officials from the UDA wrote a letter to Koolair executives stating it would not grant clearance to the project as the substation was within a bird sanctuary. Furthermore, as the only access road to the site was from the ceremonial drive to Parliament, the road often is closed to vehicular traffic for security purposes. The site also needed to have an alternate access route. Koolair executives did not respond to the UDA letter. The next month the UDA reversed its decision to avert a national crisis and gave permission to Koolair to operate through July 1997.
Failing to stop the project through local government channels, the association secretary began working with an environmental lawyer at EFL. The Ethul Kotte Association undertook an extensive letter writing campaign and circulated petitions for the removal of the generators. No action was taken. On February 7 at 11:00 PM the generators began 24-hour nonstop operation. According to local residents, the noise was unbearable, homes shook, and plaster fell from interior walls (Fieldnotes 15 August and 6 December 2000). Within days, the association hired the Community Environmental Laboratory to conducted sound tests around the site. Results indicated that at distances of 20 to 70 meters from the substations borders, noise exceeded permissible levels for medium-noise areas.7
Mr. Nihal Fernando, Deputy Director (Development Regulations), Urban Development Authority, wrote a onepage letter to Mr. E.A. de Livera, Director of Koolair Ventures Power (Pvt.) Ltd. outlining the factors that prohibit clearance and you are advised to identify suitable alternate location for your proposed activity (Letter dated 16 October 1996). 7 A municipality or urban council area is a medium-noise level area. According to Gazette No. 924/12 of 23rd May 1996, the maximum daytime noise level for a medium-noise level area is 63 dB. At the Ethul Kotte site early afternoon readings ranged between 67 and 92 dB. (Community Environmental Laboratory 1997).
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On February 20, a group of residents filed an injunction against Koolair in the Magistrate Court of Colombo under Section 98 (Chapter 9) of the Criminal Procedure Code to prevent a public nuisance.8 A Koolair official claimed that the generators did make a fair amount of noise and that Koolair executives went to CEB officials to discuss what to do about the complaints against them. This same individual said that the CEB convinced President Chandrika Kumaratunga to change environmental laws to undermine the injunction against the plant (Fieldnotes, 21 November 2000).
Specific changes to environmental laws came in the form of Gazette No. 966/11 of 12th March 1997, Emergency (Generation of Electrical Power and Energy) Regulation No. 1 of 1997. This public security ordinance suspended four legal provisions in so far as they relate to the generation of power and energy: The Urban Development Authority Law, No. 41 of 1978, The National Environmental Act, No. 47 of 1980; The Nuisances Ordinance (Chapter 230); and Chapter 9 of the Criminal Procedure Code Act, No. 17 of 1979 (Gazette No. 966/11 1997).9
These were the same provisions cited in the legal proceedings filed against Koolair and the CEB on February 20th by the Ethul Kotte Associations legal consul. Even though their public nuisance case was pending before the Emergency Regulation was put in effect, as long as the Emergency Regulation was in force, their petition could not be litigated.
In response, the Ethul Kotte-Environmental Protection Association and its legal counsel filed another petition. This petition, A.V. Deshan Harinda (a minor) and Four Others v. Ceylon
Supreme Court Document 323/97 FR A gazette is a statue of an Act. All acts are crafted at the instruction of a Minister and can be changed at his/her discretion. While all regulations are crafted under an act, public security ordinances are different in so far as they enable the President to suspend regulations. This emergency regulation was an executive order by the President crafted under Section 5 of the Public Security Ordinance (Chapter 40). The Sri Lankan Constitution grants an Executive Presidency that imparts the post with sweeping powers. Public Security Ordinances are considered by many to be outdates forms of draconian law. For more information please refer to Cooray, 1996.
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Electricity Board and Six Others marked the first use of the next friend strategy for an environmental case in Sri Lanka.10 Lead counsel had read about the use of the next friend strategy in a Filipino case.11 With the Emergency Regulation in effect he considered the approach encouraging (Field notes, 15 August 2000). The new petition also added an additional set of demands to the original ones. Legal counsel argued that the Emergency Regulations could not be applied retroactively to their pending case.
Using their respective parents as their legal next friends, five children from Ethul Kotte ranging in age from 2 months to 2 years sued the following for violation of their fundamental rights and their right to life: the Ceylon Electricity Board, the Central Environmental Authority, the Board of Investment, the Urban Development Authority, the Director of Wildlife Conservation, Koolair Ventures Power (Pvt.) Ltd., the Officer in Charge of the local police station who did not pursue their earliest complaints, and the Attorney General. Through a parental next friend, children claimed that they were extraordinarily sensitive to the loss of sleep cause by the incessant noise. As infants and toddlers whose bodies, minds and sensory organs were still developing, prolonged noise exposure could cause long-term damage (Rajepakse 1998). Backing up the childrens claims was the expert testimony of Dr. Gary Evans of Cornell Universitys College of Human Ecology, a psychologist who specializes on the effects of noise on children.12
Next friend is commonly used in custody hearings, for example, in divorce proceedings or when parents die and leave small children behind. 11 Personal interview, Lalintha de Silva, 15 August 2000. The referred case is Oposa vs. Faetra. Attorney Antonio Oposa filed a petition as the next friend for his child. According to de Silva, Oposa, while serving in the Forestry Ministry under the Marcos Regime, had awarded more timber-logging permits than there were standing forests. He contested that with all the permits awarded, there would be no forest standing for his child to enjoy. He sued on behalf of his child to nullify many of the permits so that forest cover would remain for his childs enjoyment. All 15 judges on the Filipino court unanimously decided in favor of the petitioner. He also was familiar with the success of the next friend strategy in an air pollution case in Bangladesh. 12 In an affidavit and counter-affidavit submitted to the Sri Lankan Supreme Court, Dr. Evans reports that long-terms effects of high noise exposure include elevated blood pressure and neuroendocrine hormones, reading deficits, and
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In mid-May the Supreme Court granted leave to proceed with the new petition citing Articles 11, 12, 14(1)(h) of the Constitution and right to life. The judge declared that the Emergency Order had no retroactive effect and also ordered a stay order of consent that prohibited the power plants operation between the hours of 10 PM and 6 AM. With the restricted operation time and later an injunction on operation pending a review of noise-test results, the power plant was shut down and dismantled in June 1997.
On June 27, President Chandrika Kumaratunge rescinded the Emergency Regulation on the Generation of Electrical Power and Energy.13 To avoid an even longer court battle, Koolair settled. In 1998, the petitioners agreed to drop the case and received Rs. 10,000 each in damages.
The Ethul Kotte Childrens Case had popular appeal: the courtroom drama unfolded with helpless infants championing their rights against insensitive government institutions and a private-sector firm. Legal counsel made sure that the crying infants and fidgeting toddlers came to the courtroom everyday. Although they caused numerous disruptions and could not understand the proceedings, it was their legal and civil right to stay, a right that the judges respected.
While the Ethul Kotte case became a landmark environmental case for its legal ingenuity, it also raised the issue of how the state and groups in society interact in the realm of environmental law and management. Lead counsel Lalanath de Silva hoped to make the point through the Ethul Kotte childrens case that environmental obligations are intergenerational (Field notes 15 August 2000). A low-noise (tending towards a pollution-free) environment
other behavioral and learning effects. Children who learn to tune out high noise levels at a young age also tune out speech and language cues that delay reading development. (mimeo: 12/9/97). 13 Gazette Extraordinary 981/20 of 27.6.97 rescinded Gazette Extraordinary 966/11 of 12.3.97.
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became a legitimate material resource of the community for Ethul Kotte citizens to demand from the state as one of the states fundamental duties (Article 27). The Association framed its claim as one in which a healthy auditory environment could not be taken away by the private sector challenging what the CEB had defined the national interest.
The Ethul Kotte case engaged state policy and practices in another way. The electrical power and energy regulation was the first emergency regulation ever passed to suspend the National Environmental Act. Generally a Public Security Ordinance is created under quite extraordinary circumstances (events of war and terrorism). Equating power generation with terrorism as a national emergency appeared to many social groups as saw a slippery slope with respect to what is in the national interest, for who, and when. The power of an executive presidency that enabled the president to construct and dismantle such legislation at her own discretion has been controversial. The Ethul Kotte Childrens Case challenged the validity and legality of the emergency order and ultimately President Kumaratunges better judgment of what is in the national interest.
The residents of Ethul Kotte could not ignore the installation of diesel generators in their neighborhood. In some communities, though, residents do not know that a project is being undertaken until a surveyor comes to survey their land. For citizenship rights to be exercised in such instances, there must be awareness about the project as well as an understanding of legal rights. The next electricity-planning project shows how EFL used the 30-day public commenting period to educate a group of rural residents about both a proposed project and the EIA process and in so doing taught and exercised their rights as Sri Lankan citizens.
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The Moragahakanda Agricultural Development Project The Moragahakanda dam, a multipurpose agricultural scheme, is the fifth and final project planned within the Sri Lankan governments Mahaweli Development Program. The proposed Moragahakanda dam and reservoir would stand at 61 meters and achieve a water storage capacity of 500 million cubic meters. Attempts to build the project failed because geological studies had found porous limestone deposits in the construction area.
In 2000, engineers from the Central Engineering Consultancy Bureau (CECB) began a new feasibility study. After digging in eight locations, they found limestone deposits and cracked rock in the dam site (Wickramage 2000). Even though their EIA sponsored by the Central Environmental Authority claimed that the Moragahakanda project was not feasible, officials of the Mahaweli Development Authority and related government agencies began negotiating bilateral loan agreements with Kuwati officials. At this stage, it was uncertain whether or not the reservoirs water would be used strictly for irrigation or if a small hydropower station would also be constructed at the site.
Project construction would displace nearly 1064 families and submerge portions of twelve villages (Wickramage 2000). The proposed two thousand-hectare resettlement site was approximately 55 kilometers to the projects northeast. Potentially displaced persons opposed the project and rejected a resettlement package that included money to build a new home and to establish new agricultural fields (TEAMS 1998).14
Several public hearings were held in August 2000. Over 80 individuals attended a meeting at the Kongahawela community center to discuss the projects advantages and
Compensation included: Rs. 6000 (less than $85) to build a new house, Rs. 5000 to dig a well, porcelain supplies to build a toilet, free transportation of belongings to the site, free dried rations for five family members until the first harvest free seed paddy for the first two paddy cultivation seasons, free agricultural equipment, and free supplies of lime, coconut, and mango seedlings (Wickramage 2000; TEAMS 1998).
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disadvantages with members of two NGOs: EFL and Green Movement of Sri Lanka. Representatives from these NGOs had repeatedly visited the areas local government offices beforehand to make sure EIA documents were being made available during the 30-day commenting period.
At the time of the first visit, the EIA report was not available to the public in Divisional Secretariat (DS) offices in the affected region. On subsequent EFL visits, one copy of the report was available at the DS office. With ten days of the commenting period remaining, EFL organized a series of meetings. They wanted to confirm that community members were familiar with the project and its resettlement terms, to gather opinions from community members about the merits and faults of the project, and to urge those who did not want to provide video-taped statements to write letters to the project-approving agency, The Ministry of Agriculture, Lands, and Forestry.15
At the first meeting, a member of EFL opened with a brief explanation about the need for environmental impact assessment and its constitutional history, the types of expert information gathered to produce the assessment, and the purpose of the public hearing.16 He explained to the farmer-dominated audience that even though the government officials who were invited to attend had not shown up, it still was legal to hold the meeting without them.17 He stated that the EIA process was important because all people have the right to understand the countrys plans for
Siril said, This is very important. If during the 30 days you can say something, send a letter or a postcard to Battaramulla [Ministry]. When they make a decision, if a large number opposes then they cant do. We have come as an independent group. You say favor [the project] or not in favor and give a reason. You need to give a reason. We are videotaping and we will send it to the Lands Ministry without editing. We have brought paper so you can write your views. You can post them yourselves or well post them for you. Theyll take a decision only after that (Field notes 19 August 2000). 16 Meetings were conducted in Sinhala, Translations are my own. 17 He said, We have come very openly. We invited the CEA, Mahaweli officers, all the divisional secretaries and many other government officers. It is their decision if they come or not. The law doesnt say you cant hold a meeting like this. Legally there is no problem. If you like you can have a copy [of what is said here]. That way you can point out what you said on 19 August. And well send one to the relevant authorities. This is the last opportunity to say whether you are for or against [the project] (Field notes 19 August 2000).
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national development. Sri Lanka does not have a Community Right-to-Know Act. Extension efforts by NGO workers are sometimes the only way that potentially-affected persons learn about a forthcoming project before it starts being built.
Before inviting audience members to express what they like and dont like about the project, a member of the Green Movement of Sri Lanka repeated that the public hearing was their right given under the National Environmental Act. He said that the purpose of the meeting was to discuss the project. Participants must avoid saying anything in connection with politics,18 but rather to independently and freely express their views about the project and how it would affect their village (Field notes 19 August 2000). He added that by gathering in public, their decision-making process about the project was transparent. The government could not accuse them later of hiding or doing anything in secret. The days statements were video and audio taped with all participants stating their name and village of residence.
Within 90 minutes, the first meeting was interrupted by a group of police officers. The Officer-in-Charge (OIC) of police along with two junior officers entered the hall. Backed by state-sponsored Emergency Regulations and a Public Security Ordinance,19 in less than five minutes a successful meeting abruptly ended. The OIC said that the public-commenting process could continue by soliciting ideas and opinions from door-to-door.
The meetings abrupt end suggests that public participation in Sri Lankan infrastructure planning is fragile. While the public hearing provided an institutionalized space for residents to negotiate with the states project approving agency, The Ministry of Agriculture, Lands, and Forestry, the police restricted their ability to exercise that right. Even though the Emergency
The reference to politics here is in reference to party politics (UNP or PA affiliation). This emergency regulation is not related to the emergency regulation of the Ethul Kotte case. Due to the ethnic conflict, there are always multiple emergency regulations in place to prohibit public gatherings that might draw terrorists.
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Regulation on Power and Energy that was in place during the Ethul Kotte struggle was suspended by this time, police used another emergency regulation that was renewed every month by Parliament to restrict public gatherings to break the potential social power of their collective meeting.
Before the meeting ended, 21 community members had given video-taped testimony, eighteen opposed to and three in support of project. Opposition to the project was organized around economic and personal security and community history. The majority of the opinions expressed dissatisfaction with the resettlement site government-controlled areas of Trincomalee District. The resettlement site was in a border area that constantly shifts between LTTE and military-controlled territory. Residents feared that they would be caught in ethnic cross-fire between Sri Lankan Armed Forces and LTTE terrorists. One woman at the public hearing mentioned that she had moved her family from that region over fifteen years before to distance her family from danger. To resettle the residents in that area would bring an LTTE problem to a people who currently had no problem with the LTTE.
Second, the relocation of Moragahakanda residents to a site to their north and east was similar to previous Mahaweli colonization programs. The resettlement site for the Moragahakanda project would again re-settle Sinhalese families into a region with a fairly balanced Tamil and Sinhala demographic. The introduction of 1000 new Sinhala families into the resettlement area, however, would change its ethnic composition. Moragahakanda residents questioned whether or not the 2000 hectares designated for resettlement would be able to provide the agricultural (livelihood) security that they currently enjoyed. They were also concerned that site had no infrastructure services. As the LTTE regularly targeted infrastructure in its struggle against the government, with their proximity to an LTTE controlled area they felt that the
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number and types of infrastructure and public services that would be offered in the resettlement area would be limited.
Finally, many members of the community placed their settlement within Sri Lankas epic history. The people of the area traced their settlement history to the period of the great irrigation works of Ancient Ceylon. Some residents claimed that while gathering data for the EIA the Geological Survey found tunnels running under the reservoir site. They believed that these tunnels were remnants of King Vasabhus well-known tank and canal system20 that dates back to the earliest historical chronicle of Sri Lanka, the Mahavamsa (Fieldnotes, 19 August 2000). By the end of the fifth century, there was a significant irrigation complex on the Mahaweli River and its tributaries that includes the present area of Moragahakanda. The new dam project would submerge and damage this archeological evidence of Sri Lankas technological ingenuity.
The opposition to the Moragahakanda project engaged and challenged government policy. When it alluded to politicians repeatedly-broken promises, the opposition revealed its lack of trust in the state and their elected representatives. Residents questioned both what was in the national interest and the protection of community security to a greater extent than, but not to the exclusion of, concern about local environmental impacts (such as the loss of wildlife habitat and flora). The majority of residents were rather fatalistic believing that the project would be
constructed regardless of what they had to say or whatever they would suffer. Elderly persons at the two meetings were the most dejected. They had lived a lifetime of broken government promises. One young man spoke eloquently about a great mission: balancing environmental losses with potential economic and social gains. The gains he referred to were not from
irrigation waters or the power-generating potential of the project, but from social and economic claims that could be made from community mobilization before shifting to the resettlement site.
20
Tanks are shallow structures with a large surface area that permit the collection of the maximum amount of rainfall. For more on the engineering of this hydraulic period, see Hegewald (2002) and de Silva (1981).
19
He began his statement with environmental concerns building upon articulated ideas voiced by others opposing the project (e.g., destruction of elephant habitat, loss of fertile land), before moving into how their collectivity should make demands upon the state for their livelihood security: I accept that this is not a highly-developed area, but there are a lot of resources, medicinal plants, wildlife. If you think intelligently, no one would want to see this environment destroyed. have we thought about the harm it can do in connection with the environment? We are waiting to see what extent of land they will give. I think we are only talking about compensation for houses, trees, and agricultural crops. People so far have been talking about what they are going to get, about going to the border areas.. More than this we should talk about how much land is needed, how much relief we should get. We should talk about this againwell need relief for about two years. We must demand these things(Video transcript 19 August 2000). 21
He then expounded on the opportunities provided by collective action and the role of protest: I have heard through the media that the government paid a lot of attention to the Norachcholai [coal] power station. They were organized. Environmental groups like this one organized the people. Like this we too must organize the people against (the project). We organize to get something and make demands to see that we get something. But we dont protest against what we will lose. Only if it makes our life more prosperous, then we make demands.I dont have statistics about the environment. People who spoke before me said they should give us Tiger-free land [without the presence of the LTTE], but we should talk about how the environment is going to be affected (Video transcript 19 August 2000).
Finally, he discussed the politics of the project based on his understanding of social and political relations before closing with a request for institutional support and increased public awareness.
21
I translated these statements from Sinhala into English and take responsibility for their content.
20
Any decision that is done in connection with this project is for someone to get his power or re-enforce his power. Someone will enhance his or her power with this. People are always telling us what we are going to get, not what we are going to lose. Only the one with the wound knows about what is suffered. We should get groups like this environmental group to intervene. They should make people aware so they will speak in one voice (Video transcript 19 August 2000).
This young mans intervention at the public hearing illustrates how the publiccommenting period provided an opportunity for individuals to address the social forces that shape their lives as they expressed their opinion on the merits or drawbacks of a particular development project. Prior to amendments made to EIA legislation in the late 1980s and the establishment of groups such as EFL, strong connections between residents and NGOs did not exist. In trying to overcome shortcomings in EIA provisions for public participation,22 EFL staff directly intervened and changed how rural constituents interacted with and experienced the state and strengthened a communitys understanding of their constitutional rights through a practice of civic engagement.
When the government constructed earlier projects within the Mahaweli Scheme in the 1980s, no EIA legislation existed. There were no public hearings. The public hearings at Moragahakanda reveal how state-society relations around infrastructure planning have changed with EIA legislation, the mandatory public-hearing clause, and the presence of an NGO that interrogates the processs shortcomings. The residents of Moragahakanda used the publichearing process to demand recognition and respect for their agricultural livelihoods and to include themselves into the decision-making process that would affect their community and its economic and social security.
22
For example, gathering potentially-affected communities together, guaranteeing that the EIA report is available, explaining the EIA processs constitutionality, and organizing an opportunity for public comment.
21
The Norachcholai Coal Power Plant Since the late 1980s, the CEB has tried to find a place to construct a coal-fired power plant. In the mid-1990s, they identified a suitable location on Northwestern Provinces Kalpitiya peninsula. A stretch of beach in the village of Norachcholai possessed the necessary geographical properties for their undertaking: a seaside location that would allow coal-shipping barges to approach the plant, a readily available source of water for the systems cooling, and enough barren sandy space (300 acres) for depositing flue and furnace ash and storing coal onsite. In addition to locating a suitable physical space, EIA legislation required the CEB to hold public meetings with potentially-affected communities to explain the project, its necessity, and its socio-economic and environmental impacts on the selected community.
A series of social protests emerged from these meetings. The protests mobilized themselves around environmental protection, livelihood security, and recognition and respect for alternative definitions of national interests and security. Protest leaders, including the Bishop of Chilaw and officials from the Social and Economic Development Centre (SEDEC)23 with EFL cited that the plants construction would produce acid rain from sulfur dioxide (SO2) emissions, encroach on productive farming land and fishing grounds, and exacerbate coastal erosion that would threaten the peninsulas entire coastline. Activists against the plant argued that a coaltransportation jetty that would connect coal-shipping barges to the power station would exacerbate coastal erosion along the peninsulas entire coastline ultimately reaching and threatening Saint Annes Shrine 12 kilometers north of the proposed site.24 Norachcholai
residents who would live under the power plants shadow argued that bottom ash buried on site
SEDEC is a social-service wing of the Roman Catholic Church. Due to the shallow coastline and the depth of a coal-shipping barge, the closest a coal-shipping vessel could get to the power station is four kilometers. A four-kilometer jetty will extend from the power station into the sea transporting coal from coal-shipping barges anchoring themselves offshore. Groups opposing the plant cited the expense of building and securing this jetty as another reason to stop construction. They argued that Trincomalee was a better site. Trinco, located in LTTE territory, has a naturally-deep harbor that would allow coal-shipping vessels to approach a power station easily were the facility sited there.
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would contaminate the areas high groundwater table. Their fishing and agricultural livelihood as they knew it would be destroyed. Particulate matter and gases escaping from the smokestacks, they claimed, would poison the soil, pollute the air and rainfall, and increase risks to public health.
But their protests also drew upon two previous negative experiences with economic development: the building of the Puttalam Cement Factory and the construction of the Voice of America (VOA) rely station. These experiences were exacerbated by the fact that the population of the Kalpitiya area recently had increased by at least 60,000 persons. In October 1990, the Liberation Tigers of Tamil Eelam (L.T.T.E.) expelled the entire Muslim population from the Northern Province. Many of these displaced Muslim were living in welfare centers that stretched along the entire peninsula. The government did not improve the areas economic and social infrastructure to meet this population influx, and with the increase in the labor pool, local wages dropped precipitously as the IDP population would work for wages much lower than the local host community had. The peninsulas social and economic infrastructure was being stretched and the population already feeling put upon.
When Norachcholai residents argued that particulate matter and gases escaping from a power plants smokestacks would create a risk to public health, they based this claim on what they had seen or knew about the health problems of residents who lived within the shadows of the nearby Puttalam Cement plant. Asthma and respiratory problems were chronic within a onekilometer radius of the cement plant. The EIA authors noted that there was already a highincidence rate for respiratory diseases such as pneumonia, bronchitis, asthma, and respiratoryrelated illnesses (1998:3-61) in the area. Hospital admittance for respiratory diseases (115 persons were hospitalized during four months in 1997) was higher than admittance for malaria,
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gastroenteritis, tuberculosis and urinary tract infections combined.25 People in the area were already suffering from respiratory-related illnesses that they attributed to the building of the cement factory. They regarded pollution from a coal-power plant as exacerbating an alreadyexisting problem.
Second, Church leaders used their experience with state officials during the siting of a Voice of America (VOA) relay station to inform their strategy for the Norachcholai protests. In 1983, the United States Government re-negotiated and renewed a contract with the Government of Sri Lanka (GoSL) to continue broadcasting its Voice of America radio programs from a series of transmission stations located on the islands western coast.26 American engineers chose a suitable location in the coastal region of Chilaw district described in the EIA report as 410 acres of an active and abandoned coconut plantation and a former rice paddy on the Iranawila Estate (USIA 1994:3-1). To the south of the project site was the village of Iranawila. The northern edge bordered abandon rice paddy. The marshes of the Luna (sic)27 Oya stood at the eastern edge. (3-5). The impact assessment stated that no residents live on the project site, no commercial activities or businesses are located in Iranawila and that the only other land use in the project area was a cemetery (5-11). The village of Iranawila possessed the necessary
geographical and physical properties for constructing new relay stations.
From Chapter 3 of EIA Report entitled, Description of the Existing Environment; subsection entitled, Human Population and Socio-Economy. Cement-plant owners have argued that their plant has the best technology available to contain dust emissions. But with these pre-existing high rates of respiratory illnesses, local residents did not trust CEB officials when they have claimed that they would use the most sophisticated, pollution-control equipment available for the coal power plant. 26 Other provisions included: expanding the site size from 10 acres to 1000 acres, upgrading transmission capacity from 105 kilowatts to 2500 kilowatts, transferring ownership of the station, its administrative operation and maintenance from the GoSL to the US Government (de Silva 1995). 27 In VOA project documents, the name of the river is spelled as Luna. In documents written by local activists and Church officials the name is spelled Lunu. As lunu is the Sinhala word for salt and the river connects a body of fresh water with a salt-water body, salinity in the river leads me to believe that the name of the river is Lunu Oya.
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The EIA consultants acknowledged that coastal resources were an important source of income in the local economy28, but reported that the only impact to the Lunu Oya would be a short-term increase in surface runoff that would decrease the rivers salinity. Barges and
tugboats would not transport fuel to the relay station via the Lunu Oya thereby eliminating any chance of accidental fuel spills. The relay station would have significant impacts on land use imposing an industrial-type of land use into an area characterized as a small village (6-12), but no families would need to be resettled. Local people would be hired during the construction phase. The report did not mention whether or not the relay stations would reside within security zone and whether or not there were negative impacts on the local fishing industry.
During the construction phase, fishermen were told they could no longer use a small channel draining Lake Chilaw into the Indian Ocean. In a meeting between a VOA official and the nearby parish priest, it is reported that the local priest was instructed to inform people that secondary waterways between two inland lagoons that led into the Luna Oya could no longer be used for fishing and transport. The reason given was that cable had been laid and the area was now a security zone of VOA (IPSF 1994:24). On several occasions when fishermen were fishing in the area, they were told they could not longer land their boats at the outlet where Lunu Oya met the Indian Ocean as it was now a security zone. While the closure was announced as a precaution limited to the construction phase, there was no indication when it would be lifted. Fishermen feared the possible closure of the entire Lunu Oya in the future (44).
In addition to new constraints placed on the fishing community, religious activities were disrupted. When the local Catholic population was making a regular Way of the Cross, they were surrounded by a large contingent of police personnel from the surrounding police stations,
EIA authors wrote that there was an undeveloped fisheries harbor at the outlet of the Luna Oya as well as evidence of fishing with large nets along the shoreline that included the village of Iranawila. Other incomegenerating activities of the community mentioned in the EIA report were manufacturing of roof tiles and rope from coconut husks.
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in full battle gear, [who] blocked their way and forbade them to move (ibid:42-43). A police post was established in the middle of Iranawila village. Local residents claimed that Central Intelligence Department (CID) personnel were stationed in the police post to monitor their movements and activities (43).
The unannounced security zone, disruption of religious ritual, limitations on fishing, and police surveillance at Iranawila foreshadowed what might possibly happen if a power plant was built at Norachcholai. An offshore security zone would disrupt fishing waters and place limitations on Norachcholais seaside residents. Police surveillance and an onshore security zone would disrupt pilgrims traveling to St. Annes Shrine. The activists experience with the Puttalam Cement factory and at Iranawila informed how residents of Norachcholai and Catholic Church leaders understood potential outcomes of the Norachcholai project and the extent to which the State could be trusted. The Rtd. Rev. Marcus Fernando, Bishop of Chilaw, who led protests against the siting of a Voice of America (VOA) relay station also led the movement against Norachcholai. The State needed his support more than anyone elses in the Church hierarchy for the Norachcholai project to move forward. Yet, the VOA case was very much alive in the institutional memory of Church members residing in the Chilaw diocese.29 Struggles for the Public Interest in Norachcholai The Norachcholai EIA stated that basic infrastructure facilities (education and health) were low, incomes were low, and in general Kalpitiya Peninsula can be described as an economically rather marginal area. The local economy is restricted almost completely to the primary sector activities in the project area (3-51). Within the project area itself, almost onethird of the households have no valuable properties at all30 (0-13). The EIA argues that
29 30
Letter dated 29 April 1997; Construction of a Coal Power Plant Under Emergency Regulations. Commodities such as radios, TVs, sewing machines and bicycles that other villagers have.
26
Norachcholai is a village that needs development. The report supports the power plant and advocates resettling families as a way to develop and to improve local lifestyles.31 When writing an EIA report, information about social and cultural resource is often suppressed because the loss any unique cultural or social resources can result in expensive costs for proponents (further delay or cancellation of a project). Catholic Church leaders mobilized around what was left out of the Norachcholai report: the historical and cultural importance of St. Annes Shrine. Norachcholai residents also contested EIA claims that the area was unproductive and used by LTTE terrorists.
In their fight against the siting of the coal power plant, opposition-party politicians, Catholic Church leadership, and members of the local community constructed a multidimensional metaphor of security grounded in differential notions of community. Their multistranded arguments wove together a set of claims rooted in local experience and situated within a national context. The security of St. Annes, or the Talawila, Shrine was linked together with the (in)security of the Dalida Maligawa32 attacked by the LTTE in 1998. To insure that nothing of the sort would threaten St. Annes Shrine, social, cultural and economic concerns coalesced around its protection. One young farmer at a church-service-cum-demonstration held in Norachcholai stated,
Im a Buddhist. Just as the Dalida Maligawa has value for us, the Talawila Church has for our Catholics. Like that itself, I think our Catholic people feel in the same way for our Talawila Church. Even though I am a Buddhist I have come today to participate in the church service. From the beginning it [opposition] has been with the goals of protecting the Church. (14 April 2000, public demonstration at the Ilanthadiya Church).
Baviskar (1995) and Goldman (2001b) have argued that EIA writing is a knowledge-construction process about an area that reduces its complexity and homogenizes its society, its culture, and its ecology. Baviskar eloquently argued how the EIA process and dam development in Indias Narmada Valley erased history, heterogeneity, and the culture of the Bhilala tribal community. Michael Goldman (2001b) conducted several interviews with rural development consultants who had written EIA reports in Laos. One ethnolinguist on an EIA team encountered at least two previously-unknown languages in a region where a dam was to be built but was not allowed time to document them (2001b: 198) as the time needed to document that knowledge and protect the community which spoke it might have slowed done project implementation.
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Another participant exclaimed, Our Madhu Church has been taken over by the LTTE. Like that, we will lose everything. Just as the Buddhists are protecting the Dalida Maligawa, we are protecting our Church. We only have this much. If we were deprived of this, no where else do we have another church. We dont have another church (ibid.).
Reverence for the Saint Annes shrine by all, not just the Catholic community, has redoubled since the church was in a LTTE-controlled area.
33
The example of the Catholics loss of the
Madhu shrine to the LTTE is not the only LTTE-related worry that the local community has taken into account. Another participant commented, The other thing, the biggest problem is the LTTE..For the project the CEB has written a big book [reference to the EIA report]. They have not written in their book how they are going to protect it (e.g. the power plant). The Minster of Irrigation and Power is also the Minster of Defense. He will look after that. We do not accept this. In Sri Lanka, everywhere they are blasting transformers. Now they, LTTE, is launching these attacks close byif they were to build a power plant? They have not said how to protect it. Therefore, I think, in truth, that they [CEB and the government] are deliberately bringing to this place without an LTTE problem, [to make] an LTTE problem (14 April 2000, demonstration at the Ilanthadiya Church).
This perception and others like it that proclaimed there was no LTTE problem in the area contradicted government and media reports that had asserted the Kalpitiya peninsula was an LTTE-staging ground. Even if the LTTE was using Kalpitiya as a staging ground for their tactical operations (which Norachcholai residents discredited), their assertion that building a power plant would create a LTTE problem had considerable evidence.34
Also known as the Temple of the Tooth Relic. It is believed to have a tooth of Gotama Buddha. As such it is one of the most important pilgrimmage sites outside of India for global Buddhism. 33 Letter dated 3 December 1997 from Catholic Bishops Conference Sri Lanka to President Chandrika Bandaranaike Kumaratunga. The Madhu Feast was held for the first time in over 20 years on July 2, 2002. Since a regime change in January 2002 and a cease-fire agreement with the LTTE in February, the new ruling party has addressed the Catholic communitys concern over the Madhu Shrine (The Sunday Observer, 30 June 2002). 34 The LTTE attacked government oil refineries outside Colombo in 1995 as well as the Dalida Maligawa in 1998. As a matter of national as well as national energy security, essential infrastructure (i.e., power stations, and reservoirs for drinking water supply) has armed security in case of terrorist attack.
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The increased presence of police and military personnel needed to protect essential infrastructure has extended state surveillance in rural areas. Security forces may secure infrastructure facilities, but their presence creates insecurity for many Sri Lankans especially for members of the minority Tamil population (Jeganathan 2002).35 Checkpoints manned by armed personnel have inconvenienced travelers and increased opportunities for sexual harassment and molestation and on numerous occasions even rape and murder of young Tamil women, most of whom ended up in police custody after being detained at police and military checkpoints (Liyanage 2001). Members of the local community argued that the armed-guards and police that would be sent to protect the power plant would also compromise the very safety of local women and children.
Another security concern for those opposing the plant revolved around the proposed building of a four-kilometer jetty that would transport coal from coal-shipping barges to the power plant. Often referred to as the power plants lifeline, the jetty too was seen as a potential terrorist target.36 The LTTE branch named the Sea Tigers had conducted numerous surface and underwater operations to destroy Sri Lankan naval ships. The Bishop of Chilaw asserted that the jetty was an invitation to terrorists to turn the presently peaceful area into an area of conflict.37 Furthermore, Naval patrols in the waters around the jetty, the Bishop argued would create a security zone and restrict local fishermen from fishing in those waters. Despite the countrys electricity-generation crisis, Church leaders, residents, and many politicians were against siting a coal-fired power plant in Norachcholai.
For more on being Tamil and passing through checkpoints, see Jeganathan. For violence against women at checkpoints, see (Dugger 2002). 36 The destruction of electricity infrastructure is a political statement. In 1999, Sri Lankan newspaper reports (i.e. The Daily News, The Island) documented over 75 LTTE attacks on electricity-related infrastructure in and around the capital, Colombo. Security was tightened around power stations, but targets such as substations and transmission lines are too numerous to secure individually. The length of transmission line, 17,000 kilometers of medium voltage lines and 46,000 kilometers of low-voltage lines and the number of distribution substations (11,000) make constant surveillance impossible (CEB Annual Report 1998: 32).
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One activist admitted that the country needed electricity to develop. Yet the siting of the coal-power plant threatened the communitys livelihood security. After all, she exclaimed, the people in the area did not build their houses by doing government jobs but rather through their own sacrifice38 and supplying food for the country. Residents did not sit under a ceiling fan all day to earn their wages. They worked outside in the hot sun to provide food and fish for the urban population. Agriculture did not provide a reliable monthly salary as comfortable government jobs did. In order to survive they often had to forgo a rice-based meal at midday. Farmers would forage on locally-available foodstuffs such as immature coconut instead. In a culture when rice is an important dietary staple and cultural symbol, forgoing it is a considerable sacrifice. I accept that you cannot develop the country without electricity. But there are alternatives. We have showed them that there are better places than this. Do it beyond Kalpitiya39(But) they [CEB] are afraid of the LTTE. The LTTE is over there they say. So they are setting it up [here] avoiding the LTTE and destroying us.. The CEB says, If you want to make an omelet, you have to break eggs. It is wrong to crush people who are innocent like us. So why are they powdering us? We are Lankans. (14 April 2000).
Her friend portrayed the coal-power plant as an unjust punishment for their community, Why are they trying to do things like this in this small village? We are little people. Why harass us? We are village people. We studied hard. A lot of boys and girls live here. Not even from one person, not from the president or a
Open letter written by the Bishop of Chilaw dated 10 February 1998 two weeks after the terrorist bombing at the Dalida Maligawa. 38 Kurumba kanava: literally skipping the noon-time meal (implying rice) and making do by eating kurumba, the meat of the immature coconut that contains neither water inside nor a kernel (14 April 2000). 39 While her argument may sound like a not-in-my-backyard argument, the case better parallels an environmental justice case. Not-in-my-backyard tends to be associated with upper and middle-class politics. Environmental justice cases involve further exploitation of marginal places and peoples through the siting of polluting industries (See Harvey 1996; Collinson 1997; Roberts and Toffolon-Weiss 2001).
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minister, do we ask, Give us jobs. We have never asked for help from anyone. (ibid.) 40
The siting of a coal-power plant in a community that believed itself to be self-reliant together with negative effects of police and military checkpoints on economic livelihood and religious freedom loomed large in public debate. According to the Bishop of Chilaw, a coastal security zone would impose restrictions on pilgrims who traveled to St. Annes by sea and losing the peaceful atmosphere now prevailing there would be a heart rendering experience to Catholics living in the whole country.41 Peninsula residents too agreed that the checkpoints were irksome. Bolder individuals openly questioned why all the security personnel and checkpoints still remained on the peninsula even after Sri Lankas President, Mrs. Chandrika Kumaratunga, officially canceled the project in July 2000. Local Readings of Security Rural location and ethnicity as an aspect of the ethnic conflict played an important role in how Norachcholai was seen to be chosen as a site for a new power station. Community interests constructed by the Church and local residents challenged state-sponsored mandates for national security and the national interest. Furthermore, understandings of community security shaped the way that many local residents read one section of the EIA report and responded to the slaying of a protester by police and reveal how activists engaged state officials through the EIA process.
At checkpoints, police have the power to stop and question everyone without cause. Church leaders argued that detainment was a threat to Norachcholai residents and to Shrine worshippers. The stake that some community members had in matters of local security and lack
40
In this womans statement, she is portraying the community as not being a liability to the country (e.g., by asking for assistance). The women is asking the question, Why would the government try to punish them with a power plant rather than rewarding them for their perseverance and self-reliance? 41 Catholic Bishops urge President to Scrap Norochcholai Power Plant Project. The Island. 1 April 2000, p.2.
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of trust in the EIA process was integrated into their reading of the projects EIA document. A 1998 letter written by Mr. T. M. Ismail, a local Muslim leader, illustrated the extreme gravity of concern that security zones posed when he argued passionately about the reports failure to mention the phrase security zone.
For several months in 1998, there was confusion in Norachcholai over a map in the EIA report that showed a power plant surrounded by concentric circles. The concentric circles radiating out from the power plant, however, were buffer zones at distances of two, five and twenty kilometers. They indicated the dispersal of particulate matter from smokestacks and the spatial distribution of population settlements within the project area. Residents read the map and translated the circles into security zones. While residents misunderstood the technical term buffer zone, their translation is not a sign of ignorance. Their reading of the map was a manifestation of their relationship to the state. Based on their knowledge of what had happened at Iranawila and the states preoccupation with military security against the LTTE and security zones around essential infrastructure, residents translated their fears about security and checkpoints and their lack of trust in government officials into their interpretation of the concentric circles. Residents had reasons to believe that security zones could be hiding in the language of buffer zones. They had reasons not to trust officials with vested interests in the power plants construction as well. At Iranawila, officials told local fisherman that access to waters would not be restricted, and later it was. And as we will see later in this section, CEB officials were not always forthcoming about project-related work and what they were doing on site visits.
Mr. Ismail and others were correct when they stated that security zones were not mentioned in the EIA report even though the government used the language of security zones in public meetings and throughout the EIA process. In their struggle to protect their persons and 32
livelihood, their demands to know the extent of security zones, and then the absence of any mention of security zones in the official government document (the EIA report) residents logically translated these concentric circles into security zones. Buffer zones and security zones were not one and the same. But given the lack of information provided to residents about security zones and their fear of them, their translation is not ignorant. It reflects their experience with state-sponsored development and the EIA process.
The CEB repeatedly used this example to illustrate the ignorance of the public in matters of science, technology, and engineering and to prove that the general public should not be allowed to participate in development planning. The error in Norachcholai proved to CEB officials that the public was not capable of understanding electricity-infrastructure planning and that such matters should be left to experts.
In defining security, groups challenged and discredited one another through defining what was in the national interest and in the writing and translation of the EIA report. Even though this error emerged, it has not stopped environmental NGOs and concerned citizens from participating in electricity-infrastructure planning. The error shows the fragility of state-society relations and the tiny fractures that can occur with a lack of credibility and trust. In addition to the misreading of the EIA, the slaying of a local resident intensified feelings of distrust for the rural residents of Norachcholai and representative of the state (CEB officials and the police).
In summary, planning exercises in Ethul Kotte, Norachcholai and Moragahakanda demonstrate the lengths to which the state has gone to protect economic interests and to be seen as taking an active role in attracting foreign investment. Oppositional narratives of community, alternative definitions of security, and demanding respect for rural livelihoods traversed dominant state-sanctioned definitions of national security and the CEBs attempt to achieve 33
national energy security. Potentially-affected persons reclaimed ideas of public interest and security and made them their own. In so doing they made legible their history and culture as well as highlighted the plural nature of Sri Lankan society.
Ulrich Beck as argues that as a society develops across time its citizenry becomes more reflexive, and as such, challenges dominant institutions such as the state, science, and the military. One result of this reflexive modernization with respect to development projects is the extent to which citizens demand that they be involved in the design of projects that will affect their health, environment, and livelihood. EIA legislation is one mechanism that helps to
unbind decision-making surrounding the development process from an institutional arena dominated by politicians, bureaucrats, and other experts towards citizen participation in a more public sphere. Conclusion: Public Participation, Collective Claims and Political Culture Environmental impact assessment is not a tool of litigation to stop development. The process facilitates development in an environmentally- and socially-responsible manner through discussion, redesign, and active negotiation with potentially-affected communities. Considering the use of EIA as a tool of litigation reveals the disjuncture between its design in the West and its implementation elsewhere.
According to Frank et al. (2000) and Hironaka and Schofer (2002), when EIA policy was first designed in the West it was created by disinterested professionals (2000: 100) as an informational tool that would serve as the blueprint for all other states interested in environmental protection. To consider EIA as a disinterested or apolitical tool designed only to gather information is to ignore the fact that the very process of information gathering is not only a knowledge-creating process, but a political one as well. To claim, as these authors do, that the 34
EIA process is used as an excuse for litigation (2002:226) or as an excuse to stop development from occurring in ones backyard is to ignore how oppressive development projects can be for poor or minority communities.
In the localized practice of EIA in Sri Lanka, we see how the process through which potentially-affected communities understood an idea of or construct[ed] the state is the very same process that they used to imagine other social groupings and interests (Gupta 1995: 393). EFL and the collectivities that they worked with used EIA both as a tool for litigation and as a critical practice to talk back to the social forces that shape their lives (Finn 1998: 14). In so doing, the use of litigation had significant implications for their relationship with the Sri Lankan state from expanding rights to redesigning the implementation of electricity infrastructure.
Each case above illustrated how at the intersection of development, environmental protection, and social responsibility, citizens and NGO officials staked claims and negotiated rights through public participation in energy sector development that was essential to defining what the national interest looked like from alternative points of view and social locations. The work of EFL demanded that state officials recognize alternative meanings of development and consider additional sets of interests. The scope of their demands from the right to a safe environment for childhood development to the right to consider environmental losses in tandem with economic benefits expands the definition of project impacts and the environment. While the participation of EFL was different in all three cases, it mobilized around the social, political, and environmental implications of electricity infrastructure in them all.
In Flexible Citizenship, Aihwa Ong writes that NGOs have become vehicles for the middle classes to struggle for greater democracy and cultural rights and to define a substantive citizenship that is based on socioeconomic and universalist human-rights prescriptions 35
(1999:237). The work of EFL representatives with residents in the lower-middle class neighborhood of Ethul Kotte and farmers near Moragahakanda illustrated that the demand for state accountability is not just a middle-class struggle. The ways in which the communities that EFL worked with experienced and understood the state was substantively integrated into the rights that they re-negotiated. By challenging the Sri Lankan constitution and its exclusion of a right to life clause, for example, the residents of Ethul Kotte demanded new rights and protections42 that transcended class differences and rural-urban dynamics as they staked claims and articulated grievances associated with the pursuit of national energy security. EFLs
understanding of legislative rules, environmental regulations, and judicial practices are incomplete if considered separately from an analysis of how their work changes state-social class relations, how collectivities experience the state, and how the NGO sector and local initiatives can reconstitute state practice.
Environmental impact assessment (EIA) has certain institutional characteristics that are powerful in linking the state to groups in society. As individuals, communities, and NGOs have learned when and how best to use EIA, they have been able to pursue collective claims and argue grievances against the Sri Lankan state. While the organizational power of EIA is only applicable to grid-connected projects, it has complicated or re-ordered CEB operations in two ways. First, CEB officials now need to explain and defend their decision making to the public. Before the institutionalization of the EIA process, there was no formal mechanism through which groups in society could hold the CEB accountable for the social and environmental externalities
Unlike its neighbors (Bangladesh, Pakistan, and India), there is no right to life clause in the Sri Lankan Constitution that guarantees a persons right to life, a safe environment, or to earn a livelihood. Their legal counsel, L. de Silva, argued that no one could be denied his or her right to life. Since the constitution protected speech, the right to assembly, and equality before the law, de Silva argued that the Constitution implied right to life (Field notes 15 August 2000; Zanofer 1999). The judges agreed. For more on fundamental rights in other South Asian contexts see, Munir, Muhammad. 1996. Constitution of the Islamic Republic of Pakistan: Being a commentary of the Constitution of Pakistan, 1973. Vol. 1. Lahore: PLD Publishers and Singh, M.P. 1990. V.N. Shuklas Constitution of India. 8th ed. Lucknow: Eastern Book Co.
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that grid expansion produced. Second, securing environmental clearance has added several years to the gestation period43 for a new power station to come online. The EIA process has forced the CEB and the state to interact with citizens in very direct, and often unpredictable, ways. The EIA process has provided opportunities for groups to enforce public accountability and to participate in the re-ordering of state-society relations when they have brought their concerns to an institutionalized, public space. The Ethul Kotte Childrens Case showed how the EIA process strengthened a social groups claim on constitutionally protected fundamental rights by broadening their meaning to include context specific relationships between environment and quality of life. The state that disregarded environmental law provided an opportunity for residents to frame and recast an environmental and public nuisance into an issue of fundamental rights. In appropriating the idea of right to life, Ethul Kotte residents and their legal counsel demanded new protections against economic development and forced state and private sector representatives to recognize how the order the national interest.
The Ethul Kotte case also illustrated that rights, even those embodied in a written Constitution, are neither fixed nor nonnegotiable. Rights are flexible and grounded in historical relationships between the state and particular groups in society in ways that move beyond understanding citizenship as either a set of mutual claims and reciprocal involvements binding together the state and [the] individuals (Poggi 1990:33) or as re-allocative averaging mechanism that protects individuals and groups from the negative outcomes of the market in response to intolerable conditions (Teeple 1995:16). Groups in society are using the constitution and the
The gestation period includes plant siting, securing environmental clearance, construction, and connection to transmission stations. The gestation period for a project can range between two and twelve years depending on the type of project. The process of acquiring, importing, and installing a small diesel generator (less than 20 megawatts) can take less time, for example, than earning environmental approval for and starting to construct a more substantial and longer-lasting coal-fired power plant.
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states failure to enforce the EIA process to protect themselves from the negative impacts of both the state and the market.
The Ethul Kotte case challenged and broadened the meanings fundamental rights making them more inclusive regardless of ones social location (e.g., childrens rights and right to a safe environment) while outlining a new strategy to argue environmental infringements (the next friend strategy). Rachel Sieder writes that the ways in which the state and state-society relations develop and change depends on struggles and interactions between hegemonic and counterhegemonic understandings and practices of rights and obligations. as constituted by different individuals and groups within particular material and historical contexts (Sieder 2001: 205). The events at Ethul Kotte as well as at Moragahakanda showed how the constructedness of rights can address the paradox of the States fundamental duties to protect and conserve natures riches while equitably allocating its social product, such as clean air and safe levels of noise, across society.
In using the law as a platform to struggle for new inclusions to fundamental rights, EFL and community groups took the dominant ideas and values that underpinned the law to advance and to demand that the Sri Lankan state respect and recognize alternative definitions of social life. Demands were not class-based, but were historically and culturally grounded in lived experience. Social struggles over producing electricity highlighted how mobilization based on shared understandings of rights can take place as well as how rights can be a site for exploring the meanings and limits of the state (Barns, Dudley, et al: 1999) giving sociologists a better understanding of how society reconstitutes itself as well as demystify the idea of the state by examining the contested and constructivist character of rights.
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Using the EIA process and the disjuncture between official EIA policy and its localized instanitation in potentially-affected communities makes two important contributions to sociological scholarship. First, as Akhil Gupta has pointed out, it is in the seizing of the fissures and ruptures [that] the contradictions in the policies, programs, institutions, and discourses of the state allows people to create possibilities for political action and activism (1995: 394). Second, Dr. Jayadeva Uyangoda, has made the case that academic inquiry and representations of the Sri Lankan nation-state should be expanded beyond culturally-grounded identity politics. In his essay, Biographies of a Dying Nation-State he argued: The main lacuna I find in anthropological inquiry into Sri Lankas ethnic question and culture-grounded identity politics is the absence of political theory concerning the nation-state and its historical consequences. But, political science.without a focus of inquiry sensitive to the phenomenology of everyday predicaments of human beings, has not done much by way of widening our knowledge (Uyangoda 1998:169). A sociological examination of development planning reveals the everyday predicaments that many Sri Lankan citizens face as they attempt to secure access to electricity or protect their environments and livelihoods from the states pursuit of national energy security. Struggles over electricity generation revealed contradictions for the states mandate of protecting the environment and supplying of electric power. Potentially-affected communities seized those contradictory moments as a way of intervening in the states method of enframing their space and their livelihoods. In so doing, they re-worked not only how they experienced and understood the state, but also how state officials encountered them.
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Paper presented at the 9th International Conference on Sri Lankan Studies, 28-30 November 2003, Ruhunu U.

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geographical and physical properties for constructing new relay stations.

The example of the Catholics loss of the

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