By Atul Sharma

The rate of growth of air transport is often seen as an indicator of the economic development of a country. India is no exception to this rule and has witnessed an explosion in the number of people who use air transport services alongside its economic growth over the last 23 years. The civil aviation sector has benefited not only by increased patronisation from existing air travelers but also from converts who are increasingly taking to the skies. This is a remarkable feat for the young Indian civil aviation sector, especially considering the fact that the India boasts of one of the widest and most reliable rail networks in the world that has been providing cheap and reliable transport to the masses for over one hundred fifty years.

Open Skies-Impact on airlines and airports

India had its tryst with Open Skies in 1995 when several Indian Private Airlines set up operations in collaboration with well known international carriers. While some of these joint ventures flourished, others met a cruel fate for many reasons, some of which were attributable to government policies and a hangover from the protectionist regime which survived until 1990.

While airlines continued to grow and extend their reach to tier-II cities, the Airports Authority of India (AAI) – the sole custodian and operator of airport assets in India – failed to keep pace with the increasing expectations of air passengers, cargo operators and the air service providers. Indian airports were constantly rated amongst the least efficient in the world, which caused great embarrassment to an otherwise progressive nation. It took the Government almost 15 years after liberalisation to implement reforms in the civil aviation sector. In 2004, the Government for the first time decided to adopt the Public-Private Partnership (PPP) model by granting concessions for development and management of two greenfield airports at Hyderabad and Bengaluru (then called Bangalore). The PPP model was thereafter replicated and adopted for the modernization of the two brownfield airports at Delhi & Mumbai. The new policy spurred the growth of the civil aviation sector, and for the first time India was afforded the opportunity of building and maintaining world class airports. While these airports have achieved international recognition since their privatisation, they also threw up novel challenges . One of these challenges concerns the environment and juggling the exponential growth in aviation infrastructure while protecting India’s diverse natural assets.

In this article, I intend to highlight two recent issues pertaining to environment protection:the need to balance the scales between aviation related infrastructure growth and protection of the environment from the effects of such growth.

The Delhi Airport And Noise Pollution

In 2009, the residents of localities surrounding the Indira Gandhi International Airport (IGI Airport)at Delhi filed certain class action Petitions in the High Court of Delhi alleging infringement of their rights including their right to sleep in peace, held to be a part of the all encompassing right to life guaranteed by the Constitution of India. The Petitioners raised many issues and alleged that overflying aircrafts were routinely breaching the prescribed noise norms thereby depriving these residents of peaceful sleep and a reasonable quality of life.

The Environment (Protection) Act of 1986 is the fountainhead of most environment related legislation in India and, in addition to addressing various environmental issues, enables the Central Government, by notification in the Official Gazette, to make rules for carrying out the purposes of the said Act. In exercise of such powers, the Central Government notified the Noise Pollution (Regulation and Control) Rules (the “Rules”) in 2000. In addition to other benchmarks, the Rules laydown ambient air quality standards in respect of noise. The Rules recognize the need for different noise levels in industrial, commercial and residential areas, including silence zones (hundred meters around hospitals, educational institutions etc.). While the Rules prescribe an outer limit of 75 dB(A) Leq and 70 dB(A) Leq during day time and night time respectively in industrial areas (being the highest permissible noise standards amongst the four categories mentioned above), they do not envision an airport zone or a separate set of norms for such zones, as in certain other jurisdictions.

During the pendency of the aforesaid action, various brainstorming sessions were held between all the stakeholders including the petitioners, AAI and the Delhi International Airport Pvt. Ltd. (the Airport operator). In order to reduce the impact of aircraft noise, a basket of noise mitigation measures were implemented by the Airport operator in collaboration with the AAI, the aviation regulator-Directorate General of Civil Aviation (DGCA) and the airlines. These measures included introduction of runway mixed mode operations, phasing out noisy Chapter 2 aircrafts, utilization of all available runways simultaneously to evenly distribute aircraft noise, adoption of low power-low drag landing procedures etc. While these measures collectively reduced the noise impact considerably,the residents consistently demanded clamping of a comprehensive night curfew on Runway 29/11– the primary runway at the IGI Airport.Although initially, the night curfew was implemented by the DGCAon a trial basis, it could not be sustained on a long term basis for operational reasons and was subsequently withdrawn.

Pertinently,many jurisdictions do not consider a night curfew on an airport’s primary runway as a viable operational alternative, least of all at airports located in developing countries which witness departure and arrival of international flights during the night hours due to different time zones. In its studies, the International Civil Aviation Organization (ICAO) has observed that unilateral night curfews imposed by certain European countries are not conducive to international air transportation. ICAO has noted that the need to continue with any kind of night restriction is questionable in light of improvement in aircraft noise standards over the years and that current aircraft engines are quieter than earlier ones. Airports with night curfews are generally capacity constrained during the day and restrict the ability to open up new slots of traffic, which creates opportunity costs to airlines. This is all the more relevant for India, as air travel is even more expensive considering the high prices of Aviation Turbine Fuel. Another relevant factor which militates against imposition of night curfew is the fact that the establishment of the aviation industry in Europe pre-dates by several years India’s development in the sector. India’s aviation industry is in its infancy as the Open Skies Policy was initiated recently. This has led to a situation where most flights originate from Europe and the United States during the day and arrive at night at Indian airports. Any restriction on runway usage would restrict such movement of aircraft from such countries and would prove detrimental to the growth of civil aviation in India. This could also possibly encourage foreign airlines to use neighbouring countries as their hub in preference over India.

As per a report prepared by Deccanaires Ltd., an independent aviation consultant, while a few airports impose some form of restriction on night-time operations, very few airports across the world impose comprehensive night curfews on aircraft operations. Further, while some airports including Heathrow, Gatwick and Standsted have some form of night restrictions, many other airports have refrained from curbing night time operations as the same has proven to be detrimental to civil aviation. Interestingly, in various international fora including ICAO, India has taken a stand opposing unilateral implementation of night time curfews by a few European countries.

Recognising the need to have in place airport-zone specific noise norms, the Central Pollution Control Board (CPCB), a body entrusted with various environmental functions in its role as technical consultant to the Ministry of Environment and Forests,has commenced the exercise of formulating noise norms for airports zones and is in the process of defining noise contours at various Indian airports for implementation of such norms. As the exercise initiated by the CPCB is a time consuming one, the High Court of Delhi while hearing the Petitions, felt it necessary to implement interim norms pending the outcome of CPCB’s study and consequent implementation of its findings. Pursuant thereto, the High Court directed the aviation regulator DGCA to notify interim noise limits, which limits were implemented by the DGCA by way of an Aviation Environment Circular. The Circular issued by DGCA fixes the interim noise limit at 105 dB(A) and 95 dB(A) during day time and night time respectively and is the existing noise benchmark at the IGI Airport.

While the Supreme Court of India and the various High Courts routinely adjudicate matters concerning the environment, the Parliament enacted the National Green Tribunal Act (NGT Act) in 2010, which envisages setting up of a specialised National Green Tribunal which shall have the exclusive jurisdiction to hear and decide disputes pertaining to the environment. The NGT Act empowers the National Green Tribunal to decide all civil cases where a substantial question relating to environment is involved, provided such question arises out of the implementation of the enactments specified in Schedule-I of the NGT Act. Schedule-I to the NGT Act includes various legislations including the Environment (Protection) Act of 1996 (deriving power from which the Rules of 2000 have been notified). Pursuant to the National Green Tribunal coming into place, the Supreme Court of India in another environmental dispute in the case of Bhopal Gas Peedith Mahila Udyog Sangathan & Ors. v. Union of India & Ors., I.A. No. 62-63/2011 in Civil Appeal No. 3187-88/1988, vide its Order dated August 09, 2012 directed that “cases filed and pending prior to coming into force of the NGT Act, involving questions of environmental laws and / or relating to any of the seven statutes specified in Schedule-I of the NGT Act, should also be dealt with by the specialized Tribunal, that is the NGT, created under the provisions of the NGT Act. The Courts may be well advised to direct transfer of such cases to the NGT in its discretion, as it will be in the fitness of administration of justice.”

In furtherance of the direction of the Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan case (Supra), the High Court of Delhi sought to transfer the pending Petitions to the National Green Tribunal. The transfer was opposed by the Airport operator on the ground that the interim norms implemented by the DGCA hold the field as far as the noise norms at the IGI Airport are concerned. The Airport operator also contended that as these interim norms have not been implemented under any of the enactments specified in Schedule-I of the NGT Act (but under the various powers vested in the DGCA under other legislations), the National Green Tribunal does not have the jurisdiction to decide the said dispute and the transfer is bad in law.The High Court of Delhi, despite the opposition by the Airport operator, directed transfer of the class action Petitions to the National Green Tribunal. The Airport Operator challenged the Order of transfer of the High Court of Delhi before the Supreme Court of India, which directed an interim stay of the transfer and is presently seized of the matter.

The Setting Up Of A Second Airport At Mumbai

Mumbai, the financial capital of India,is also one of the most congested cities in the world. The Chatrapati Shivaji International Airport (CSI Airport) is undergoing a major upgrade which will involve a substantial capacity increase. However, due to severe constrains of availability of land at the Airport site, the CSI Airport operates under severe limitation and is unlikely to be able to accommodate any further expansion. Demand for a second airport to cater to Mumbai has been getting louder and louder over the years. Setting up of a second airport in Mumbai has been in contemplation for a considerable period.

While nobody denies the need for a second airport, a long debate has ensued as to whether the chosen site is appropriate for building a world class airport. The proposed site falls in the middle of a mangrove forest comprising of trees and shrubs that grow in saline coastal sediment habitats. Environmentalists have argued that dislocation of the mangroves is likely to have an irreversible effect on the ecology of Mumbai and its surrounding areas which will have far reaching environmental consequences. In the face of stiff opposition from various quarters, the Ministry of Environment and Forests (the body responsible for providing environmental clearances for such projects) has dragged its feet on the subject.

After prolonged contemplation, the Forest Advisory Committee of the Ministry of Environment and Forests in June of 2013 has finally recommended that the project be cleared. However, the Forest Advisory Committee has attached various caveats to its clearance. For starters, the clearance is contingent upon afforestation of mangrove species over an area equivalent in extent to the mangrove forest area being diverted. Such area would have to be raised and maintained by the concerned “user agency” (read airport developer)at its own cost. Further, as the proposed site is located near the a bird sanctuary, the Forest Advisory Committee has mandated that no proposal for extension of the project for extension of the project towards the bird sanctuary shall be entertained. In addition, the concerned government has been directed to ensure that settlement of persons displaced by the project must not take place on forest land. To ensure constant and continued compliance with the conditions based on which the clearance is proposed to be given, a specially constituted committee of experts shall monitor compliance with and shall submit its report every six months.

While Mumbai desperately needs another airport, the cautious approach of the Ministry of Environment and Forests and the Government of India shows the resolve to manage expectations of growth while ensuring that no damage is caused to the environment. The stringent conditions imposed by the environment watchdog is likely to have severe financial ramifications on the project which are likely to affect its viability and ability to compete with the existing airport.

In the context of the above, the conflict between the environmentalists and the protagonists of development of aviation in India becomes apparent. It is a settled principle of Constitutional jurisprudence that a balance be struck between the larger public interest (read: the need for aviation infrastructure for growth and development of the economy and the country, at large) and the environment. Indian judicial pronouncements include a large number of precedents where the Indian courts have played a pragmatic role and have acted like stakeholders in the economic growth of the county. It will be a challenge for the policy makers and the Indian judiciary to do the fine balancing act when considering development projects like airports viz-a-viz their impact on the environment.

Atul Sharma is the Managing Partner of Link Legal -India Law Services, a full service law firm with offices in New Delhi, Mumbai, Bengaluru, Hyderabad and Chennai. He has over 30 years of experience in civil and commercial litigation and arbitration in various sectors, including aviation, infrastructure, real estate, telecom and banking.  He has wide experience in dispute resolution procedures and domestic and international arbitration. He specializes in the infrastructure sector and has advised developers and contractors.  In the last five years, Atul has advised on projects at airports in Istanbul, Turkey and Male’, Maldives, and four major airports in India—Delhi, Mumbai, Bangalore and Hyderabad, in addition to other infrastructure projects like ports, transportation, power and water. He currently focuses on policy and regulatory issues in various sectors in India including civil aviation. Atul can be reached at atul@linklegal.in.