After a long debate and legal battle over whether to construct the Nijagadh International Airport clearing large natural forests from Province 2 is over forever with the publication of a written verdict.
In a 3-2 ruling, the Supreme Court has made it clear that the construction of airport at the cost of highly valuable natural forests is unacceptable. Even minorities different verdicts written by two judges put strict conditions of minimal environmental damage.
Although lobbyists including the political leaders, land brokers and a small business community have been making effort to say that the minority judgment still keeps open options for the construction of a multi-billion dollar mega international airport at Nijgadh.
“The verdict of the Supreme Court has closed the chapter for airport construction at the Nijgadh. In any verdict, what majority judges say prevails over the minority. This is clear legal president,” said former judge Gauri Bahadur Karki. “ Even two judges in the minority have made it clear that damage of natural forest is unacceptable.”
A 3-2 ruling of the Supreme Court has quashed all government decisions made earlier for the development of a mega international airport in the southern Tarai plains.
The top court, however, has kept options open to construct the international airport, an alternative to Kathmandu's Tribhuvan International Airport. “The verdict of the court is clear which has made clear that the construction of an international airport at Nijgadh forest is against the existing laws and convention,” said senior advocate and petitioner Prakash Mani Sharma. “ It is a great victory for as we were able to convince all five justices that the construction of the airport will completely ruin highly valuable forest and biodiversity,” said Sharma.
The full text of the verdict on the Nijgadh International Airport by an extended full bench comprising justices Hari Krishna Karki, Bishowambhar Prasad Shrestha, Ishwar Prasad Khatiwada, Prakash Man Singh Raut and Manoj Sharma was released by the court on Wednesday. The preliminary ruling was issued on May 26 after concluding the hearing process.
In their verdict, Shrestha, Khatiwada and Raut have ordered the authorities to build the airport by conducting a proper environmental impact assessment ensuring that the environmental damage is minimal.
The justices have specifically said that the construction should not be made in Nijgadh forest areas.. “While it is natural for any development activities to cause environmental degradation, every possible attempt must be made to find alternatives to minimize such degradation,” reads the verdict.
Situated within two major rivers Sirsiya and Lal Bakaiya, the construction of the airport would have inundated large areas of land intensifying the floods. Very close to the Indian border, technically the aircraft needs to descend from Patana of India to land at this airport.
Except for big political commissions and benefits of land mafias, the construction of such a big airport is financially unviable for Nepal.
Lies adjacent to the Parsa National Park, Proposed Nijgardh Aport is a forest corridor for big wildlife like tigers and elephants, and home to rich biodiversity. The entire area is blanketed in dense forests of Shorea robusta trees, also known as sal or sakhuwa.
Environmentalists then suspected the motive of the government months after it was found that the environmental impact assessment report was flawed. Some parts of the report had a hydropower component which later was exposed as “copied and pasted”.
The environmental and social impact assessment report submitted to the Tourism Ministry in February 2017 envisaged cutting more than 2.4 million small and large trees to build the airport.
The Civil Aviation Authority of Nepal, the project executing body, had assigned the Nepal Army to build access and perimeter roads and clear trees at the proposed construction site. The government had allocated Rs1.5 billion for this purpose.
The court has found the Environmental Impact Assessment report approved by the Ministry of Forest and Environment on May 23, 2018, to be erroneous and said the decision to fell trees on 8,045.79 hectares and other decisions taken as per the report was faulty.
The court also says that while implementing such a mega project, the concepts of sustainable development, intergenerational justice and biodiversity protection should not be overlooked or undermined.
The selection of the area for the construction of the airport should be objective and logical, the court’s ruling reads.
While the environmental impact assessment should follow due legal procedures, the size of the airport and its capacity should be determined through proper consultations with environmentalists, wildlife experts, airport management experts, economists, sociologists and administrative experts with all possible alternatives to reduce damage and losses, according to the ruling.
Justices Karki and Sharma, however, have observed the need for building the airport within the Nijgadh area by ensuring minimal damage to the environment.
“It is a concurring verdict,” Bimal Poudel, spokesperson for the Supreme Court, told the Post. “The two justices have different opinions only in providing alternatives for the airport construction.”
“Conduct the study prioritizing area, ensure that new saplings are planted as prescribed by the law and they are protected until they grow up.”
One of the three justices told the Post that the detailed order is clear in itself.
The former prime minister and CPN-Unified Socialist leader Madhav Kumar Nepal backed by some Nepali Congress, CPN-UML and Maoist leaders have vehemently opposed the verdict not to construct the airport in Nijgadh.
After the announcement of the verdict, the International Relations Committee of the House of Representatives issued a direction to the government to quash the court’s verdict and proceed with the construction. Minister of Finance Janardhan Shama announced the allocation of the budget to airport construction.
“After the written verdict of the court, chapter of proposed Nijgadh Airport is over. Along with highly valuable forest, the verdict also saves the country from economically bankrupt like that of Sri Lanka,” said senior advocate Sharma. “The is a victory of environmentalists and people of Nepal.”
“We cannot determine the alternative, which should be done by the experts. We have just said necessary technical experts should study and make the right decision. We have not said that an airport must not be built at Nijgadh if it is the best alternative to other places. But allocating an unnecessarily large jungle area was wrong. The condition is that the experts must find out the place where the environmental damage will be the least,” said the justice.
On December 6, 2019, Supreme Court Justice Tanka Bahadur Moktan issued a stay order asking the government to immediately stop the felling of trees at the site, which a division bench of Chief Justice Cholendra Shamsher Rana and Justice Kumar Regmi upheld on December 22 that year.
The Investment Board Nepal decided to move ahead with the project regardless of the court ruling and invited potential bidders to submit proposals, insisting that the court order only prevented them from felling trees and did not say that all work should be stopped.
In September 2019, the government shortlisted Zurich Airport International AG as a single company to work on a public-private partnership model for the construction of the airport.
The board had received letters of intent from eight companies based in seven countries, including Nepal. On January 17, 2020, the board formally asked Zurich Airport to submit a business proposal.
The last date for submitting the document was September 30, 2020; but following the court order, Zurich International Airport AG asked for a time extension.
“The court doesn’t say the airport is not required,” said senior advocate Dinesh. “It only says don’t construct it in the proposed spot which may cause a huge loss to the environment and biodiversity.”
Legal experts say the judiciary has the authority to check the legal compliance and the Supreme Court has rightly done so in the Nijgadh airport’s case.
The fate of the $3.45 billion Nijgadh International Airport, which is on the drawing board for two decades, is now history. The recently concluded two international airports in Bhairawa and Pokhara have also questioned the need for a fourth mega airport without full utilization of two.