Saturday, November 22, 2014

Recipe for Dilution of Environmental Protection Regime: Report of MoEF’s Committee to Review Environmental Laws

The “High-Level Committee constituted for review of Environment and Forests Laws” (the TSR Subramanian Committee) has recently submitted its report to the MoEF. Preliminary information about its report indicate that its recommendations are a sure recipe for serious dilution of environmental protection regime in the country, which is not too effective in any case; and that its recommendations seem to have ignored the lessons and experience of last few decades since the operation of the Environment Protection Act and other laws.

Laws based on the Committee's Report are unlikely to ensure environmental protection
The note below presents some comments on the recommendations of the TSR Committee Report. It should be noted that comments are limited only to some recommendations. Second, as of now, only the executive summary (ES) of the report is available in the public domain, so the comments are based on the ES only. Some of the comments could be revisited when the detailed report is made public.

Report finds legal framework robust, yet recommends changing it drastically

The Committee was set up to review six environment related legislations, and suggest amendments to them. However, what the Committee found was that

“While India has a strong environmental policy and legislative framework, much of the problem related to weak implementation of the various acts and the rules there under.”

Clearly, if we already have a strong environmental legal and policy regime, then the recommendations should have pretty much left it alone. As they say, “If it ain’t broke, don’t fix it”. Yet, the Committee has suggested sweeping changes in the laws.  Most of the changes appear to weaken environmental protection, which then seems to be very purpose. Why else should the committee recommend sweeping changes in the laws when it itself found the regime to be robust?

In fact, it should have focussed mainly on suggesting ways to make implementation stronger.

Ironically many of the changes suggested are likely to decrease accountability, weakening implementation further, or allowing weak implementation to continue.

Winding up or Dilution of National Green Tribunal on Cards

The recommendation of the Committee to have an “appellate mechanism against the decision of the NEMA [National Environmental Management Authority] and SEMA [State Environmental Management Authority]” appears to be aimed at doing away with the National Green Tribunal (NGT).

This is ironic in context of the Committee’s finding that implementation is the key issue; as the NGT has been the main, one can even say the only mechanism that has brought in some semblance of accountability to the environmental protection regime. In spite of this, or may  be because of this, there has been a clamour against the  NGT and a dilution has been talked about a lot. The Committee seems to have gone along with this clamour.

Apparently, the reason to bring in an Appellate mechanism is that the first forum of appeal should not be a judicial one. However, the Committee report is silent on whether the NGT would still remain and be the second level of appeal.

In any case, if such a new Appellate mechanism is brought it, the least of provisions should be that the Environmental or Forest Clearance (or other decisions) of NEMA/SEMA that are being challenged should automatically be suspended once the appeal is made. Otherwise, the appeal would drag on for months if not years, and the work on the project would continue. After that, any appeal at the higher levels is likely to be doomed from the very start as the project would be a fait accompli. Of course, the Committee recommends that every appeal has to be disposed-off in three months, but experience of such mechanisms shows that this is likely to be breached more than honoured.

Utmost Good Faith Mechanism

A measure most disconnected with  the Indian situation is the  recommendation of legislating a concept of “Utmost Good Faith”. As the Summary notes:

“A new concept of ‘utmost good faith’ has been inducted, through a new legislation, to ensure that the applicant for clearance is responsible for legally for his statements, but would be severely penalised, as prescribed, for any deliberate falsehood.’

This is supposed to ease implementation by significantly reducing inspector raj.

However, this exhibits a complete disregard for the Indian situation. The real question  is not whether industries or corporates will not exhibit good faith – the real issue is whether the Indian state will be able to (or will want  to) take strict action.

The problem is that the Indian political, bureaucratic and technocratic establishment has no political will or intention to take strict action and penalise offenders, often in lieu of extra-legal considerations.

Of course, this is very easy for the Government to contradict, if they want. All they have to do is to show such action – for which there is ample scope even within today’s legal regime. Indeed, such a demonstration of the Government’s ability to act strictly need not wait any new legislation, and rather, must form a prerequisite for even thinking of any new legislation of ‘utmost good faith’.

Delinking Compensatory Forestation from Project

One of the important recommendations of the Committee is

“…delinking the project proponent from Compensatory Afforestation obligations  after he fulfils the  necessary financial commitments…”

Ethics demands that the responsibility and accountability to carry out environmental compensatory measures must lie with the one who is responsible for destroying it – in this case, the project promoter. And if he is not able to ensure compensation, then he should not be allowed to destroy.

It is true that even today, the project proponent pays the money to the afforestation fund, and the responsibility for carrying out afforestation is that of the government forest departments. But the final responsibility remains that of the project proponent. The proponents have a grievance that they are being made responsible  for afforestation but they don’t have any control on it, and this certainly has some merit. But the solution cannot be in delinking the project completely from the afforestation, for then one is likely to defeat the very purpose of environmental regeneration and it also goes against the principle that responsibility for ensuring compensatory measures must lie with the one who is responsible for destroying it

There is also a practical consideration. Experience of last several decades has shown that the main motivation for carrying out the afforestation (and any other environmental protection scheme or rehabilitation processes) in time would be of the project proponent and that too only if his project is likely to be delayed in case of default.

No Provision for Participation

While the Committee has recommended sweeping changes in environmental laws in spite of finding that the regime is robust, it has not made recommendations for the one most glaring lacunae in the current legal regime. This is that the current legal regime has almost no place for participation of local communities, affected people and ordinary citizens in the assessments of impacts, in environmental decision making, or in monitoring of implementation of environmental measures.

Such participation is most crucial in ensuring proper implementation of environmental laws and for ensuring environmental protection measures. Unfortunately, the Committee has lost the opportunity for introducing comprehensive provisions for meaningful participation of people. Possibly, its very limited consultations and the limited exposure of its members to relevant aspects of environmental regime has been responsible for this omission.

It is imperative now for the MoEF not to rush into implementation of the Committee’s recommendations, but put them in the public domain and first have extensive consultations on these.

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