Friday, December 12, 2014

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

Ministry of Environment, Forests and Climate Change (MoEFCC) has recently made public the report of the “High-Level Committee constituted for review of Environment and Forests Laws” (the TSR Subramanian Committee). The full report confirms and strengthens the initial apprehensions that had been built up from a reading of the leaked executive summary.
A reading of the full report shows 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.

Our initial concerns, based on the leaked executive summary, articulated here remain valid. We give below some additional issues based on the full report (Report from here on). Note that concerns articulated earlier are not repeated here.

Some Useful Analysis and Recommendations

The Report has correctly analysed the key problems with the current environmental protection regime. Some of these are:

“The lasting impression has remained that the Acts and the appurtenant legal instruments have really served only the purpose of a venal administration, at the Centre and the States, to meet rent-seeking propensity at all levels. This impression has been further strengthened by waves of large scale ‘clearances’, coupled with major delays in approvals in individual cases. It should also be added that our businessmen and entrepreneurs are not all imbued in the principles of rectitude – most are not reluctant, indeed actively seek short-cuts, and are happy to collaboratively pay a ‘price’ to get their projects going…”

“The Executive, as pointed out has not covered itself with glory – indeed it has invited the attention of the judicial branch through lack of basic care.”

“The Committee notes the tardy implementation of even the current penal provisions, which is by itself a catastrophe.”

“The principal aim of Environmental Laws should be to ensure enhancement of environmental quality parameters and maintenance of ecological balance.”

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

“… whereas most projects sooner or later obtain approval; one analysis indeed indicated that the percentage of approved projects works out to 99.1% – clearly the focus is not on substance.”

Unfortunately, in spite of the correct identification of the problems, the Committee’s  recommendations do not address these problems, particularly the issue that “the focus is not on substance”. Instead, their recommendations are mainly focussed on expediting clearances, and are likely to result in a go-by to basic environmental principles.
There are some useful recommendations that can potentially enhance environmental conservation. The few such recommendations in the Report are (1) Suggestion to include noise pollution as an offence in EP Act. (2) Creation of a geo-referenced database of environmental parameters for the entire country, including parameters like topography, hydrology, forest cover, bio-diversity, pollution etc. (However, the utility of this is limited by making it accessible as a paid service which common people, civil society groups are not likely to afford) (3) Some of the suggestions in the Wildlife Protection Act.

However, the impact of these few useful suggestions also may be  lost as the overarching framework within which they are recommended to be placed is highly problematic.
Let us look at few of these issues now.

Nothing New in NEMA/SEMA, May Worsen the Clearance Process

Section 7.8 of the Report recommends the formation of the NEMA and SEMA for clearing various projects. It says:

“It is proposed to create agencies, viz. National Environment Management Authority (NEMA) at national level and State Environment Management Authority (SEMA) for each State as the pivotal authorities to process applications for composite environmental clearance (one window), for category A cases through NEMA and for category B projects through SEMA. These would be standing technical organizations, manned with professionals, supported by appropriate technology, which will have the primary responsibility for processing all environmental clearance applications, in a strictly time-bound manner”.

However, a detailed reading shows that there is little to distinguish the NEMA and SEMA from the current structure of the Expert Appraisal Committee (EAC) at central level and the State Expert Appraisal Committee (SEAC) at the state level, except for the fact that the members of NEMA and SEMA are expected to be full time. While this would be a welcome step, the basic character of the NEMA remains that of the EAC and hence this change may not have the desired impact.

The most serious problem with the NEMA is that its Chair is required to be a:

“Person with administrative experience and of the rank of an Additional Secretary to the government or above or persons with unblemished record of service under any government of not less than twenty five years in the field of pollution control or environmental management.”

First of all, this recommendation limits the selection of Chair to those who have been in the government, thus excluding many capable, knowledgeable, respected and independent people from outside the government.

Second, this allows bureaucrats and government officers with no experience in environment to be chairperson of NEMA and it is likely that this will become the norm. Such an apprehension is not misplaced at all. In the EACs, most of the Chairpersons appointed have had no background in environment; rather they have been heading departments or ministries that are involved in building dams, mines etc. There is no reason to believe that this will change in the case of the NEMA.

The absence of a Chair with strong environmental background, knowledge and concerns has been seen as one of the main reasons why the EAC has failed to deliver on ensuring environmental protection and the Committee should have recommend environmental experience and knowledge as a prerequisite for the Chair of NEMA and SEMA.

In a recent Order[1], the National Green Tribunal has taken cognisance of this issue and has noted:

“Thus, we are of the considered view that it will neither be permissible nor in the interest of the environment, or any of the stakeholders, to appoint persons from only administrative or management field, without having specific experience in the field of environment”.

Further, it directed that:

“We direct MoEF not to appoint experts as members/Chairperson of the EAC/SEAC under these head [“public administration or management “] unless the said experts in the above field is/are directly relatable to the various fields of environmental jurisprudence.”


Thus, the NGT has clearly ruled - something that should also be obvious from basic principles – that any member, and particularly the Chair of the EAC (and now the NEMA) must primarily be an expert in the field of environment.

Second, the NEMA has a vastly expanded set of responsibilities that go beyond project clearances, so making the NEMA Board full time would only be a limited improvement over the EAC.  In particular, NEMA  has to “Monitor the compliance of specifications and enforce all the conditions of project clearances.” This is very important, for as the TSR Committee itself notes, the main problem with the environmental regime in India is lack of compliance and implementation. However, there is nothing in the Report that indicates how the NEMA is going to manage this monitoring, which will require a large staff. Most of the Report’s recommendations for monitoring are in terms of using modern technology – which is welcome and must be done – but it is not going to be a silver bullet. The Report seems to believe in a technological fix.

The real issue with the monitoring and compliance is, of course, that the establishment does not have the political will to take action against the offenders, against projects and promoters who are often in nexus with the political and bureaucratic establishment, or where other considerations like bribes prevail. Clearly, a NEMA headed by a member of the same bureaucracy is unlikely to rise above these reasons and suddenly transform itself into an organisation that can take strong action.

The Report notes that among the principles it tried to follow is that of “providing adequate teeth to regulators to check the violations.” Unfortunately, lack of teeth was never the problem – current laws provide ample scope for taking strict actions – but rather the willingness to bite. None of the recommendations have the intent of creating this political will to take strict action. Nor do any of the recommendations go to make the bureaucracy more accountable. On the contrary, by diluting provision like the NGT, the Report has decreased the accountability.

Last, but not the least, there is a recommendation that :

“The Union Government shall have the powers to give directions to NEMA and SEMA in the matters of project clearances. All such directions shall be binding on NEMA and SEMA”.

The intent of this is not clear, but the results are likely to be further enhanced control of the Government on the NEMA.

 Dilution of Public Hearing Process

 The most serious problem of omission with the Report is that it has no recommendations to address what is probably the biggest lacunae in the current environmental regime, that is, virtually no scope for the participation of local communities and civil society in appraisal, decision-making and monitoring.

 At the same time, the Report has chosen to recommend a number of dilutions in the one limited space available for the same, that is, the public hearing that takes place as a part of the environmental clearance process.

First of all, it recommends that “only environmental, rehabilitation and resettlement issues are captured in the public hearing.” This means that the local communities have no scope to raise issues questioning any other part of the project or the project itself.

Equally serious, it recommends that “A mechanism should be put in place to ensure that only genuine local participation is permitted.” This is a clear attempt to shut out civil society and public interest groups from the public hearing process and in turn deprive the local communities of inputs that can empower them. It should be noted that many of the projects are complex technological interventions, the EIAs are complicated documents (often available only in English), and so the local communities need support to understand the EIA and other impacts of the project. It is ironic that projects are promoted mostly by outsiders, the EIAs are done by outsiders / consultants, but it is now expected that now only “local” people would participate in the public hearing. This is a clear attempt to weaken challenges to grossly destructive projects by isolating local communities from external support and thus disempowering them.

Further, the Report says that public hearings can be dispensed with “in the matters of projects of strategic importance and national importance.” This offers a very easy escape route for exempting projects, particularly since national importance is not defined, and virtually every major project could be considered nationally important. For example, the Polavaram dam and irrigation project has been declared a national project; this could well mean that it is of national importance. Then, even such a controversial project, facing serious challenge from local people, could be exempt from public hearings.

Several other dilutions are also proposed for public hearings.

Other Concerns

 For the record, the concerns dealt with in our earlier comments are:


Report finds legal framework robust, yet recommends changing it drastically

Winding up or Dilution of National Green Tribunal on Cards

(Details were not clear in the Executive Summary. It is now clear that the NGT will remain, but its powers of review will be limited to “judicial review of administrative actions” as against reviewing the core of the environmental aspects on merits that an expert Tribunal can.)

Utmost Good Faith Mechanism

Delinking Compensatory Forestation from Project

No Provision for Participation

In Sum

 In sum, while the Report correctly identifies many of the significant problems in the current environmental regime, the recommendations provided by it hardly address these reasons. On the contrary, if accepted, they will go towards creating a system that is bureaucratic, with little accountability and geared mainly towards “expediting” clearances, with little to ensure that the environmental principles are maintained and enshrined in projects and developmental activities.

[1] Order of the National Green Tribunal, Principal Bench in the matter of  APPLICATION NO. 116 (THC) OF 2013, Kalpavriksh and Ors. Vs Union of India and Ors., dated 17th July 2014.

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