A better law for the jungle?

SHIBANI GHOSH | Updated on March 12, 2018

Wasteland The result of a ravaged environment Reuters

The Subramanian panel report on environment regulation should not be accepted in a hurry

Environmental governance in India is becoming increasingly contentious. Environmental quality is declining sharply on indicators such as air, water and forest cover. At the same time, there are calls for regulatory flexibility to enable pursuit of a “development agenda”.

One of the underlying reasons for the failure of environmental regulation has been the adhocism of the State; the persistent search for quick fixes to complicated problems and difficult trade-offs.

It is in this context that the initiative of the NDA government in August 2014 to set up a high-level committee to revisit environmental regulation in India, assumes significance.

The committee, chaired by former cabinet secretary TSR Subramanian, was asked to “review various Acts administered by the Ministry of Environment, Forests & Climate Change” and suggest amendments “to bring them in line with their objectives”. The six laws under review were: the Indian Forest Act 1927, the Wild Life (Protection) Act 1972, the Water (Prevention and Control of Pollution) Act 1974, the Air (Prevention and Control of Pollution) Act 1981, the Forest Conservation Act 1980, and the Environment (Protection) Act 1986. The review was expected to be completed within two months (extended to three). The committee submitted its report on November 18, 2014.

Key concerns

Many commentators have raised concerns about the setting up of the committee and the selection of its members, its terms of reference and manner of functioning (including the public consultation process), and finally, the substantive recommendations.

The final report accurately identifies some of the major concerns in Indian environmental governance, such as the declining quality of the environment; piecemeal legislation and ad hoc decision-making; “rent-seeking propensity” of the government; lack of faith in the executive and, consequently, the dominant role played by the judiciary; and the complete failure of monitoring and enforcement mechanisms under the various environmental laws.

The committee has recommended demarcation of certain forests (with canopy density of more than 70 per cent) as no-go areas; an increase in the amount payable for compensatory afforestation and as net present value during diversion of forest land; and an environment information system with enhanced capacity. It has also made recommendations to speed up the forest clearance process.

For the improved protection of wildlife, the committee has recommended review of the existing schedules to the Wildlife (Protection) Act 1972 (the nature of protection is different for the species listed in the various schedules); mandatory preparation of wildlife management plans along with a statutory basis for these plans; and demarcation of eco-sensitive zones or buffer zones around protected areas.

Clearance revamp

One of the significant recommendations has been to revamp the environmental clearance process under the EIA Notification 2006. New institutions — the National Environment Management Authority (NEMA) and the State Environment Management Authorities (SEMA) — have been proposed as full-time technical organisations with the capacity to process all environmental clearance applications in a time-bound manner. Eventually, these agencies are expected to subsume the Central and State Pollution Control Boards (PCBs).

NEMA and SEMAs would be set up under a new law — the Environmental Laws (Management) Act (ELMA). ELMA will also provide a statutory basis for the principle of “utmost good faith”.

According to this principle, project proponents have to disclose all information about the project, and certify that the facts stated are true. If it is later found that complete and accurate information has not been submitted, penalties in the form of fines, imprisonment, and/or revocation of clearance will be imposed.

The ELMA also suggests setting up special environment courts in every district to decide cases expeditiously. Considering the government’s inertia in empowering the National Green Tribunal (NGT), the likelihood of such environmental courts being set up in every district is slim.

An additional forum of appeal has been recommended for parties aggrieved by any decision regarding an environmental clearance application. This is viewed by many as a significant dilution of the NGT’s current jurisdiction.

The worrying bits

Several aspects of this report are indeed worrying: the dilution of public consultation processes and the near-free ticket to projects of “strategic” and “national” importance — both vague terms; the periodic stress on speeding up approval processes (but not necessarily improving the quality of decision-making); and the lack of substantive discussion on why existing regulatory institutions have failed to protect the environment.

Interestingly, the committee does not engage substantively with issues relating to water and air quality, which form the core of two of the laws under review. In fact, other than the environmental clearance process under the Environment (Protection) Act, the committee does not comment much on the several other regulatory processes under the EPA.

The report is now being scrutinised by the Parliamentary Standing Committee of science and technology, and environment and forests, and it is hoped that the government will engage in extensive public debate before initiating reform measures.

While many of its recommendations are unpalatable, the committee’s diagnosis of what ails Indian environmental governance is accurate and can serve as a starting point to rethink environmental regulation.

For instance, one issue highlighted is the complete failure of current monitoring mechanisms.

With capacity and resource constraints, as well as corruption and lack of political will, monitoring agencies like the PCBs are not in a position to consistently and accurately monitor regulatory compliance.

Unsuccessful current model

The current model of regulation with criminal sanctions has failed, and it appears unlikely that the government can facilitate conditions necessary for such a model to work well.

The concept of a regulatory tool box with a mix of instruments has been mooted in other contexts as a preferable alternative to a scenario where the regulator can only take extreme measures (like shutting down a power/water supply or revoking a licence) which may be politically, socially, economically, or legally undesirable. The ELMA proposes a graded penalty system.

Meaningful environmental regulatory requires a greater engagement with all stakeholders than has been the case so far. The government must steer clear of ill-considered acceptance of the committee’s recommendations.

The writer is an environmental lawyer with the Centre for Policy Research, New Delhi. This article is by special arrangement with the Center for the Advanced Study of India, University of Pennsylvania

Published on January 26, 2015

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