Chaos in reforms

Environmental degradation in India is a runaway problem. There are plethora of laws and regulatory bodies, both at the Central and state levels, to safeguard the environment. Yet the country continues to be burdened with pollution, its natural resources continue to be exploited and people’s participation in environmental management remains grossly inadequate. So in January 2015, when the Union Ministry of Environment, Forest and Climate Change (MoEF&CC) released its vision “towards transparency and good governance”, it rekindled hope among those demanding reforms in environment governance. The ministry’s vision assured developing “clear laws, firm rules and transparent processes to ensure a policy-based predictable regime”. An analysis of the report, which will lay down the groundwork for this vision, shows that MoEF&CC may not realise it.

Prepared by a High Level Committee of MoEF&CC, chaired by former Cabinet secretary T S R Subramanian, the report was to review and suggest amendments to six cornerstone laws: the Indian Forest Act of 1927, the Wildlife (Protection) Act of 1972, the Water (Prevention and Control of Pollution) Act of 1974, the Forest Conservation Act of 1980, the Air (Prevention and Control of Pollution) Act of 1981 and the Environment (Protection) Act of 1986. Submitted to the ministry in November 2014, the report is being evaluated by stakeholders and the Parliamentary Standing Committee on Science and Technology, Environment and Forests. Analysis of the report shows that it has largely become a document about project clearances and approvals. Instead of dealing with nuances and complexities of environmental governance, the committee proposes a regulatory framework centred on clearances. This is precisely the problem with the current regulatory regime—reducing environmental governance to a sanctioning platform. For instance, the committee proposes a new law, the Environmental Laws (Management) Act (ELMA), and two new institutions—the National Environment Management Authority (NEMA) and the State Environment Management Authority (SEMA)—to deal with clearance-related issues. Once in effect, NEMA and SEMA will replace the Central Pollution Control Board (CPCB) and state pollution control boards (SPCBs). Besides, it recommends retaining the existing Environment (Protection) or EP Act, 1986, and proposes that the Water Act and the Air Act would be “eventually” subsumed by the EP Act. However it is not clear how the EP Act and provisions of ELMA will be integrated.

The Subramanian committee further suggests that the clearance procedure should be “single window, streamlined, purposeful and time-bound”. It also recommends devolving more projects to SEMA by revising category A and B projects (depending on the spatial extent and potential impacts, category A projects are cleared by the Centre while category B projects are cleared by the state authorities).

In many instances the committee has suggested provisions that can further weaken the clearance process of projects. One such provision is developing a “special fast-track” mechanism for clearing linear projects, such as transmission lines and irrigation canals, power and mining sectors and strategic border projects. Such hasty measure can dilute the environment impact assessment (EIA) of projects.

Even in the present scenario, most EIA reports hardly reflect the cumulative impact of projects, resulting in poor decision-making on part of the clearance authorities and making projects contentious. An analysis of the cases before the National Green Tribunal by Delhi-based non-profit Centre for Science and Environment (CSE) shows that a large number of environment clearance disputes emanate from inaccuracies in the EIA report. Given that most of India’s mineral reserves are located in important forest habitats, ecologically sensitive regions, which are also inhabited by poor people, and the fact that many of India’s mining districts and power hubs suffer from high pollution, fast-track clearances can also accelerate resource exploitation, worsen pollution and increase social alienation.

Instead of fast-tracking projects, CSE researchers recommend that the government should take a look at the potential of projects that have obtained green clearances. They are adequate to sustain the country’s growth vision. For instance, since the beginning of the 11th Five Year Plan in 2007 till January 2015, thermal power projects of more than 255,000 megawatt (MW) capacity have been cleared, which is much beyond the estimated capacity of 130,000 MW required till 2022 as per the Planning Commission. Similarly, though the de-allocation of coal blocks in 2014 put a question mark on the fate of many coal block clearances, more than 280 projects with cumulative production capacity of about 865 million tonnes per annum (MTPA) have been cleared since April 2007. The Subramanian committee has also left out several issues that need to be addressed to ensure a sustainable environment.

The Subramanian committee has recommended that public hearings must address “only environmental, rehabilitation and resettlement issues” and that a mechanism should be put in place to ensure “only genuine local participation”. The committee also suggests circumstances under which public hearing can be dispensed with. These include cases where “settlements are located away from the project sites” or when “local conditions are not conducive to conduct hearing” or in locations where the “cumulative pollution load is pre-determined”.

There is no dearth of evidence to show that over the years, community opinion in the clearance process has been sidelined. The committee’s suggestions, if implemented, will further silence public opinion. The committee suggests “genuine local participation” in public hearings. But how does one determine genuine local participation? For example, a dam affects people living in the immediate vicinity of the river, as well as those living in the downstream and the watershed areas. In such cases, specifying “genuine local participation” can exclude a lot of people who will be significantly affected. Moreover, the committee’s suggestion about cases where public hearing can be dispensed with only suggests that the process would be done away with wherever there is a suspicion of dissent.

Public hearing is an important part of the environmental clearance process as it gives opportunity to the local communities to voice their opinion or express concerns about a proposed project. Therefore, under no circumstance should this be restricted, say CSE researchers.

Forests undermined

The Committee claims that the revisions it has proposed for forest clearance are “intended to reduce the time taken (for forest clearance projects), without compromising the quality of examination”. The recommendations, however, seem to only focus on reducing time while quality of examination is severely compromised.

While advocating clearance mechanism, the committee does not offer anything to ensure the protection of forests, ecosystems, and forest-dependent communities. Its suggestion that enumeration of trees, required for physical verification of forest, can be done after Stage I clearance, will further dilute the assessment of forestlands which already is very weak. At present, diversion is allowed without any detailed assessment of the ecological values of forestland.

The most problematic recommendation is regarding the consent of communities. The committee suggests that “for the purpose of according first stage clearance, a certificate under the Forest Rights Act (FRA) of 2006, may not be insisted upon”. The certificate under FRA “can be obtained during the prescribed period for compliance with the conditions of first stage clearance”. For linear projects, the committee further recommends doing away with the requirement for gram sabha consent under the pretext that these projects “benefit community at large”.

The recommendation will only make settlement of forest rights difficult. The committee itself observed that “a large number of cases are pending in the MoEF&CC as applications are not accompanied by a certificate under the FRA” and information is presented in an “ambiguous” manner which needs verification. What is required is a revamping of forest clearance process with a strong focus on thorough assessment of impacts of forestland diversion, considering both ecological and social consequences. DOWN TO EARTH