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A high-level committee headed by former cabinet secretary TSR Subramanian has, among other things, proposed a radical overhaul of how India ensures compliance with environmental clearances. Arguing that the present system, built around physical inspection by government employees, has created a rent-seeking ‘inspector raj’, the committee — which was set up by the government to review environment-related laws — has proposed an “utmost good faith clause”… In both environmental and industry circles, there is scepticism about the proposal.
The good faith clause is built on the assumption that industry will provide data which might be used against it. In this story, I argue the system will, ergo, get gamed.
Even as the ministry of environment met its March 31 deadline to submit a plan to the Supreme Court for a new environment regulator, a set of academics, activists and environmental lawyers have weighed in with their own design. Concerned that the ministry version “would not meet the minimum standards of an independent regulatory authority”, this set, called Watchdog and Action Group for the Environment, have proposed an authority that has greater powers and independence than the design proposed by the environment ministry.
this latest development is a good one. some of the suggestions this group makes are very good. more than that, this is one step towards broadening and deepening the debate on the sort of environment authority india should have.
ET just uploaded an interview with William Lockhart, Emeritus Professor of Law at the University of Utah’s SJ Quinney College of Law, re the proposed contours of the environment regulator. Professor Lockhart has been studying the Indian environment clearance process for a long time — my 2006-07 thesis on the Environment Impact Assessment Notification had relied on his work to a large extent.
In this interview, he gets into detail on the environmental clearance process — where it stands today, what it needs to be, and what will have to change for India to start balancing environmental needs and developmental demands. Take a look. This interview gets into more detail than the story does.
Q: Take a closer look at this and one sees the possibility of creating a more robust environmental governance architecture here. The environment regulator, the functioning Green Tribunals, India’s well-established environmental laws. The big question, of course, is: whether we will go in that direction or not. What do you think?
A: The current proposals are barely responsive to the instinct you show above. There is absolutely no question in my mind that reform of the EIA/Clearance process is utterly critical to the preservation of India’s critical remaining human and natural habitats. But if possible, reform is even more important to any hopeful sense of India’s future as a responsibly self-governing democracy. At present, clearances of all sorts are being approved with minimal or no meaningful environmental review, under constant political pressure, in disregard of any credible understanding of the content or purposes of existing law, and on the basis of “future” compliance with “conditions” for post-clearance performance on matters that clearly are required by law to be assessed before — not after — clearance, and in any event remain almost wholly unenforced.
I like his point about the rule of law. Really, you can create however many institutions as you like. But without any desire to implement laws, the whole thing is just a bureaucratic exercise.
India’s environmental clearance process is universally loathed. Industry and technocrats find it cumbersome and corrupt, and blame it for project delays and slowing growth. Environmentalists and project-affected people consider it superficial, corrupt and given to approving virtually all projects, unmindful of their social and environmental costs. Both views are correct. India’s environmental clearance (EC) process is a mess, unable to strike a balance between the demands of growth and the need to protect the ecological systems needed to support what will soon be the world’s most populous country.
William Lockhart , the emeritus professor of law at University of Utah’s SJ Quinney College of Law, has been studying India’s EC process for a long time, and he pans every part of it. “Clearances of all sorts are approved with minimal or no meaningful environmental review, under constant political pressure, on the basis of ‘future’ compliance with ‘conditions’ for post-clearance performance on matters that are required by law to be assessed before clearance, and in any event remain almost wholly unenforced.” That is the bad news.
The good news is this could change. On January 6, the country’s highest court, assessing the ministry of environment’s mechanism to appraise projects to be “not satisfactory”, directed it to set up by March 31 an independent regulator that would appraise, approve and monitor projects. A set of bureaucrats in the ministry is currently working on the architecture of the new regulator. But will this new architecture address the shortcomings that plague each of the four steps of the EC process?
Monday’s order by the Gujarat High Court directing 12 units in the Mundra SEZ of the Adani Group to temporarily stop operations till the SEZ receives an environmental clearance is yet another indictment of the environment and forest ministry. The order, besides hauling up the Adani Group for allotting land to companies even before obtaining an environmental clearance for its SEZ complex at Mundra, highlights the ministry’s poor scrutiny of the project.
the rot in india’s environmental governance continues to astound.
By slapping a Rs 200-crore penalty on the Adani Group for environmental violations, the ministry of environment and forests may be breaking its own laws, say environmental lawyers. According to Delhi-based environmental lawyer Ritwick Dutta, the two laws that define the penal framework for such violations — the Environment Protection Act (EPA) and the Environment Impact Assessment (EIA) — don’t give the ministry the powers to levy a fine. “They empower the ministry to start criminal prosecution in a court and to cancel an environmental clearance,” he says. “There is nothing in the laws giving the ministry any power to levy such a penalty.”
one of the defining traits of the upa regime has been its opportunistic relationship with the rule of law. this story, out today, again highlights that tendency.
Take what will happen to the Lohit, which flows out of Arunachal and into the Brahmaputra, when the Lower Demwe Hydro Electric Project on it switches on. According to the project’s environmental impact assessment (EIA) report, the Lohit’s flow is around 463 cubic metres per second (cumecs) in winter, 832 cumecs in summer and 2,050 in the rains. (A three cumecs flow is akin to a Tata Nano passing you every second.)
This will change once the dam comes up. For up to 20 hours a day, says the report, the dam will trap the river, releasing just 35 cumecs of water. The remaining will be released to spin the turbines only when demand for electricity rises in the evening. At that time, the river’s flow will expand to 1,729 cumecs. As the reservoir empties out, the river will again shrink to 35 cumecs. This is palpably new. River flows ebb and rise over months. “But now, what was an annual variation will now be a daily variation,” says MD Madhusudan, a biologist with Mysore-based Nature Conservation Foundation.
It is safe to say that the Arunachal Pradesh government has signed MoUs without bothering about the accompanying environmental costs of these projects. However, what is striking is that even the central environment ministry, the exalted MoEF, is indifferent to these fallouts. In today’s story, after a brief overview to the environmental fallouts of these projects, we talk to a senior member of the hydel EAC (Expert Appraisal Committee, the body which clears hydel projects) to understand why these projects are not getting the scrutiny they deserve.