Need to strengthen regulatory system

Environmental governance

Though only time will tell what amendments will finally take place with the regulatory provisions, and what institutional changes will be brought about for environmental governance, but the report of the HLC does sound a note of caution, rather than offer relief, with respect to environmental protection and overall reform in environmental governance that is actually required. It is primarily because of a hasty and piecemeal approach

In the beginning of 2015, the MoEF&CC (Ministry of Environment, Forest and Climate Change) released its vision “towards transparency and good governance.”

The focus of the vision was to develop “clear laws, firm rules and transparent processes to ensure a policy-based predictable regime.” As part of the vision, the ministry set up a High Level Committee to scrutinise existing environmental laws. The High Level Committee (HLC), under the chairmanship of TSR Subramanian, former Cabinet Secretary, was entrusted with the task of reviewing and suggesting amendments to six cornerstone legislations, the Environment Protection Act (1986), the Forest Conservation Act (1980), the Wildlife Protection Act (1972), the Water (Prevention and Control of Pollution) Act (1974), the Air (Prevention and Control of Pollution) Act (1981), and the Indian Forest Act (1927).

The Committee submitted its report to the MoEF&CC in November 2014. Following review of the report by the Parliamentary Standing Committee on Science and Technology, Environment and Forests, the ministry has now engaged a technical consultant for preparing an environmental governance framework based on the recommendations of the HLC. The HLC has proposed the revision in environmental governance through reform of laws and institutions including for green clearances.

Though only time will tell what amendments will finally take place with the regulatory provisions, and what institutional changes will be brought about with respect to environmental governance, but the report of the HLC does sound a note of caution, rather than on relief, with respect to environmental protection and overall reform in environmental governance that is actually required.

It is primarily because of a hasty and piecemeal approach. Though many of the observations are pertinent, the recommendations fail to address the most critical issues of environmental protection, rather, in many ways, it perpetuates the status quo. Instead of dealing with the nuances and complexities of environmental governance, the HLC proposal involves a regulatory framework that is involved in 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 to be developed under ELMA — 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) also taking up their respective functions. The proposal of the new Act is not thought out. It will create more multiplicity and confusion. For example, 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. There is also no need of a new law for creating the authorities—NEMA and SEMA. The authorities can be established under existing provisions of EP Act itself—Section 3(3).

The Central Pollution Control Board should be suitably modified and transformed into NEMA, and the existing SPCBs must be strengthened and transformed into SEMAs. It creates multiplicity of institutions by recommending “special environmental courts” at district levels for adjudicating on offences under ELMA.

There is no need of new judicial institutions which will also create huge multiplicity in appeal and enforcement. We already have National Green Tribunal (NGT) to adjudicate over civil matters, and the district courts for criminal offences.

There is a predilection to resort to technological solutions to address issues of monitoring and enforcement that is a big challenge for environmental management. However, this is a very limited approach. Though online monitoring and use of technology is important, this must be supplemented by physical inspection and monitoring.

What is urgently required is to strengthen regulatory institutions. Most importantly, what the reform exercise must consider is the need to move away from a “clearance centric” vision and structure of environmental governance. Green clearances must be just “one” component of environmental governance, not “the” component. The focus should be more on comprehensive environmental planning and management.

To achieve this we need to integrate and synergise laws, introduce the use of multiple regulatory tools, institutionalise Strategic Environment Assessment for major government policies and programmes (industrial corridors, manufacturing zones, Special Economic Zones), develop master plans based on regional environmental impact assessments, develop standard operating procedure for inspection, monitoring and enforcement etc.

Moreover, regulatory institutions at all levels must be strengthened and made competent to deal with multiple environmental challenges of the present day. The potential of most laws, rules and notifications have not been realised because of weak institutions.