Environmental dilemmas

The High-Level Committee set up by the Narendra Modi government to review the major laws relating to environment protection has, in its recommendations, worked towards two sets of objectives: one, to separate business from the messiness of governance, and, two, to redraw the line of demarcation between the judiciary and the executive.

Even as the 2014 elections were approaching, UPA ministers had begun stating that the economic slowdown in the country was not a result of bad policies or governance but of judicial overreach, which disallowed several sectors like coal, iron ore and communications to grow at the desired pace (Sardesai 2013).

The NDA government under Prime Minister Narendra Modi promised to fix this problem even before it came into power.

The Ministry of Environment, Forests and Climate Change (MoEFCC) proposes to bring in these changes in the budget session of Parliament next year. The MoEFCC set up a High-Level Committee (HLC) to review the major environment and forest laws of the country.

This HLC set up under the chairmanship of ex-cabinet secretary, T S R Subramanian, submitted its report to the MoEFCC in mid-November.

Mandate of the HLC
The laws that the HLC was to initially review included the Environment (Protection) Act (EPA), 1986, Forest (Conservation) Act (FCA), 1980, Wildlife (Protection) Act (WLPA), 1972, Water (Prevention and Control of Pollution) Act, 1974, and Air (Prevention and Control of Pollution) Act, 1981. During the course of the review the committee was also asked to bring the Indian Forest Act, 1927.

These laws are several decades old and have their own conflictual and controversial histories. This was the first time that a committee had been asked to look at the implementation of six environmental and forest laws and suggest amendments to them.

Our environmental laws have no specific, positive environmental outcomes attached to them. All they have are broad, preambular objectives or vision statements. In the absence of committed outcomes, these laws are assessed on the basis of the number of decision-making committees set up, how frequently they meet and the number of approvals granted. All of these are output driven and quantitative in nature. So it is not possible to tell if the state of the environment is such because of or despite these laws.

Due to the HLC’s brief to look into these laws together, its work was expected to be an environmental law reform with overarching influence on the environmental governance regime of the country.

The HLC settles quickly into a mode of finding solutions by focusing on the following most vocalised and visible problems attached to this “sector”.

First,that environmental and forest approval process for projects is fraught by bad data, time “delays”, insufficient expertise and arbitrary decisions. Second,that there are abysmal levels of compliance and enforcement of laws and poor environmental management. Third, the need for clarification and consolidation of the legal framework of acts, rules, definitions and operational guidelines. The committee is caught up by these issues that are symptomatic of deeper dilemmas.

The specific solutions offered by the committee can be categorised under these two sets of objectives: one, to separate business from the messiness of governance, and two, to redraw the line of demarcation between the judiciary and the executive.

The HLC proposes to relieve business of environmental concerns because they should be left to do what they are best at. It recommends the setting up of the National Environment Management Authority (NEMA) at the Centre and the State Environment Management Authority (SEMA) at the states as the primary institution for environmental matters. The committee has drafted an Environment Law Management Act (ELMA) to provide a legal framework for the setting up and functioning of these new institutions.

The HLC believes that good scientific data collected by NEMA/SEMA when made available to consultants preparing EIA documents, for a fee, could result in good decisions.

Business is offered the privilege of “utmost good faith” where its approvals will be granted, and compliance will be judged on its own pre-stated terms and commitments. The NEMA/SEMA will maintain compliance data and the monitoring of projects will not be done through PCBs or MoEFCC’S “inspectors” but routinely communicated to NEMA/SEMA through technology and instruments.

The second objective that occupies the HLC is to relieve the executive from the “overreach” of the judiciary. It recommends the provision of good data, technology and experts, higher penalties for identified violations and restoration costs to the environment management system so that the environmental effects of a growing economy can be kept under check.

With the enactment of the National Green Tribunal (NGT) Act in 2010, affected people or project authorities were give the first right of appeal before the tribunal when they were aggrieved by any decision taken of the executive related to a range of environment laws.

While the committee mentions various judicial principles such as sustainable development and intergenerational equity that have been used in environmental matters, it does not offer suggestions on how to assess government’s decisions against two registers, political expediency and legal principles.

A peculiar feature of the HLC’s report is its near complete denial of the existence of people living within the environments that are to be managed. They are only referred to as “population” that the economy must cater to.
The committee perceives environmental concerns as outside of the economy that manages the needs of a growing population rather than one that is internally related to the economy’s design and form. To the HLC, the environment is a mechanical system “out there” and one from which we are extracting too much. Its destabilisation could be managed if we restore the machine as we use it.

The HLC navigates the problem of environmental governance with a techno-bureaucratic approach but this could result in constraining all new environmental decision-makers with the very predicaments that it seeks to free them of.

By: Manju Menon and Kanchi Kohli