India’s umbrella environment law idea triggers renewed concerns
When a top environment ministry official, on Tuesday, said that the ministry had roped in a private law firm to draft a new environmental management act, which will replace three other environmental laws, there was almost a sense of déjà vu.
The ministry had undertaken a similar exercise in 2015 to dismantle the existing legal framework for regulation of environmental issues, and come up with an alternative umbrella framework, to meet what the ministry calls “current requirements”.
The genesis of a single environment management act which replaces three existing acts—Air Act 1981, Water Act 1974, and the Environment (Protection) Act 1986—dates back to 2014, when the Union environment ministry set up a high-level committee headed by former Cabinet secretary, TSR Subramaniam.
The terms of reference to the committee were to suggest amendments to six environmental laws—Environment (Protection) Act, 1986; Forest (Conservation) Act, 1980; 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 Forests Act, 1927—“to bring them in line with current requirements to meet objectives”. These objectives were to factor in current economic and development needs.
The committee, in one of its 55 recommendations, had suggested that the Union environment ministry may arrange to revamp the Environment Protection Act, by inducting relevant provisions of the Water Act, 1977 and the Air Act, 1981; the latter two could be repealed, when the revamped EP Act, 1986 comes into force. The Committee had also recommended the creation of a new “umbrella” law—Environmental laws (Management) Act (ELMA) to enable creation of the National Environment Management Authority (NEMA) and State Environment Management Authority (SEMA).
One of the main provisions of ELMA was to induct the concept of “utmost good faith”, which is holding the project proponent responsible for his statements at the cost of possible adverse consequences. This would also, the Subramaniam report said, contribute to reducing “inspector raj”. The ministry had then roped in a few private law firms and consultancies to draft ELMA and, on October 7, 2015, released a draft for public comments. But it remained silent on the draft thereafter.
Experts flagged several concerns.
Environmental lawyer Ritwick Dutta said that the biggest problem with ELMA was that it was in complete violation of the “precautionary principle”. “The act wanted to bring in management and supplementary plans to regularise violations as opposed to preventing environmental violations.” He added that while the act was not notified, these changes were introduced by the ministry through a number of office memorandums and circulars in the past few years. “For example, under the garb of exempting projects of national importance from certain clauses, hydrocarbon exploration has been exempted from public hearings last year. Similarly, projects that have started in an ecologically sensitive coastal zone without permission can now pay up for restoration. These changes are all in the same spirit. So is the controversial draft environment impact assessment notification 2020.”
Last year, the environment ministry received over 1.7 million objections, comments and suggestions to the draft environment impact assessment notification 2020, which faced widespread opposition because it has a detailed protocol for appraisal of projects that had started operating without approval. This means that projects that have violated norms can be regularised based on fresh appraisal and asked to furnish a bank guarantee.
Dutta said the concept of “utmost good faith” was laughable. “A murder can also committed in good faith. This Robin Hood-style good faith is not permissible in law.”
Some of the other recommendations of the Subramaniam committee are also already being introduced into environmental policy now. These include economic incentives for increased community participation in farm and social forestry by way of promoting and proving statutory safeguards to “treelands” as distinct from “forest”. Putting this recommendation into action, the environment ministry has, on several occasions, said they will introduce Public-Private Partnership in plantations so that forest area increases and private parties benefit from such forestry projects.
The Subramaniam committee had also recommended that the procedure for clearance under Forest Conservation Act be revised to reduce the time taken, without compromising the quality of examination. For linear projects, the committee recommended that the Forest Rights Act needs amendment to consider removal of the condition of Gram Sabha approval. The ministry is presently in the process of consulting other ministries and government departments on how the forest conservation act should be amended to facilitate easy and quick clearances. “The draft is confidential so I cannot share the details,” a senior environment ministry official said.
Sanjay Upadhyay, Supreme Court advocate, said that his assessment was that the mood in government was to ease the process for investors and industries. “Following the Subramaniam committee recommendations, the job of drafting a law and amending some other environmental laws was given to a couple of law firms. The draft was eventually rejected due to shortcomings in understanding the law. This is not the job of a typical law firm because they often have no experience of how environmental law works on ground. In the past five to six years, a whole set of clarifications and office memorandums have been issued by the ministry with the objective of easing the process and integrating what courts have said. The reforms have to be growth friendly while paying a lip service to the environment, it appears.”
Kanchi Kohli, senior legal researcher at the Centre for Policy Research, said that several projects had been operating for years with impunity, with the costs borne by the poorest communities. “The notion of charging monetary compensation from polluting violators after legalising these operations and impacts not only reads down the precautionary principle but is antithetical to justice. Not only that, we end up turning legal standards into flexible management measures that can be negotiated only between two parties, the government and project operators. This is neither socially legitimate nor economically sensible.”
Some experts however agreed with the ministry that extreme penalties such as shutting down industries or imprisonment did not really ensure compliance to existing laws.
“We have had a track record of tough sounding, inflexible regulations that don’t translate to effective enforcement. If the regulator’s only options are to shut down a non-compliant industry or initiate criminal prosecution, they have an incentive to take action only against egregious polluters and turn a blind eye towards the rest. Allowing regulators greater flexibility to respond to non-compliance proportionately to the nature and degree of offense, through civil fines, could therefore improve governance,” said Santosh Harish, a fellow at the Centre for Policy Research who specialises in energy, environment policy and air quality governance. He, however, added that these fines need to be coupled with greater public transparency, so that civil society pressure could act as an effective balance against potential misuse by polluters.