Tweaks in green laws may dilute safeguards, warn experts
The government has recently tabled draft legislations in Parliament to modify laws on biodiversity conservation and wildlife protection to improve ease of business that activists said could dilute environmental safeguards in the country.
The Biological Diversity Act (Amendment) Bill, 2021, tabled in Parliament on 9 December by environment minister Bhupender Yadav, provides exemptions to projects promoting Indian medicine systems, also known as Ayush. It has been sent to a joint parliamentary committee for further scrutiny.
On December 17, the government tabled the Wild Life (Protection) Amendment Bill, 2021, which seeks to rationalise the schedules under which wildlife is protected. It too has been referred to a parliamentary standing committee.
The draft laws are the latest in a series of tweaks carried out the central government to reform processes related to environmental and forest approvals for infrastructure and developmental projects.
The proposed modifications would effectively address current ecological and economic needs of the country, the government has said, but legal experts are concerned that such large-scale reforms would sidestep environmental concerns. Activists also said these modifications are sought without asking for public comments, as is the norm when laws are up for amendments.
However, minister Yadav said the Centre has sought comments on the forest conservation law, which is why a consultation paper was released to the states.
In October, the environment and forest ministry released a consultation paper on amending the forest conservation law to significantly change forest governance in India, which include facilitating private plantations, and exploration or extraction of oil and natural gas beneath forests by drilling holes from outside the forest areas. the consultation paper also suggested that the use of forest land for strategic and security projects of national importance should be exempted from the need to obtain prior approval.
“The Wildlife Protection Act 1972 has to be amended for implementation of the Convention on International trade in Endangered Species of Wild Fauna and Flora (CITES). India is party to CITES and we have international obligations related to it,” Yadav said. “As far as the biological diversity amendment bill is concerned, these amendments were referred by four government constituted committees.”
However, several provisions in the draft laws introduced in Parliament could weaken environmental regulations, lawyers and researchers said.
“The standing committee of the state board for wildlife is a derogatory step, as it will replicate the standing committee of the National Board for Wildlife, which had led to a situation where the national board rarely meets and all decisions are taken by a select group of members of the standing committee, who are chosen by the environment minister,” said noted environmental lawyer Ritwick Dutta. “The aim of constituting the standing committee of the state board is to exclude vocal conservationists from the decision-making process. All powers will now be vested with a small group headed by the state minister in charge of forest and wildlife.”
Dutta is also concerned about the proposed modifications to the biodiversity law. One of the major changes in the proposed law is that registered Ayush practitioners can access any biological resource and its associated knowledge for commercial utilisation, without giving prior intimation to the state biodiversity board.
“The amendment seems to be done with the sole intention of providing benefit to the Ayush industry,” Dutta wrote in a recent critique. “The main focus of the bill is to facilitate trade in biodiversity as opposed to conservation, protection of biodiversity and knowledge of the local communities. The amendments are completely contrary to the aim and objective of the Biological Diversity Act, 2002.”
The amendment bills should be seen as part of a larger scheme of redesigning environmental regulation, said Kanchi Kohli, legal researcher at Centre for Policy Research, a think tank. The environment ministry has released several new policies and guidelines this year to ease provisions for mining, expansion of industries, and facilitate defence and security infrastructure.
“In 2021, the environment ministry has been pushed to do two things. First, align its regulation to economic reforms introduced by the central government and, second, ensure compliance with international agreements including those related to climate change and access to biological resources,” Kohli said. “The government is redesigning environmental laws to enable the unlocking of natural resources, asking fewer ecological questions and reducing standards of public involvement in decision-making.”
Several new guidelines, policies were released by the ministry this year to ease provisions for mining, expansion of industries, and facilitate defence and security infrastructure.
Easing norms for defence-related works
In March, the ministry wrote to state governments stating that states cannot impose any additional environmental or conservation directions for infrastructure projects in forest areas other than what has already been stipulated by the Centre while granting forest clearance to a project. While granting forest clearance to a project under the Forest (Conservation) Act, it is presumed that the state government has already examined the proposal properly at all levels and has exercised due diligence. “Hence, the stipulation of additional conditions after according in-principle approval is against the norms and also demonstrates that such diligence was not made,” the letter had said. Independent experts had cautioned that such a guideline will curb the powers of the state in raising objections or suggesting additional environmental safeguards.
On May 10, new guidelines were issued to state that the environment ministry’s regional offices will now consider and expedite forest clearances for “critical infrastructure projects” in Left-wing extremism (LWE)-hit districts and those related to defence and security in border areas instead of the Forest Advisory Committee (FAC). Experts pointed out that leeway to defence projects could lead to giving green signal to a lot of projects that may be tangentially connected to defence but mainly of some other requirement.
The environment ministry this year also allowed companies operating in several industries, including some polluting ones, to expand capacities on the basis of a self-certification that this will not “increase the pollution load.” In May, the ministry released a user manual for online submission of an undertaking on no increase in pollution load due to expansion.
This year a number of amends were made to facilitate new mining projects. In July, the environment ministry made provisions for mining permits to be transferred to new mining lessees from previous leaseholders, without having to apply for fresh forest clearance. In a letter to all states and union territories on July 7, the ministry said that the transfer of approval under the Forest Conservation Act, 1980, can be made provided mining companies that are new lease holders meet certain conditions like complete compliance of terms and conditions stipulated in the forest clearance granted previously.
In September, the ministry wrote to all state governments stating that roads, conveyor belts, railway infrastructure etc. that connect mines to ports or other destinations can now be considered as standalone projects that can be approved by the regional offices of the union environment ministry instead of the Forest Advisory Committee. The letter stated that the ministry of coal had requested the environment ministry to consider the possibility of constructing new linear projects linking mines to dumping or loading sites.
The ministry of coal launched an auction for mines last year. In the first tranche 38 were listed and in the second tranche 67 mines in Chhattisgarh, Jharkhand, Odisha, Madhya Pradesh, Maharashtra and Andhra Pradesh were listed for commercial coal mine auctions.
In October, the ministry relaxed the environmental norms for the expansion of certain iron, manganese, bauxite, and limestone mines. It issued an office memorandum (OM) on October 20 stating that expansion of up to 20% capacity for mines of these four minerals which have a 5-star rating can be allowed only based on a public consultation.
Last month, the ministry went a step further and approved the commencement of mining in non-forest land even before forest clearance is granted to allow the activity in contiguous forest land in blocks where mining involves both types of lands.
Air quality Commission
Centre brought in the Commission for Air Quality Management in the National Capital Region and Adjoining Areas Act 2021 in August to provide for the constitution of the Commission for Air Quality Management in National Capital Region and Adjoining Areas to address severe air pollution in Delhi NCR. The newly constituted Commission continues to have sweeping powers in controlling air pollution in Delhi NCR.
Any non-compliance or contravention of any provisions of this ordinance, rules made thereunder or any order or direction issued by the Commission is a punishable offence with imprisonment of up to five years or with fine which may extend up to ₹one crore or with both. The new ordinance has clarified that provisions of this section will not apply to any farmer for causing air pollution by stubble burning or mismanagement of agricultural residue. The constitution of the Commission was criticised by legal experts because it is again a move to centralise powers, they said.
Developing the Islands
This year saw a concerted effort to facilitate so-called development in the Andaman and Nicobar and Lakshadweep Islands. The environment ministry’s expert appraisal committee considered multiple infrastructure projects in the Andaman and Nicobar Islands including luxury tents and resorts on some islands; two water aerodrome projects in Shaheed and Swaraj islands (formerly Neil and Havelock islands, respectively); two major township and area development projects on the Great Nicobar Island and Little Andaman, one of which is also likely to involve denotification of a tribal reserve.
The Lakshadweep administration introduced the draft Lakshadweep Development Authority Regulation (LDAR) 2021 that seeks to develop the islands as a major tourist destination similar to Maldives according to Lakshadweep Administrator Praful Khoda Patel. Scientists and former bureaucrats put up a stiff resistance against the draft saying that it ignores Lakshadweep’s vulnerability to climate crisis, rights and culture of indigenous people.