Before the light turns green

The recent order of the Supreme Court, directing the Union of India to establish an environmental regulator by March 31, 2014, may appear to some to be a case of judicial overreach — the court telling the executive how to do its job. To others, it is the latest in a series of Supreme Court judgments in the environmental sphere where the prolonged inaction of the government has forced the court into crisis management mode. Most would agree, however, that the court’s order underscores the urgent need for systemic reform in environmental governance in India, particularly in the context of the environmental clearance process.
The Supreme Court’s order was issued to enforce a 2011 judgment of the court, in a case concerning limestone mining in Meghalaya by Lafarge Umiam. There, it was alleged that mining was being undertaken in forest land without regulatory approvals, and that false information had been submitted by the project proponent. In a judgment delivered by then Chief Justice Kapadia, the court permitted mining but highlighted several deficiencies in the environmental and forest clearance processes. To improve these processes, it laid down certain guidelines for the Centre to follow. It also determined that it was “incumbent” on the Central government to exercise its powers under the Environment (Protection) Act, 1986, in order to constitute a national regulator for “appraising projects, enforcing environmental conditions for approvals and to impose penalties on polluters”.

The shortcomings identified by the court in the Lafarge judgment and reiterated now have been repeatedly highlighted by activists and civil society groups over the years — the lack of accurate data on the status of the environment and baseline figures, excessive reliance by decision makers on the data provided by project proponents, the absence of credible and independent impact assessment, and poor appraisal of the environmental impact of proposed projects. And these are merely illustrative of a larger set of problematic issues in the environmental clearance process.

Numerous recommendations have been made in the past regarding possible avenues for institutional reform to address these problems. In 2001, a high powered committee constituted by the Supreme Court had recommended the setting up of a National Environment Protection Agency as a technical arm of the ministry of environment and forests and the Supreme Court in 2003 directed the Central government to take this recommendation “with all seriousness”. The Planning Commission’s steering committee on the environment and forests in 2007 recommended the setting up of national and state environmental clearance authorities as statutory bodies independent of the government.

The UPA government itself has initiated efforts aimed at institutional restructuring. Therefore, the position taken by the Centre before the court (contesting the need for a national regulator) is somewhat surprising. In 2009, the National Conference of Ministers of Environment and Forests supported the creation of “an autonomous, professional and science-based body”. This was followed by three proposals in 2009-2010 by the MoEF — led at the time by Jairam Ramesh — proposing alternative institutional models, but all with the stated objective of improving the environmental clearance process. The most recent of these proposals called for the setting up of a National Environment Assessment and Monitoring Authority (NEAMA) that would primarily perform the functions of appraisal and monitoring in the environmental clearance process — very similar to what has been directed by the Supreme Court. The NEAMA model was publicly endorsed by the prime minister in 2011.

While the government has undoubtedly dragged its feet on introducing far-reaching reform and the court has served yet another wake-up call, the possible ramifications of the court’s order, even setting aside concerns about the separation of powers, are troubling. With the general elections around the corner, the Centre is unlikely to expend much time or effort in implementing the court’s order in any real manner. The regulator envisaged by the court is similar to the NEAMA and, given the short deadline, the Centre may be inclined to adopt that model. This is problematic because the NEAMA model was critiqued when it was first proposed as being inadequate, and for eschewing significant changes to the regulatory process. In that model, state-level institutions were left untouched. Concerns regarding the new institution’s autonomy, accountability, interaction with existing institutions and staffing requirements were raised. It was hoped then that the ministry would take note of the critical feedback and go back to the drawing board.

The regulatory structure envisaged by the court has the Centre retaining the final word, an issue that in itself merits further debate. But that apart, appraisal and monitoring functions must be given a more meaningful role in decision-making through careful design and empowerment of the new institution. If the Centre hastens into constituting a new body, whether along the lines of NEAMA or not, to mechanically and half-heartedly follow the court’s order, it risks worsening an already feeble governance mechanism. Issuing a notification to set up a new institution without adequate staff, resources and infrastructure would be a token gesture, violating both letter and spirit of the court’s order.

The writer is senior research associate, Centre for Policy Research express@expressindia.com