Old approvals from a new regulator?

The Supreme Court (SC) of India, in its decision on 6 January 2014, has laid out a solution to the unsatisfactory manner in which environmental clearances are being dealt with in the country. The court reiterated its earlier position that an "independent" regulator is the answer to the problems which plague decisions related to impact assessment and compliance with clearance conditions. The Ministry of Environment and Forests (MoEF) was asked to file its affidavit appointing a regulatory authority by 31 March, 2014.

This order has been issued as part of the proceedings in a case related to the forest and environment clearances of Lafarge Umiam Mining Private Limited in Meghalaya, in which the idea of an independent regulator was first articulated by the SC back in July 2011. In its present decision, the three-judge bench has clearly said that it does not agree with the MoEF's position that the institutional arrangement in place is a workable option.

What this broadly means is that while the MoEF will retain the powers to draft and modify environmental regulation, an "independent" authority will carry out its actual implementation.

Environmental approvals under the Environment Impact Assessment (EIA) notification, 2006 take place through a detailed procedure laid out in the regulation. While expert committees appraise projects both at central and state levels, it is the impact assessment authorities which take a final decision on the grant of the approval. Each state has a special authority for Category "B" projects and the list of category "A" projects are decided upon by the MoEF in New Delhi. Monitoring and compliance are carried out through the six regional offices of the MoEF in Bhopal, Bengaluru, Bhubaneshwar, Chandigarh, Lucknow and Shillong.

That the current environment regulation is ailing and has many discrepancies has often been pointed out. Faulty and manufactured impact assessment reports, shortchanged public hearings, non-compliance with regulatory conditions and impending cases in courts are growing in number. At the same time, project authorities continue to protest the insufficient speed of clearance, pushing the MoEF on the backfoot and forcing it to justify every instance where a position to apply the rule of law has been taken.

Even prior to the SC's first judgment, the need for an independent regulator was discussed back in 2010-2011, when the MoEF had itself put forward options for public discussion and feedback. The few models proposed then were for decision making related to environment clearance and post clearance monitoring of conditions laid out at the time of approval. (see this and this.

It is interesting to note that the MoEF, which had pushed for the setting up of the authority back then and had welcomed the Lafarge judgment during ex-Minister Jairam Ramesh's regime, is today on a diffident note and seeking to keep control over decision making within the ministry itself.

Irrespective of who the regulators are, the EIA regime in the country continues to grapple with long standing issues of design, which still need in-depth attention. Four core ones among these, associated with environmental regulation today, need to be examined in the light of the solution proposed.

The first relates to the freedom to assess environmental consequences and appraise projects based on that. The role of an expert is implicit in both of these. In the environment clearance system, the project proponents are the ones who hire consultants to carry out impact assessment, which is then reviewed by a set of scientific and technical experts attached to government-affiliated institutions. In more instances than one, consultants have been found to prepare reports that either played down impact or laid them out together with mitigation possibilities.

For example, in the case of the recent public hearing related to the expansion of new facilities within the Kandla Port Trust (KPT), serious lacunae have been pointed out in the EIA report that has completely overlooked potential marine impact (see this link). The environment clearance for JSW Energy (Ratnagiri) Ltd's thermal power plant in Maharashtra was also granted under the condition that the impact on alphonso mangoes would be studied even as the plant was under construction (link).

At the appraisal level, the expert committees both at state and central levels have suggested post facto assessments as a possible way out for projects when the impact assessment defies environmental logic. In the case of the steel plant and port of M/s POSCO in Odisha, many of the studies are still pending. The Roy Paul committee set up by the MoEF following a judgment of the National Green Tribunal (NGT), also recommended long term monitoring and studies of the impact of erosion of creeks/banks, deepening of the creek or widening of the river mouth and the ecological changes occurring due to the construction of the project.

These studies, fundamental to the impact assessment, will now be carried out post facto. POSCO's EIA reports have been criticised ever since they were first made public in 2007 (see this and this).

The regulatory process also continues to be opaque on several accounts. Transparency has meant relevant minutes of meetings, EIA reports and other documents being shared online on websites. There is, of course, the mandatory environmental public hearing, where documents are shared with the affected people as a means to complete procedural formalities. These documents shared at the time of the public hearing are usually draft EIA reports meant to be finalized after the public interface.

The final report never comes back for scrutiny to the affected community. Such a public hearing cannot be a replacement for free, prior, informed consent and participatory environmental decision-making emanating from the place where the impacts are going to impinge.

In recent times, the decisions over project approvals have been explicit in their "extraordinary" influences. Bodies such as the Cabinet Committee on Investments (CCI) and specialized groups of ministers have openly communicated their displeasure at the slow and inefficient rate of clearances. They have directed the ministry to approve several high investment projects on the ground that these are critical for the national economy. This is despite the expert bodies and ministers of environment recording their dissent. (see this and this).

The environmental inspector has not been able to address the issue of post-clearance compliance of conditions either. The six regional offices of the MoEF have admitted their inability to ensure that projects are wilfully and meticulously complying with the conditions laid out. With projects having over 130 conditions, some of which are impossible to comply with, these conditions become mere conduits for expert committees to grant clearances. The enforcement can be forgotten thereafter both by project authorities and regulators.

Moreover, as many of these conditions are impact assessments in themselves, they should have been critical baselines for approval decisions to be arrived at in the first place (see this).

Those in favour of an independent body are looking for a better regime, which would be free of the encumbrances plaguing the current system. But there are concerns too. How will any new body be able to deal with the long history of a faulty regulatory regime and address it in the future? Moreover, how much freedom or control will this body have to address the issues of bias, participatory decision making, political interference and lack of will to comply? All this will need more than just an independent body.