If there has been one broad area which has
been the casualty in the recent times is the Environment. Being obsessed with
“ease of doing business”, the various safeguards that have been built over the
past have been falsely targeted as a villain and attacked. The Environmental
Supplemental Plan is perhaps the final nail on the coffin.
EIA Resource and Response Centre[1]
filed a series of Right to Information (RTI) requests to the Ministry of
Environment, Forests and Climate Change (MoEF & CC) with respect to the
number of projects approved and challenged. Only the Committee for CRZ and
Miscellaneous Projects responded which is indicative of the trend. All big
construction projects, airports and malls are appraised by this committee.
During January 2013 to March 2015, a total of 118 projects were granted
Environmental and CRZ Clearance. Of the 118 projects, only 4 projects were
challenged before the National Green Tribunal. Of the 4 projects challenged,
the Environmental Clearance of only one project i.e KGS Aranmula Airport in
Kerala was revoked by the National Green Tribunal.
Thus, out of a total of 118 projects
approved, only one Environmental Clearance was revoked. While some of these
trends were visible in the dying stages of the previous regime, the new
Government has accelerated the process of completely undermining the
environment. Immediately after assuming power, the government began its
exercise to curtail several safeguards, dilute provisions of existing laws and
bring creeping changes through office memorandums and instructions. Several
dilutions have been affected in the name of decentralising power. In short in the first two years of “less
government, more governance” the Government has been living with rhetoric on
saving the environment while acting diametrically opposite to the cause.
Transparency is clearly restricted to the corporate and governments whether the
issue of auctioning natural resources, formation of rules and regulations and
setting standards.
The time and information and the mode in
which it is made available to the public makes it extremely opaque and this
notification only adds to the maze. While
the Environmental Supplemental Plan (ESP) for the first time defines
“Environmental Justice” as “the fair treatment and meaningful involvement of
all people, caste, colour, creed or income with respect to the development,
implementation and enforcement of environmental laws, regulations and policies”,
the ESP itself is a symbol of violation of this principle with very little
information provided to people who have web access. For this very reason alone
the process needs to halted and a comprehensive mechanism for meaningful
involvement of those who are and will be particularly affected by the violation
need to be consulted.
Tampering
with Environmental Legislations
The first serious attempt to bring about a wholesale dilution in a
range of environmental legislation was the formation of a High Level Committee.
The committee was constituted on 29th of August 2014 by the Ministry
of Environment, Forests and Climate Change (MoEF&CC) to review various
environmental laws submitted its report to the Central Government on
20-11-2014. The Committee was entrusted to review the Environment (Protection)
Act, 1986, the Forest (Conservation) Act, 1980, the Wildlife (Protection) Act,
1972, the Water (Prevention and Control of Pollution) Act, 1974, and the Air
(Prevention and Control of Pollution) Act, 1981. The Indian Forest Act, 1927
was added subsequently to this list.
The recommendations include a ‘single window’ approval process, a fast
track treatment for linear and power and coal projects, ‘a special procedure’
for ‘strategic’ and ‘national projects’. There is also an introduction of what
can be termed as the ‘private trust’ doctrine as opposed to the ‘public trust’
doctrine.
Under this ‘private trust’, there is implicit trust in whatever
information is submitted by the private business entities under the concept of
‘utmost good faith’ and at the same time, there is a sense of suspicion on the
community by requiring the people to prove their ‘bona fide’ and by limiting public participation to only those the
HLC describes as ‘genuine local people’.
In sum, in
less than three months the HLC has not only suggested radical changes that
would undermine all of the laws it was tasked to review, is has also
recommended changes to render less effective a number of laws it was not
charged to review and has also recommended a brand new piece of legislation to
be strangely called as the Environmental Laws (Management) Act or ELMA, which
the HLC suggests, they suggest, would prevail over all contrary court judgments
issued in past decades or the provisions of any environment law promulgated
till date. This prompted the concerned
environmentalists to state “Calling the HLC report ‘radical’ is an understatement –
it is revolutionary, but a revolution against the environment, the voice of the
people, and democratic processes[2].”
The more
recent is the attempt to bring in the Environmental Law (Amendment) Bill, 2015.
The Objectives state, the Bill aims to provide for an “effective deterrent
penal provisions and introducing the concept of monetary penalty for violation
and contraventions”. The effective deterrent is as regressive as the position
of the Government in the case of nuclear liability. Just as it restricts the
liability of the project entity to Rs 500 cr in case of a nuclear disaster,
this bill envisages a maximum fine of Rs 20 cr for a polluting industry. Devoid of any scientific basis, the Bill
proposes the following categories of violations and penalties.
Nature of
Offence
|
Definition
|
Penalty
Proposed
|
Substantial
Damage
|
Within 5
Kms of the Outer Boundary of the Project
|
Minimum Rs
5 Crores and Maximum Rs 10 Crores
|
Beyond 5 Kms of the Outer Boundary of the Project
within 10 Kms
|
Minimum Rs
10 Crores and Maximum Rs 15 Crores
|
|
Beyond 10
Km
|
Minimum
Rs15 Crores and maximum of Rs 20 Crores
|
|
Non
Substantial Damage
|
Maximum Rs
1 Lakh and Maximum Rs 5 Crores
|
|
Minor
Violation
|
Minimum Rs
1000 and maximum Rs 10,000
|
It is common sense that impacts
and cost of remediation would vary with the nature of the project and
pollutions effects cannot be capped arbitrarily to some kilometre-basis.
Therefore if a mine-dump or ash-dam breach regular in mining areas and
coal-fired thermal power plants, the impact has to be beyond 10 kilometres for
evoking the maximum fine. Environment Protection Act came in the backdrop of
the disastrous Bhopal Accident for which even after spending over thousands of
crores is still unresolved. A similar accident post this law would mean that
the company pays Rs 20 cr and remains in business. This bill envisages creation
of adjudicating authorities thereby restraining the role of the National Green
Tribunal.
Dilution of the provisions
It
is a cardinal principle of law that there is no power to confer legislative
power on the executive. The Supreme Court has held that essential legislative
function cannot be delegated by
the Legislature, that is, there can be no abdication of legislative function or
authority by complete effacement, or even partially in respect of a particular
topic or matter entrusted by the Constitution to the Legislature; Power to make subsidiary or ancillary legislation
may however be entrusted by the Legislature to another body of its choice,
provided there is enunciation of policy, principles, or standards either
expressly or by implication for the guidance of the delegate in that behalf. Entrustment of power without guidance
amounts to excessive delegation of legislative authority.[3]
The
proposed legislation aims at excessive delegation and this will certainly be
cause of rent-seeking. Many of existing laws have been diluted through
executive action. For instance projects which have a capacity expansion of 25
percent do not have to go through a process of fresh environmental assessment
process and public hearing. This opens up a way for increasing capacities
multiple times and avoiding the due diligence. Environmental clearances have
been made “transferrable” even if it is known that the new possessor is a
habitual violator and may need greater safeguards. Linear projects no longer
require the consent of the gram sabhas as if the linear projects do not have
impacts on the resources or land of the villages. Similar has been the case
with the effort to do away with the provisions of Social Impact Assessment and
consent in the Right to Fair Compensation and Transparency in Land Acquisition
Resettlement and Rehabilitation Act 2013 in the omnibus category of
“infrastructure” projects.
Dilution
of provisions is also being encouraged through the States in the name of
decentralisation and cooperative federalism. Several State Governments want to
keep the implementation of the Forest Rights act in abeyance in areas where
they want to grant mining leases, promote hydropower projects or industries and
this seems to be done with active knowledge and collusion of the respective
central authorities. In the case of National Highways the Government has done
away with the environmental clearance for projects below 100 km thus paving way
for breaking them into projects below this length as is been done with the
NH-21 from Chandigarh to Manali. It has been broken into four segments and the
Govind Sagar Sanctuary denotified to enable the construction of a four-lane
highway and ironically dump muck into the Bhakra Reservoir. In March 2016, the
Government has done away with Environmental clearances for a new “white”
category of industries which includes hydropower projects under 25 megawatt and
several industries whose products may be harmless or less harmful but the
process could involve pollution in the presumption that these have virtually no
impacts.
The
most recent in this series of dilutions through delegation is the proposal to
establish a District Environmental Impact Assessment Committee and Authority to
grant clearance to mining projects of upto 5 hectares of lease area. The
Irrigation Engineer is nominated as the head of this authority. Everyone knows
that he has a conflict of interest if it involves materials for irrigation
projects. Further when even the National and State level formations are so
bereft of knowledge and courage to undertake unbiased and technical
evaluations, this authority will only be a “rubber-stamp” and a new opportunity
for rent-seeking.
Projects
with Disastrous Consequences
Several
disastrous projects which have been in abeyance have begun to come back into
reckoning including the interlinking of rivers. The Ken-Betwa link is a classic
example of this type of projects. The project will significantly destroy the
Panna Tiger reserve. Let us remember that this was a reserve where all the
tigers were eliminated and over the years crores have been spent to bring back
tigers and today claims to have over 20 tigers. While people are being
displaced in the name of conservation, apart from this, the corridor between
Panna and Navardehi Wildlife sanctuary is under serious threat as the
Government is doing all it can to enable a global mining company with an
extremely bad reputation to open up a diamond mine sacrificing nearly 1000 ha
of forests.
The
Polavaram project which will involve displacement of over 300 villages is
another such example where despite alternatives being suggested, the project
which is being surreptitiously pushed ahead.
The
case of Vizhinjam port is actually astonishing as it involves the company which
is seen as a “blue-eyed boy” of this government. Originally touted as a naval
infrastructure and most clearances obtained on that basis, the project is
turning out to be a “port-estate”. The naval component has been abandoned and
the company being allowed to build luxury apartments and hotels with access to
the sea-face. Thus it avoids the Coastal Zone and other regulations if the
project as it was conceived by the corporate was revealed in the beginning.
While
the government has been lauding itself about the high targets it has set for
renewable and claims to be very conscious of the climate, it is doubling the
coal output and promoting production through polluting sources almost with a
vengeance. The result is that we have coal inventories mounting and thermal
power plants forced to either reduce production or sell at prices below par.
In
short, if the trend we are watching in the first two years of the new regime
continue, whether the dream of “Make in India” succeeds or not, it is certain
that no meaningful environmental protection will remain in the next decade.
This calls for seriously bringing to bear the importance of environment in our
long term sustainability at the core of our governance agenda.
Today
'Polluter Pay Principle' and the 'Precautionary Principle' form the edifice of
environmental law. The Supreme Court has held that Polluter Pay Principle can't
be a licence to pay and pollute. The draft notification allows illegal activity
to take place without environmental clearance, and ESP amounts to 'pay and
pollute.'
The
fundamental problem in the draft notification is that it condones a criminal
act on the part of the project proponent and replaces it with a procedure which
allows the violation to be legalised with a semblance of pecuniary punishment. In
the case of violation of a statute, the law is well settled that when the
statute requires to do certain thing in certain way, the thing must be
done in that way or not at all. Other methods or mode of performance are
impliedly and necessarily forbidden. The aforesaid settled legal proposition is
based on a legal maxim “Expressio unius est exclusion alteris”, meaning thereby
that if a statute provides for a thing to be done in a particular manner, then
it has to be done in that manner and in no other manner and following other
course is not permissible. (See Taylor v. Taylor, (1876) 1 Ch.D.426;
Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Ram Phal Kundu v. Kamal Sharma;
25 and Indian Bank’s Association v. Devkala Consultancy Service, AIR 2004 SC
2615).
There
is also a growing criticism of plagiarisation in the draft notification. Such
mindless application of some law from another country no matter however
“developed” it may be considered will lead to greater deterioration. We need an
indigenous method of monitoring and evolving methods to control the process.
Thus
it is essential that extreme “good faith” must be placed on the community to
monitor as it is their living environment. The need of the hour is definitely
“Environmental Justice” and this is not much contested on its definition. It is
the opaque manner in which the environmental monitoring and especially through
indicators which cannot be easily comprehended by the community. We need
communicable indicators to be able to ensure environmental justice. This needs
to be followed up with actual analysis before what the new draft ESP
notification – the classical “putting the cart before the horse”- does. It sets
up a process where violation could turn out to the norm and this risk is
avoidable.
We
demand that the present notification should be withdrawn and a meaningful
mechanism must first be created to seek inputs from diverse groups of people
affected by the decisions of the Ministry on upkeep of the environment. This
will go against the very spirit of this notification itself, let alone the
environment.
[2]
The
High Level Committee Report on Environmental Law: A Recipe for Climate Disaster
and Silencing People’s Voice
Ritwick
Dutta, Manoj Misra, Himanshu Thakkar
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