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Recipe for Dilution of Environmental Protection Regime: Full Report of MoEF’s Committee to

Review Environmental Laws Confirms Initial Apprehensions
Ministry of Environment, Forests and Climate Change (MoEFCC) has recently made public the report
of the “High-Level Committee constituted for review of Environment and Forests Laws” (the TSR
Subramanian Committee). The full report confirms and strengthens the initial apprehensions that
had been built up from a reading of the leaked executive summary.
A reading of the full report shows that its recommendations are a sure recipe for serious dilution of
environmental protection regime in the country, which is not too effective in any case; and that its
recommendations seem to have ignored the lessons and experience of last few decades since the
operation of the Environment Protection Act and other laws.
Our initial concerns, based on the leaked executive summary, articulated here remain valid. We give
below some additional issues based on the full report (Report from here on). Note that concerns
articulated earlier are not repeated here.
Some Useful Analysis and Recommendations
The Report has correctly analysed the key problems with the current environmental protection
regime. Some of these are:
“The lasting impression has remained that the Acts and the appurtenant legal instruments
have really served only the purpose of a venal administration, at the Centre and the States,
to meet rent-seeking propensity at all levels. This impression has been further strengthened
by waves of large scale ‘clearances’, coupled with major delays in approvals in individual
cases. It should also be added that our businessmen and entrepreneurs are not all imbued in
the principles of rectitude – most are not reluctant, indeed actively seek short-cuts, and are
happy to collaboratively pay a ‘price’ to get their projects going…”
“The Executive, as pointed out has not covered itself with glory – indeed it has invited the
attention of the judicial branch through lack of basic care.”
“The Committee notes the tardy implementation of even the current penal provisions, which
is by itself a catastrophe.”
“The principal aim of Environmental Laws should be to ensure enhancement of
environmental quality parameters and maintenance of ecological balance.”
“While India has a strong environmental policy and legislative framework, much of the
problem relates to weak implementation of the various acts and the rules there under.”
“… whereas most projects sooner or later obtain approval; one analysis indeed indicated
that the percentage of approved projects works out to 99.1% – clearly the focus is not on
substance.”
Unfortunately, in spite of the correct identification of the problems, the Committee’s
recommendations do not address these problems, particularly the issue that “the focus is not on

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8 of the Report recommends the formation of the NEMA and SEMA for clearing various projects. except for the fact that the members of NEMA and SEMA are expected to be full time. There are some useful recommendations that can potentially enhance environmental conservation. National Environment Management Authority (NEMA) at national level and State Environment Management Authority (SEMA) for each State as the pivotal authorities to process applications for composite environmental clearance (one window). Second. and are likely to result in a go-by to basic environmental principles. (2) Creation of a geo-referenced database of environmental parameters for the entire country. this allows bureaucrats and government officers with no experience in environment to be chairperson of NEMA and it is likely that this will become the norm.substance”. forest cover. the utility of this is limited by making it accessible as a paid service which common people. In the EACs. The most serious problem with the NEMA is that its Chair is required to be a: “Person with administrative experience and of the rank of an Additional Secretary to the government or above or persons with unblemished record of service under any government of not less than twenty five years in the field of pollution control or environmental management. their recommendations are mainly focussed on expediting clearances. May Worsen the Clearance Process Section 7. While this would be a welcome step. supported by appropriate technology. However. civil society groups are not likely to afford) (3) Some of the suggestions in the Wildlife Protection Act. which will have the primary responsibility for processing all environmental clearance applications. this recommendation limits the selection of Chair to those who have been in the government. knowledgeable. These would be standing technical organizations. viz. The few such recommendations in the Report are (1) Suggestion to include noise pollution as an offence in EP Act. manned with professionals. Such an apprehension is not misplaced at all.” First of all. Nothing New in NEMA/SEMA. a detailed reading shows that there is little to distinguish the NEMA and SEMA from the current structure of the Expert Appraisal Committee (EAC) at central level and the State Expert Appraisal Committee (SEAC) at the state level. Let us look at few of these issues now. the impact of these few useful suggestions also may be lost as the overarching framework within which they are recommended to be placed is highly problematic. including parameters like topography. However. for category A cases through NEMA and for category B projects through SEMA. (However. in a strictly time-bound manner”. hydrology. bio-diversity. pollution etc. Instead. respected and independent people from outside the government. It says: “It is proposed to create agencies. most of the Chairpersons appointed have had no background in 2 . the basic character of the NEMA remains that of the EAC and hence this change may not have the desired impact. thus excluding many capable.

However. for as the TSR Committee itself notes.something that should also be obvious from basic principles – that any member.” Unfortunately. None of the recommendations have the intent of creating this political will to take strict action. 116 (THC) OF 2013. the NEMA has a vastly expanded set of responsibilities that go beyond project clearances. On the contrary. without having specific experience in the field of environment”. Second. there is nothing in the Report that indicates how the NEMA is going to manage this monitoring. the National Green Tribunal has taken cognisance of this issue and has noted: “Thus. Principal Bench in the matter APPLICATION NO. Further. so making the NEMA Board full time would only be a limited improvement over the EAC. The real issue with the monitoring and compliance is. Vs Union of India and Ors. we are of the considered view that it will neither be permissible nor in the interest of the environment. by diluting provision like the NGT. and particularly the Chair of the EAC (and now the NEMA) must primarily be an expert in the field of environment. 3 . Most of the Report’s recommendations for monitoring are in terms of using modern technology – which is welcome and must be done – but it is not going to be a silver bullet. there is a recommendation that : 1 Order of the National Green Tribunal. or where other considerations like bribes prevail. of course. that the establishment does not have the political will to take action against the offenders. it directed that: “We direct MoEF not to appoint experts as members/Chairperson of the EAC/SEAC under these head [“public administration or management “] unless the said experts in the above field is/are directly relatable to the various fields of environmental jurisprudence. but not the least. to appoint persons from only administrative or management field. the NGT has clearly ruled . lack of teeth was never the problem – current laws provide ample scope for taking strict actions – but rather the willingness to bite. the main problem with the environmental regime in India is lack of compliance and implementation. mines etc. Nor do any of the recommendations go to make the bureaucracy more accountable. In particular. There is no reason to believe that this will change in the case of the NEMA. Clearly. th Kalpavriksh and ORs.environment. knowledge and concerns has been seen as one of the main reasons why the EAC has failed to deliver on ensuring environmental protection and the Committee should have recommend environmental experience and knowledge as a prerequisite for the Chair of NEMA and SEMA. which will require a large staff. against projects and promoters who are often in nexus with the political and bureaucratic establishment.” Thus. the Report has decreased the accountability. NEMA has to “Monitor the compliance of specifications and enforce all the conditions of project clearances. The absence of a Chair with strong environmental background. In a recent Order1. dated 17 July 2014.” This is very important. Last. rather they have been heading departments or ministries that are involved in building dams. The Report seems to believe in a technological fix. or any of the stakeholders. The Report notes that among the principles it tried to follow is that of “providing adequate teeth to regulators to check the violations. a NEMA headed by a member of the same bureaucracy is unlikely to rise above these reasons and suddenly transform itself into an organisation that can take strong action.

virtually no scope for the participation of local communities and civil society in appraisal. that is. decision-making and monitoring.” This is a clear attempt to shut out civil society and public interest groups from the public hearing process and in turn deprive the local communities of inputs that can empower them. The intent of this is not clear. facing serious challenge from local people. rehabilitation and resettlement issues are captured in the public hearing. this could well mean that it is of national importance. Equally serious. even such a controversial project. First of all. it recommends that “only environmental. Further. it recommends that “A mechanism should be put in place to ensure that only genuine local participation is permitted. Dilution of Public Hearing Process The most serious problem of omission with the Report is that it has no recommendations to address what is probably the biggest lacunae in the current environmental regime. the EIAs are done by outsiders / consultants.“The Union Government shall have the powers to give directions to NEMA and SEMA in the matters of project clearances. It is now clear that the NGT will remain. All such directions shall be binding on NEMA and SEMA”. Several other dilutions are also proposed for public hearings. but the results are likely to be further enhanced control of the Government on the NEMA. yet recommends changing it drastically Winding up or Dilution of National Green Tribunal on Cards (Details were not clear in the Executive Summary. the EIAs are complicated documents (often available only in English). the Polavaram dam and irrigation project has been declared a national project. could be exempt from public hearings. Other Concerns For the record. the concerns dealt with in our earlier comments are: Report finds legal framework robust. the Report says that public hearings can be dispensed with “in the matters of projects of strategic importance and national importance. particularly since national importance is not defined. the Report has chosen to recommend a number of dilutions in the one limited space available for the same. At the same time. the public hearing that takes place as a part of the environmental clearance process. It should be noted that many of the projects are complex technological interventions. For example.” This means that the local communities have no scope to raise issues questioning any other part of the project or the project itself. but it is now expected that now only “local” people would participate in the public hearing.” This offers a very easy escape route for exempting projects. and virtually every major project could be considered nationally important. It is ironic that projects are promoted mostly by outsiders. but its powers of review will be limited to “judicial review of administrative actions” as 4 . This is a clear attempt to weaken challenges to grossly destructive projects by isolating local communities from external support and thus disempowering them. and so the local communities need support to understand the EIA and other impacts of the project. that is. Then.

they will go towards creating a system that is bureaucratic.) Utmost Good Faith Mechanism Delinking Compensatory Forestation from Project No Provision for Participation In Sum In sum. the recommendations provided by it hardly address these reasons. with little accountability and geared mainly towards “expediting” clearances. with little to ensure that the environmental principles are maintained and enshrined in projects and developmental activities.against reviewing the core of the environmental aspects on merits that an expert Tribunal can. if accepted. 12 December 2014 5 . while the Report correctly identifies many of the significant problems in the current environmental regime. On the contrary.