As India’s NDA government led by Narendra Modi settles into the corridors of power in New Delhi, its policy directions are becoming clear. The initial trends are not very encouraging for environmentalists. Proactive decision-making is normal for new regimes and not unique to the NDA. Many thousands of hectares of forestland were cleared for development projects – mainly mining – in the last three decades.
But the process of obtaining clearances for a range of projects, from mining to roads, has been fast-tracked in the last few months. Over a short four months, more than 92 projects have been approved, requiring the clearing of 1,600 hectares of forests. Pursuant to an office memorandum issued by the Ministry of Environment and Forests, demanding easing of conditions for certain projects such as coal mining, clearances for projects located near sanctuaries and national parks have also been fast-tracked. An extraordinary procedure of making states responsible for clearances has also been implemented, which is a new thrust in India’s center-state relations. It is a public secret that the state pollution control boards are under-staffed, under-equipped and corrupt.
Safeguards that existed in the clearance procedure, such as required public hearings, have also been largely bypassed or diluted. Wherever possible, subjecting projects to public hearings and consent of the gram sabhas (a body of all eligible voters in a village) have been avoided. The NDA and the media apparently view the mandated requirements of environmental impact assessments and public hearings as impediments to development. Existing coal-mining projects can now apply for a one-time capacity expansion of up to 25 percent without any public hearing. Moreover, small coal mines, producing less than 8 million tons annually, have been allowed to double their capacity without any hearing.
High-Level Committee Headed by T.S.R. Subramaniam
Especially worrisome, the government has constituted a four-member committee, under the erstwhile cabinet secretary T.S.R. Subramaniam, to review laws relating to the protection of the environment and forests, with the ostensible aim of suggesting amendments that will make these laws more effective. The committee will review the implementation of five major green laws: Environment (Protection) Act 1986, Forest (Conservation) Act 1980, Wildlife (Protection) Act 1972, Water (Prevention and Control of Pollution) Act 1974, and Air (Prevention and Control of Pollution) Act 1981. The committee is to recommend amendments to bring them into conformity with “current requirements,” according to the memorandum of the Ministry of Environment and Forests. Most disturbingly, this panel will take into account various court orders and judicial pronouncements relating to theseacts. This seems a veiled threat to negate the Supreme Court’s handful of environmentally protective judgments.
This raises the pertinent question of what the Ministry’s current requirements are. Activists have claimed that the clearances in question are an attempt to dilute the laws related to environmental protection for purposes of economic development. Strict procedural norms, such as those relating to public hearings, may inconvenience industrialists. The leadership in the NDA government has spoken repeatedly about how projects were being held up for “frivolous” reasons and that they were proving to be “roadblocks” to development. It is believed that two laws of the previous government, the UPA, namely the National Green Tribunal Act, 2010, and the Forest Rights Act, 2006, have delayed, among others, the 52,000 crore (roughly $90 billion) POSCO project in the high unemployment state of Odisha. While the government has denied wishing to dilute the laws, it is clear that the government considers the environment laws, as currently implemented, as constituting a roadblock, and wishes to expedite the process of development at the cost of environmental protection and sustainable growth.
Not only is the policy of the government unlikely to benefit the environment; it is also unlikely to benefit its own objectives. Most projects are not rejected on environmental grounds. The developers continue to pollute. The NDA is not doing much more than furthering the policy of the UPA in a more transparent manner, since less than 3 percent of the projects were rejected under the UPA on environmental grounds. While reform of the legislation may definitely be required, the need of the hour is not fast-tracked clearances, but rather the consolidation of clearances, called single-window clearances, and greater transparency, including publishing all information related to environmental clearances in the public domain. Not only does this help the environment and communities, but it is also likely to increase the speed and efficiency with which environmental clearances occur.
National Green Tribunal
One important thrust of Modi’s actions seems to be to undermine the National Green Tribunal (NGT). Environmental lawyer Ritwick Dutta told The Hinduthat many dilutions have been in the offing for a long time, but in the case of the NGT, it would be very difficult to recast it as an administrative or quasi-judicial body, as suggested by reports. When asked, new Minister of Environment Javadekar ruled out any such change in the NGT. Dutta said that the NGT was instituted by an act of Parliament and could not be wished away. “While green laws have been facing threats throughout, what is different now is the lack of concern for environment protection . . . [There is] emphasis on transparency in the form of clearances, [but] what about compliances? You cannot be selectively transparent.”
The Environment Ministry wants the NGT to make recommendations to the government instead of issuing directions like a judicial body. In its view, only the impressionable Supreme Court of India should have the right to reject clearances. A year ago, the ministry asked the tribunal to limit its jurisdiction, but the proposal was rejected. The move to amend legislation was initiated by Javadekar himself. A cabinet note – prepared by his ministry – to water down the powers and jurisdiction of the tribunal would be circulated for inter-ministerial discussion soon, sources said.
Since its inception in 2010, the NGT, which is headed by a former Supreme Court judge, has stayed approvals for several projects. In the POSCO case, the NGT asked the Environment Ministry to review clearances after some local villages refused to consent to the project under the pro-tribal Forest Rights Act, 2006. Officials say the requirement of mandatory consent from the gram sabha for initiating any project is the biggest hurdle in pushing infrastructure development in mineral rich, poor regions.
Consolidated Green Clearances
An alternative to the current government’s actions would be to consolidate all green clearances, be they related to environment, forests, wildlife or coastal zone, so that decisions can be taken understanding the overall impact of each project. Multiple clearances required separately lead to delays and poor decision-making. The Supreme Court has asked the executive to establish and empower a national regulator for environmental clearances. It is either this officer, or a comparable red tape cutter, who should oversee all clearances.
As of now, 99 percent of projects manage to get environment-related clearances; 94 percent get forest clearances. Industries are able to bag these clearances due to a multiplicity of regulations and regulators that help unscrupulous elements in industry. In the current scenario, the government has no system in place for independent appraisal of project clearances. The authorities lack the capacity to monitor compliance with clearance conditions. And lack of access to reliable and relevant information related to project clearances makes them contentious.
These deficiencies must be addressed and this can be best done if an independent body is set up to oversee clearances. The body should be given enough powers and resources to conduct a proper assessment of relevant conditions as well as to impose fines and sanctions. It must be transparent and accountable and encourage public participation in green clearances. All information related to green clearances should be put in the public domain. The process of public hearings must be strengthened and made more transparent. Governance is not only about faster clearances and industrial development alone, but also about compliances, sustainable development and equity for future generations. Modi must not forget the millions of people who voted for him hoping for an equitable share in India’s economic growth.
Anjali Kumar and Yogendra Singh Mertiya helped research these issues.