TSR Committee offers a frail framework to robust laws

More than three months ago, the Union Ministry of Environment, Forests and Climate Change (MoEF&CC) had constituted a High Level Committee, chaired by TSR Subramanian, former Cabinet Secretary, to review the key environment laws, viz. Environment (Protection) Act, Wildlife (Protection) Act, Forest (Conservation) Act, and Water and Air Pollution Prevention and Control Act.

The TSR Committee submitted its recommendations to the Government last week. Shripad Dharmadhikary of Manthan Adhyayan Kendra calls the recommendations "A recipe for dilution of the environmental protection regime". In a phone interview, he elaborates why the suggestions made by the Committee will serve the vested interest of corporates while sidelining the environment protection.  

What positive suggestions did the Committee give for enhancing environment protection?

First of all, the Committee has very correctly identified that India’s current framework of environment regulation is quite robust, and that the major problem lies in the compliance and monitoring part. Secondly, the Committee has suggested including noise pollution as a separate category in the Environment and Pollution Act. Earlier, there were no laws to monitor and check the violations of noise standards given by the Government. So, in a way the suggestion given by the Committee to make noise pollution a separate category is quite an important one.

The Committee has also recommended making more use of technology in order to make the clearance process integrated, transparent and streamlined. They have suggested creating geo-referenced mapping, so as to produce a GIS-based dataset by putting together the layers of land & soil maps, river basin and drainage maps, satellite imagery for relief and topography, and hydrology maps that will also include underground water resources and other information like pollution levels.  But these data sets will not be made available to the public, thus, taking away 90% of their utility. Apart from this, they have also recommended the use of self-driven tamper proof meters for monitoring of air and water.

However, the effectiveness of these useful recommendations is doubtful as they are to be placed within a weak and problematic overarching framework.

The Committee has suggested identifying no-go areas; don’t you think that is also a good suggestion?

The suggestion to categorize forests with 70% canopy cover as ‘no-go’ area is a good suggestion, but it has also been suggested to remove the ‘no-go’ area tag from forests, if any project is of national interest. However, with the definition of national interest not being clear, the ‘no go’ tag of a forest is subject to political interest. Moreover, limiting the criteria of no-go areas to only canopy cover, and putting no-go at 70% is likely to allow lot of ecologically important and rich bio-diversity area to be taken out of the no-go category.

The Committee has recommended constituting NEMA & SEMA. Will they have the same function as that of CPCB & SPCB? If not, what will be their role?

CPCB & SPCB will be subsumed into NEMA (National Environmental Management Authority) and SEMA (State Environmental Management Authority), however, NEMA and SEMA will have similar functions and responsibilities as that of the Expert Appraisal Committee (EAC). The only important difference is that these will be a full time body unlike EAC. However, since their duties will be 10 times more than EAC, making the board members of NEMA / SEMA full time may still not allow them enough time for proper consideration of environmental clearance issues. Also, the recommendations allow bureaucrats and government offers with no experience with environment issues to be chairperson of NEMA. Indeed, the recommendations limit the selection of the Chair to those who have been in the government.

Has the Committee suggested the dilution of the National Green Tribunal (NGT)? If yes, then what process has it suggested for effective grievance redressal?

The Committee has not directly suggested the dilution of NGT but has made its effectiveness very limited. NGT will be replaced as a forum of first appeal against environmental clearances by an Appellate Body that will be constituted by a retired High Court Judge and two Government secretaries or bureaucrats. Any appeal received by the Board will have to be disposed off within three months. The decision of the Appellant Board could be challenged and the case can be forwarded to NGT as per the suggested system, but the new NGT will just have the powers of judicial review of administrative decisions and the judicial power to check violation of laws, but will not have the ability and power to review the environment issues on merits within a case.

Thus, grievance redressal will be at two levels: first an appeal would go to the Appellate Boards, which have to take a decision in three months after receiving the appeal and if the Board rejects the appeals then its decision can be challenged in NGT. The effectiveness of grievance redressal is a question mark as the absence of environmental experts from Appellate Board and a much weakened NGT will do more harm than good to the environmental regulation.

The Committee has proposed to fast-track the clearance process; will public hearing still be a part of the process?

As per the Committee’s suggestions, public hearing has become restrictive. The ambit of the public hearing will be restricted only to issues of the environment, resettlement and rehabilitation. This means that the public will not be able to raise any other issues they have with the projects, including opposition to such projects. Also, in public hearings, only ‘genuine local’ people will be allowed, which means that NGOs and other bodies supporting the locals will not be allowed. Thus, the public hearing will be reduced to nothing as quite often, it is the NGOs and organizations supporting locals, who make the locals aware of the issues they can face from a particular project and help them put across their opinion during the hearing. 

The Committee has also recommended dispensing off with the public hearing process in cases of projects which are of national importance in order to fast track the clearance process. Besides giving no clear definition as to why a project will be considered of national importance, there is no clarity given as to how the clearance process will be fast tracked. NEMA/ SEMA will have a sub-group for dealing with projects of national importance.

You are against the Committee's recommendation for delinking compensatory afforestation with the project after completion of financial obligations. What other mechanism do you think can help deal with this issue?

A joint mechanism can work with such an issue, which means that along with the Forest Department, the project proponent should also have some responsibility towards compensatory afforestation. Otherwise the proponents can easily back off from their obligation of compensating for the degradation they will cause to the environment by giving away money.

Why do you think that the TSR Committee’s suggestions are a "recipe for dilution of environmental protection regimes"?

Currently, 99.1% of projects received by the Environment Ministry are cleared (as per the TSR Committee itself) and clearances to only a few projects are rejected, but the suggestions made by the TSR Committee will hardly change this situation. The structure of NEMA/ SEMA is the same as that of EAC/SEAC but its functioning will further weaken if these authorities are chaired by any IAS officer or bureaucrats without any environmental background. They are also less likely to have independence from the government. Also, a clear provision has been given that MoEF&CC will have full rights to give directions to NEMA/SEMA on project clearances. This will further take away the authorities’ independence and again, the decision of clearing a project will be that of the government.

Moreover, lack of public participation and an environmentally powerless NGT will be big lacunae in the system as this will further make the EIA process more controlled by the Government and bureaucrats. Thus, the suggestions made are only going to weaken the law and environment norms and narrow down restrictions for corporates as the environmental capacity will be completely bureaucratic.

In your view, what could have the Committee have suggested to make the current framework of environmental regulation more robust?

While the current legal regime certainly has lacunae and needs changes, the most important recommendation the Committee could have made should have been with respect to making  the CPCB/SPCB, the EAC / SEAC  and the Environment Ministry accountable for their actions. Currently the problem lies at the implementation level because the authorities lack the will to take actions, particularly againt those who pollute and blatantly violate conditions of clearances.

To make the framework less authoritarian, local people should be made a part of the environment impact assessment process, environmental decision-making process, as well as the monitoring processes. Also, the chairperson appointed for NEMA & SEMA should have mandatorily and primarily had an environmental background. There also should have been some scope to appoint a person from outside Government personnel. This would be better in terms of environment protection because such a body that is chaired by an independent person and with a strong environment background will help in the decisions being environmentally sound.  

Shripad Dharmadhikary is the founder of Manthan Adhyayan Kendra, which is currently working on the issues and impacts of privatisation of the water sector in India.