The high level committee under ministry of environment, forests and climate change, chaired by TSR Subramanian, has reviewed six major environment legislations in a short span of three months. The NDA government, even before it was elected last year, had promised alteration of the system for granting environmental clearances. This system was under the radar, with the approvals taking two to three years at best under the UPA reign of then environment minister, Jayanthi Natarajan. The Subramanian Committee Report (hereafter the Report) is a detailed document which has created means for benefitting the developers at the cost of the environment. The findings of the report suggested some throttling modifications which could be more appropriately termed as managing the environment with favorable ‘single window’ project clearances rather than its protection. The Subramanian Committee was not transparent and restricted any public comment to 1,000 words.
To obtain an environmental clearance, a project has to follow the rules laid down in the Environmental Impact Assessment (EIA) Notification, 2006. Even before the Committee had given its report, the NDA government had diluted this notification to amend the categories of projects required to go through the assessment process. Linear projects like highways, railways and pipelines were exempted from following the steps in the EIA and could begin construction after being granted a forest clearance. Furthermore, to ensure a speedy approval for public purpose, schools and hospitals proposed to be constructed on areas between 20,000 sq feet and 150,000 sq feet were also excluded from the EIA process. Members of civil society and activists voiced objections to this move because pollution and degradation of the environment caused by construction of such projects does not lessen if it is a public purpose project and not a profit-making operation. Nevertheless, the Report has accepted a fast track process for linear projects and further thinned the EIA process by restricting the aspect of public hearing.
Consultation with the project’s potentially affected parties is at the heart of EIA, and without hearing their concerns, the process would be totally developer-dominated. The Report has restricted the audience for the public hearing to ‘genuine local parties’ and the issues they can provide inputs on are only limited to ‘rehabilitation, resettlement and environmental concerns.’ As a consequence, it completely cuts out the NGOs and civil society activists whose assistance the locals might require to understand the issues and the process in its entirety. Secondly, qualifying the issues makes it harder for the locals to express their interest in terms of interconnected matters of employment and livelihood.
Even though the local affected parties have been restrained in voicing their issues, the Report has decided to establish the principle of ‘good faith’ for the project developers. Previously, where investigations and site visits were carried out by external agencies before the approval of a project, the Report now thinks it fit to have faith in the proponents to be honest and truthful about the materials, machinery and methods they would be using in implementing their project. There could be monitoring of the same and non-compliance could incur penalty; but with the objective of speedy approvals, blind faith on the proponents is being hailed as supreme by the Report.
The Report has tried to incorporate certain technologically innovative methods to get an insight into a project site before granting clearances. It has suggested creating a system of geo- referenced mapping to produce a GIS-based data set including layers of land and soil maps, river basin and drainage maps, satellite imagery for relief and topography, and hydrology maps that will also include underground water resources and certain other information like pollution levels. But the catch here involves not disclosing these data sets or making them available to the public to understand or check their veracity.
The Report recommends the constitution of new bodies, National Environment Management Authority (NEMA) and State Environment Management Authority (SEMA) which will ‘subsume’ the Central Pollution Control Board (CPCB) and the State Pollution Control Board (SPCB) and would be responsible for granting clearances in this streamlined, time bound, ‘single window’ process. To ensure a ‘speedy’ approval process, the time period has been fixed at two months for making a decision after an application is made. The MoEF&CC — a complex bureaucracy if ever there was one — has a clear right to give final recommendations to NEMA and SEMA.
Consequently, the independence of these institutions is a façade where the whole process is executive dominated, making it easier for businesses to gain speedy clearances for their projects.
To ensure that accountability stays completely on paper, the report has suggested an alteration to the role and character of the National Green Tribunal (NGT). A new appellate body which will have to give its decision within three months has been recommended to take up appeals from the NEMA and SEMA. In the wake of this, the Parliament-mandated NGT would become subservient and its powers limited only to judicial review of the administrative action and ruling on a violation to determine compliance with any laws. It would not be able to look into the merits of the case and decide on the approval or rejection of the project.
This Report, which is dominated by the single window system of granting speedy clearances, has completely blindsided the environment and is based on the primary objective of ‘making it easier to do business in India’.
The intentions of the Modi government — by excluding public consultation from the initial stages of the Committee to restricting their participation in the EIA process — has made its allegiance to the developers fully transparent, leaving little room to balance the interests of the environment.
Rosencranz is professor of law and public policy at Jindal Global University and a former Stanford University trustee. Kaur is a fifth year student at Jindal Global Law School