Creating the right environment: From 'roadblock ministry' to 'ease of business'

After terming it a 'roadblock ministry' under the United Progressive Alliance (UPA) regime, the Bharatiya Janata Party (BJP)-led National Democratic Alliance government has set about changing the face of the Ministry of Environment, Forest and Climate Change (MoEF&CC) to one that enables 'ease of business' while attempting to maintain sustainable development. While the jury is out on the 'sustainable development' aspect, over the last three years, the ministry has certainly gone about revising and overhauling the regulatory regime of environmental governance.

This trend has continued as the ministry is in the process of ushering in more crucial changes to central environmental legislations such as Environment Protection Act, Coastal Regulation Zone notification, 2011, and is also on the cusp of approving commercial cultivation of a genetically modified crop for the first time.

Ease of business

At the heart of wholesale changes made in environmental regulations during the last three years has been the mantra of 'Ease of Business'. This has translated into relaxing norms under several key environmental regulations and streamlining of the crucial project-clearance process, to cut down delays. In 2014, under Prakash Javadekar, the ministry moved at a rapid pace to introduce a flurry of policy tweaks to facilitate development and industry.

Foremost among these changes was the streamlining of the clearances processes through an online system, an initiative that was introduced under former environment minister M Veerappa Moily just prior to the regime change. It decided to grant general approval to border road projects within 100 km of Line of Actual Control (LAC) on the India-China border. Besides, general approval was enough for forest clearances in 117 Left Wing Extremist districts, which was done to boost infrastructure in these conflict zones.

On the policy level, the Environment Ministry embarked upon an overhaul of almost the entire regulatory framework of environmental governance that has existed in the country in the past three years. In 2014, it constituted a high-level committee led by former Cabinet Secretary TSR Subramanian to review and recommend specific amendments to Environment Protection Act, Forest Conservation Act, Indian Forest Act, Wildlife Protection Act, Water Pollution Act and Air Pollution Act.

Key among its recommendations is the creation of the new umbrella law and replacing the National Green Tribunal with district level administrative tribunals. While the ministry began with some changes based on the recommendations, its pace slackened after the Parliamentary Standing Committee on Environment and Forest asked to scrap the report.

"The Prime Minister's Office issued a host of directions to streamline clearances which included reducing recommendations for studies by expert committees that appraise projects, to cut delays. Further, there were also specific directions that expert bodies need not put additional riders on projects while granting clearances," a senior ministry official said on condition of anonymity.

Policy shifts

From specific changes that were introduced in the project appraisal procedures, there are also overarching changes that are in the pipeline as the ministry moves ahead. The Coastal Regulation Zone notification, 2011, that regulates development on coasts is set to be changed and MoEF&CC came out with a new draft notification a few months back. The draft notification provides for easing construction close to the high-tide line in line with development norms of municipal corporations.

Further, even as the House panel recommended scrapping of the TSR Subramanian report, NITI Aayog said that the Subramanian committee's key recommendation to create an umbrella law on environment should be implemented. The Subramanian committee report had said that the umbrella law should create — Environmental Laws Management Act (ELMA) — to enable creation of the institutions NEMA (National Environment Management Authority) and SEMA (State Environment Management Authority).

The ministry is also in the process of amending the Environment Protection Act, 1986, the keystone environmental protection legislation in the country to increase environmental costs for pollution up to Rs 1 crore, reportedly, without judicial action.

Commenting on the MoEF&CC's regulatory changes, environmental policy experts said that the ministry has stuck to its 'ease of business' mantra unabashedly.

"Right from achievements to notifications, the ministry has stated up front this mantra to align with the overarching agenda of development. This has manifested through the numerous changes made in environmental regulations," said Kanchi Kohli, legal research director, Centre for Policy Research — Namati, environment justice programme. Kohli added, "Other than that, the ministry has also tried to regularise environmental violations either through monetary penalties or through post-facto clearances."

Big-ticket decisions

In recent months, some of the big-ticket decisions of the MoEF&CC have come under scrutiny and also faced legal challenges. The ministry's decision to recommend the Ken-Betwa river linking project was faced with some internal resistance and is currently awaiting a final nod on forest diversion and environmental clearance.

In the weeks and months ahead, the MoEF&CC is also facing one of the biggest decisions on the issue of Genetically Modified Mustard crop. The Genetic Engineering Appraisal Committee (GEAC) has recommended commercial cultivation of the crop and now the final decision lies at the door of the environment minister.

The commercial cultivation of the GM Mustard crop has faced intense protests from farmers who have questioned the fundamental need for such a crop. They have expressed concerns about its yield claims too.

What the government has done

Policy revisions to enable business projects

The NDA constantly termed the environment ministry as a ‘roadblock’ ministry during UPA’s regime, due to perceived delays in appraisal of big-ticket projects. After coming to power, the NDA government set about undoing the ‘delays’ by introducing a series of wholesale changes in regulatory and statutory bodies and through policy revisions.

Overhauled major environmental Acts

The government sought an overhaul of six environmental laws:  the Environment (Protection) Act, 1986; Forest (Conservation) Act, 1980; Wildlife (Protection) Act, 1972; Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981; and the Indian Forest Act 1927 and constituted a high-level committee under former cabinet secretary TSR Subramanian to recommend changes to these laws.

New drafts and amendments

The ministry though has continued with its stance on amending key laws. It has brought out a draft of the Coastal Regulation Zone Notification to ease construction near coasts. It has brought out a draft of Wildlife Protection Act, a new draft Wildlife Action Plan for 2017-2031 and is also mulling over major changes to the Environment Protection Act.

Waste management norms

The ministry overhauled several statutory rules and regulations that dictate the management of waste in the country and brought in new pollution norms for several key industry sectors. Key among these rules were Solid Waste Management Rules, Electronic-waste Management Rules (E-waste), Plastic Waste Management Rules, Bio-Medical Waste Management Rules, Construction and Demolition Waste Management Rules and Hazardous and Other Waste Management Rules. These rules came into effect by April 2016.

Demarcate and notify ESZs

During the UPA regime, the demarcation and notification of Eco-Sensitive Zone or ESZs around National Parks and Wildlife Sanctuaries was pending for several years. ESZs are the buffer areas around national parks and wildlife sanctuaries and allow regulated development.

The NDA contended that pending notification, projects that fell in 10-km radius of the ESZs had to be approved by the National Board for Wildlife clearance and the Supreme Court too. It initiated the demarcation and notification process seeking proposals from state governments. Over 600 proposals were received and out of them 423 ESZs have been notified till March 2017.

Shortcomings and challenges

Project Tiger
One of the major schemes of the ministry, the budget for Project Tiger has shrunk by Rs 30 crore to Rs 345 crore this year.  Though the tiger population has seen a 30 per cent rise — from 1,706 to 2,226 — the threat of poachers has sustained over the last three years. In fact, 2016 saw 122 tiger deaths, the highest in the past five years. Government data and independent analysis attribute the rise in deaths to infighting among tigers due to fragmented habitats and poaching.

Pollution control
In the past three years, the country’s apex pollution watchdog — CPCB (Central Pollution Control Board) has been in the thick of things due to the alarming pollution levels in Delhi-NCR and due to the Namami Gange project. While CPCB has increased air pollution and water pollution monitoring stations, it has not led to effective curbing of pollution on the ground. Experts have rued that the pollution laws lack teeth to initiate impactful civil and criminal penalties.

Monitoring of projects
Monitoring of conditions stipulated in environmental clearances and enforcement of environmental norms is one of the biggest sore points for the Ministry of Environment and Forest. Former Environment Minister Prakash Javadekar had acknowledged this several times and so did his successor, the late Anil Dave. At the root of this problem is lack of field staff across the ministry’s ten regional offices and weak enforcement of laws by Central Pollution Control Board.

Shortage of staff
Even as the clearance process of big-ticket development projects is centralised, regional offices hold the key in following up on the compliance of environmental norms and conditions stipulated in environmental clearances. In a recent audit, the Comptroller and Auditor General (CAG) had said in March that once projects are granted, there is widespread non-compliance of general and specific conditions imposed in the environment clearances (EC). Also, to monitor defaulting companies, regional offices are not well-equipped, the CAG had noted.

Polluters go unpunished
Under current legislations, maximum civil penalties for pollution and environmental violations is Rs 1 lakh. There have been next to no instances of the MoEF&CC initiating civil and criminal proceedings against polluters. MoEF&CC has also taken a stance of moving away from closing down industries.

Dilution of laws
Wholesale changes in regulations and laws has largely been criticised from within and outside the ministry. Civil society and environmental activists have now termed the ministry as a ‘clearance’ ministry rather than one that protects the environment and natural resources.