Where is it heading?

WAY back in 1894, a report by the State Fish and Game Commissioner of North Dakota cautioned that short-term thinking on environment and narrow monetary motivations might lead to the destruction of the ‘last tree’ and the ‘last fish’. This formed the basis for the famous prophecy: “When the last tree has been cut down, the last fish caught, the last river poisoned, only then will we realise that one cannot eat money.” In the present context, we can add two more, ‘the last forest and the last beach sands’. This prophecy should be the philosophy of environmental governance in a country with a mere 2.3 per cent of the earth’s surface and 18 per cent of the world’s population. But, sadly, this is not so.

Environmental governance is the means by which society determines and acts on goals and priorities related to the management of natural resources. This includes the laws and rules, both formal and informal, that govern human behaviour in decision making processes as well as the decisions themselves. This concept came on the world agenda with the first UN Conference on the Human Environments (UNCHE, later called Earth Summit), held in Stockholm in 1972. It laid down 26 principles and called upon governments and peoples to exert common efforts for the preservation and improvement of the human environment for the “benefit of all the peoples and for their posterity”.

India’s formal ‘environmental governance’ commenced with Prime Minister Indira Gandhi’s abrupt directive in 1981, prohibiting all construction activities within 500 metres of the coastal high-tide line. This was to satisfy UNCHE’s Principle 7, dealing with prevention of pollution of the seas that endangers human health and causes harm to living resources and marine life. Around 30 per cent of India’s population, including in two metros—Mumbai and Chennai—and numerous smaller cities and towns reside near the sea and pursue their livelihoods. There was no study or scientific analysis of these regions to understand the life and livelihood needs of people and regulate economic and construction activities accordingly. Just a blanket ban with no questions asked. This was hailed as ‘characteristic of Indira Gandhi’s foresight and vision’! But even after three decades, Coastal Regulation Zones (CRZ), based on High-Tide Line, have not been properly demarcated!

Environmental legislation and management in India have been in bits and pieces, commencing with the colonial-period Indian Forest Act, 1927, when environment was totally identified with forests. This mindset continues and dominates India’s environmental hierarchy. Subsequent laws include the Wildlife (Protection) Act, 1972, Water (Prevention and Control of Pollution) Act, 1974, Forest (Conservation) Act, 1980, and Air (Prevention and Control of Pollution) Act, 1981.

The ‘comprehensive’ Environment Protection Act (EPA) came in 1986, in response to the outcry following the horrendous Bhopal gas tragedy. This law was enacted under Article 253 of the Constitution and, as the Preamble says, with the purpose of implementing the decision of UNCHE relating to the “protection and improvement of the human environment”. Having been enacted under pressure and duress, the cornerstone of India’s environmental governance is itself rocked on the wrong foundation.

Sincerity for safeguarding environmental sustainability was suspect from the beginning and a bare reading of EPA would reveal that it is more of a coercive legislation, opening the gates for corruption and harassment, rather than a facilitating one. There was hardly any commitment to environmental governance at any level of government. For the administrators, it was academic and for the political executive, environmental laws and rules were tools for making money and not sustaining ecology.

Soon came the liberalisation-privatisation-globalisation (LPG) era that heralded ‘development’ at any cost. FDI and GDP growth became the focus and environmental concerns became villains. The cliché ‘development vs environment’ was coined and while pin-striped carpetbaggers, representing the former, were government’s guests of honour, pyjama-clad ‘jholawalas’, who advocated the latter, became enemies of the State!

It took a full 20 years after EPA to formulate the National Environmental Policy (NEP-2006), which came in the midst of the LPG era. NEP provided for conservation of critical environment resources, inter- and intra-generational equity, integration of environmental concerns in economic and social developments, efficiency in environmental resources use, environmental governance and enhancement of resources for environmental conservation. The policy recognises environmental protection as an integral part of the development process, requiring a precautionary approach through economic efficiency on the basis of the concept of polluter pays, equity, legal liability and integration of environmental consideration in sectoral policy. Most of these only exist in paper.

Environmental legislation and management in India have been in bits and pieces, commencing with the colonial-period Indian Forest Act, 1927, when environment was totally identified with forests. This mindset continues and dominates India’s environmental hierarchy`76Y

Though the EPA provides for stringent penalties for violating environmental norms and a spate of rules, regulations and notifications have been issued laying down norms, these have been observed more in breach than in compliance—because most of these ‘regulations’ leave huge holes to be exploited by the corrupt and the unscrupulous.

THERE are glaring examples. Under the Environmental Impact Assessment (EIA) rules, all projects and activities are broadly grouped into two categories—A and B—based on the potential impacts on human health, and on natural and man-made resources. Category A includes industry, mining and big infrastructure projects which require prior environmental clearance from the Environment Appraisal Committee (EAC) of the Ministry of Environment, Forests and Climate Change (MoEFCC). Townships/area development projects covering an area above 50 hectares are clubbed under B1 and could be cleared by respective state/Union Territory Environmental Impact Assessment Authorities, based on the recommendations of the state-level Expert Appraisal Committees. Public hearing is not warranted.

Sensing the danger posed by urban explosion, the MoEFCC’s 2005 draft notification had included a clause for projects covering areas above 100 hectares to be treated as Category A projects, requiring Terms of Reference (ToR)-based EIA and clearance at the central government level. But, due to the real estate lobby’s pressure, this has not been implemented. Taking advantage of this gaping loophole, the Andhra Pradesh government is ‘building’ a massive Singapore-type city on about 13,000 hectares of flood-prone, riverfront multi-crop land in Guntur district without even doing a Rapid EIA! In the rest of India, ‘urbanisation’ has become a rogue business, ransacking the countryside, erasing water bodies and destroying anything that is green!

Similar is the ravaging of beach sands and dunes, taking advantage of lax CRZ rules and ‘environmental clearances’ given by the MoEFCC. The beach mining loot in the southern districts of Tamil Nadu has assumed gargantuan proportions and is emerging as a massive financial, economic and environmental scam with far-reaching consequences for national security!

The institutional mechanism—Central and State Pollution Control Board, Coastal Zone Management Authority, EAC and Biodiversity Authority—created under EPC have not done much to safeguard India’s environment. Some of them are corrupt to the core and would gladly go by the false and fabricated reports and EIAs furnished by project proponents instead of investigating and ascertaining the truth before granting approvals.

National Green Tribunals were established to deliver ‘environmental justice’. Being packed with retired judges, these tribunals are nothing more than extended civil courts with all the suffocating processes, procedures and delays. Selection of these judges being sinecure-based, there is commitment neither to environment nor justice.

While so, when Prime Minister Narendra Modi formally linked ‘development’ with ‘governance’, the MoEF moved fast and setup a High Level Committee (HLC) to suggest a development-oriented environmental governance. ToR of this Committee were:
(i) To assess the status of implementation of each of the environment-related acts vis-à-vis the objectives;
(ii) to examine and take into account various court orders and judicial pronouncements relating to these Acts;
(iii) to recommend specific amendments needed in each of these Acts so as to bring them in line with current requirements to meet objectives; and
(iv) to draft proposed amendments in each of the aforesaid Acts
to give effect to the proposed recommendations.

SINCE the future environmental regime is likely to be based on this report, it bears some scrutiny. To begin with, the committee was on a tight leash with just two months to submit the report, later extended by another month. The HLC buckled and went about its business in an abrupt and opaque manner, adopting a sham of a public/expert consultation process. This does not augur well for environmental sustainability. Though the Preamble makes the right pontifications and contains quotes from the Upanishads on nature and conservation, the report exposes a mix-up between sustainable management of natural resources and the speed of the environmental approval process.

On the approval process, the committee has shown duplicity. On the one hand, it doubts the integrity of the consultants who prepare the EIAs/reports for the project proponents…on the other, it suggests adoption of the concept of uberrima fides, putting absolute faith in EIAs prepared by these very consultants

The committee fails to properly define a forest. However, its recommendation to encourage non-forest, non-government landholders to engage in forestation on land owned by them by not treating them as ‘forest’ under the present definition of the Act is commendable. This could facilitate tree plantation on large tracts of land which is otherwise left fallow. But HLC’s move for faster and higher rates of diversion of forest land, including the country’s dense forests, is out of sync with the need for greening a fast browning India. This could only help whales like Vedanta to ‘develop’ 20 per cent of India’s prime forests into mining pay-dirt within months! Wildlife fares no better and the HLC report is sketchy, piecemeal and replete with factual inaccuracies. There is hardly any mention of impact of destructive projects on forests, communities and wildlife.

The HLC’s ‘development agenda’ is revealed in its recommendation on the new institutional framework and approval process. National and State Environment Management Authority (NEMA/SEMA) are suggested as professional ‘pivotal authorities’ to process/clear/monitor Category A and B projects, respectively. This is a good initiative. But what is bad is that the HLC wants these authorities to function like robots and prescribe site-specific ToR for EIA in 10 days, failing which the proponent will use the generic model ToR. This will be sweet music to most project proponents who freely fudge and fabricate EIA without fear of any challenge. NEMA gets just two months to recommend approval or rejection. “Engines of the nation’s growth”—linear projects, projects of strategic importance and power/mining projects—are put on a separate, faster track. They can denude any forest, guzzle any quantity of water and poison any river or coast.

On the approval process, the committee has shown duplicity. On the one hand, it doubts the integrity of the consultants who prepare the EIAs/reports for the project proponents and admit that they make “little effort to assess damage to environment; there is no prescription for environmental reconstruction and there is no costing imposed for environmental degradation and subsequent reconstruction programmes”! On the other, it suggests adoption of the concept of uberrima fides, putting absolute faith in EIAs prepared by these very consultants and submitted by the project proponents on the basis of a declaration that “the facts stated are true and that no information that would be relevant to the clearance has been concealed or suppressed”.

The suggestion of the HLC to counter manufactured/manipulated data/EIA is amateurish: “If at any time after the application is received—even after the project takes off—it is discovered that the proponent had, in fact, concealed some vital information, or had given wrong information, or that the certificates issued by the experts suffer from similar defects, severe consequences will follow under the new law; and they include heavy fine, penalties, including imprisonment, and revocation of the clearance, and in serious cases, arrest of the polluter”. This is ‘latching the stable after the horse has bolted’ and can lead to irrevocable destruction of natural resources without any remedial possibility. What is the point in arrests, fines, etc, after that? In any case, who is to ‘discover’ the concealment and how long will it take? The snail-pace bureaucratic and judicial process will see to it that these fraudsters go scot-free, ‘laughing all the way to the bank.’ This is a self-conflicting recommendation, obviously made under duress!

THE committee concedes that a staggering 99.1 per cent of projects applied for get approval, most of them based on wrong or altered data provided by the project proponents. Yet it wants NEMA/SEMA to adopt the concept of ‘utmost good faith’ in these ‘investors’ for fast-tracking of major projects. The combined impact of ‘institutional hustling’ and uberrima fides can severely dent the integrity of environmental governance and the approval process, throwing India’s natural resources at the mercy of buccaneers who propose massive industrial/infrastructure projects with ‘wrong or altered data’.

Another fast-track recommendation is “Mandatory provision of voluntary disclosure”, a web-based, technologically assisted platform for monitoring that requires minimal need for site visits. This is a mechanical process bereft of any human participation. There is no accountability for failing to address impact on either ecology or people. The only place where the committee mentions accountability is for the speed of clearance, failing which the chairperson of NEMA/SEMA would be held accountable.

Populations affected by climate change and destruction of environment are not properly addressed by the committee. The tech-savvy HLC, while recommending several institutional, procedural and monitoring measures to fast-track ‘development’, has shown aversion to ‘environmental democracy’, which is most critical for conservation of natural resources and sustainability of environment. The committee does not seem to want people’s voices in the environmental decision-making process and recommends dilution of public consultations in most projects. This is unfortunate.

Enacting an omnibus law for environmental governance in the 21st century, incorporating the committee’s tailor-made recommendations, could compromise democracy, public health and safety, forests, trees, rivers, ocean, wildlife, fish, wetland and coastline. This would amount to “short-term thinking on environment and narrow monetary motivations” of the 19th century. In the event, future generations should be prepared to eat money and digest it too!

The writer is a former Army and IAS officer. Email: deva1940@gmail.com