In India, the absence of an effective compliance regime has led to a large number of environment-polluting projects operating with impunity. The government and judiciary have recently acknowledged this problem of environmental non-compliance but little has changed.
Industrial, energy and infrastructural projects are legally mandated to seek environmental approvals under several central- and state-level laws such as the Environment Protection Act, 1986; Air (Prevention and Control of Pollution) Act, 1981; Water (Prevention and Control of Pollution) Act, 1981; and the Forest Conservation Act, 1980. Project approvals under these laws include environment and social safeguards or “conditions” such as reducing pollution load, reforestation, and prohibition or limits on groundwater extraction. In mining projects, the back filling and ecological restoration of the land also forms part of the safeguards.
During the four decades of implementation of India’s post-Independence environmental laws, there was little or no emphasis on projects’ compliance to conditions. It is only in the last decade that the environmental non-compliance by projects and the inability of existing institutions to enforce laws has come under the scanner.
The government has engaged in a series of hurriedly thought out mechanisms like self-regulation through pollution devices that relay information on pollution directly to pollution control board, provisions for penalties and fines, and one-time amnesty schemes under the biodiversity laws and temporary approvals to bring violators into compliance. But these measures have neither improved environmental performance of projects, nor stemmed the flow of complaints and legal cases against polluting projects.
Why should compliance be addressed urgently?
The numerous cases in court for non-compliance of environmental safeguards have resulted in huge financial implications. The Goa mining case led to the total state-wide ban on mining since 2012. The National Green Tribunal imposed penalties of over Rs 873 crore as fines for environmental violations in the first quarter of 2019. This amount is already close to the total fines imposed last year.
Poor compliance causes severe environmental blowbacks in the form of severe water shortages, productivity losses and toxic air. Climate change dynamics add to these local conditions making their impacts far more severe and complex. For example, areas already affected by large scale water extraction for industrial purposes, coal washeries and thermal power plants could also face frequent and more lasting droughts.
Until now, the success or failure of compliance revolved around the compulsions of domestic politics, but now it is tied to the geopolitics of climate change. Therefore, it is imperative for the Narendra Modi-led BJP government to set up in the first place a credible and effective mechanism of compliance to domestic regulations before it goes about honouring its commitments towards the Paris agreement, which obliges every signatory to put in place, by 2020, a set of measures in order to meet their respective carbon mitigation targets.
Who should regulate projects and how
Successive governments have focused on increasing the number of projects approved during their tenure and reducing the time needed for impact assessment and granting approvals. These projects have been accompanied by severe environmental impacts. With over 16,000 centrally approved large projects operational and several others promised or in the pipeline today, the scale of the problem has expanded in industrial and “greenfield” or less industralised areas. The question before the Modi government is no longer “if” the projects need to be regulated but how to regulate and who will regulate. These three sets of policy reforms could shift the Modi government’s approach to the issue of environmental compliance of projects and achieve better results.
A project’s performance on compliance almost never influences government decisions on project’s expansions or extensions or when violating companies apply for permissions to set up projects in new areas. For example, the Kulda opencast mine operated by Mahanadi coalfields in Sundargarh district of Odisha has violated several conditions of its approvals. Yet, it received approval for expansion and capacity addition twice in two years for a period of one year each. The validity of environment clearances for mining projects is otherwise 30 years. This decision of the Expert Appraisal Committee (EAC) set up under the EIA notification, 2006, to review such projects was ad-hoc, with no precedence and legal basis.
The basis of regulatory procedures should shift from approvals to compliance. Only those projects that have an established record of high compliance or which can surpass the compliance performance of others in the field and certainly the legal standards should be granted permits and approvals.
The present practice of monitoring a project’s compliance effectively involves two parties: the project proponent and the regulatory authority. The environment ministry proposed an amendment to the EIA notification in September 2018 to include a recommendation that monitoring should be done by an independent third party. This is yet to be finalised. The “third party” proposed in this amendment are expert government institutions.
In reality, the genuine “third party” is the affected communities who experience the effects of non-compliance such as loss of livelihoods, poor living conditions and displacement. Although they have the greatest stake in remedying the damages caused by non-compliance, they are nowhere in the picture when project monitoring is done. This is contradictory to the participatory turn in environmental governance in several countries since the 1970s and the constitutional mandate for it in India. Data from our research on cases of environmental non-compliance in four states shows that when communities have been involved in collection of evidence, reporting of violations and in official monitoring by regulators, environmental compliance can improve significantly. Their participation also helps regulators understand community priorities for remedial actions.
Integrated regional networks for compliance
India’s environment regulations have routinely understated the potential impacts of projects to generate quicker approvals from regulatory bodies, and thus help the government in meeting its economic growth targets. Activists and experts have been demanding cumulative impact studies that assess full range of project impacts before approval is granted. Cumulative studies are needed not just at project levels but for regions affected by environmental degradation.
Similarly, a monitoring system that is project based is resource intensive and not very effective in terms of the overall outcomes. But if regulators could be reorganised as integrated regional networks, they could use the resources available to them more efficiently to improve environmental standards regionally. The regions identified for such integration could cutting across administrative boundaries such as districts or states. It could be at the level of large industrial sites like Special Economic Zones with multiple projects operating within them, metropolitan regions, entire districts or geographical regions already identified as critically polluted or entire airsheds or river basins.
The ministry could develop pilots to understand the optimum scale at which such integrated compliance networks could deliver the most effective results. Given that the scale of the effects of non compliance are no longer localised to project areas, a regional approach is needed to improve the outcomes of regulation.
Environmental compliance is a critical part of environment regulation. While regulatory actions have prioritised economic growth for several decades, the costs of environmental degradation due to industrial and developmental projects are no longer possible to ignore. These issues have become politically and economically salient in recent years.
Manju Menon is a senior fellow at Centre for Policy Research, New Delhi. Kanchi Kohli is senior researcher at CPR.
This is the fourteenth in a series of articles titled “Policy Challenges 2019-2024” under ThePrint-Centre for Policy Research (CPR) collaboration. A longer version of this piece is available on the CPR website at www.cprindia.org. The full policy document on a range of issues addressed in this series is available on CPR’s website.