The draft Environment Impact Assessment notification, 2020, released by the Ministry of Environment, Forest and Climate Change in March, is an attempt to revamp the 14-year-old EIA notification, 2006. However, even the new notification does not look to strengthen the regulatory processes or institutional mechanisms governing environmental clearance in India.
The environmental clearance at the national level is overseen by an Expert Appraisal Committee (EAC), which functions on an ad-hoc basis, without much regulatory capacity. The EAC has been questioned on many occasions for lack of expertise of its members and chairpersons. The state-level appraisal committees overseeing the clearance also function without much regulatory support. EAC and the state-level committees are toothless due to the lack of effective legislative power and supporting institutional capacity.
The Supreme Court had asked the central government in 2011 to set up an independent environment regulator to oversee the clearance process. But this is yet to become a reality. The lack of an independent regulatory body for environmental protection is a pertinent concern relating to EIA and environmental legal framework in India.
The new EIA rules make it mandatory for large infrastructure or industrial projects to undertake environmental impact studies for obtaining prior approval from the MoEF. The rules provide for the practical implementation of the sustainable development principles by aiming to devise sound policy decisions. Although the EIA notification of 1991 and 2006 have played an important role in the environmental jurisprudence in India, there has never been an emphasis on a regulatory institutional mechanism to monitor the environmental clearance processes.
The primary concern arises from a possible conflict of interest due to the fact that companies implementing the project are allowed to choose their EIA consultant and pay for the preparation of EIA reports. The effectiveness of EIA rules has been questioned many times. The judiciary, too, on multiple occasions has noted these concerns. The Supreme Court had in March 2019 suspended the environmental clearance to Goa’s proposed Mopa airport, stating that the proximity to ecologically sensitive areas was not evident in the EIA report.
There have also been instances of plagiarism with regards to EIA reports, indicating a lack of proper regulation over private consultants who prepare them.
Another important area that needs attention is ensuring stringent and frequent compliance monitoring to check if the clearance conditions are being met by the firms. Currently, the EIA norms require once in six months of compliance monitoring. The draft EIA notification, 2020 proposes to relax the follow-up compliance monitoring frequency to once a year. The regulatory capacity to monitor and undertake follow-up monitoring needs to be strengthened rather than diluted.
Regularising projects, which were initiated without proper environmental clearance after their completion, is also a grave concern. It is indicated that a one-time regularisation of projects without environmental clearance that was accepted by MoEF in 2017 is now making its way into the rules as part of the draft EIA 2020 notification. The clause 22 of the draft EIA 2020 notification allows regularising the projects initiated without prior environmental clearance. This amounts to a major regulatory backsliding.
Why an independent environment regulator?
The draft EIA, 2020 clearly lacks a thinking from a regulatory governance perspective. An independent regulator should be allowed to choose the consultant to prepare the EIA report and be empowered to ensure that quality parameters are strictly adhered to by the former. The draft EIA, 2020 notification retains the EAC at the central level and the State Level Environment Impact Assessment Authority and appraisal committee. But the need for independent regulator is not addressed.
Moreover, as is the case with other sectoral regulators such as the Securities and Exchange Board of India, the Insurance Regulatory Development Authority of India, and the Telecom Regulatory Authority of India, it is important to emphasise the independence of regulatory design of an environmental regulator. Lack of an independent body to oversee the entire environmental regulatory process could lead to a possible political interest in the decision making.
Independence in standard-setting, monitoring, and enforcement are important characteristics of an effective regulatory body. Setting-up of a stand-alone independent body must precede fragmented revamping of environmental laws, as is the case with draft EIA notification, 2020. This would also need a fundamental legislative amendment to the Environmental Protection Act, 1986, as well as the introduction of new legislation for the formation of an independent regulatory body.
Standard-setting is an important area of concern in the environmental sphere in India. As of today, the MoEF still holds all the power. It is significant that standard-setting is formulated at an arm’s length by an expert independent body. The major concerns regarding EIA norms, such as the compliance monitoring and ex-post regularisation, could be tackled with proper standard-setting by a regulator.
The existence of a regulatory authority that could integrate the clearance processes embedded in other environmental laws is much needed. The authority to give clearance, required under the Forest Conservation Act, 1980 and the Coastal Regulation Zone notification, 2019, should lie with the proposed regulator.
Present mechanisms won’t work
The present environmental regulation institutional mechanism in India, which lie with pollution control boards at the state and central level, lacks regulatory capacity and independence. The pollution control clearance process could also be brought under the proposed regulator. India’s environmental laws and regulation require a fundamental shift in the regulatory institutional mechanism.
Business-friendly processes and project cost are factors that may have to be considered for ensuring smooth economic activity. Cutting down on regulatory delays is also important. This may be possible with the help of a credible independent regulator. But an optimum level of rigour in the regulatory process and standards is important for environmental protection. The regulatory norms must not be diluted in the pursuit of a business-friendly policy. Moreover, with sustainability being an important parameter for ethical corporate conduct, the effective environmental regulations would help in responsible corporate conduct.
Before EIA rules and other environmental norms are introduced, India requires a major environmental governance change, starting with the formation of an independent environmental regulator.
Deva Prasad M is faculty at IIM Kozhikode and Suchithra Menon C is an assistant professor at Sai University Chennai, and faculty at Daksha Fellowship. Views are personal.
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