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Press release – T.S.R. Subramanian Committee’ is interested in “Management of Environment” and not in Protection

‘T.S.R. Subramanian Committee’ is interested in “Management of Environment” and not in “Protection of Environment”.

Rohit Prajapati and Krishnakant

[email protected], [email protected]

 

The BJP’s Election 2014 Manifesto categorically assured the industrialists that policies to promote industrial growth will take precedence over those that ensure environmental protection. This is consistent with the “Gujarat Model of Development,” which led Gujarat State to become number one in pollution. To make operational this commitment to industrialists, on 29 August 2014 the Modi Government appointed the T.S.R. Subramanian committee to review six environmental laws. Officially known as the “High-Level Committee constituted for review of Environment and Forests Laws,” the committee was tasked with submitting an exhaustive appraisal of six environmental laws to the Ministry of Environment, Forest & Climate Change (MoEF&CC) within two months, with subsequent a one month extension. The specific laws were: [1] The Environment (Protection) Act, 1986, [2] The Forest (Conservation) Act, 1980; [3] The Wildlife (Protection) Act, 1972; [4] The Water (Prevention and Control of Pollution) Act, 1974; [5] The Air (Prevention and Control of Pollution) Act, 1981; [6] The Indian Forest Act, 1927.

In spite of the impossibly short time frame, surprisingly the committee submitted a report with detailed recommendations to develop a totally new structure of NEMA (National Environment Management Authority) and SEMA (State Environment Management Authority) to replace the Central Pollution Control Board & State Pollution Control Boards. The Committee also proposed a new umbrella law ‘The Environmental Laws (Management) Act, 2014’ (ELMA). The name “NEMA”, “SEMA” & “ELMA” clearly indicates that the committee is interested in “Management of Environment” and not in “Protection of Environment”. This committee dealt not only with the six laws under review but also suggested some fundamental changes in two other laws, [1] The Forest Right Act, 2006 and [2] The National Green Tribunal Act, 2010. It appears that the committee particularly scrutinized environment-related laws which have been effectively used by the people to protect the environment.

The committee was expected to read, discuss and review 1. the laws and various notification, amendments and circular issued under these laws, 2. land mark judgements of courts on Environment Laws of the Indian Courts and courts of advance countries, 3. status of environment of the country, and public consultation with various concerned state authorities, mainly the industrial associations across the country and with the people and people’s organisations. Yet, during one instance of a public consultation in Bangalore, the committee chose to walk out of the consultation rather than engage in a discussion when people’s organisations raised fundamental questions regarding terms of reference of the committee and various other issues. Actually there was no serious consultation across the country organised by the committee to deliberately avoid the real feedback on the concerned issues by people’s movements and affected people.

It is also surprising for us that a former Cabinet Secretary – Government of India, Former Secretary to Government of India, a former Judge of the Delhi High Court, a senior Advocate of Supreme Court of India, a Joint Secretary of MoEF&CC of Government of India and Member Secretary of Gujarat Pollution Control Board felt confident and competent to do the task within three months without a proper consultation across the country and to propose new laws and new structures to “implement” the law.

We leave it to academicians, researchers and sensible people to make their own assessment about the assigned task of the committee keeping in mind the competency of the committee members and time period given to them to review the six environment laws.

The committee at many places describes its concern about the status of environment, but in practise made explicit suggestions to give free hand to the polluting industries and eliminate their legal accountability to the land, environment and the people.

The committee in its preamble states:

“1.2. […] Over the past decades, national and regional economic space has become more energy-intensive, also impacting on the environment. […]  Livelihood issues still dominate the social and political manifestoes. […] There is now an urgent necessity for integration of environment, economic and social issues in the development paradigm.”

1.3 […] In the race for development, which ideally ought to improve the quality of life of the citizen, the relationship with environment is often lost sight of. […] it is implicitly imperative for each generation to leave the environment to the next generation in a better state than they found it. […]  Already Delhi is rated as one of the most polluted cities in the world; and many other Indian cities appear in the same list. We need to take heed of the very recent Intergovernmental Panel on Climate Change (IPCC) call from Copenhagen that the earth is flirting with danger – the alarm flag has been hoisted. […] A knee-jerk attitude in governance, flabby decision-making processes, ad hoc and piecemeal environmental governance practices have become the order of the day. The legal framework has not delivered.”

1.4 The lasting impression has remained that the Acts and the appurtenant legal instruments have really served only the purpose of a venal administration, at the Centre and the States, to meet rent-seeking propensity at all levels. This impression has been further strengthened by waves of large scale ‘clearances’, coupled with major delays in approvals in individual cases. It should also be added that our businessmen and entrepreneurs are not all imbued in the principles of rectitude – most are not reluctant, indeed actively seek short-cuts, and are happy to collaboratively pay a ‘price’ to get their projects going; in many instances, arbitrariness means that those who don’t fall in line have to stay out.

[…]

1.5 The Committee finds uneven application of the principle of separation of powers as established by the Constitution of India, in the administration of environmental laws. […] Judicial pronouncements frequently have supplanted legislative powers, and are occupying the main executive space. […] However, the perceived role of ad-hoc committees in decision-making and implementation appears to have reduced the MoEF&CC to a passive spectator, with little initiative except waiting for the Court to say what next. […] The Executive, as pointed out has not covered itself with glory – indeed it has invited the attention of the judicial branch through lack of basic care. […] Who pays for pollution? Who suffers? Who enforces? Who monitors? Who punishes? The legislations are weak, monitoring is weaker, and enforcement is weakest.”

1.7 The principal aim of Environmental Laws should be to ensure enhancement of environmental quality parameters and maintenance of ecological balance.

1.8 The Committee takes note of the fact that the dynamic equilibrium between environment conservation and development for inter-generation equity is the need of hour.”

The above remark gives the impression that the committee is truly committed to protecting the environment and is fully aware of the need to address loopholes in the present laws, implementing authorities and mechanisms. The substance of their suggestions and recommendations, however, demonstrate that the committee has not attempted to plug loopholes but instead creates more loopholes or give complete freedom to industries by making them unaccountable to laws, nature and people.

In para 1.3, 1.4 & 1.5 the words “flabby decision-making processes”, “waves of large scale ‘clearances’, coupled with major delays in approvals in individual cases”, “Judicial pronouncements frequently have supplanted legislative powers, and are occupying the main executive space” imply that these were the real worries of the committee. And that is why the committee mainly focused on delay in environment clearance approval, decision making process and judicial pronouncement against the concerned authorities and industrial projects while giving the recommendations to get rid off these “major hurdles” of the industries across the country.

The committee in its executive summary states:

At Page 10

“1. […] While India has a strong environmental policy and legislative framework, much of the problem relates to weak implementation of the various acts and the rules thereunder. Conservation advocates, project proponents and judiciary – none is satisfied with current environmental governance and the policy tools currently deployed in the management of the sector.

“2. […] While the pace of diversion of forest land has decreased in recent years, the target of 33% of land area as forest cover is a long way off; the more disturbing aspect is that the quality of forest cover has seen a secular decline. New forestation policies to attract investment of growing forests in private land, and providing a statutory safeguard – a classification of ‘treelands’ as distinct from ‘forest’ has been recommended.”

At Page 11

“3. The Committee also has recommended identification of ‘no go’ areas, which are in forest areas or inviolate zones – primarily with the criteria of over 70% canopy cover and ‘Protected Areas’ which should not be disturbed except in exceptional circumstances, and that too only with the prior approval of the Union Cabinet.

“5. […] Newly proposed full time expert body National Environmental Management Authority (NEMA) at the Centre, and State Environmental Management Authority (SEMA) would be the premier institutions to evaluate project clearance, using technology and expertise, in a time bound manner, providing for single window clearance (the existing Central Pollution Control Board and corresponding State agencies would be subsumed respectively in NEMA and SEMA when they come into existence). A ‘fast track’ procedure for ‘linear’ projects which provide benefit to community at large, as well as power/ mining projects, as also projects of national importance has been recommended.”

At Page 12

“6. Environmental Management policies and programmes, and environmental mapping of the country, will facilitate pre-identification of locations for industries.

[…]

“8.  A new model ‘umbrella’ law, ELMA, to give a statutory cover to the above has been recommended, incorporating inter-alia the concept of utmost good faith, as also the proposed national institutions and agencies.”

In the executive summary the committee’s other similar main concerns are expressed in clear words in para 3, 5, & 8 ‘Protected Areas’ which should not be disturbed except in exceptional circumstances, and that too only with the prior approval of the Union Cabinet; A ‘fast track’ procedure for ‘linear’ projects, the concept of utmost good faith.” In the name of “utmost good faith” the committee wants to give more ‘freehand’ to the industries rather than making them more accountable to laws and environment. The word ‘linear project’ is so widely define by the state that they can include many more projects in that list as when they wish. As a solution to implement these ideas the committee suggests new authorities call National Environmental Management Authority (NEMA) at the Centre, State Environmental Management Authority (SEMA) at the state level and a new law the ELMA.

In chapter 3 of the introduction, the Isha Upanishad is quoted: “Everything in the universe belongs to the Supreme God. Therefore, take only what you need, that is set aside for you. Do not take anything else for you do not know to whom it belongs.” We do not know what the committee means by “take only what you need, that is set aside for you.” Who will decide “set aside for you” in this capitalist world?

While the committee quotes the miserable state of the environment throughout the report, the committee’s recommendations are more concerned with delaying development projects due to environmental protection laws.  Removing these “delays” remains their main focus in their analysis of the problems and all major suggestion made by them in terms of new authorities and the new law the ELMA. These contradictory concerns are laid out in chapter 3.

At Page16

“3.3.3 […] The land under ‘forest’ has increased from 40.48 million ha. in 1951 to 77.18 million ha. till date; the position on tree cover, with significant qualitative decline during this period, is disheartening.”

At Page 17

“3.3.3 […] Rampant ravaging of forest cover due to mining and industrial operations over the years, coupled with weak enforcement of compensatory afforestation programmes have led to judicial intervention in the administration of forest and environment laws. […] The procedure for approval for diversion of forest land has been seen as tardy and time-consuming, delaying the development projects. […] The rampant ravaging of forest in ecologically fragile areas has catalysed public protests from the 80s & 90s, inviting the attention of the judicial forums which have backed the cause of conservation of forestry. The major lacunae in country’s forest governance have been pointed out by judiciary, without adequate policy response from the executive.

3.3.4 The judiciary has been in the forefront of the policy formulation in the field of forest and environment over the recent decades, inter-alia declaring environment and ecology as national assets; the principle of ‘sustainable development’ has now been rendered as a part of Article 21 of Constitution of India.”

At page 19

“3.3.6 […] The policy recognises that environmental protection is 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.”

At page 21

“3.5 […] Our country is one of the fastest growing economies of the world; the growth momentum is still to get accelerated, to raise standards of living of crores currently in misery and poverty. The engines of growth have depleted the natural resource base and impacted our environment. This is the challenge for sustainable development.

3.6 […] The courts have become the first resort to resolve environmental conflicts, rather than the final forum for protection of rights because of perceived inability of the regulatory agencies. Judicial initiatives guiding the policy framework and implementation module started with Supreme Court directive in for closure of limestone quarries and have continued with landmark stewardship in providing air ambient quality in Delhi, the Matheran case, Aravali mining, Dehradun Mining, Shriram Gas Leak, Ganga Pollution Case, Bicchri Pollution Case, Taj Trapezium case, Deepak Kumar Vs. State of Haryana, Lafarge case, forest conservation matters, Godhavarman case, wildlife policy among others. […] Informal regulations including the activities of community action, social media, civil societies, NGOs and others have helped revive the call for renaissance in environmental governance regime, which is currently hindered by population pressure, weak institutions, rights of local residents, and above all weakness in the executive machinery.”

At Page 22

“3.7 The judicial pronouncements in India have drawn heavily upon the principles of sustainable development, doctrine of proportionality, margin of appreciation and the eternal principle of polluter must pay.”

The real intension, perspective and understanding of the committee are reflected in the chapter 4: Approach & Methodology.

In Chapter 4 of Approach & Methodology the committee states:

At Page 23

“4.1 In undertaking its work, the Committee applied the following principles, as applicable in each situation:

[…]

b. Transparency, to the extent feasible in all aspects of management of the environment, particularly in the context of providing approvals and clearances.

[…]

d. Ease the process of approvals, without compromising the sanctity of the environment.”

At Page 26

“4.5 […] The Committee noted that the cause of environment preservation is not adequately met by the present monitoring methods.

4.6 […] Accordingly, the Committee has not just suggested new legislation, it has also given pointers for amendment of existing rules, regulations, procedures and executive directions; it has also called for review of aspects of current policy, for the consideration of the MoEF&CC.

4.7 […] There has also been demand for a ‘single window’ to deal with the clearances under different Acts. This has been prescribed/ elaborated in Chapter 7.”

In para 4 (b) & 4.7 the word like “Transparency in the context of providing approvals and clearances and ‘single window’ remain their main concerns and they are not worried at all about the transparency in project clearance process for the project affected people. Thus their consistent concerns for the ‘speedy project clearance’ with ‘single window’ system remain intact.

In chapter 5, the committee’s attitude to forest issues becomes clear.

At Page 28

“5.3 In this context a strategy is proposed which should focus on the following milestones:

[…]

• Streamline the process for forestry clearance.”

At Page 32 & 35

“[…] Recommendation: Plantation of approved species on private lands could be considered for compensatory afforestation with facility for ‘treeland’ trading.

5.8 Streamline process for according clearance for diversion of forest land – The Committee noted that existing procedures for the diversion of forest land clearances take considerable time. […] Under the existing guidelines a time line of 210 days has been prescribed for processing applications at the State government level. […] The Committee has been led to believe that at times it takes over three years to obtain a clearance under the FC Act, 1980.

5.10 The Committee gives below some suggestions to help speed up the clearance process, in a tabular format, in broad terms, in so far as the forest clearance is concerned.

Recommendation: Revise procedure for clearance under FC Act as above, which is intended to reduce the time taken, without compromising the quality of examination. For linear projects, it is recommended that FR Act needs amendment to consider removal of the condition of Gram Sabha approval.”

At Page 37 & 38

“5.11 […] The suggested revised procedures would speed up project implementation, concurrently tending to add to forest cover, simultaneously ensuring smooth CA implementation.

[…]

5.12 The concept is that the project proponent will pay a higher amount for afforestation; he will also finance afforestation of at least twice the amount of forest land that he has utilised. However, the actual mechanism of ensuring reliable and quality CA should be through a separate mechanism; leaving the project proponent to focus on his project.”

Protecting and nurturing the forest is not the main concern, but streamlining the process for forestry clearance is. And that is why the committee recommended that “FR Act needs amendment to consider removal of the condition of Gram Sabha approval.”

The committee promotes project proponents to simply ‘pay and use the forest land,’ which, if history is to be a lesson for the future, spells disaster for the nation’s forests. Under the committee’s vision outline in 5.12, project proponents have no responsibility towards ensuring afforesation as long as they put forth cash, “leaving the project proponent to focus on his project.”

In chapter 6 on Wildlife the committee states:

At Page 44

“6.14 Respect for cultural traditions: India has a varied and glorious cultural tradition; while there are many national festivals, there are also localised festivals which are of great local importance in different States. Nature and animal worship has been part of the national culture. Thus, for example Nag Panchami in many States is celebrated and snakes worshipped during 5 days in Shravan month, as a thousands years-old tradition. It is to be noted that the snakes are never harmed – indeed are worshipped during this period. A dispensation in the various Schedules should be permitted to take into account such local practices, and reflect them in their approved schedules, through gazette notification.

Recommendation: The Schedules should provide appropriate provision for taking into account the needs of local festivals, subject to no harm or injury to animals.”

One of main concerns of the committee to talk about this is to allow the project like ‘Shabri Kumbh’ in the Dang Distinct of Gujarat where government is facing the problem because of intervention application in the Supreme Court.

In the chapter 7 on Environment Governance the committee speaks out its real commitment for the corporate houses. The primary goal: “making doing business easier in this country.”

At Page 45

“7.1 […] Forest land diversion and clearance from pollution point of view, constituting the approval processes for project clearances are largely non-transparent, involving multiple approvals with overlapping processes, based on insufficient application of technology and reliable information, significantly dependent on data provided by the project proponent, to name a few weaknesses. The present system is procedure-oriented, with insufficient focus on the need to safeguard environmental considerations. From the analysis of the data seen by the Committee, the average time taken for clearances works out to significantly longer than specified in most cases, whereas most projects sooner or later obtain approval; one analysis indeed indicated that the percentage of approved projects works out to 99.1% – clearly the focus is not on substance.”

At Page 47

“7.3 The Committee noted that the current administrative structure suffers from infirmities, inconsistencies and inefficiencies as listed below:

[…]

7.  Non-accountable institutions.

[…]

7.4 The current environment clearance procedures for a project envisage a four-stage scrutiny for 39-types of scheduled economic activities.”

At Page 49

“7.7 […]

• There is need for a single window clearance mechanism; this is not a new suggestion. Admittedly, an operational mechanism for this would require some effort in the beginning but it would certainly pay dividends. The Committee has made a recommendation in this.

It is proposed to revamp the clearance examination/ approval process, to define a new arrangement, using science and technology to the extent feasible, reducing the discretion currently allowed at various levels, to lead to a more rational process of environmental clearance which is more focussed on the reconstruction of degraded environment and holistic conservation of environmental entities.

Recommendation: Proposal to revamp the project clearance/ approval process. 

7.8 It is proposed to create agencies, viz. National Environment Management Authority (NEMA) at national level and State Environment Management Authority (SEMA) for each State as the pivotal authorities to process applications for composite environmental clearance (one window), for category A cases through NEMA and for category B projects through SEMA.”

At Page 50 & 51

“7.9.1 NEMA, will have a full time Board, with a maximum strength of 15. The Chairperson would have administrative experience and be at least of the rank of Additional Secretary in the GoI.

[…]

7.9.3 The functions and responsibility of NEMA will include consideration for approval of all the projects under its mandate.

[…]

v. Specifying standards for recognition of laboratories in pollution level monitoring.

[…]

ix. NEMA may give advice and direction to SEMA as required in respect of monitoring of projects, including advisories on technology, as well as administrative matters.

[…]

7.10.1 SEMA shall consist of a full-time Chairman and maximum 15 members; five of whom shall be ex-officio, to be nominated by the State Government; the remaining to be full-time professionals, with expertise and experience in various aspects of environmental management. The Chairman shall have administrative experience at least of 25 years.

7.10.2 The Chairman and Members, other than ex-officio Members of SEMA shall be appointed by MoEF&CC, GoI based on recommendations of the State Government concerned.”

At Page 52

“7.10.2 The Chairman and Members, other than ex-officio Members of SEMA shall be appointed by MoEF&CC, GoI based on recommendations of the State Government concerned.

[…]

7.10.4

[…]

e)  to evolve economical and reliable methods of treatment of sewage and trade effluents, having regard to the peculiar conditions of soils, climate and water resources of different regions and more especially the prevailing flow characteristics of water in streams and wells which render it impossible to attain even the minimum degree of dilution;

f)  to evolve methods of utilisation of sewage and suitable trade effluents in agriculture;

g)  to lay down effluent standards to be complied with by persons while causing discharge of sewage or silage or both and to lay down, modify or annul effluent standards for the sewage and trade effluents;”

At Page 53

“7.11 For each Union Territory, an Environment Management Authority (UTEMA) may be created, with appropriate modifications from the SEMA model suggested above.

[…]

7.12.2 The Union Government shall have the powers to give directions to NEMA and SEMA in the matters of project clearances. All such directions shall be binding on NEMA and SEMA. 

7.12.3 NEMA shall have powers to give directions to SEMA in all the matters except project clearances which shall be binding on SEMA

[…]

7.12.5 In case of dichotomy in the directions between NEMA to SEMA and State Government to SEMA the matter shall be referred to GoI for a final decision

7.12.6 The assets and liabilities of CPCB shall stands vested in NEMA. The assets and liabilities of SPCB shall stand vested in respective SEMA.”

At Page 54, 55, 56 & 57

“7.14 Project Approval process– The proposed revised application process for environmental clearance is shown in diagrammatic form below:

[…]

In aid of environmental reconstruction programme for conservation and speedy approval of the projects in a transparent accountable system, the following procedure is recommended:

[…]

iii. There should be sector-specific model TOR for EIA study. The model TOR should have a component for incorporating relevant information-sharing with the local area/ people where the project is proposed to be located. The project proponents upon submission of application should begin EIA study.

iv. NEMA/ SEMA should carry out a preliminary scrutiny of the application and within 10 days should prescribe a location specific requirement in the terms of reference of a project, failing which the project proponent will develop the EIA/ EMP on model TOR.

[…]

vi. The method of public consultation prescribed in the existing notification should continue with the modification that only environmental, rehabilitation and resettlement issues are captured in the public hearing. A mechanism should be put in place to ensure that only genuine local participation is permitted.

vii. The extant provision of dispensing with public hearing should be continued only in respect of situations when it is reported that local conditions are not conducive to the conduct of hearing, or in the matters of projects of strategic importance and national importance.

[…]

ix. There is no necessity for public hearing in locations where settlements are located away from the project sites.

[…]

xi. The appraisal sub-group of NEMA/ SEMA should prescribe the specific monitorable conditions, for compliance.

[…]

xiii. NEMA should submit its final recommendations to either for grant (with conditions) or reject (with reasons) within two months to the MoEF&CC; on which a final decision normally would be taken within 15 days by MoEF&CC – in case of rejection, with reasons thereof. Similarly, SEMA to decide the matters within two months.

[…]

xv. A tight time schedule should be prepared for each step in the process, with strict monitoring to ensure timely decisions. The Chairperson of NEMA/ SEMA, as the case may be, would be accountable for adherence to the timelines.

xvi. The entire clearance process should be through a web-based ICT tool to enable the project proponent to file and track their application as well as obtain the decision online.

The Committee considers that the recommended project approval process will bring in a simplified, streamlined, unified and transparent regime which will accord the utmost priority to the matters  of environmental conservation and simultaneously will speed up the process of project approval with the help of heightened application of technology, making doing business easier in the country.

Recommendation: The proposed revised project approval process envisages ‘single window’ unified, streamlined, purposeful, time-bound procedures.”

In para 7.1, the committee makes it clear that their main concern is delay in approval process and transparency for the industries and for that they argues that in present system that whereas most projects sooner or later obtain approval; one analysis indeed indicated that the percentage of approved projects works out to 99.1% – clearly the focus is not on substance and that is why short-cut, fast-track “transparent mechanism” is a need of the day for the industries.

The committee states that the current administrative structure suffers from infirmities, inconsistencies, inefficiencies, and non-accountable institutions, and consequently suggests a more industry-friendly administrative structure which will benefit industries with a single window clearance system.

The committee proposes a national level authority called NEMA, which will have a full-time Board, with a maximum strength of 15 with the Chairperson of the rank of Additional Secretary in the Government of India. It was expected that the chairperson of the committee should be a technical expert but the committee’s main concern is speedy, single window, fast track environment clearance with the administrative structure which is accountable to industries’ need and greed.

The committee proposes other authorities at the state-level, called SEMA, that shall consist of a full-time Chairman and maximum 15 members; five of whom shall be ex-officio, to be nominated by the State Government; the remaining to be full-time professionals, with expertise and experience in various aspects of environmental management having the Chairman with administrative experience at least of 25 years. So now it is very clear that the state-level chairman will also be a non-technical person. At the national and state levels, the committee proposes an administrative structure that provides a speedy, single window, fast track environment clearance that is accountable to industry’s need and greed.

It is shocking to note that the Chairman and Members, other than ex-officio Members of SEMA shall be appointed by MoEF&CC, based on recommendations of the State Government concerned. That means there will be oversight of states; bureaucratic cronyism may thrive unchecked.

The committee recommended that the Union Government shall have the powers to give directions to NEMA and SEMA in the matters of project clearances and all such directions shall be binding on NEMA and SEMA. In this way, the Union Government is the final authority; NEMA & SEMA are merely formal structure to facilitate the speedy environment clearance deemed fit by the Union Government.

The Environment Impact Assessment (EIA) of the projects are to be evaluated within 10 days, a timeframe so short that it will lead to haste in review rather than proper scrutiny. Shockingly, the project proponent – rather than an external and objective agency – will develop the EIA/EMP on model Terms Of Reference (TOR). Most past EIAs submitted by project proponents across the country reflect industry’s myth that ‘all is well,’ although it is well accepted by the committee and most external accounts that environment degradation is rampant.

The committee sought to restrict participation of people in Environmental Public Hearing. And that is why committee suggested that a mechanism should be put in place to ensure that only “genuine local participation” is permitted. The committee sought to restrict even this “genuine local participation” by limiting local interventions to issues like environmental, rehabilitation and resettlement. This suggestion clearly indicates the committee wants to strictly restrict the people’s participation in general and the participation of NGOs, and People’s Organisations, whose assistance is required to the people because scrutiny of EIA need specially trained expertise. Thus ensuring that the polluters are given a lose rope and the affected communities are tied down & deprived of expert assistance.

The vision outlined is a commitment to industries clearly reflected in their suggestion that NEMA should submit its final recommendations to either grant (with conditions) or reject (with reasons) within two months to the MoEF&CC; on which a final decision normally would be taken within 15 days by MoEF&CC – in case of rejection, with reasons thereof. Similarly, SEMA to decide the matters within two months and the Chairperson of NEMA/ SEMA, as the case may be, would be accountable for adherence to the timelines. It is understandable why committee has failed to come up with such timelines and accountabilities of the concern authorities for people’s complain because the committee’s main concerned is industries and not people and environment.

The committee wants to make ‘doing business easier in the country’ and that is why it recommends a revised project approval process with a ‘single window’ unified, streamlined, purposeful, time-bound procedures. In suggesting time-bound procedures, the committee’s main concern is “paper work” rather than genuine scrutiny of the projects’ impact on environment.

In the chapter 7 on Environment Governance the committee further state:

At Page 57

7.15 Certain types of projects would require special treatment as listed below:-

i. […] Diversion of forest land for linear projects, except in ‘inviolate’ area should be appraised through a special cell in NEMA/ SEMA. A separate fast-track mechanism should be laid down by NEMA/ SEMA for approval of linear projects. […] the Committee recommends that the provisions of FR Act which make it mandatory to seek the approval of gramsabha should be amended to dispense with this condition in general to ensure that the benefit of such linear projects are available to the recipient population including the ones having habitat in forest areas as well.

[…]

Recommendation: Special treatment for linear projects, power/ mining sector and strategic border projects.”

At Page 58

“7.16 […] While all technical aspects of an application/ proposal for clearance would be examined on merits by the NEMA, it was felt that the final approval or rejection powers should be retained by the MoEF&CC. […] The NEMA may not always be privy to such considerations; besides the GoI may not also like to share sensitive information in some instances with subordinate formations. Taking these factors into account, the Committee felt that the authority for final decision should be with the MoEF&CC, with the proviso that specific reasons need to be assigned when the Ministry disagrees with the findings/ recommendations of the NEMA in a particular instance.”

At Page 59 & 60

“7.18

[…]

ii) The voluntary self-disclosure on compliance should be put on public domain for scrutiny. This should be a mandatory provision.

[…]

7.19 Administrative mechanism for project approval process

[…]

ii. The Committee notes that OMs have been issued redefining the scope of EIA Notification, 2006 cutting across various provisions of the appraisal process and attendant conditions.”

As if the previous suggested structure were not enough, the committee further suggested that a separate fast-track mechanism should be laid down by NEMA/ SEMA for approval of linear projects. And that is why in the name of special treatment for “linear projects”, power/ mining sector and strategic border projects that the provisions of the Forest Right Act, 2006 which make it mandatory to seek the approval of Gram Sabha should be amended. The committee not just reviewed the six environmental laws at issue but also suggested amendments in other laws also. The artificial justification of “national importance” is used by the committee for a fast-track clearance mechanism. For this committee and the government, “National Importance” equates ‘GDP’ generating, regardless of the externalities for the environment or the people’s health.

The committee wants to bring the concept of voluntary self-disclosure on compliance to avoid the routine monitoring for the compliance of the environment laws and terms and condition given in the environment clearance. What a great freehand to industries to build up making doing business easier environment in the country.

In Chapter 8 on Legal Frame Work it states:

At Page 62 & 63

“8.1 […] the Committee has adopted a method hitherto applicable in the field of insurance law. Under this discipline, the proponent and his supporting experts are required by law not only to tell the whole truth but also not to suppress any material facts.

[…]

Thus, the concept of ‘utmost good faith’ got legal recognition under the English Common law during the 18th Century – eventually to be made part of statutes. If the statements made by the insured turn out to be incorrect or if material facts were suppressed or concealed, the insurance company could avoid its liability. The law in India is the same.

8.2  Proposal for new law – Drawing inspiration from this concept under the insurance law and to meet the desirability of a ‘single window’, the committee being alive to the legal position that the lacunae noted could not be addressed through executive orders, has decided to recommend the following course of action:

[…]

(ii)  The new law – Environmental Laws (Management) Act (ELMA) would oblige an applicant to disclose everything about his proposed project, especially its possible potential to pollute and the proposed solution thereto– in short all that would be relevant to making a decision on granting or refusing the clearance applied for.

[…]

iv)  Introducing the concept of ‘utmost good faith’, ….

[…]

(vi)  NEMA shall have control and superintendence over SEMA.

Amending different statutes and harmonizing them will be cumbersome and time consuming. But the problem at hand brooks no delay.

[…]

Recommendation: (i) To create a new ‘umbrella’ law – Environmental laws (Management) Act (ELMA) – to enable creation of the institutions NEMA and SEMA.

(ii) To induct the concept of ‘utmost good faith’, holding the project proponent responsible for his statements at the cost of possible adverse consequences; thus also contributing to reduction in ‘inspector raj’.”

At Page 64 & 65

“8.4

[…]

The individual environmental Acts have continued parts to play on areas other than matters dealt with under the new Act. With the coming in force of the new Act the corresponding provisions under the different laws will yield to ELMA. Doubts and difficulties if any will be resolved through notifications by GOI.

[…]

8.6 Noise Pollution – […] Hence it is suggested that a comprehensive provision may be added to the Environmental Protection Act.

[…]

8.7 Appeals –

[…]

Recommendation: Procedure for appeals – creation of an Appellate Tribunal.

8.8 National Green Tribunals: ELMA proposes that the decisions of the Appellate Boards will be subject to judicial review by the NGT.

Recommendation: Judicial Review role for NGT.”

On ‘The Environmental Laws (Management) Act, 2014 (ELMA) the committee recommend that:

At Page 68, 69, 70 & 71

“3. Act to have overriding effect: The provisions of this Act shall prevail over anything to the contrary contained in any judgment or order of any court or tribunal and other enactments including the environmental laws dealt with under this Act.

[…]

4.  Constitution of Environmental Authorities: The Government shall constitute

[…]

a. Chair: Person with administrative experience and of the rank of an Additional Secretary to the government or above or persons with unblemished record of service under any government of not less than twenty five years in the field of pollution control or environmental management.

b. Secretary: A serving officer not below the rank of a joint Secretary to the Government appointed for a term as may be prescribed.

(2)  State Environmental Authority (SEMA):

(i) […] In addition there shall be five ex-officio members of the rank of secretaries to the State Government to be nominated by the State Government. The chairperson shall have administrative experience of at least twenty five years

[…]

5. Powers and responsibilities of NEMA and SEMA:

[…]

(5) NEMA may at any time issue clarifications or directions in writing to SEMA either as response or ‘suo-moto’ for maintaining uniformity of standards or for any other reason to be recorded in writing and clarifications and directions shall be binding on SEMA.

[…]

(11) NEMA shall normally make its recommendations, with reasons, for grant or refusal on applications for clearances within six months of the receipt of the application complete in all respects. However, NEMA may grant to itself more time not exceeding one month.

(12) SEMA shall normally dispose of applications for environmental clearances within six months from the date of receipt of applications on the prescribed format with all the required papers. However, SEMA may grant to itself more time not exceeding one month.

[…]

6.1 Power of the Government: The recommendations of NEMA on an application for environmental clearance shall be forward to the Ministry of Environment, Forests and Climate Change who will record a final decision as expeditiously as may be possible.

6.2 The MoEF&CC shall have the powers to issue directions in all matters to NEMA and SEMA in all matters.”

At Page 74 & 75

“13. Appeals

[…]

(2)  The appellate Board shall not entertain appeal against the final decision after the expiry of thirty days from the date of the receipt order of final decision of the government. The Board may, however, in its discretion and for reasons to be recorded, extend the period of filing appeal by fifteen days.

[…]

(6)  The Appellate Board shall dispose of the appeal normally within three months of its lodging. However, the Board may for reasons to be recorded reject the appeal summarily after providing one opportunity of hearing to the appellant and may impose costs against person found to be abusing the process.

[…]

15.  Bar of Jurisdiction: Subject to the powers of the National Green Tribunal (constituted under Act 19 o 2010) reserved under the succeeding provision the decisions of the Government, NEMA or SEMA under this Act or matters related there to shall not be questioned before nor enquired in to by any court or tribunal either suo moto or at any ones behest on any ground what so ever. 

16. Jurisdiction of NGT: Notwithstanding anything contained in any other law the National Green Tribunal may entertain applications by parties aggrieved by the decisions in appeals under S.12- 14 above for review on grounds permissible and subject to limitations applicable to judicial review of administrative actions by the High Courts and the Supreme Court of India.”

At Page 77, 78 & 79

“23. Repeal and Savings:

(1)  In Water (Prevention and Control of Pollution) Act, 1974, Chapters II, III, IV and VI and in Air (Pollution and Control) Act, 1981, Chapters II, III and V shall be repealed.

[…]

9.2 Creation of a new All India Service – Indian Environment Service –

[…]

Recommendation: An Indian Environment Service may be created, as an All India Service, based on qualifications and other details prescribed by MoEF&CC/ DoPT/ UPSC.”

At Page 81

“9.5 Issue of new Notification to replace the EIA Notification, 2006- over the past 8 years more than 150 circulars, Office Memoranda and amendments have been issued by the MoEF&CC to provide clarity on the various aspects of the assessment process, making it difficult to take an accurate comprehensive view on the current position. These notifications may now be summarised in a new notification, rationalising and updating all these, to provide one single updated comprehensive set of directions.”

At Page 84

“9.9 The Central database- NEMA should develop a central database through capturing, collating, classifying the inventories for geo-referenced master database. The reliance on geo-referenced database captured through satellite imagery for topography, hydrological features, vegetation, settlement patterns, and related other elements having a scientifically driven exercise will aid in effective environmental management including project clearances in a transparent, accountable matter, relying upon scientific principles, and sharply reducing delay.”

At Page 86, 87 & 88

“9.11 Environmental reconstruction cost – […] This amount should be borne by the development projects beyond a specific size as a part of project life cycle and to be realised as a cess or a tax or a levy.

[…]

Recommendation: Identification & recovery of environmental reconstruction cost relating to each potentially polluting unit should be in-built in the appraisal process.

[…]

9.13 Generation of awareness of ecology and environment among the general public– The Indian tradition worships nature, and our scriptures are replete with references to the need to respect the environment. The theme of forest or green cover is repeatedly seen in the Vedas and Upanishads.

9.14 Environmental Remediation of polluted sites – […] The enabling provisions should be inserted in EP Act empowering Government to generate funds through levy/ cess and take over such polluted sites to carry out cleaning exercises directly/ through State Government or local body in PPP mode or in association with industry associations. The environmental reconstruction cost for new projects must incorporate a component for remediation.

[…]

Recommendation: MoEF&CC should prepare regional plan for carrying out remediation of polluted sites in consultation with the State Governments and enabling provisions should be incorporated in EP Act for financing the remediation task.”

At Page 90

“9.15 Municipal Solid Waste (MSW) –

[…]

vi. Rag-pickers and the informal contractual system operational in urban areas should be integrated in solid waste handling system.

Recommendation: Municipal Solid Waste (MSW) management has not been given requisite attention hitherto. New systems and procedures for handling MSW need to be in place early, for effective management of MSW and with accountability. Cities should set a target of reaching 20% of current levels in 3 years time to work out a mitigation plan.”

At Page 92 & 93

“9.17 Application of science and technology –

[…]

viii. Restoration and remediation of critically polluted areas and environmentally degraded sites should rely upon modern technology-aided process to continuously ensure reduction in emission and discharge level in air, water and land as well as monitoring of the improvement made in the state of environment.

[…]

The potential consequences of mindless use of science and technology could possibly be illustrated by referring to the potential for medium/ long-term adverse affects through unprepared introduction of Genetically Modified (GM) food crops. While other Ministries naturally would aggressively push for early field trials and induction, the role of the MoEF&CC may have to be one of being a Devil’s Advocate to advise due caution.[…] This is not to argue that use of science or technology should be limited; more to highlight the fact that appropriate caution needs to be taken.”

At Page 94

“9.19.1Mining operations –

[…]

iv. A special cell in NEMA would, with appropriate expertise deal with mining cases of all minerals, to facilitate early environment clearance with appropriate remediation.

9.19.2 Regular reliable power supply is of critical importance to national development, power projects need speedy appraisal, and clearance where warranted. These need to be examined on a fast-track basis, without compromising environmental considerations.

[…]

9.21 Incentives for compliant units – Currently there is no incentive for industrial units which fulfil the norms or achieve results better than the stipulated norms. […] Further, many Boards have initiated various schemes to promote compliance, but these are not linked to financial incentives – there is no effective mechanism in place that motivates industry to strive for continual improvement.”

The committee, in the name of the concept of ‘utmost good faith’ got legal recognition under the English Common law during the 18th Century – eventually to be made part of statutes want to trust the industries and also want to give them free hand to do their business as usual.

The committee suggested a new law called ‘The Environmental laws (Management) Act, 2014 (ELMA) which reaches the heart, not just provides the need but also the greed of the industrialist.

The committee recommended a procedure for appeals by creation of an Appellate Tribunal and sought to limit the judicial power of the National Green Tribunals (NGT) to scrutinise the entire project. Instead, under ELMA, NGT will have a more restricted judicial review role. Again, the committee recommendations are beyond the terms of reference to review only six environmental laws, and in doing so, they attempted to curtail the power of important exclusive judicial mechanism for the issues of environment, such as the NGT.

To undo the existing avenues for recourse through legal intervention achieved by the environmental movement, ELMA shall prevail over anything to the contrary contained in any judgment or order of any court or tribunal and other enactments including the environmental laws dealt with under this Act. With a single recommendation, the committee sought to take away all major rights available to the people in protecting the environment.

The committee in this chapter talks about environmental Remediation of polluted sites by public-private partnerships (PPP). This is a clear dilution of, and ethically contrary to, the “Polluter Pays” principle which Supreme Court of India has maintained until now.

The committee give lip service on the issue Municipal Solid Waste. Instead of recommending the regularisation of the Rag-pickers the committee clearly suggest that Rag-pickers and the informal contractual system operational in urban areas should be integrated in solid waste handling system.

The committee would have noted some basic facts revealed in the ‘Report of the Task Force on Waste to Energy’ dated 12 May 2014 by the Planning Commission of India. This report states “As per CPCB report 2012 – 13 municipal areas in the country generate 1,33,760 metric tonnes per day of MSW, of which only 91,152 TPD waste is collected and 25,884 TPD treated.”

The report further states, “Further, if the current 62 million tonnes annual generation of MSW continues to be dumped without treatment; it will need 3,40,000 cubic meter of landfill space everyday (1240 hectare per year). Considering the projected waste generation of 165 million tonnes by 2031, the requirement of land for setting up landfill for 20 years (considering 10 meter high waste pile) could be as high as 66 thousand hectares of precious land, which our country cannot afford to waste.”

This waste generation figure covers only 31.15% population of India. Considering the waste generation figures of all of India, these figures will be even more daunting. The Planning Commission of India’s report further states “A study, of the status of implementation of the MSW Rules 2000 by the mandated deadline by the States, was carried out in class 1 cities of the country. It revealed that in 128 cities except for street sweeping and transportation, compliance was less than 50% and in respect of disposal compliance was a dismal 1.4 %.” What about the government’s major role in policy making for the reduction of waste and implementation of ‘The Municipal Solid Wastes (Management and Handling) Rules 2000’? The track record in the implementation of these rules in the “Model State” Gujarat is worst.

The committee has completely ignored the deterioration of rivers/rivulets and other water bodies around the industrial, urbanised and semi-urbanised areas.

The committee also feigns concern about Genetically Modified (GM) crops, but clarifies its real stand by stating that this is not to argue that use of science or technology should be limited; more to highlight the fact that appropriate caution needs to be taken. The committee by stating this clearly giving indication that GM crops are not a major issue for them.

The committee shows partiality for mining project by arguing in the name of “national importance” by suggesting special cell for its speedy environment clearance. These mining projects are known for large-scale displacement, soil, air, and water contamination.

The committee surprisingly suggests ‘financial incentives’ to the industries for its compliance.

At the end in Chapter 10 on summary of recommendation the committee clearly states:

At Page 96, 97, 98, 99, 200 & 201

“5. Revise procedure for clearance under FC Act as above, which is intended to reduce the time taken, without compromising the quality of examination. For linear projects, it is recommended that FR Act needs amendment to consider removal of the condition of Gram Sabha approval (Para 5.10).

6. […] An appropriate mechanism to be created to ensure receipt of the CA funds, and their proper utilisation, delinking the project proponent from the CA process, after he obtains other approvals, and discharges his CA financial obligations. (Para 5.11)

[…]

9. Regarding the issue of tackling damage to agriculture and farmland by amendments in Schedule 3, the MoEF&CC may issue circulars to all States apprising them of the legal position, suggesting that they may  take appropriate action based on legal provisions.(Para 6.3)

[…]

21. Proposal to revamp this project clearance/ approval process. (Para 7.7)

[…]

22. Create National Environment Management Authority (NEMA) at Central Level and State Environment Management Authority (SEMA) at the State level as full time processing / clearance / monitoring agencies.(Para 7.8)

[…]

25. The proposed revised project approval process envisages ‘single-window’ unified, streamlined, purposeful, time-bound procedures. (Para 7.14)

[…]

29. (i) To create a new ‘umbrella’ law – Environmental laws (Management) Act (ELMA) – to enable creation of the institutions NEMA and SEMA. (Para 8.2)

(ii)  To induct the concept of ‘utmost goodfaith’, holding the project proponent responsible for his statements at the cost of possible adverse consequences; thus also contributing to reduction in ‘inspector raj’. (Para 8.2)

[…]

33. Procedure for appeals – creation of an appellate tribunal. (Para 8.7)

34. Judicial Review role for NGT. (Para 8.8)

[…]

39. MoEF&CC may consolidate all existing EIA Notifications/ circulars/ instructions into one comprehensive set of instructions. Amendments or additions may normally be done only once a year. (Para 9.5)

[…]

48. MoEF should prepare regional plan for carrying out remediation of polluted sites in consultation with the State Governments and enabling provisions should be incorporated in EP Act for financing the remediation task.(Para 9.14)

[…]

52. The MoEF&CC may finalise the CRZ demarcation, and bring it into public domain to pre-empt ambiguity. (Para 9.18)

[…]

55. MoEF&CC may consider reworking standard-setting and revising a system of financial penalties and rewards to proceed to a market-related incentive system, which encourages ‘green projects’. (Para 9.21)”

The committee had completely ignored and decided not to incorporate into their report how to address several critically polluted areas. The process of indexing critically polluted areas was initiated in 1989 and sustained by consistent efforts by the pollution-affected people, people’s organisations and NGOs regarding the increasing pollution levels in the industrial areas of India had forced the Central Pollution Control Board (CPCB) and the State Pollution Control Boards (SPCBs) to act. At that time 24 industrial areas including Vapi, Ankleshwar, Ludhiana etc. were declared ‘critically polluted’.

Thereafter, in several meetings of CPCB and SPCBs serious debates on the pollution status of these areas were undertaken. Even after formulation of ‘action plans’ for the said industrial areas no substantial or qualitative change was observed in these industrial areas. For this reason, in 2009 the CPCB and IIT-Delhi, in consistence with the demands of the people’s organisation’s working on environmental issues decided to use a new method of ‘indexing the pollution levels’ of these areas, which is now known as the ‘Comprehensive Environmental Pollution Index’ (CEPI). The CEPI includes air, water, land pollution and health risks to the people living in the area. However, our demand has been to include the health of the workers, productivity of land and quality of food / agriculture produce in the index since the presence of high levels of chemicals and heavy metals in food produce has severe health implications. This is affecting not only people living around the industrial area but anyone consuming it – hence not restricting the impact to the particular industrial area.

As per the agreed upon measures, industrial areas with a CEPI of 70 and above are considered ‘critically polluted’ areas while those with a CEPI between 60-70 are considered ‘severely polluted’ areas. In our opinion, those industrial areas with CEPI between 40-60 also ought to be labelled as ‘polluted areas’.

In December 2009 the CEPI of 88 polluted industrial estates was measured; it was then that the CPCB and the Ministry of Environment and Forest (MoEF) of Government of India were forced to declare 43 of those as ‘critically polluted areas’ and another 32 industrial areas as ‘severely polluted’ areas. Following this study the MoEF on 13 January 2010 was forced to issue a moratorium (prohibition on opening new industries and/or increasing the production capacity of the existing industries) on the 43 critically polluted areas. At that time, many people’s movement and environment groups had asked for a moratorium on all the 75 (43+32) polluting areas, but  the powerful industrial lobby and state governments working in tandem prevailed. The murky politics and economics of ‘GDP growth’ prevailed over the cause of ‘life and livelihood’ of ordinary people and ‘environment & conservation.

In 2009, the Ankleswar’s industrial area of Gujarat, with 88.50 CEPI, topped the list of ‘critically polluted areas’ of India.

In 2011 and 2013, Vapi industrial area of Gujarat topped this list.

Thus Gujarat continues to top in 2009 in ‘critically polluted areas’ in India and maintains its position in 2011 & 2013.

The recommendations of the committee are going to deteriorate the environmental condition further of these industrial clusters and there is chance that more such industrial cluster will join this list.

In the Chapter 10 summary of recommendations, the committee again reiterates its support of categorically  amending the Forest Right Act, 2006 to remove the pre-conditions of Gram Sabha approval for so-called linear projects; revamping the project clearance/ approval process to follow a single window, time-bound environment clearance system that caters to the needs of industrialists over the environment; creating a new ‘umbrella’ law – The Environmental laws (Management) Act, 2014 (ELMA) – to enable creation of the totally new institutions NEMA and SEMA in place of CPCB & SPCBs, and instituting the  concept of ‘utmost good faith’ as the guiding principal in environment protection under the guise of getting rid of the ‘inspector raj’; and restricting the role of NGT to just Judicial Review, the modifying the EIA notification, etc. for the industries to built up making doing business easier environment in the country.

The ‘high-speed’ committee has given what corporate houses were asking consistently before the election from the new government and what was promised broadly in BJP Manifesto. Now it is crystal clear that for ‘Modi Government’ the word ‘Environment’ means only “Environment For Investment”.

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