Published on Fri, Feb 06,2015 | 22:40, Updated at Fri, Feb 06 at 23:20Source : CNBC-TV18 | Watch Video : 
The Right to live in a pollution free environment is a fundamental right of every Indian citizen and the Constitution of India requires the government to endeavor to protect and promote the environment. And yet – recent moves by the Narendra Modi government, including amendments to the Environment Impact Assessment Notification, changes to the Forest Conservation Act, the Land Acquisition Ordinance, the Mining Ordinance – all paint a not-so-green picture! Payaswini Upadhyay reports on the top 5 environment law changes in the last several months and their impact.
Faced with a sluggish economy the Narendra Modi led government has in the past months made several moves to get industrial projects moving. But many of these moves have raised alarm bells among those who care for India's environment.
298 projects were pending environment clearance and the Environment Ministry cleared most of the backlog, passing on only a few projects for further examination. The Ministry has issued over 20 notifications in the last 8 months that decentralize the clearance processes, dilute requirements and provide exemptions for environment clearances. It took a Supreme Court order in August last year to stop the government from compromising the independence of the National Wildlife Board. And then there were the land and mining ordinances that promise growth but do not spell at what cost?
The changes are many but today we're going to take you through the top 5 environment law related developments in the last 8 months – some that the civil society has termed damning! The first one rips the land acquisition process of its two most important limbs- consent and social impact assessment.
The New Year saw a new avatar of the land acquisition Act and it came by way of an ordinance. With much hesitation, the President signed off on the ordinance and made way for a new land acquisition law.
For private companies, the 2013 Act mandated prior consent of at least 80% of those affected by the acquisition. For public-private partnership projects, prior consent of at least 70 per cent of affected families was required through a prescribed process. The ordinance does away with these requirements. It also does away with the requirement of A Social Impact Assessment for PPP projects vital for national security or defence or defence production; rural infrastructure including electrification; affordable housing and housing for the poor people; industrial corridors; and infrastructure projects.
Ritwick Dutta
Environment Lawyer
"The Social Impact process was so comprehensive- it called for consideration of alternatives, looking at rehabilitation- not just in terms of displacement but to also improve the quality of lives. It was a process that had just started and at a very nascent stage, the government of the day decided that we've had enough of it. Even as lawyers, we were trying to understand the scope of the new Land Acquisition Act and now the government decides to do away with it and come out with an Ordinance which is almost like the 1894 provisions. I think we've not really tried social impact assessment; we've not done the consent clause and before that only the government decides to come out with this ordinance which is really regressive."
Chanakya Chaudhary,
Member- National Committee on Environment, CII
"Industry will not like to acquire land by force because the project will come up there and everyone has to live in industrial harmony. The project doesn't come up for one day or two days- if you look at manufacturing industries which need higher tract of land – cement, power, steel- these projects go up to 30-40-50 years. They need to come up in a way that ensures industrial harmony and inclusive growth. So this is the right thing to do. One of the issues that was found was some projects will take a longer time to come up and those projects which are in national interest should have a faster way of moving forward. So that is why these exemptions were brought in."
Chandra Bhushan, CSE
Deputy Director General, Centre for Science and Environment
"There is a public hearing process which is still there in the Act that relates to rehabilitation and resettlement. But I think that doesn't solve the problem. You are essentially telling people that we are going to take this land- whatever might be the cost- but we will only talk to you as far as fas as your rehabilitation is concerned. Some sort of consent, some sort of agreement is essential if you want smooth and participatory governance in the country. We should have kept the consent clause which would have forced industry to talk to people, which I know, industry doesn't like but it should learn."
The second big change gives more power to the States for forest diversion but the question is did the law envisage that?
The change pertains to the Forest Conservation Act of 1980 – environment groups have questioned the legality of the circulars that have amended the Act saying it should have been done via the parliament. Process issues aside, the new framework exempts road construction projects around the Indo-China border from general approvals under the Forest Conservation Act – meaning forest diversion for road construction that earlier required Ministry approval would now go to the State Environment Impact Assessment Agency.
Ritwick Dutta
Environment Lawyer
"In 1980, when the parliament passed the Forest Conservation Act, it was very clearly acknowledged that the States cannot be trusted so far as management or diversion of forests is concerned because a State government is prone to local pulls and pressures. And therefore the government of India took upon itself that if you want to divert forest land, you've to come and take prior approval from the Central government. The Central government can give an approval only after the Forest Advisory Committee gives a specific recommendation whether a project should be accepted or rejected – that is the scheme of the 1980 Act which to a large extent has worked quite well. Now they are saying a general approval to the State Government under the Forest Conservation Act. Firstly, it violates the Act and secondly, gives power to the local forest department and district administration to allow for diversion. They are saying 100km from border and Naxalite areas- what is left in the country? 100km from Chinese border and all is the most eco sensitive area in the country."
The third change renders the process of Environment Impact Assessment via public consultation pointless.
The Environment Impact Assessment or EIA Notification of 2006 lays down the process for environment clearances for industrial and infrastructure projects. The notification lays down a 4 step process for environment clearance- first step is screening under which an application is marked as Category A or Category B project; second step is scoping where Terms of Reference for the EIA report are prepared; then comes the public consultation process and finally the appraisal process is carried out. On 7th October last year, the government issued an office memorandum to say that while reviewing applications for environment clearances, the Committee can ask comprehensive sets of questions and studies only at the time of issuing Terms of Reference. Experts say this will limit the ability of the Appraisal Committee to assess the impact of the projects.
Ritwick Dutta
Environment Lawyer
"The EIA system that existed in the country required that the Expert Appraisal Committee can direct additional studies to be done based on the inputs that come at the stage of public hearing. The new amendment effectively means whatever has to be given, it has to be at the scoping stage itself based on documents that are prescribed by the project proponent. It makes the whole public hearing a farce because whatever the public will say will not lead to any change- the public may say that the site is a very important areas and should not be allotted or it is an area for migratory species, do a 4 season analysis – all that can't be done because of this particular direction of the Ministry that everything should be done at the scoping stage. Then there is no need for approval; the project might as well be given clearance at the scoping stage itself."
Chandra Bhushan, CSE
Deputy Director General, Centre for Science and Environment
"We have been arguing very strongly that you need to a mechanism to make the EIA report itself good so that the Expert Appraisal Committee doesn't keep asking questions. There are methods to do that- for eg, you should only get it done by accredited agencies, the report should be reviewed before it is put up to the Expert Appraisal Committee- there are many things we can do to make the report good enough to take a decision. But this approach is a knee jerk reaction and I believe that the courts will come in. If you look at the National Green Tribunal right now, it is taking up cases where EACs have given decisions on bad reports. If the Ministry thinks that it will quicken the process, it is not looking at the issue in entirety."
The fourth change is also to the EIA Notification- one that gives power to States to clear more projects but are the States equipped to do that?
Earlier, projects located with 10 km of a ecologically sensitive area, national park, critically polluted area or a sanctuary went to the Ministry of Environment for clearances. The government has now amended the notification to say only projects within 5 km will go to the Ministry and the rest will be assessed by the State Environment Impact Assessment Agency.
Chandra Bhushan, CSE
Deputy Director General, Centre for Science and Environment
"The reason projects are being sent to the State level is the assumption that projects will be cleared faster, there will be less oversight on these projects and therefore all the controversies that happens when projects are cleared at the Central level will not happen at the State level. And therefore you'll have less noise around project clearances. I think it's a well thought out strategy. You can shift projects to the State level but only when you have competent, accountable and responsible agencies at the State level- unfortunately we don't have them."
Ritwick Dutta
Environment Lawyer
"What the government has done is increase the pollution loads in already critically polluted areas and two, expose the national park and sanctuaries to greater threat from industry activities which are bound to happen in extremely close proximity."
The fifth development is the High Level Committee's report that was set up to review environment laws holistically- experts say some of the suggestions are anti-environment.
The Committee submitted its report in November last year and has suggested some drastic changes to the regulatory framework for environment clearances - a 'single window' approval process, a fast track treatment for linear???, power and coal projects, a restrictive definition of 'forests' and have 'utmost good faith' in industry. But two recommendations bt the Committee's have drawn the most criticism – first - the suggestion that will require a member of the public to provide 'credible evidence of his bona fides' for filing a complaint. The second proposed change relates to the National Green Tribunal. Under the current framework, the NGT can do a judicial and merit based review of a case. That has led to cancellation of environment clearances to projects on the basis of non-application of mind, lack of proper impact assessment studies, and faulty public hearings. The Committee has proposed that NGT's role should be restricted to only judicial review.
Ritwick Dutta
Environment Lawyer
"It states that anyone who wants to come to the court of law has to provide his bona fide and if the case is found to have no merit, they will be penalized. Now the Indian Constitution very clearly says under Art 51A(g) that it's fundamental duty of every citizen to protect the environment and have compassion for all living beings. High Level Committee says- no; you can't have it- it is the government's prerogative to do what it wants to do, the business entity has a right to pollute it and if do dare to come to a court of law, be prepared to face penal consequences if you lose your matter."
Chandra Bhushan, CSE
Deputy Director General, Centre for Science and Environment
"The government cannot say that I will continue to give clearances on bad reports and then not let anyone look at that report. I think that's unfair. The government has to improve its processes at its end- whether it is environment or forest clearance. And therefore make sure that the opportunity is not there for the NGT to review those projects. But you cannot say that I will give wrong clearance but I don't want anyone to review that clearance. I think that's unjustifiable."
Chanakya Chaudhary,
Member- National Committee on Environment, CII
"They have suggested constitution of NEMA and SEMA- which are going to be authorities at the National and State level. They will look at all the approvals and clearances to ensure that compliances are in place. I think it's a good suggestion by the HLC to ensure that there are authorities in place to ensure that everything written in the rule book is followed."
But if the rule book itself is changed in favor of the industry, the authorities can't do much! What we've discussed today are only a handful of changes that the government has notified in the last 8 months- there have been others on irrigation projects, coal mining projects, and Forest conservation Act that have raised eyebrows. Some proposed ones like no public consultation for all linear projects such as highways, pipelines are even more worrisome. Seems like acche din for the economy isn't quite true for the environment.
In Mumbai, Payaswini Upadhyay
