Guest Blog by: Ritwick Dutta (firstname.lastname@example.org) Environmental Lawyer, Managing Trustee,
Legal Imitative for Forest and Environment, New Delhi
The review of Environmental Law is currently being undertaken by the High Level Committee (HLC) constituted by the Ministry of Environment, Forest and Climate Change. The task is huge and requires a much more detailed, comprehensive, real and effective consultative process than what is currently being done. The Committee is well within its right to say that such a task cannot be undertaken within such a limited and unrealistic time frame (2 months) and without the required expert composition.
The committee must give suggestions only on how to strengthen environmental law in India and not dilute environmental laws. Undermining environmental law is disastrous for the people, environment and even for economic development. It is pertinent to point out some events which have occurred in recent times which reflects on how the decisions on environment have had disastrous consequences both for the people and the economy.
Contrary to what is generally projected by the Industry Associations and a section of the press, environmental laws are not the cause of slow economic growth. Rather speedy and hasty approvals have been the cause of both environmental, social and economic loss and damage. It is imperative to focus on some facts which would be relevant.
- The Ministry of Environment and Forest and its various expert committees never reject a project totally. Even if the approval is declined in one meeting it is presented in a subsequent meeting with minor modification. One can cite the recent case of Dibang Hydro Electric project in Arunachal Pradesh which was recommended for forest clearance despite being rejected twice by the Forest Advisory Committee.
- On an average 333 acres of Forest Land is diverted each day by the Ministry of Environment and Forest under the Forest (Conservation) Act, 1980. This does not include forest land below 40 hectres and those illegally diverted. [See report of EIA Response Centre in Annexure I or at: http://www.ercindia.org/index.php/erc-in-news/national-news/816-india-losing-135-hectares-forest-daily-rti and http://www.ercindia.org/index.php/714]. India already has a very high rate of forest loss.
- An analysis of the approvals granted by the Regional Office of the MoEF based on recommendation of State Advisory group, the rate of approval is 78 Percent [See report of EIA Response Centre, study from January to April, 2014 at Annexure IIm, see the end of the blog]
- The Expert Advisory Committee (EAC) constituted under the EIA Notification 2006 undertakes the task of appraisal at remarkable speed and hasty manner. It is worth quoting from the Judgments of Courts and Tribunals on the manner in which appraisal is done by the Expert Committees.
A. Samata Versus Union of India [National Green Tribunal , Appeal No 9 of 2011,] [Thermal Power Plant in Andhra Pradesh]
‘For a huge project as the one in the instant case, a thermal power plant with an estimated cost of Rs. 11,838 crore, covering a total area of 1675 acres of land, the consideration for approval has been done in such a cursory and arbitrary manner even without taking note of the implication and importance of environmental issues. On the same day the EAC took for appraisal not only the thermal power plant in question, but also other projects which would be indicative of the haste and speedy exercise of its function of appraisal of the project.
B. Utkarsh Mandal Versus Union of India
“As regards the functioning of the EAC, from the response of the MoEF to the RTI application referred to hereinbefore, it appears that the EAC granted as many as 410 mining approvals in the first six months of 2009. This is indeed a very large number of approvals in a fairly short time. We were informed that the EAC usually takes up the applications seeking environmental clearance in bulk and several projects are given clearance in one day. This comes across as an unsatisfactory state of affairs. The unseemly rush to grant environmental clearances for several mining projects in a single day should not be at the cost of environment itself. The spirit of the EAC has to be respected. We do not see how more than five applications for EIA clearance can be taken up for consideration at a single meeting of the EAC. This is another matter which deserves serious consideration at the hands of MoEF.”
C. Gauraxa Hitraxa Pauchav Trust Vs Union of India [Appeal No 47 of 2012 of NGT] [Pipava port, Gujarat]
“The relevant observations in the EAC meeting reveal that the presentation made by the Project Proponent was accepted as “gospel truth””
D. Sreeranganathan K.P and ors Vs Union of India : [Appeal No 172 -174 of 2013] [Aranmula Airport, Kerala]
“The Tribunal is able to notice a thorough failure on the part of the EAC in performing its duty of proper consideration and evaluation of the project by making a detailed scrutiny before approving the same……The EAC is constituted consisting of a Chairman and number of members who are experts from different fields only with the sole objective of national interest in order to ensure establishment of new projects or expansion of already existing activity without affecting the ecological and environmental conditions. Thus, a duty is cast upon the EAC or SEAC as the case may be to apply the cardinal and Principle of Sustainable Development and Principle of Precaution while screening, scoping and appraisal of the projects or activities. While so, it is evident in the instant case that the EAC has miserably failed in the performance of its duty not only as mandated by the EIA Notification, 2006, but has also disappointed the legal expectations from the same.
The above list is only illustrative and there are many other judgments reflecting the situation with respect to haste with which approvals are granted.
While undertaking any review the Committee must keep into account the following facts, issues and ground realities.
- India’s Environmental law are a result of people’s struggle, international convention, commitments and judicial pronouncements and is aimed at ensuring sustainable development. Most provisions of the India’s environmental law have been an outcome of International Conventions pursuant to Article 253 of the Constitution eg, the Public Hearings and Environment Impact Assessment became part of India’s legal framework pursuant to the Rio Declaration of 1992 and the National Green Tribunal was set up pursuant to India’s committment to Principle 10 of the Rio Declaration.
- ‘Principle on Non-Regression’ has to be applied while undertaking review.
The principle of non-regression is understood as the requirement that norms which have already been adopted by states may not be revised in ways which would imply going backwards on the previous standard of protection. This principle has been traditionally recognized in the area of human rights – that is, once a human right is recognised it cannot be restrained, destroyed or repealed. This theme is echoed in almost all the major international instruments on human rights, including the Universal Declaration of Human Rights.  Environmental rights are closely related to human rights as well, including cultural and social rights, and can be interpreted to apply in the context of environmental protection as well. In addition, the principle is increasingly being invoked in the context of environmental protection. The European Union has adopted this view through a resolution: 
97. Calls for the recognition of the principle of non-regression in the context of environmental protection as well as fundamental rights.
The Resolution of the UN General Assembly as the outcome document of the Rio+20 United Nations Conference on Sustainable Development reflects the acceptance of this principle as well:
20. We acknowledge that since 1992 there have been areas of insufficient progress and setbacks in the integration of the three dimensions of sustainable development, aggravated by multiple financial, economic, food and energy crises, which have threatened the ability of all countries, in particular developing countries, to achieve sustainable development. In this regard, it is critical that we do not backtrack from our commitment to the outcome of the United Nations Conference on Environment and Development. We also recognize that one of the current major challenges for all countries, particularly for developing countries, is the impact from the multiple crises affecting the world today.
Therefore, the principle of non-regression applies as a human and fundamental right, as well as under the principles of environmental law – like “sustainable development” and precautionary principle”.
- The concept of Sustainable Development has to be comprehensively understood and cannot be equated only with economic growth. The Rio Declaration of 1992 has to be comprehensively understood and read not in isolation but as a whole. Public hearings (Principle 10), EIA (Principle 17) Precautionary Principle (Principle 15), Compensation and liability regime (Principle 13) are the core of Sustainable Development and have been incorporated as part of national law. The aim should be to further include these in various laws in a comprehensive manner. Rule of law, the right to participate effectively in matters which concerns one’s life.
- Expert Committees, Advisory Committees, Appellate Forums constituted of Bureaucrats do not inspire confidence. This Committee must recommend that any committee or appellate forums should not have any bureaucrats. The working of the National Environment Appellate Authority (NEAA) is a classic example of failure due to the fact that retired IAS and IFS officials were made vice chairman and member. The Delhi High Court in Vimal Bhai versus Union of India [CM No. 15895/2005 in W.P. (C) 17682/2005 has held:
“The list produced by the petitioners of appeals before the NEAA shows that most of the appeals disposed of thus far have in fact been dismissed, comprised as it is of retired bureaucrats, minus the Chairperson and Vice Chairperson. The NEAA is, therefore, at present neither an effective nor an independent mechanism for redressing the grievances of the public in relation to the environment clearances granted both either the State or the Central Government.”
There is clearly a need to review environmental laws. Yet neither the objective and purpose is clear of the present exercise. The Environment (Protection) Act, 1986 has numerous notifications issued under it. It ranges from EIA Notification to rules regulating the use of Plastics and microorganisms. Will the present review cover all these? These are issues which needs clarity. In addition, the Committee has to genuinely interact with all concerned persons across the country. The present process cannot be called consultative at all.
India’s environment has already impacted negatively due to hasty decisions as evident from numerous decisions of the Courts, the least this HLC can do is not to prepare a hasty report based on limited one sided information and limited public interaction.
[Earlier Blog on HLC: https://sandrp.wordpress.com/2014/09/26/review-of-environment-laws-is-necessary-but-the-tsr-subramanian-hlc-lacks-credibility/]
Ritwick adds in post script: So far as ELMA is concerned, it is not even in a form that can be called as a Bill. The ELMA has many dangerous provisions and the sole aim is to manage the progressive provisions in all the other laws. ELMA gives overriding powers to the environmental authority to pass any direction. The thrust of ELMA is to ensure that those who approach the courts for redressal of their grievances face the threat of penalty. I feel that one of the most problematic provisions of ELMA is the fact that it combines all clearances (CRZ, EC and FC) into one (Single window) with very limited scope for appeal. The Appeal will have to be filed within 30 days of approval and before a Board constituting of two serving or retired secretaries to the Government! The process without doubt was a hurried one.
I have recently got an RTI response stating that the HLC has not kept records of any of the public consultations which it undertook: Source: http://www.dnaindia.com/india/report-moef-has-no-minutes-of-30-panel-meetings-2053483
 The Future of Environmental Law – Emerging Issues and Opportunities, Issue Brief 3, United Nations Environment Programme (2012). Available at http://www.unep.org/delc/Portals/24151/IssueBriefTheme3.pdf
 Resolution on developing a common EU position ahead of the United Nations Conference on Sustainable Development (Rio+20). Document no. P7_TA-PROV(2011)0430. Available at: http://www.europarl.europa.eu/sides/getDoc.do?type=MOTION&reference=B7-2011-0522&format=XML&language=EN
 Resolution adopted by the UN General Assembly on 27 July, 2012. A/RES/66/288. Available at: http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/66/288&Lang=E
State Advisory Groups (SAGs): Recommendations for Forest Clearance during January-April 2014
The Forest (Conservation) Rules, 2003 under the Forest (Conservation) Act 1980, provide that proposal involving forest land of more than forty hectare shall be sent by the State Government to the Secretary to the Government of India, Ministry of Environment and Forests (MoEF) while proposals involving forest land up to forty hectare shall be sent to the Chief Conservator of Forests or Conservator of Forests of the concerned Regional Office (RO) of the MoEF.
RO is empowered to scrutinize and sanction the proposals involving diversion of forest area up to 5 hectare. In respect of proposals involving diversion of forest area above 5 hectare and up to 40 hectare and all proposals for regularization of encroachments and mining up to 40 hectare, the proposals are examined by the RO in consultation with State Advisory Group consisting the representatives of the State Government from the Revenue Department, Forest Department, Planning and /or Finance Department and concerned Department (User Agency).
State Advisory Groups (SAGs) are constituted by the Ministry of Environment & Forests, Government of India, under the Forest (Conservation) Act, 1980 for each State and Union Territory.
The view of the Advisory Group are recorded by the Head of the RO and along with the same, the proposals are sent to Ministry of Environment & Forests, Government of India, New Delhi for consideration and final decisions.
The meeting of the State Advisory Group (SAG) is normally held once in a month at concerned State Capital as per a pre-decided schedule for each State and Union Territory.
Agenda and minutes of SAG meetings are uploaded on the MoEF website.
In this report, we have analysed minutes of SAG meetings all over the country from January to April 2014. During the period, minutes of meetings in 10 states are available in public domain.
As per the information available on MoEF website, there were 16 meetings during this period of four months in which 541 ha area has been recommended for diversion. These meeting happened in Gujarat, Maharashtra, Madhya Pradesh, Uttarakhand, Andhra Pradesh, Karnataka, Kerala, Punjab, Tamil Nadu and Odisha. Gujarat leads with maximum diversion of 138 ha followed by Maharashtra with about 100 ha diversion.
It is interesting to note that Transmission Line is at top of the table taking maximum recommendation for diversion, 142 ha (26 %) closely followed by Roads with 138 ha (25 %). If we include Railways which takes 56 ha (11%), it is conspicuous that ‘linear intrusion projects’ are taking 62 per cent of the total recommended diversion.
The total number of projects considered by SAGs during the period was 41 of which 32 were recommended, i.e.78 per cent. It is alarming to note that not even one project was declined by SAG!