HLC Report on Review of Environment Laws: Utmost Good Faith towards the Industry, Utmost suspicion towards the affected

In its initial pages, TSR Subramanian Committee Report (High Level Committee Report) comes across as a well-written, even eloquent document. That the environmental laws and governance needed streamlining and a strong, unbiased review was beyond doubt. Such a step was welcome and not an issue for environmentalists or rights groups to take umbrage to,in principle. In reality, overlooking the socio-political realm that infuses political and executive discourse is hardly possible or advisable. As pointed in this critique published in EPW, the report came at a time when environmental issues were abused and made to stand in judgment like no other.

The report has been lauded by the Env Minister who has taken pains to reiterate that his ministry will not be a roadblock to development anymore”. The report also comes at heels of PM’s affirmation at the overflowing Madison Square Gardens about dismantling old laws. Even the most unbiased observer cannot miss context in which the report is laid out.

Even so, looking at the implications of the report it deserves an unbiased analysis and this is our attempt at it [1]. (We have not dwelt too much on the structure or details of the report as these have been laid out clearly in other critiques.) The High Level Committee constituting of 4 members and 2 Secretaries[2] under the Chairpersonship of Shri T.S.R. Subramanian, Former Cabinet Secretary, was formed on 29th August 2014 vide OM No. 22-15/2014-IA.III. Terms of Reference of this committee were:

 (i)  To assess the status of implementation of each of the aforesaid Acts* vis-à-vis the objectives;

(ii)  To examine and take into account various court orders and judicial pronouncements relating to these Acts;

(iii)  To recommend specific amendments needed in each of these Acts so as to bring them in line with current requirements to meet objectives; and

(iv)To draft proposed amendments in each of the aforesaid Acts to give effect to the proposed recommendations.

The third objective of bringing “laws in line with current requirements to meet objectives” is unclear in the absence of stating what the current requirement pertain to: What requirement? Whose requirements? Environmental, Social or Economic requirements? What Objectives? Whose objectives? The committee did not even attempt to clear air about these issues, though questions were raised. The composition of the committee also raised serious issues. (See SANDRP blog and Ritwick Dutta’s guest blog.)

So we had a committee of 4 members and 2 secretaries with questionable credentials, with an unclear TOR and put together by a government which had taken a biased stand on environmental issues sitting in judgment on all 6 environmental laws of the country[3], related orders, institutions and mechanisms which would affect myriad communities, forests and ecosystems, in a period of initially 2 months, extended by a month. Unbelievably, in these three months the committee not only suggested radical changes in all of the above, but also recommended a brand new Law (strangely) called Environmental Laws (Management) Act or ELMA, which, they suggest, would prevail over all contrary judgments issued in past decades or provisions of any environment law promulgated till date!

The committee states in the preamble of the ELMA that conclusions were reached “after interacting with diverse groups of people in different parts of the country”. This may give an impression that the Law or the recommendations are based on wide consensus. This is not the case at all and the output has to be looked clearly as a 6-member committee’s recommendations.

Going through the report As pointed out by Shripad Dharmadhikary in his critique, the report does make a relatively sound diagnosis of the problems of environmental governance of the country. Anyone, either  from civil society or industry, who has experienced Forest Clearance or Environmental Clearance procedures, cannot but help be amazed at the entrenched bureaucracy, pathological reluctance to be transparent, colossal lack of accountability while taking decisions affecting ecology-social systems-industries, laziness to change any of the problematic entrenched systems and lack of respect for the people who are affected by decisions. Anyone who has made rounds to Pollution Control Board offices cannot miss the apathetic atmosphere, the couldn’t-care-less attitude of the officials.

So the diagnosis did detect the aching nerve when it states: “The legal instruments have really served only the purpose of a venal administration, 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” or “The state – arbitrary, opaque, suspiciously tardy or in-express-mode at different times, along with insensitivity – has failed to perform. The administrative machineries in the Government in the domain of Environment & Forests at all the levels, authorized to administer by Parliament’s statutory mandate, appear to have abdicated their responsibilities.”

“Environmental management is currently seen as an anti-thesis to development; development is seen as inimical to the habitat, natural assets, and in certain circumstances undermining peoples’ livelihood.” “Legislations are weak, monitoring is weaker and implementation is weakest.” And: “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.”

Finally when the report evokes not only current challenges, but even inter-generational equity, it sounds too good to be true! “That environment is sacrosanct; that the purity of air, water and land has been inherited by a generation in mortgage for children of tomorrow; that it is implicitly imperative for each generation to leave the environment to the next generation in a better state than they found it.”

Where are the people? But as you continue reading through the lucid prose, you get that strange feeling of missing the elephant in the room. Where are the people? Where are the millions of people who live in forests or mountains or river valleys and islands or far flung villages, who are most affected by shoddy environmental governance? Why is the report not even mentioning the hardships faced by thousands of such fishermen who lost their livelihoods due to pollution of Vashishthi creek while the MPCB sleeps, or the cracks on the homes of people in Uttarakhand due to hydel projects which received clearances from MoEF CC, or the remote hilly settlements in Himachal who lost their sources of water due to tunneling and blasting for hydropower, or millions of fisherfolk who lost their rights to their rivers, or millions of tribals and others who are still awaiting rehabilitation after being driven out of their homes and their livelihoods?

Why are they not a part of this discourse on environmental management? The report spouts Upanishads and Vedas but does not seem to acknowledge that coexistence with nature has been a part of our eco-region for millennia.

Tribal women protesting against Lower Suktel Dam Photo: Down to Earth

Tribal women protesting against Lower Suktel Dam Photo: Down to Earth

Suddenly, one stumbles on sentences like “India’s growing prosperity is increasing demand for environmental quality”. This reduces environment to a consumable product, aspired by the upper middle class and negates the battles ongoing in the hinterlands of India, where environment equates with livelihood and survival.

As one reads on, the bias against communities and community protests gets clearer, starker and more disturbing. Along with communities, there is hardly any mention of impacts of destructive projects on forests, communities and wildlife. The lines are clearly drawn at compensatory afforestation, raised NPV, monitised afforestation, web-based monitoring, priced data bases, etc. But we are not to question the rationale behind several large scale destructive projects. To illustrate, in the case of Wild Life Protection Act, the report does not talk about habitat destruction due to development projects as one of the major threats to wildlife, but limits itself to hunting, poaching, man-animal conflicts and loss of corridors. Just to put things in perspective, in Arunachal Pradesh, Dibang Basin projects and Siang Basin projects can together submerge more than 23,000 hectares of prime wildlife habitat and affect several Schedule I species.

Some other issues too start getting too big to ignore. In the 113 page report, the word “speed” in context of speedy clearances gets repeated thirteen times. As we move from initial sagacious pages, the emphasis swiftly shifts from concern for environment to “time consuming clearance processes”. After notable recommendations in Forest Conservation Act, (succinctly critiqued here), the report seems to get down the business: Environmental and Forests Clearances. It is here that the superstructures NEMA (National Environment Management Authority) and SEMA (State Environment Management Authority) are introduced. Briefly, NEMA is proposed to be a full time board which will deal with a whole gamut of issues from Project clearances, monitoring, database creation, creation of standards  etc,. CPCB will be subsumed under NEMA and it will function under the central government. SEMA at the state level will appraise Category B and C projects, monitoring and compliance, etc,. SPCBs will be subsumed under SEMA which will be under the State Govt.

Public Hearings (PH) According to the report:

  1. Only environmental, rehabilitation and resettlement issues can be raised at the Public Hearing.
  2. Only “genuine local participation” is permitted. Mechanism to be put in place to ensure this.
  3. Public hearing can be entirely dispensed with if local conditions are “not conducive”.
  4. There is no necessity for holding a PH if project site is away from settlements, if the projects are in industrial zones or complexes, for power, mining and line projects, if the projects are of national or strategic importance.
  5. Appeal against NEMA SEMA approval has to be filed first with the Board formed under ELMA (which is without any subject experts), which can summarily reject the appeal and levy heavy costs against appellants for pursuing frivolous matters.
  6. Gram Sabha Consent for Linear Projects not required, Settlement of Forest Rights not a necessity for Stage I Forest Clearance, no site inspection required for stage I forest clearance!
Protest in Assam against Lower Subansiri Project in Arunachal Pradesh Photo: KMSS

Protest in Assam against Lower Subansiri Project in Arunachal Pradesh Photo: KMSS

Let us see how these provisions, if accepted, will play out in real life, for example in case of Assam, which faces downstream impacts of Hydropower projects in upstream Arunachal:

  1. Assam will not be a part of Public Hearing for dams like Lower Siang, despite the fact that impacts of Siang basin projects will deeply impact Assam. This is because PH is restricted to distance from Project Site, and is delinked from the impact of the project! Diurnal fluctuations from the Siang project will result in change in water levels by 22 feet near D’Erring Sanctuary, very close to Dhemaji District of Assam, every day in lean season, but affected people will not be able to participate in public consultations.
  2. Even population from downstream Arunachal or interested Ecologists, NGOs who have important points to make about the EIA will not be allowed as PH is limited to “Genuine Local Participation” (this violates NGT judgment about who is aggrieved by a project).
  3. The population of Arunachal, which finally does get to attend, will not be able to talk about social impacts, downstream impacts, impacts of having too many projects in a cascade, safety issues, impacts on their homes and drinking water sources etc., as the scope of their inputs is limited to “environment and rehabilitation and resettlement issues.”
  4. Requirement of Public hearing itself can be done away with, if the “Local conditions are not conducive”. So in places like Tawang where Monpas are leading nonviolent struggle against destructive dams, the public hearing can simply be cancelled and the project proceed!
  5. In fact there may be no public hearing for hydropower projects or for any power projects or river link projects!
  6. In case affected groups want to appeal against NEMA decision, they will have to file a complete case within 15-30 days of MoEFCC’s order, which is extremely difficult for rural communities
  7. If surmounting all obstacles, a case is filed, the petitioners better be wary as the board has powers to reject their appeal summarily and levy heavy fine on them.
Monks protesting against dams in Tawang Region in Arunachal Pradesh Photo: Urmi Bhattacharjee

Monks protesting against dams in Tawang Region in Arunachal Pradesh Photo: Urmi Bhattacharjee

Does this look like a conducive, encouraging environment to bring out accountability, transparency and inclusive environmental governance? On the ground, this may mess up issues further, fuel conflicts and delay projects, rather than fast tracking them!

Process of Project “Approval”: All in Three months: The Report has also recommended how the clearance process should be. This is possibly one of the most problematic areas of the report where all the focus is centered on getting the file move in full throttle. The report recommends Model TORs (Terms of Reference) for sections, which already exist. It also assigns just 10 days for the NEMA to work on a site specific TOR failing which the proponent will use the Model TOR. Laying down TORs for an Environment Impact Assessment Study is one of the crucial parts of the clearance process. Many stalemates we witness today have their roots in inadequate TORs. In fact in some developing countries, there is a Public Hearing at the TOR stage also so that affected communities and interested stakeholders can raise points to be included in the study. NEMA is supposed to recommend approval or rejection (with reasons) within two months of receiving the application. The basis of 2 months is not clear as the EIA study itself has to be at least a single season (one year) study!

Fast track clearances: On this Clearance express, there are some compartments which belong to the bullet train. Because nearly three months is too long a time to wait for projects which have the potential to change an entire eco region evolved over thousands of years, linear projects, projects of strategic importance and power and mining projects which are “engines of the nation’s growth” are put on a separate fast track. It is not clear how soon they will be appraised, or, approved, but imagination runs wild here..

Villagers affacted by Gosikhurd Dam in Vidarbha. The construction has faced huge corruption charges, cost escalation, lack of proper clearances, no rehabilitation of affected communities, and extremely poor quality work Photo: Aparna Pallavi

Villagers affacted by Gosikhurd Dam in Vidarbha. The construction has faced huge corruption charges, cost escalation, lack of proper clearances, no rehabilitation of affected communities, and extremely poor quality work Photo: Aparna Pallavi

So what constitutes projects of national importance? As pointed by Shripad, much debated Polavaram Dam which can submerge nearly 300 villages in three states or the GosiKhurd dam which can submerge 100 villages, hundreds of hectares of forest land and is mired in deep corruption charges, can be fast tracked for being of National Importance as they already have the tag of being “National Projects”.

As for Monitoring, the committee stresses an ironically-named tool “Mandatory provision of voluntary disclosure”! Monitoring will be web-based, technologically assisted and with minimal need for site visits. This leaves absolutely no chance for any local affected community to be a part of monitoring, or be able to voice its concerns which may not show up on the hightech monitoring devises. The only place where committee mentions accountability is with reference to speed of clearance, failing which the Chairperson of NEMA will be held accountable. There is no accountability demanded either about failing to address impacts on ecology or on people.

Overreach of the Committee: ELMA: Hugely overstepping their mandate, the committee then proposes a new law for streamlining clearance and approval for projects at state and center by proposing Environment Laws (Management) Act, ELMA. As stated at the outset, this is no product of interactive discussions with civil society or general public, but is a part of a report by 4 individuals assisted by 2 secretaries in a period of 3 months.

Uberrima fides? It’s the environment we are talking about! According to the committee, ELMA is based on the principle of Utmost Good Faith or Uberrima Fides, used in Insurance Laws, as against Caveat Emptor, or Buyer Beware principle, where the NEMA, SEMA and the Ministry will put absolute faith in whatever studies, impact assessment reports, compliance reports that the proponent submits. According to the committee, “The law of insurance (Utmost Good Faith) supposes that the insurer knows everything about himself or about his activity to be insured; and the insurance company cannot be expected to know anything about the insured nor will it be able to verify all that is stated, speed being the essence. 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.” (Emphasis added)

This stress in Insurance Law is entirely misplaced and non-applicable in the realm of environment!

Firstly, the Insurer owns his body, and there is a solid footing to believe him. In case of projects, say for example a dam about to submerge 5000 hectares of prime forest or displace lakhs of people, the proponent is making a claims about something he does not own, but which is public property on which many others depend and which will be irreversibly impacted by the proponent. While in case of Insurance laws the Insurer does not have any concern for the Insured, in case of environment, it is exactly the opposite. The MoEFCC’s prime duty is to safeguard the environment. If the project affects environment in a bid for quick clearances, it is the MoEF which would be (should be) deeply impacted. It cannot just “avoid its liability” like the insurance company as the Report suggests!

Vehicle drowned in muck, much of it dumped by Srinagar Dam in Garhwal, Uttarakhand Floods, 2013. Photo: Kavita Upadhyay, The Hindu

Vehicle drowned in muck, much of it dumped by Srinagar Hydropower Dam in Garhwal, Uttarakhand Floods, 2013. Photo: Kavita Upadhyay, The Hindu

There is absolutely no justification for using principle of Utmost Good Faith in the environmental realm, because most EIAs are fraudulent and compliances do not exist. Even currently, any false information provided at the time of appraisal process is a violation of Environment Protection Act and invites punishment. But there are examples by the dozen about how the MoEFCC refuses to take action even when clear evidence is presented to them about false information presented by proponent. This was violation of EPA 1986, how is this violation different than violation of ELMA?

We know that monitoring is the weakest link in environment governance and there no reason to believe that it will improve in any way by making it web-based. In the absence of this, taking proponent at his word about the information he provides at the time of clearance or monitoring is not workable, justifiable or acceptable.

Appeals against decisions of NEMA or SEMA: The primary space to file an appeal against decision of NEMA or SEMA is now taken by a board Chaired by a retired High Court Judge and two senior officials of the government and the National Green Tribunal is restricted to only judicial review. Merit-Based review and subject experts is one of the strongest assets of NGT, differentiating it from other courts and it is clear that this very role is being clipped by ELMA.

The ELMA will have an overriding effect on any judgments, orders of courts or tribunals under acts dealt with by ELMA.

ELMA also envisages Special Environmental Courts at district level which will take “Cognizance of the serious offences only on a complaint by the officers authorized by the NEMA or SEMA.” As an afterthought, these courts may also hear public only if they are satisfied that responsible authority failed to take action about their complaint in three working days. Taking action is a very vague term.

While the ELMA has provisions for “protecting officials acting in good faith”, it has a penal provision to scare litigation by a provision which says “Punishment for false or frivolous complaints”. So while the proponent will be treated in “Utmost Good Faith” aggrieved citizens will be treated with utmost skepticism and will have to: File appeal within 30 days, prove their bona fides, be wary and careful about filing as it may be deemed “frivolous” and they may be fined!

~~~~

The undercurrent of the HLC report is indeed that the environmental governance will have utmost good faith towards the industry and utmost suspicion towards the affected, the concerned or the civil society. There is no evidence till date to prove that this good faith in the industry is warranted without stringent checks and balances. Even in current compliance system the developers are supposed to voluntarily submit six monthly compliance report, but nothing happens if they do not and no one reads them if they do.This undercurrent overshadows some useful recommendations of the committee.

The HLC report cannot be accepted in this form. Any review of environmental laws needs a consultative and consensus-based process and not a rushed work of two months by a biased panel with unclear and open-ended TORs. The characteristic of ELMA, NEMA and SEMA of excluding participation and not attempting to address issues related to inclusive governance has the potential to polarize environment discourse rather than making it swift and accountable.

The remedy, unfortunately, seems more problematic than the illness. Reminds one of Sahir’s words, जो दवा के नाम पे जहर दे, उसी चारागर की तलाश है…

-Parineeta Dandekar, parineeta.dandekar@gmail.com

END NOTES:

[1] The report has already been critiqued excellently by various authors.

  • HLC – TSR Subramanian report: Climate blind or a climate disaster? Himanshu Thakkar, SANDRP https://sandrp.wordpress.com/2014/12/15/hlc-tsr-subramanian-report-climate-blind-or-a-climate-disaster/
  • T.S.R. Subramanian Committee’ is interested in “Management of Environment” and not in “Protection of Environment”.-Rohit Prajapati and Krishnakant (http://counterview.org/2014/12/16/tsr-subramanian-committee-is-interested-in-management-of-environment-and-not-in-protection-of-environment/)
  • Recipe for Dilution of Environmental Protection Regime: Report of MoEF’s Committee to Review Environmental Laws- Shripad Dharmadhikary (http://shripadmanthan.blogspot.in/2014/11/recipe-for-dilution-of-environmental.html)
  • Full Report of MoEF’s Committee to Review Environmental Laws Confirms Initial Apprehensions: Recipe for Dilution of Environmental Protection Regime– Shripad Dharmadhikary: http://shripadmanthan.blogspot.in/2014/12/full-report-of-moefs-committee-to.html
  • Executive’s Environmental Dilemmas: Unpacking a Committee’s Report: Manju Menon and Kanchi Kohli: http://www.epw.in/commentary/executives-environmental-dilemmas.html

[2] Members include: Shri Vishwanath Anand, Former Secretary, Justice (Retd.) Shri A.K. Srivastava Former Judge of Delhi High Court, Shri K.N. Bhat, Senior Advocate, Supreme Court of India. Secretaries: Shri Bishwanath Sinha Joint Secretary, MoEF&CC, , Shri Hardik Shah, Member Secretary, Gujarat Pollution Control Board

[3] [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.

As pointed out by Rohit Prajapati in his excellent critique, the HLC has also suggested changes to [1] The Forest Right Act, 2006 and [2] The National Green Tribunal Act, 2010, though these were not part of HLC’s TOR.

3 Comments on “HLC Report on Review of Environment Laws: Utmost Good Faith towards the Industry, Utmost suspicion towards the affected

  1. The committee was not just snobbish and arrogant while conducting public sessions (which were far and few in between), but also lacked a clear, unanimous understanding of the Terms Of Reference for which it was constructed. A sweeping mandate to do whatever with a host of environmental laws, could have never achieved the purpose. The report lacks both objectivity and empathy.

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