The High Level Committee Report on Environmental Laws: A Recipe for Climate Disaster and Silencing People’s Voice

Above: 440 MW Vishnuprayag HEP post 2013 disaster in Uttarakhand. The project, its operation and location added significantly to disaster in the downstream. Photo: Matu JanSangathan

Post by- Ritwick Dutta, Lawyers  Initiative For Forest and Environment,                                             Debi Goenka, Conservation Action Trust,                                                                                                         Manoj Mishra, Yamuna Jiye Abhiyan                                                                                                   & Himanshu Thakkar , South Asian Network for Dams, Rivers & People

The Report of the High Level Committee to review Environmental Laws will now be considered by the Department Related Parliamentary Standing Committee on Science, Technology, Environment and Forest headed by Congress Member of Parliament Dr Ashwani Kumar.  The report if accepted will spell doom for both the environment and infringe on people’s constitutional right to a balanced ecosystem, clean air and water. In the name of reducing  and eliminating the ‘inspector raj’, the Committee reposes complete trust on the Industry and views people’s voice with suspicion.

The High Level Committee (HLC) was set up to by the Ministry of Environment, Forests and Climate Change (MoEF&CC). The Committee comprised of  former Cabinet Secretary T.S.R Subramanian as Chairperson, with  former Secretary to Government of India Vishwanath Anand, former Judge of the High Court Justice (retd)  A.K Srivastava and former Additional Solicitor General of India K.N Bhat as members.

The Report is against the  Constitution:  It violates Article 21, since interest of business and industry  has been given  paramount importance and overrides the right to clean air, water and balanced ecosystem. If the HLC recommendations are accepted, the State will abdicate its protective  role mandated under Article 48 (A)[1]  of the Constitution and  will rather rely on ‘Utmost Good Faith’ on the part of the industry. The fundamental duty of every citizen to protect environment, forest and wildlife  as provided under Article 51 (a) g of the Constitution will be viewed with suspicion, since the HLC requires that the bona fide of those who intend to protect the environment be subjected to scrutiny with  threat of  exemplary punishment. The HLC report violates India’s International commitment under the Rio Declaration of 1992 and other International Treaties. Public Participation and Public hearings: the essence of democracy is sought to be removed for a range of projects and would render people voiceless.  The HLC report is out of tune with the current environmental realities: the report is totally blind to climate change concerns. There is no discussion or analysis on climate change at all. India’s 12th Five Year Plan specifically gives importance to climate change when it  acknowledges that India will be one of the countries most severely affected if global warming proceeds unchecked and as such appropriate domestic action is necessary[2].

Most disturbingly, the HLC aims to defang the National Green Tribunal: A quasi Judicial body that has emerged as the most effective grievance redressal  mechanism on environmental issues. The HLC limits the role of the NGT to the narrow confines of ‘judicial review’ as opposed to a comprehensive ‘merit review’. It is therefore a clear attempt to insulate the Government decision from judicial scrutiny.   It has recommended that power to review the decisions should vest with a body comprising of serving and retired secretaries to the Government. The basis constitutional scheme of separation of powers is thus planned to be disturbed.

The recommendations of the Committee reflects are tailored primarily towards introducing changes to environmental laws with the primary purpose of ‘doing business easier in the country’. While occasionally, cursory references are made to laudable objectives transparency’, ‘accountability’, ‘inter generational equity’ and ‘sustainable development’, there is little connection between the stated philosophy and the recommendations.  Rather, the recommendations are primarily aimed at relaxing standards and procedures for projects, reducing spaces for public participation in environmental decision-making.

The Committee, constituted on 29th of August, 2014, submitted its report in less than three months, on 20-11-2014. Prepared in great haste, it is replete with factual inaccuracies, wrong and misleading conclusions and the incorrect interpretation of the laws it was meant to review. The Committee also oversteps its terms of reference and suggests changing the framework of environmental justice (like the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and the National Green Tribunal Act, 2010), and even recommends a brand new piece of legislation to be strangely called as the Environmental Laws (Management) Act or ELMA, which would prevail over all contrary judgments issued in past decades or the provisions of any environment law promulgated till date.

The recommendations, if accepted, would dismantle the foundation of environmental rights in India and only lead to an increase in environmental conflicts, and should therefore be rejected in its entirety.

Flawed process

As per directions issued by the Government of India, a High Level Committee can be constituted only after the approval of the Prime Minister, no such approval has been obtained for this “High Level Committee”.

Some of the  members of the HLC have questionable background: Vishwanath Anand has the dubious distinction of dismissing every single appeal when he was the Vice Chairperson of the National Environment Appellate Authority. None of the other members have any prior experience in the area of environment.

The process of consultation by the Committee was also highly opaque. Public comments were invited but with the rider that the comments should not exceed 1000 characters. The few “Consultation” meetings that were held were in urban locations (mostly capital cities), with the participation limited to selected individuals by invitation.

The report of the HLC provides neither any details of the stakeholders consulted nor the list of submissions received or minutes of the meetings.

Forest Governance

Definition – The report observes that the definition of a forest is an ‘unresolved issue’, and suggests that till ‘forest’ is defined by the Government, an explanatory note may be added in the Indian Forest Act to mean any forest notified under the Indian Forest Act, 1927 and any land recorded as forest and not used / broken before 25th October, 1980. This limited legalistic definition proposed by the HLC would effectively revert to the pre 1996 situation[3] where large scale deforestation has taken place simply on the ground that the forests were not legally notified.

Procedural aspects – The Report contains a wrong assessment of the issues and even the procedures that are followed for appraising proposals for diversion of forest lands. The sole focus of the entire section in the HLC with respect to forest is ensuring faster and higher rates of diversion of forest land.

Some of the most damaging recommendations regarding the procedure for forest diversion includes removing the requirement of physical / field verification involving ground truthing till stage I approval under Forest (Conservation) Act, 1980 is obtained. The Committee has also recommended amending the Forest Rights Act, 2006, with respect to linear projects, to dispense with the obligation of approval of the Gram Sabha.

The farce of ‘No Go Areas’ – The HLC recommends that only Protected Areas and forest areas with a canopy cover of over 70% (outside Protected Areas) should be treated as ‘No Go’ areas, and should not be disturbed except in exceptional circumstances and that too with the prior approval of the Union Cabinet. This recommendation is actually a dilution of the existing requirement: Protected areas are already no go zones, and any non-forestry activity impacting protected areas require the prior approval from the National Board for Wildlife and the Supreme Court of India. Forest cover with tree density cover of 70% are called Very Dense Forests (VDF). According to the Forest Survey of India report 2013[4], VDF is only 2.54% of the total forest cover of the country. The HLC’s recommendation in fact opens a window for exploitation by stating that the No Go Areas may be disturbed in ‘exceptional circumstances’ – for which, incidentally, there is no definition. Secondly, very few areas exist outside Protected Areas that have a canopy density of more than 70%. In fact, the Forest Survey of India regards areas with 40 % crown density as dense forest. Clearly the HLC has no objection for diversion of dense forests (between 40% to 70%) in the country.

Wildlife Conservation

The chapter on wildlife is sketchy, piecemeal and replete with factual inaccuracies. There is hardly any mention of impacts of destructive projects on forests, communities and wildlife. The lines are clearly drawn at compensatory afforestation, raised Net Presevt Value (NPV), monitised afforestation, web-based monitoring, priced data bases, etc. However, the rationale behind several large scale destructive projects is not questioned even once. 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 endangered and unique species of flora and fauna.

Environmental Governance

The chapter with respect to Environmental Governance clearly demonstrates its true purpose, which is increasing the speed of the environmental approval process, rather than environmental protection

In the 113 page report, the word “speed” in context of speedy clearances gets repeated 13 times. The recommendations also reflect the intention. It recommends that only 10 days for the NEMA to work on a site specific TOR failing which the proponent will use the generic Model TOR. The NEMA is also supposed to recommend approval or rejection (with reasons) within two months of receiving the application. Linear projects, projects of strategic importance and power and mining projects which are “engines of the nation’s growth” are put on a separate faster track. Potentially, projects like the Polavaram Dam which can submerge nearly 300 villages in three states or the Gosi Khurd 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”. The fact that such projects could potentially change the ecosystem of the region evolved over thousands of years is ignored altogether.

In fact, the very diagnosis of the problem by the HLC is wrong. A close scrutiny of the decisions of the various Courts would clearly highlight the fact that the problem with the Ministry of Environment and Forest is not delay in granting approval but the haste with which approvals are granted.  This has been reflected in several decisions like Utkarsh Mandal v. Union of India,[5] Himparivesh Environment Protection Committee v. State of Himachal Pradesh,[6] Samata v. Union of India,[7] Sreeranganathan K.P and ors v. Union of India,[8] and Prafulla Samantray v. Union of India,[9] among others.

As for monitoring, the committee suggests an ironically-named “Mandatory provision of voluntary disclosure” – a web-based, technologically assisted platform requiring 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 such 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 about failing to address impacts on either ecology or people.

Uberrima fides? The Committee relies on the concept of “uberrima fides”, i.e., utmost good faith, based in insurance laws. Essentially, the NEMA, SEMA and the Ministry will put absolute faith in whatever studies, impact assessment reports, compliance reports that the proponent submits. Interestingly, under the present legal framework of the EPA itself, any false information provided at the time of appraisal process is a violation of Environment Protection Act and invites punishment. However, there has not been even a single instance where the MoEF&CC has initiated any take action even when clear evidence is presented to them about poor, and even fraudulent, information in EIA Reports presented by the proponent.

Public Participation

Amongst the most damaging aspects of the report is its absolute contempt for people’s voices in the environmental decision making process. In the largest democracy in the World, the TSR Subramanian Committee report severely recommends curtailing the democratic space existing in the environmental laws of India for: projects of ‘national importance’; projects of ‘strategic importance’; projects to be setup in industrial zone, manufacturing zone; projects in areas of high pollution load; projects which are located away from settlements; and linear Projects including transmission lines, roads, irrigation canals, etc.;

The committee also recommends that the issues that can be raised in public hearings is to be limited only to environmental, rehabilitation and resettlement issues. It further recommends that only ‘genuine local participation’ should be permitted.[10]

Access to Justice

The Committee recommends overhauling the environmental justice processes and remedies, which will adversely affect access to justice of communities across our country. The existing law allows an Appeal to be filed before the National Green Tribunal by any aggrieved person within 90 days. The National Green Tribunal, established under the National Green Tribunal Act, 2010, has powers of both the ‘judicial review’ (that is, review of the decision making process) as well as ‘merit review’ that is, review of the merits of the decision). Further, the Tribunal has both original jurisdiction and appellate jurisdiction.

The Committee recommends that appeals against decisions of MoEF or SEMA can be filed by an aggrieved person before an Appellate Board (comprising only of judicial and administrative members) within 45 days. An Application for Review against the decision of the Board can be filed before the National Green Tribunal. In effect, this takes away the process of merit review of environmental decisions by specialized courts altogether.

The HLC has recommended the setting up of special environmental courts at the district level. However, the recommendation contains a condition that a member of the public may file a complaint only after providing ‘credible evidence of his bona fides’. This puts an unnecessarily high burden of proof, not at the stage of adjudication, but at the stage of approaching the courts itself. The Committee also recommends penalties against persons found to be abusing the process – which could work as a double-edged sword, and could be used instead as an intimidation/deterrent for civil society participation.

HLC and Climate Change

Even though the commissioning Ministry was renamed to include the term “climate change”, the report contains no appreciation of the issue of climate change or global warming in any of its analysis or recommendations.

The HLC was expected to consider populations that are vulnerable due to climate change and also affected by destruction of environment. In fact the entire HLC report has nothing to do with people or affected populations, let alone identifying the vulnerable populations and giving affected people any effective say in environmental decision making process. Absence of such role for people is one of the key reasons for current environmental problems in India, as is apparent in many of the environmental and natural resources conflicts. The HLC not only ignores this, in fact its recommendations are aimed at further reducing say for the people by suggesting that public consultations can be done away with in most projects.

The HLC examines issues of dealing with forests (chapter 5), wildlife (chapter 6), biodiversity (chapters 5, 6 & 7), environmental governance (chapter 7) – all of which have implications for climate change. However, the recommendations of the HLC would in fact result in greater contribution to climate change and exposure to climate variability.

The HLC recommendations of include faster and single window clearances with advocacy for utmost good faith in the project developers; relaxing the environmental governance on several counts, for fast track clearances for mining, power, line projects and large number of other projects; recommending relaxation of public consultation process in most of the projects, for insulating the officials and the ministers (the executive) from environmental responsibility;  delaying the legal challenge process to clearances and also for debarring the legal challenge on merit.  These HLC recommendations will relax the environmental governance and hence invite greater environmental disaster and by implication, climate disaster for India.

In sum, the Report of the HLC is regressive, is aimed at dismantling the legal framework which exists for protection of environment. It  recommends for new law, Rules and procedures which is solely aimed at ensuring that environmental quality as well as peoples voice is silenced.

There can be no piecemeal acceptance of the report. The report deserves to be rejected.

Ritwick Dutta, Lawyers  Initiative For Forest and Environment

Debi Goenka, Conservation Action Trust

Manoj Mishra, Yamuna Jiye Abhiyan

Himanshu Thakkar , South Asian Network for Dams, Rivers and People

 END NOTES:

[1] 48A. Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country

[2] (para 1.42) of the 12th Five Year Plan

[3] The Supreme Court in T.N. Godavarman v. Union of India (1997) 1 SCC 267 wherein the  Supreme Court, recognizing the fact that forest as understood in the Forest (Conservation) Act, 1980 is limited to government forest land and  does not address the issue of forests that exist on areas that are not owned by Government, held that ‘forests must be understood in the dictionary sense of the term and must apply to all types of forests irrespective of ownership and classification’.

[4] Summary of FSI Report 2013:  http://fsi.nic.in/cover_2013/executive_summary.pdf

[5] Regarding mining in Goa; Delhi High Court, 2009 http://www.indiankanoon.org/doc/188721650/

[6] Himachal Pradesh High Court, CWP No.586 of 2010 and CWPIL No. 15 of 2009. Judgment dated 4-5-2012

[7]  Regarding Alfa Infra Prop Thermal Power Plant in Andhra Pradesh; National Green Tribunal, Appeal No 9 of 2011

[8]  Regarding Aranmula Airport, Kerala; National Green Tribunal, Appeal No 172 -174 of 2013

[9] Regarding the POSCO Steel plant; National Green Tribunal, Appeal No 8 of 2011, Judgment dated 30-3-2012

[10] It is pertinent to point out that the present EIA Notification, 2006 allows all persons to participate in the public consultation process.

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