Opinion A murkier shade of green

I am speaking only of the environmental appraisal system under the environmental protection (EP) act,1986,and not of other regulatory processes also under the ministry of environment and forests (MoEF),for example,forest clearances,or coastal zone regulation,or the forest rights act (under the ministry of tribal affairs),which may also have legitimate claims to “licence raj” notoriety,but cannot be dealt with in a brief article.

Now for some basics: the environment is about life-support — water,air,soil,living things,and must not be trivialised. A Confucian saying notes that the entirety of human civilisation rests on six inches of topsoil,and the fact that it rains. Second,environmental resources and concerns are not generic,but extremely specific as regards time,place,and the nature of the activity. A polluting power plant near the Sunderbans will not have the same impact as an identical one in Jaisalmer,and must be dealt with differently. Third,mapping activities for their impact on natural systems and on human well-being and identifying mitigation measures involves multiple disciplines in physical,natural and social sciences and technology. For example,tracing the impact of cooling water discharges from a steel mill on aquatic creatures and consequent loss of catch to the local fisherfolk,involves considerable scientific knowledge. Finally,local communities who inevitably bear much of the adverse impact would need to be taken on board. They need to be given countervailing benefits,through transparent,fair interaction. These aspects do not lend themselves to a box-ticking exercise.

And so,environmental appraisal is conducted by an environmental impact analysis (EIA),typically a 400-500-page technical report,with a summary of principal concerns,findings,and remedial measures,intelligible to the intelligent layperson,and translated into the vernacular. The regulatory process involves independent expert appraisal of the impact analysis,including its environmental management plan,the record of the public hearing and acceptance or rejection by the designated authority.

The current environmental appraisal system has been in place since a 2006 notification (with several subsequent amendments based on experience). The earlier regime,dating from 1994,had several procedural and substantive flaws,and horror stories of clearances taking up to seven years. The 2006 replacement sought to address these.

What exactly were these flaws? First,the 1994 system created a wholly centralised regime — all projects requiring environmental appraisal had to be cleared by the MoEF at Delhi. Soon,the MoEF was overwhelmed with the volume of work,leading to long backlogs. The 2006 system created a two-tier system: projects with relatively modest potential impacts(Category B) to be cleared at state levels,but with qualifications of the expert appraisers notified and reviewed by the MoEF,and involving less comprehensive impact analyses. The designated state-level authority is strictly professional,not political,with qualifications notified by and acceptable to the MoEF. Projects with potential major impact (Category A),involving full environmental impact analyses are to be appraised at the Central level by independent experts,with the final decision to be taken by the MoEF. The 2006 notification furnished lists of such projects,based on their technological processes and scale. Projects in neither category were exempt from prior environmental clearance.

Second,an environmental impact analysis cannot address all the concerns of a project that might arise. It must confine itself to the most salient. Under the 1994 notification,the environmental impact analysis consultants could only guess at what the expert appraisers might consider these to be; frequently the appraisers identified more,or different,concerns. Moreover,the appraisers did not necessarily raise these concerns at one go; they did so piecemeal — so,back to the drawing board each time. The 2006 notification requires an initial interaction of the EIA consultants with the expert appraisers,based on a checklist listing the basic features of the project,and the local ecology,during which the final terms of reference are drawn up.

Third,under the 1994 system,public consultations were virtually open-ended. Local authorities were not accountable for prior information to be given to the community,or the time taken for the hearings,or recording the minutes. The 2006 notification specified the responsibilities of local authorities,clear timelines and alternative courses of action if public consultation was not carried out in time.

In the next stage,the environmental impact analysis,together with the public consultation report,is considered by the expert appraisal committee. Under the 1994 notification there was no bar on piecemeal queries from appraisers. The 2006 regime required all objections or clarifications to be sought in one go.

Finally,the 1994 system did not place a firm time limit on how long ministerial approval/rejection could take. The 2006 notification specified the time limit for ministerial decisions at the MoEF and so that theproject may proceed in terms of the appraisal committee recommendations if the decision is not forthcoming.

The 2006 notification evolved over a three-year process with stakeholder consultations at various stages,inputs from the World Bank on best practice,and finally,acceptance by the major industry associations. So why has the concern about licence permit raj arisen now?

The 2006 notification sought to strengthen the institutional basis and professionalise environmental regulation. However,whether this comes about or not depends upon those who work the system. Here,there have been several problems.

One,much of industry is still unaware of the nature of environmental regulation and considers it to be a trivial,check-list activity. They are unprepared,even surprised,when confronted with its actual due diligence requirements. The MoEF’s recent evangelism,hopefully,could be a wake-up call.

Two,the quality of environmental impact anaysis consultants in India is still very spotty,leading to poor quality analyses,and repeated interactions with the appraisers. This issue is being addressed through a process of quality accreditation. Rigidly sticking to the timelines in cases of poor quality impact analyses would mean that a majority of applications would be rejected outright.

Finally,the MoEF has clearly stepped outside the institutional framework in several significant cases,and based its decisions on apparently political,rather than scientific considerations,or the blandishments of activists. This is the true danger.

The writer is former secretary in the ministry of environment and forests