Legalised injustices: the reengineering of the environment regulatory framework in a neoliberal regime

One of the significant pillars of the environment regulatory framework in India is the system of approvals prescribed under the Environment Impact Assessment (EIA) Notification, 2006. It is here that the screening, scoping and appraisal of a range of industrial and infrastructure related projects for their environmental and social impacts is carried out before they received what is popularly called “environment clearances”. The process also includes a component of a public consultation which is where the draft reports of Environmental Impact Assessments prepared on behalf of the project authorities are presented before locally affected people to elicit their responses.

When the EIA process was first formalised in 1994, it was the first time that the system of ascertaining environmental impacts became a formal process within this decision-making for industrial expansion in India. Prior to this, the requirement for EIA was more in the form of good practice or preferred guidelines of different Government of India (GoI) departments, the Ministry of Water Resources being one of them. Over the next decade, the practice and implementation of this notification threw up several difficult and uncomfortable questions some of which remain integral regulatory discomfort in India.

Between 2004-2006, the Ministry of Environment and Forests (MoEF) which is the nodal ministry that implements this notification set into motion a process of reform of the environment clearance regime. However, the seeds of this process were sown way back in 1993 under the World Bank funded National Environment Action Plan (NEAP). What is important to note is that this was the same time that the Indian government had made substantial changes in its foreign trade policy and had opened itself to greater private sector investments in the fields of energy generation, agriculture, infrastructure development and so on.

Context and Background to the Reengineering

The NEAP project undertaken by the MoEF had 5 objectives including assessing the environment scene in India against the backdrop of the changing economic policies and programmes. This is alongside reviewing the current policies and programmes addressing various environmental problems of the country; identify the future direction and thrust of these policies and programmes; identify programmes and projects for a sustained flow of investment resources and for integrating environmental concerns into development projects; and finally to identify projects for organizational strengthening for better environmental management.

Following this, a more detailed project proposal made by the Ministry resulted in another Bank funded project called the Environment Management Capacity Building (EMCB) Project. This Technical Assistance Project between the World Bank’s International Development Agency (IDA) and the MoEF was approved in 1998. Slated to be completed by December 2002, the extended processes under the EMCB project went on till December 2004. The EMCB project was a step in the Bank’s assistance to the MoEF in implementing the NEAP. And for this, a diverse range of project components, that included research, training and procedural amendments were designed.

In April 2001, an important change was introduced to the EMCB project’s objectives. The review of the “Environment Assessment” was added to Development Credit Agreement. This had three focus areas including improving the screening, scoping, analysis of options, and clearance process for environmental assessments; improving the quality of EIAs; and improving project compliance through Environment Management Plans.

In order to carry out the reforms to the EIA notification and the environment clearance procedure prescribed therein, the MoEF commissioned ERM India Pvt. Ltd., a consultancy group, to carry out the review of the procedures. In May 2004, the MoEF announced a set of ‘Good Practices in Environmental Regulation’. But these were in reality only meant to address the concern of ‘delays’ in the process of grant of clearance to projects (such as the repeated requirement for additional information sought by the Ministry from the developers and delays in expert appraisal committee meetings). While the MoEF had identified that these delays affected the investors as their “applications remain under consideration for years, and are not decided upon till long after all the other regulatory requirements have been met, and after financial closure in case of investment projects”, it did not alongside state that the dismal quality and often, deliberately faulty information provided in the EIA reports was one of the main reasons for a protracted project clearance process.

The making of the EIA Notification 2006

On November 29, 2004, at a meeting with NGOs, the Ministry of Environment and Forests distributed a note titled ‘Reforms in grant of Environmental Clearances’ which clearly establishes the link between the EMCB project and the EIA review. It also gave reference to the Govindarajan committee report which was related to investment reforms in the country and had suggested that the EIA notification needs to be modified so as to reduce delays in grant in approvals because of which investments were being impacted.

While the participation of locally affected communities and civil society groups was met with resistance by the MoEF, several consultations were held with industry associations where this note and subsequent drafts of the notification were discussed. As per the Ministry’s own admission, consultations on the draft notification were held only with representatives of industry and central government agencies. A revised version of the draft notification was also shared with industry associations in mid 2006 before the final version was issued in September 2006. Specific instructions for this were given from the Prime Minister’s Office in India, which had been in support of the minimal regulation in the environmental decision-making around specific projects.

Despite protests from political party representatives the MoEF went ahead to issue a re-engineered EIA notification, 2006 on 14th September.

Operational changes in the re-engineered framework

The new EIA notification, 2006 sets into place a system that not just includes clearances at the central level (as earlier) but also in the states, by setting up of the State Environment Impact Assessment Authority (SEIAA). All projects being covered under this notification have been divided into Category A and B, supposedly based on their potential environmental impacts. Category A projects are to develop an EIA based on a Terms of Reference and presented to the MoEF. Category B projects are to be screened and further subdivided into B1 and B2, and the requirement of an EIA and public consultation being dispensed for B2 projects. The MoEF termed the categorization as being more scientific and systematic, but this claim is wholly facetious. A closer look at the notification and its process of implementation shows the loopholes and biases which are consistent with many dilutions that had have led to major exclusions, a retrograde public consultation process, and dilution of several norms which ensure that the regulatory framework is more facilitative than restrictive in nature.

For instance, Section 8 (vi) of the EIA notification relates to the possibility of rejecting an application for environment clearance when it is revealed there has been a deliberate concealment of information or when false/misleading data has been provided. In the 1994 version of the EIA notification this was a straightforward clause and the process of engineering has ensured that a decision for rejection will only be make after a project authority is allowed to make a presentation before the EAC (Expert Appraisal Committee) that scrutinizes the EIA and outcomes of the public consultation process before a decision is taken.

The reengineering process has led to some major exclusions in the kind of projects which would require to go through a full or part environment clearance process. For instance, the 2006 notification excludes all building and construction projects with less than 20,000 sq.mtrs built up area like several shopping malls and commercial complexes coming up in cities and towns. The ones above have a separate procedure by which the clearance can be sought based on a detailed form filled by a project developer after which it is appraised by an EAC at the state level. They donot require a full EIA or public consultation process.

The new notification has also completely changed the purpose of the public consultation. The 1994 notification did carry a notional view that the public hearing had a role to play in project decision- making. Today, the public hearing has been legally reduced to a forum where concerns of the “locally effected persons” are collected for finalization of the EIA report and not to influence decision-making. In fact, the process has insitutionalised the regressive practice of making public only a draft EIA report and not the final one which forms the basis of the decision-making.

Overall issues of environment regulation remain

The reengineering of the EIA regime did not deal with some core issues that limit the regulatory framework.

a) The new process outlined in the EIA notification fails to bring impact assessment studies upstream in the environmental decision making process. The criticism that the studies are incapable of influencing project siting, design and technology because of its location in the process of decision making, has been consistently made for two decades now. Decisions on project clearance are still not based on cumulative impacts, carrying capacity assessments of ecosystems, acceptable risk indicators and options assessments that embrace demand side management. Even if these studies are undertaken in few cases, these are done after granting clearance and remain unused in the clearance process of subsequent projects. They have also been used as ploys to bargain for approvals of an existing projects with an assurance that others near the same site or river basin will not be built over. Such assurances are never revisited.

b) Clearance procedures are now based on establishing quantitative values to ‘environmental services’ so that these ‘costs’ that may accrue from the loss of services may be internalized into projects. Such a system of determining the extent of environmental impacts draws attention to ethical questions about who has the power to give certain values to these services, are they only for the present or do they account for the importance of these services in future years, are services that are attached to non-material uses such as aesthetics and culture computed for, and many others. This ‘polluter pays’ principle is based only on an arbitrary valuation based on the expert’s notion of the importance and function of a resource.

c) The spate of reforms has brought in an unprecedented shift to less protection and more management and mitigation setting aside the precautionary principle altogether. This opens the doors to projects even with substantial impacts based on feeble claims by project proponents that impacts can be ‘managed’. It needs to be borne in mind that mitigation is the foremost form of a safeguard mechanism that the Bank has promoted and most project authorities would welcome as the face of their environmental responsibility. Several Environment Management Plans submitted at the time of grant of clearance contain mitigation measures that developers propose to adopt. These are either inadequate or then impossible to achieve. Moreover, many projects are now granted approval based on clearly articulated and “weighty strategic and economic reasons.” At best, precaution is reduced to a list of additional conditions, compliance of which remains a insurmountable task.

It can be said that legal framework for bringing in greater efficiency in environmental clearances has been achieved through a series of undemocratic processes. Impacts of these policies have been felt on the ground for long, and are today being amplified in many local contexts. More than ever before, today, the establishment of development projects is marked by violence and stiff resistance. Despite detailed critiques presented against the viability of projects, expert committees and the MoEF go ahead with approvals. Along with being told that policies and processes are being made more scientific, a staggering number of projects which cause irreversible impacts on a large number of forests, wetlands and coastal areas are being permitted. The science of environment management is used to justify these losses.