NEW DELHI: After the Supreme Court ruling on Monday, it is now clear that India will soon have an independent environmental regulator.
What is less clear is whether this regulator will be a watchdog with teeth or without. In environmental circles, the news was received with some scepticism. "This is yet another instance where the problems of a faulty regulatory design are sought to be resolved by the creation of a new institutional structure," says environmentalist Kanchi Kohli.
Today, environmental governance in India is divided between the Centre and the state governments.
At the Centre , the ministry of environment and forests (MoEF) makes laws and clears large projects. Its counterparts at the state level clear smaller projects and oversee the state pollution control boards, which monitor compliance by units and handle some part of the clearances.
Overall, it is a system that has been found wanting. Projects clearances are riddled with delays — and graft. Speaking to ET on the condition of anonymity, a former environment minister had referred to the MoEF as an "ATM ministry". Further, as the Sunita Narain Committee report on the Adani Port and
SEZ Complex at Mundra shows, both monitoring and compliance can be poor.
The existing system of clearances is based on data provided by the project proponent. Further, the bodies that appraise the projects — the expert appraisal committee (EAC) at the Centre and its counterparts at the state level — are part-time bodies that meet periodically and whose members have tenures of a couple of years. This results in, as the SC notes in its judgment, a lack of continuity and "poor institutional memory".
As a result, companies suffer due to delays. And projects come up even in critical ecosystems due to poor scrutiny. For these reasons, an overhaul is needed. The MoEF has created autonomous bodies earlier too, like the National Tiger Conservation Authority (NTCA) and the National Environmental Appellate Authority.
"Most of the existing authorities have not functioned effectively because the MoEF is not interested in supporting them," says Geetanjoy Sahu, an assistant professor at the Tata Institute of Social Sciences, Mumbai. In Maharashtra, he adds, 800 proposals are pending before the state environmental impact assessment authority because appointments to it are delayed at the MoEF's end.
Given that environmental clearances can be a source of political rent, it is important to delink the new regulator - in aspects like staffing and funding — from political pressures. In an earlier draft note on the regulator, first proposed by Jairam Ramesh when he was the environment minister from 2009-11, it was suggested the regulator's chairperson be selected by the cabinet secretary, secretaries of the departments of personnel and training, science and technology, the MoEF, and two experts nominated by the Centre.
It was also proposed the regulator draw its funds not from the MoEF but directly from the Centre.
It is also unclear whether the new regulator will only appraise projects or also approve them. In its summation, theSupreme Court judgement says India needs a regulator that can appraise and approve projects, besides monitoring.
However, it instructs the ministry of environment and forests to set up a regulator "as directed in the case of Lafarge Umiam Mining".
In that judgment, however, the court had directed the Centre to set up a regulator that would only appraise projects besides ensuring compliance and punishing polluters.
A lot hinges on these definitions. Says Shibani Ghosh, an environmental lawyer: "If the regulator will only appraise projects, then we will end up with a structure very similar to what exists right now." The EACs, both at the Centre and the states, will be subsumed into the new regulator. As would the monitoring done by the MoEF's regional bodies.
On the other hand, if the power to approve projects itself moves to the regulator, then we go closer to what was proposed by Jairam Ramesh. In this model, the ministry will move away from regulatory functions to focus on policymaking. The regulator would handle approvals, monitoring and enforcement, with disputes being resolved by the green tribunals.
Under this arrangement, the implementing agency has an incentive to flag whenever laws are un-implementable, and the law-making agency can highlight poor implementation. The MoEF, in control of both functions, currently has no incentive to highlight weaknesses in laws.Time remains an issue. For example, the state pollution control boards, which monitor projects, are answerable to the state governments.
To make them answerable to the new regulator, laws will need to be amended. "For instance, the Parliament will have to amend the Water Act, which will then have to be adopted by the state governments," says Ghosh.
Similarly, adds Sahu, the relationship of the new regulator will to be defined vis-a-vis other existing institutions like the coastal regulation zone committees. This will take time. And the SC has given the Centre a deadline of March 31 to comply with its order.
Source : economictimes.indiatimes.com