By Rohit Prajapati and Krishnakant*
The BJP’s Election 2014 Manifesto categorically assured the industrialists that policies to promote industrial growth will take precedence over those that ensure environmental protection. This is consistent with the “Gujarat Model of Development,” which led Gujarat State to become number one in pollution. To make operational this commitment to industrialists, on 29 August 2014 the Modi Government appointed the T.S.R. Subramanian committee to review six environmental laws. Officially known as the “High-Level Committee constituted for review of Environment and Forests Laws,” the committee was tasked with submitting an exhaustive appraisal of six environmental laws to the Ministry of Environment, Forest & Climate Change (MoEF&CC) within two months, with subsequent a one month extension. The specific laws were:  The Environment (Protection) Act, 1986,  The Forest (Conservation) Act, 1980;  The Wildlife (Protection) Act, 1972;  The Water (Prevention and Control of Pollution) Act, 1974;  The Air (Prevention and Control of Pollution) Act, 1981;  The Indian Forest Act, 1927.
In spite of the impossibly short time frame, surprisingly the committee submitted a report with detailed recommendations to develop a totally new structure of NEMA (National Environment Management Authority) and SEMA (State Environment Management Authority) to replace the Central Pollution Control Board & State Pollution Control Boards. The Committee also proposed a new umbrella law ‘The Environmental Laws (Management) Act, 2014’ (ELMA). The name “NEMA”, “SEMA” & “ELMA” clearly indicates that the committee is interested in “Management of Environment” and not in “Protection of Environment”. This committee dealt not only with the six laws under review but also suggested some fundamental changes in two other laws,  The Forest Right Act, 2006 and  The National Green Tribunal Act, 2010. It appears that the committee particularly scrutinized environment-related laws which have been effectively used by the people to protect the environment.
The committee was expected to read, discuss and review 1. the laws and various notification, amendments and circular issued under these laws, 2. land mark judgements of courts on Environment Laws of the Indian Courts and courts of advance countries, 3. status of environment of the country, and public consultation with various concerned state authorities, mainly the industrial associations across the country and with the people and people’s organisations. Yet, during one instance of a public consultation in Bangalore, the committee chose to walk out of the consultation rather than engage in a discussion when people’s organisations raised fundamental questions regarding terms of reference of the committee and various other issues. Actually there was no serious consultation across the country organised by the committee to deliberately avoid the real feedback on the concerned issues by people’s movements and affected people.
It is also surprising for us that a former Cabinet Secretary, Government of India, Former Secretary to Government of India, a former Judge of the Delhi High Court, a senior Advocate of Supreme Court of India, a Joint Secretary of MoEF&CC of Government of India and Member-Secretary of Gujarat Pollution Control Board felt confident and competent to do the task within three months without a proper consultation across the country and to propose new laws and new structures to “implement” the law.
The committee at many places describes its “concern” about the status of environment, but in practise made explicit suggestions to give free hand to the polluting industries and eliminate their legal accountability to the land, environment and the people.
The committee’s preamble gives the impression that it is truly committed to protecting the environment and is fully aware of the need to address loopholes in the present laws, implementing authorities and mechanisms. The substance of their suggestions and recommendations, however, demonstrate that the committee has not attempted to plug loopholes but instead creates more loopholes or give complete freedom to industries by making them unaccountable to laws, nature and people.
In para 1.3, 1.4 & 1.5 the words “flabby decision-making processes”, “waves of large scale ‘clearances’, coupled with major delays in approvals in individual cases”, “Judicial pronouncements frequently have supplanted legislative powers, and are occupying the main executive space” imply that these were the real worries of the committee. And that is why the committee mainly focused on delay in environment clearance approval, decision making process and judicial pronouncement against the concerned authorities and industrial projects while giving the recommendations to get rid off these “major hurdles” of the industries across the country.
In the executive summary the committee’s other similar main concerns are expressed in clear words in para 3, 5, & 8 ‘Protected Areas’ which should not be disturbed except in exceptional circumstances, and that too only with the prior approval of the Union Cabinet; A ‘fast track’ procedure for ‘linear’ projects, the concept of utmost good faith.” In the name of “utmost good faith” the committee wants to give more ‘freehand’ to the industries rather than making them more accountable to laws and environment. The word ‘linear project’ is so widely define by the state that they can include many more projects in that list as when they wish. As a solution to implement these ideas the committee suggests new authorities call National Environmental Management Authority (NEMA) at the Centre, State Environmental Management Authority (SEMA) at the state level and a new law the ELMA.
In chapter 3 of the introduction, the Isha Upanishad is quoted: “Everything in the universe belongs to the Supreme God. Therefore, take only what you need, that is set aside for you. Do not take anything else for you do not know to whom it belongs.” We do not know what the committee means by “take only what you need, that is set aside for you.” Who will decide “set aside for you” in this capitalist world?
While the committee quotes the miserable state of the environment throughout the report, the committee’s recommendations are more concerned with delaying development projects due to environmental protection laws. Removing these “delays” remains their main focus in their analysis of the problems and all major suggestion made by them in terms of new authorities and the new law the ELMA.
The real intention, perspective and understanding of the committee are reflected in the chapter 4: Approach & Methodology. In para 4 (b) & 4.7 the word like ‘transparency in the context of providing approvals and clearances’ and ‘single window’ remain their main concerns and they are not worried at all about the transparency in project clearance process for the project affected people. Thus their consistent concerns for the ‘speedy project clearance’ with ‘single window’ system remain intact.
In chapter 5, the committee’s attitude to forest issues becomes clear. Protecting and nurturing the forest is not the main concern, but streamlining the process for forestry clearance is. And that is why the committee recommended that “FR Act needs amendment to consider removal of the condition of Gram Sabha approval.”
The committee promotes project proponents to simply ‘pay and use the forest land,’ which, if history is to be a lesson for the future, spells disaster for the nation’s forests. Under the committee’s vision outline in 5.12, project proponents have no responsibility towards ensuring afforesation as long as they put forth cash, “leaving the project proponent to focus on his project.”
One of main concerns of the committee to talk about this is to allow the project like ‘Shabri Kumbh’ in the Dang Distinct of Gujarat where government is facing the problem because of intervention application in the Supreme Court.
In the chapter 7 on Environment Governance the committee speaks out its real commitment for the corporate houses. The primary goal: “making doing business easier in this country.” In para 7.1, the committee makes it clear that their main concern is delay in approval process and transparency for the industries and for that they argues that in present system that whereas most projects sooner or later obtain approval; one analysis indeed indicated that the percentage of approved projects works out to 99.1% – clearly the focus is not on substance and that is why short-cut, fast-track “transparent mechanism” is a need of the day for the industries.
The committee states that the current administrative structure suffers from infirmities, inconsistencies, inefficiencies, and non-accountable institutions, and consequently suggests a more industry-friendly administrative structure which will benefit industries with a single window clearance system.
The committee proposes a national level authority called NEMA, which will have a full-time Board, with a maximum strength of 15 with the Chairperson of the rank of Additional Secretary in the Government of India. It was expected that the chairperson of the committee should be a technical expert but the committee’s main concern is speedy, single window, fast track environment clearance with the administrative structure which is accountable to industries’ need and greed.
The committee proposes other authorities at the state-level, called SEMA, that shall consist of a full-time Chairman and maximum 15 members; five of whom shall be ex-officio, to be nominated by the State Government; the remaining to be full-time professionals, with expertise and experience in various aspects of environmental management having the Chairman with administrative experience at least of 25 years. So now it is very clear that the state-level chairman will also be a non-technical person. At the national and state levels, the committee proposes an administrative structure that provides a speedy, single window, fast track environment clearance that is accountable to industry’s need and greed.
It is shocking to note that the Chairman and Members, other than ex-officio Members of SEMA shall be appointed by MoEF&CC, based on recommendations of the State Government concerned. That means there will be oversight of states; bureaucratic cronyism may thrive unchecked.
The committee recommends that the Union Government shall have the powers to give directions to NEMA and SEMA in the matters of project clearances and all such directions shall be binding on NEMA and SEMA. In this way, the Union Government is the final authority; NEMA & SEMA are merely formal structure to facilitate the speedy environment clearance deemed fit by the Union Government.
The Environment Impact Assessment (EIA) of the projects are to be evaluated within 10 days, a timeframe so short that it will lead to haste in review rather than proper scrutiny. Shockingly, the project proponent – rather than an external and objective agency – will develop the EIA/EMP on model Terms Of Reference (TOR). Most past EIAs submitted by project proponents across the country reflect industry’s myth that ‘all is well,’ although it is well accepted by the committee and most external accounts that environment degradation is rampant.
The committee sought to restrict participation of people in Environmental Public Hearing. And that is why committee suggested that a mechanism should be put in place to ensure that only “genuine local participation” is permitted. The committee has sought to restrict even this “genuine local participation” by limiting local interventions to issues like environmental, rehabilitation and resettlement. This suggestion clearly indicates the committee wants to strictly restrict the people’s participation in general and the participation of NGOs, and People’s Organisations, whose assistance is required to the people because scrutiny of EIA need specially trained expertise. Thus ensuring that the polluters are given a lose rope and the affected communities are tied down and deprived of expert assistance.
The vision outlined is a commitment to industries clearly reflected in their suggestion that NEMA should submit its final recommendations to either grant (with conditions) or reject (with reasons) within two months to the MoEF&CC; on which a final decision normally would be taken within 15 days by MoEF&CC – in case of rejection, with reasons thereof. Similarly, SEMA to decide the matters within two months and the Chairperson of NEMA/ SEMA, as the case may be, would be accountable for adherence to the timelines. It is understandable why committee has failed to come up with such timelines and accountabilities of the concern authorities for people’s complain because the committee’s main concerned is industries and not people and environment.
The committee wants to make ‘doing business easier in the country’ and that is why it recommends a revised project approval process with a ‘single window’ unified, streamlined, purposeful, time-bound procedures. In suggesting time-bound procedures, the committee’s main concern is “paper work” rather than genuine scrutiny of the projects’ impact on environment.
As if the previous suggested structure were not enough, the committee further suggests that a separate fast-track mechanism should be laid down by NEMA/ SEMA for approval of linear projects. And that is why in the name of special treatment for “linear projects”, power/ mining sector and strategic border projects that the provisions of the Forest Right Act, 2006 which make it mandatory to seek the approval of Gram Sabha should be amended. The committee has not just reviewed the six environmental laws at issue but also suggested amendments in other laws also. The artificial justification of “national importance” is used by the committee for a fast-track clearance mechanism. For this committee and the government, “National Importance” equates ‘GDP’ generating, regardless of the externalities for the environment or the people’s health.
The committee wants to bring the concept of voluntary self-disclosure on compliance to avoid the routine monitoring for the compliance of the environment laws and terms and condition given in the environment clearance. What a great freehand to industries to build up making doing business easier environment in the country.
The committee, in the name of the concept of ‘utmost good faith’ has got legal recognition under the English Common law during the 18th Century – eventually to be made part of statutes, wants to trust the industries and also wants to give them free hand to do their business as usual.
The committee suggests a new law called ‘The Environmental laws (Management) Act, 2014 (ELMA) which reaches the heart, not just provides the need but also the greed of the industrialist.
The committee recommends a procedure for appeals by creation of an Appellate Tribunal and sought to limit the judicial power of the National Green Tribunals (NGT) to scrutinise the entire project. Instead, under ELMA, NGT will have a more restricted judicial review role. Again, the committee recommendations are beyond the terms of reference to review only six environmental laws, and in doing so, they attempted to curtail the power of important exclusive judicial mechanism for the issues of environment, such as the NGT.
To undo the existing avenues for recourse through legal intervention achieved by the environmental movement, ELMA shall prevail over anything to the contrary contained in any judgment or order of any court or tribunal and other enactments including the environmental laws dealt with under this Act. With a single recommendation, the committee sought to take away all major rights available to the people in protecting the environment.
The committee talks about environmental Remediation of polluted sites by public-private partnerships (PPP). This is a clear dilution of, and ethically contrary to, the “Polluter Pays” principle which Supreme Court of India has maintained until now.
The committee gives lip service on the issue Municipal Solid Waste. Instead of recommending the regularisation of the Rag-pickers the committee clearly suggest that Rag-pickers and the informal contractual system operational in urban areas should be integrated in solid waste handling system.
The committee would have noted some basic facts revealed in the ‘Report of the Task Force on Waste to Energy’ dated 12 May 2014 by the Planning Commission of India. This report states “As per CPCB report 2012 – 13 municipal areas in the country generate 1,33,760 metric tonnes per day of MSW, of which only 91,152 TPD waste is collected and 25,884 TPD treated.”
The report further states, “Further, if the current 62 million tonnes annual generation of MSW continues to be dumped without treatment; it will need 3,40,000 cubic meter of landfill space everyday (1240 hectare per year). Considering the projected waste generation of 165 million tonnes by 2031, the requirement of land for setting up landfill for 20 years (considering 10 meter high waste pile) could be as high as 66 thousand hectares of precious land, which our country cannot afford to waste.”
This waste generation figure covers only 31.15% population of India. Considering the waste generation figures of all of India, these figures will be even more daunting. The Planning Commission of India’s report further states “A study, of the status of implementation of the MSW Rules 2000 by the mandated deadline by the States, was carried out in class 1 cities of the country. It revealed that in 128 cities except for street sweeping and transportation, compliance was less than 50% and in respect of disposal compliance was a dismal 1.4 %.” What about the government’s major role in policy making for the reduction of waste and implementation of ‘The Municipal Solid Wastes (Management and Handling) Rules 2000’? The track record in the implementation of these rules in the “Model State” Gujarat is worst.
The committee has completely ignored the deterioration of rivers/rivulets and other water bodies around the industrial, urbanised and semi-urbanised areas.
The committee also feigns concern about Genetically Modified (GM) crops, but clarifies its real stand by stating that this is not to argue that use of science or technology should be limited; more to highlight the fact that appropriate caution needs to be taken. The committee by stating this clearly giving indication that GM crops are not a major issue for them.
The committee shows partiality for mining project by arguing in the name of “national importance” by suggesting special cell for its speedy environment clearance. These mining projects are known for large-scale displacement, soil, air, and water contamination.
The committee surprisingly suggests ‘financial incentives’ to the industries for its compliance.
The committee has completely ignored and decided not to incorporate into their report how to address several critically polluted areas. The process of indexing critically polluted areas was initiated in 1989 and sustained by consistent efforts by the pollution-affected people, people’s organisations and NGOs regarding the increasing pollution levels in the industrial areas of India had forced the Central Pollution Control Board (CPCB) and the State Pollution Control Boards (SPCBs) to act. At that time 24 industrial areas including Vapi, Ankleshwar, Ludhiana etc. were declared ‘critically polluted’.
Thereafter, in several meetings of CPCB and SPCBs serious debates on the pollution status of these areas were undertaken. Even after formulation of ‘action plans’ for the said industrial areas no substantial or qualitative change was observed in these industrial areas. For this reason, in 2009 the CPCB and IIT-Delhi, in consistence with the demands of the people’s organisation’s working on environmental issues decided to use a new method of ‘indexing the pollution levels’ of these areas, which is now known as the ‘Comprehensive Environmental Pollution Index’ (CEPI). The CEPI includes air, water, land pollution and health risks to the people living in the area. However, our demand has been to include the health of the workers, productivity of land and quality of food / agriculture produce in the index since the presence of high levels of chemicals and heavy metals in food produce has severe health implications. This is affecting not only people living around the industrial area but anyone consuming it – hence not restricting the impact to the particular industrial area.
As per the agreed upon measures, industrial areas with a CEPI of 70 and above are considered ‘critically polluted’ areas while those with a CEPI between 60-70 are considered ‘severely polluted’ areas. In our opinion, those industrial areas with CEPI between 40-60 also ought to be labelled as ‘polluted areas’.
In December 2009 the CEPI of 88 polluted industrial estates was measured; it was then that the CPCB and the Ministry of Environment and Forest (MoEF) of Government of India were forced to declare 43 of those as ‘critically polluted areas’ and another 32 industrial areas as ‘severely polluted’ areas. Following this study the MoEF on 13 January 2010 was forced to issue a moratorium (prohibition on opening new industries and/or increasing the production capacity of the existing industries) on the 43 critically polluted areas. At that time, many people’s movement and environment groups had asked for a moratorium on all the 75 (43+32) polluting areas, but the powerful industrial lobby and state governments working in tandem prevailed. The murky politics and economics of ‘GDP growth’ prevailed over the cause of ‘life and livelihood’ of ordinary people and ‘environment & conservation.
In 2009, the Ankleswar’s industrial area of Gujarat, with 88.50 CEPI, topped the list of ‘critically polluted areas’ of India.
In 2011 and 2013, Vapi industrial area of Gujarat topped this list.
Thus Gujarat continues to top in 2009 in ‘critically polluted areas’ in India and maintains its position in 2011 & 2013.
The recommendations of the committee are going to deteriorate the environmental condition further of these industrial clusters and there is chance that more such industrial cluster will join this list.
In the Chapter 10 summary of recommendations, the committee again reiterates its support of categorically amending the Forest Right Act, 2006 to remove the pre-conditions of Gram Sabha approval for so-called linear projects; revamping the project clearance/ approval process to follow a single window, time-bound environment clearance system that caters to the needs of industrialists over the environment; creating a new ‘umbrella’ law – The Environmental laws (Management) Act, 2014 (ELMA) – to enable creation of the totally new institutions NEMA and SEMA in place of CPCB & SPCBs, and instituting the concept of ‘utmost good faith’ as the guiding principal in environment protection under the guise of getting rid of the ‘inspector raj’; and restricting the role of NGT to just Judicial Review, the modifying the EIA notification, etc. for the industries to built up making doing business easier environment in the country.
The ‘high-speed’ committee has given what corporate houses were asking consistently before the election from the new government and what was promised broadly in BJP Manifesto. Now it is crystal clear that for ‘Modi Government’ the word ‘Environment’ means only “Environment For Investment”.