When 'good practices' turn ugly

The Ministry of Environment and Forests (MoEF) announced in May 2004 a so-called 'good practices' (GP) charter for its regulatory functions. The note covers Environmental Clearance, Forestry Clearance, Coastal Zone Regulation, Genetic Engineering Approval Committee and Animal Experimentation amongst others. The 'good practices' seem geared towards reducing project risk for the proponent in getting environmental clearance; this has raised many questions and doubts in the eyes of environmental policy watchers and other stakeholders.

The Ministry believes that 'good practices' are necessary "to remedy clearly perceived problems with the regulatory procedures", and in addition, MoEF has claimed that these new practices do not require amendments to the relevant statutes or regulations, "as long as they are consistent with the existing systems." 'Existing systems' refers to the current environment impact assessment (EIA) rules and regulations and the environmental clearance process. The clearance process involves the scoping of a project, preparation of EIA documents, public hearings, review of all this by the expert/review committees at the Ministry and then the final approval by the Cabinet Minister. See under 'What's New' in envfor.nic.in.

Let's take a closer look at a few of these 'good practices'.

First, the Ministry believes that routine delays in project approval occur due to the extra information sought by the MoEF staff before it is placed in front of the regulator or expert committee. In order to remedy this, MoEF has said that "the application should be reviewed in the first scheduled regulator/expert committee after it has been submitted and no information should be asked of the applicant which is not in the public domain, except that, which is specific to the proposal, and necessarily available with the applicant. When information is required which is not in the public domain, it will be the responsibility of the MoEF to obtain the same within a period of 60 days of the initial consideration, falling which the Regulator/Expert Committee will proceed to consider the case without any presumption adverse to the applicant". The Regulator/Expert Committee, or the Ministry must not at any subsequent stage seek further information from the applicant.

But the Ministry is ignoring one factor. Project proponents pay consultants to prepare environmental impact assessment reports. It is hard to imagine any consultant preparing a report indicating that the project is not viable, after being paid lakhs of rupees (1 lakh = 100,000). In nearly every case, the consultants try to interpret and tailor the information to provide their clients with a report that gives them their money's worth. This has led to EIA reports reflecting at best, impressive but doubtful mitigation measures that promise to nullify any adverse impact of the project, or at worst, presenting plagiarized, fraudulent and inadequate data. Several examples exist.

• Plagarization : Ernst and Young had entirely plagiarised the executive summary of the rapid EIA from another EIA prepared for the Tattihalla Augmentation Scheme of Karnataka Power Corporation Ltd. This came to light in a public hearing on the Dandeli dam project in Karnataka. The consulting firm had only replaced the cover page of the Tattihalla EIA with a cover page indicating that the report was that of the Dandeli dam project.
• Inadequate data : For an NMDC iron and steel plant in Chhatisgarh's Bastar district, consultants did not provide the sources for the data in the report; also though Russian technology was going to be used for the first time ever in the world, the consultants did not provide information on the technology on the grounds of it being patented.
• Questionable mitigation measures: The EIA report for the Teesta Phase III Hydro-electric project on Teesta river, West Bengal, in a landslide prone area.

Given this, should Ministry committees not question or ask for further information from project proponents on the basis of inadequacy of data? The emphasis on speedy clearance of the project rather than on obtaining transparent, scientific and adequate information is misplaced and is a damaging aspect of the 'good practices' charter.

Second, the GP charter also points out that "the current practice of holding up consideration of applicants till other regulators have given clearance is potentially a "Catch-22" situation for applicants. It is unnecessary (and presumptuous) of the MoEF or Regulator/Expert Committee to suppose that other regulators need their oversight. Accordingly, neither MoEF staff, nor the Regulator/Expert Committee may hold up consideration of applicants while other regulators are undertaking their own due diligence."

But a Ministry for Environment and Forests cannot consider forests and environmental issues as totally disconnected in granting its clearances. A project that comes for the clearance should be considered holistically, not on a sectoral approach. Under current laws, which the GP note seems to undermine, any project which involves 40 ha or more of forest land has to seek separate forest clearance. The Lambapur and Peddagattu Uranium mining proposed to divert 2000 hectares of land from the Rajiv Gandhi Tiger reserve, for example. The Lower Subansari hyro-electric Project is another. In many of these cases, project proponents use pressure tactics with government departments asking for full clearance merely because a part of the clearance has been granted to them.

Third, the charter also talks about giving opportunity to the applicant to present the proposal and respond to the queries in person. In rejecting an application, precise reasons for the rejection must be given in sufficient detail to enable the applicant, if s/he so wishes, to represent meaningfully against the same, it adds.

While this may sound reasonable, one may wonder why this treatment is being offered only to the project proponent and not to the other stakeholders, who may otherwise be equally affected by approval or rejection of the project. If it is important for the project proponent to know that why their project was rejected, it is equally important for the Ministry's officials to explain their response to the issues raised by the public for the purpose of granting or rejecting environmental clearance. This transparency would allow for all stakeholders to ascertain that the decision making process has considered the viewpoints of all the stakeholders, making the clearance process truly participatory.

Four, another point in the new charter is that no project can be rejected on the procedural grounds itself. Under current regulations, procedures include submitting the application in a given performa, attaching project reports to the application which include the EIA report, an environment management plan, and details of public hearings in a specified format, etc.

These procedures have been put in place purposefully. The EIA notification that governs clearances states that concealing factual data or submission of false, misleading data/reports, decisions or recommendation would lead to the project being rejected. But going by the GP note, it would even mean that not submitting any of these very important documents will not invite rejection of clearance.

And yet, the GP note talks about taking away the powers of the MoEF staff as well as the expert committees to seek further information, data, and clarifications from the project proponents. This is not only against the spirit of current regulations and law, but they are also not "good practices". It makes the rejection of any project almost impossible.

Five, what is missing from the GP note is this: the Ministry has modified regulatory procedures only for clearance while ignoring other equally important regulatory functions, such as information disclosure, public participation, pollution abatement and environmental health. Considering that, it looks as if the Ministry has already made up its mind to clear all developmental projects in future.

The GP charter talks about reducing the risk factor for the project proponent. By projecting a risk factor in the clearance process for the project proponent the Ministry is making a case for protection to proponents from being harassed by the MoEF staff, expert committees, and stakeholder NGOs, not against inefficiency in the clearance system. The GP note seems to want to provide safety nets, but watering down the clearance process is not protection. But submission of false or inadequate information or data may now be overlooked with the powers of MoEF staff and expert committees curtailed.

What is surprising is the manner in which an important process revision such as the GP charter has been announced. The charter has not been opened up for any comments or review. Its directives cannot be challenged by groups or individuals who don't consider them as 'good' practices, and therefore have no legal bearing. In addition, there is no obligation for the MoEF to publish this as a draft and seek public comments, which is otherwise mandatory for amendments to current environmental regulation and laws.

A year back the MoEF decided that not all projects require a comprehensive impact assessment and mere rapid assessments (rapid EIAs having one season's worth of data) would be sufficient. Such an important decision came just as an office order and not as any amendment to the EIA notification. It immediately became effective. This significance of this is that in practice, regional office staff of Ministry spread around the country take office orders such as these more seriously than even the laws and regulations.

But separate from the 'good practices' itself is another question. Why in a mere one year (2004) is the Ministry hastily coming up with a national environment policy, good environment practices, re-engineering the regulatory processes like environmental clearance and coastal zone regulation? By this and previous accounts, the new policies and practices seem aimed at easing the environmental norms for industrial development, instead of saving the environment.

It appears to this writer (as someone who has had experience with public hearings, the clearance process and stakeholder meetings) that all this harried work is aimed more towards compliance with the World Bank's “Environmental Management Capacity Building Technical Assistance Project,” than for protecting India's environment. The WB-MoEF project was due to be completed in June 2004, with a total project cost of 65.29 million USD. One of the outcomes sought is legal institutions for enhancing an investment climate favourable to a market economy. Despite its completion date of June this year, the status report of this project is still not available either with the MoEF or the Bank to see its impact, when so much money has been spent on it. Under its public disclosure policy, the WB usually makes status reports public on its website.

The Ministry's revamping and review of the legal regime has not led to making environmental protection more effective. The process has been diluted more often. The space available to communities, non profit groups and concerned citizens has shrunk; participation has been reduced to tokenism.