States unhappy with centralised clearances

The Union Ministry of Environment and Forests (MoEF) on World Environment Day this year issued a statement that indicates its achievements. In full page advertisements in newspapers of 5 June 2006, one saw the mention of the re-engineering of environmental legislations as one highlight of the MoEF's work. One critical component of this re-engineering was the proposed revision to the Environment Impact Assessment (EIA) notification – the national regulation for environmental clearances in India. The draft EIA notification had opened for public comments on 15 September 2005, for a period of 60 days, until 14 November 2005.

The draft notification categorises industrial and development activities requiring environmental clearance into three categories A, B and A/B. Category A activities need clearances from central government and Category B from the state governments. (See sidebar for examples.) The third category, A/B is for activities that will first be screened and then designated as A or B. The proposed categorisation is also subject to some 'General Conditions'. The draft also demarcated various stages in the environmental clearance process, into screening, scoping, public consultation and appraisal. It proposed the setting up of new committees at state and central level to deal with clearance applications.

There was strong protest from civil society organisations to the September 2005 notification on grounds of both the process and content. In a letter dated 10 November 2005 to A Raja, Minister of Environment and Forests, 140 organisations and individuals said: "The reengineering process and the subsequent draft notification are guided almost entirely by recommendations of the Govindarajan Committee on Investment Reforms, constituted by the previous NDA government, and proposals made as part of the World Bank-funded Environmental Management Capacity Building Programme." They further charged that the Ministry's explicit and sole objective was to expedite clearance mechanisms to assist investors. "Environmental protection and public participation do not seem to be a priority at all," they wrote.

Perhaps the Ministry expected civil society uproar. But, what officials at the Ministry may not have expected was a rejection of this new draft by some of the state governments. Why and how so?

In November 2005, I filed an application with the MoEF under the Right to Information (RTI) Act, 2005 seeking a range of information related to the EIA re-engineering and the comments the Ministry had received. I had to appeal to the Central Information Commission (CIC) level and only after a directive from the CIC did the MoEF furnish information of over 2000 pages in May 2006! This information gave an insight into the comments received the by various sectors, state governments, construction companies, NGOs and industry on the proposed changes to rules in September 2005.

The first lot that I picked from the pile was the comments from state governments.

I reviewed comments made by 12 states; they included Sikkim, Himachal Pradesh, Tamilnadu, Punjab, Orissa, Maharashtra (State Pollution Control Boards), Chhattisgarh, Gujarat, West Bengal, Rajasthan (Mines Departments), Karnataka, and Arunachal Pradesh (Power Departments). The only state which lauded the MoEF for this proposed notification was West Bengal. Other state governments were actually critical of the notification draft, and in different degrees.

Six states strongly objected to the very essence of this notification. Broadly, the states of Himachal Pradesh, Tamilnadu, Punjab, Orissa and Chhatisgarh felt that the draft proposed by the MoEF did not achieve decentralisation and was against the principles of federalism. These states and others also felt that the newly proposed procedures only made the clearance process more cumbersome. They referred to the fact that the proposed draft added more stages to the clearance process, thereby adding to the turnaround time. Furthermore, for projects in the A/B category, an additional step was involved to resolve whether the clearance needed to be sought from the centre or state government. This would add more time to the overall process than it currently takes.

P Joy Oomen, Development Commissioner and Principal Secretary, Government of Chhattisgarh complained that that many of the projects which the draft slotted as needing environmental clearance from the centre are linked directly to the development process of the state itself, or have very little environmental impacts. "Many of the new cases included in the draft notification were not requiring environmental clearance earlier. It is felt that adherence to the provisions of EPA 1986 might suffice," he wrote. He pointed out that at best, the GoI could issue special guidelines on management of environment in most of the projects included in the schedule. "In this regard special mention may be made of residential and non residential construction projects, roads and highways, flyovers, bridges, industrial estates, mining and mineral based industries, hydroelectric power projects, coal washeries, coke oven plan, induction/ark/cupola furnaces, manufacture of lead acid batteries, common hazardous work treatment storage and disposal, etc."

The Chief Secretary, Government of Tamilnadu wrote that the revised EIA draft "is against principles of federalism and democratic decentralisation, and encroaches upon the power of the state government." The comment went further: "The procedures prescribed under the draft notification are lengthy and cumbersome."

S S Parmar, Chief Secretary, Government of Himachal Pradesh wrote that "EIA notification weighs heavily in favour of centralisation of EC process, which will delay the starting of the project." Parmar also wrote that the "role of central government should be to prescribe various environmental standards and rules under EPA which would be mandatory for state governments to adhere to before the grant of EC."

Here is a summary of the state governments' complaints I compiled from the comments obtained through the RTI application:

• The new draft reduces role of the state government and State Pollution Control Boards (SPCB). It does not achieve decentralisation. The states complained that the role of the SPCBs has been completely undermined in the new draft.

• The Chhatisgarh and Himachal Pradesh governments said that the environment clearance procedure should be handed over to state governments. This should go hand in hand with the centre playing a facilitating role providing specific guidelines for clearances.

• Most of the comments highlighted that the A/B Category should be completely removed, and if the categorisation needs to be done for state and centre level clearances, then category and A and B should be clearly defined. They meant that the third category A/B should be completely removed and those activities merged with A or B, which need to be defined more clearly. No need to go through an additional process of screening A/B category for fitting into either A or B.

• The states repeatedly highlighted that the proposed draft is too cumbersome and will not allow for quick clearances of development and industrial projects which is essential. They felt the there was a need to reduce time taken in every stage to expedite environmental clearances for projects in the interest of the development of the states.

• Most state governments felt that any state level regulatory authority proposed to be set up under the new draft notification should be done so by the state governments and not by the central government as is presently proposed.

• Some state governments felt that the General Conditions (GC) presented in to be either modified or dropped. For e.g. GC 1 states that any project in category B (state government clearance) will be treated as A/B (either state or centre) if it is within 10 kilometres of the boundary of an officially protected area, an identified critically polluted area, a notified eco-sensitive area or of an inter-state boundary.

• Some state governments also asked to look at the background documents based on which the MoEF proposed its re-engineering. This indicates that the Ministry had not shared those documents with the states.

• Some states felt that for modernisation and expansion projects that do not result in increased pollution, fresh clearance must not be required. They asked that this be built into the re-engineered notification.

It did become fairly clear after reading the comments in detail that state governments were not in favour of the prevailing centralised clearance regime.

However, while one might agree that decentralisation is important, the reasons for the states push to move more clearance to the states from the centre do raise alarm bells. Reading Chhatisgarh Principal Secretary P Joy Oomen's letter, the question that arises is this: Would it be in the interest of the environment if the clearance of these projects is simply handed over to the state government, especially when the state's top bureaucrat feels that they don't require going through a clearance procedure in the first place?

In fact, the states' comments raise the worry that state governments may even seek to expedite the process at the cost of the environment. Their stress on the line that certain activities are critical for the 'development' of the state is indicative of this. Given that, do we want state governments to have a complete say in environmental clearance?

Since the closure of comments last November, the Ministry of Environment and Forests has not yet issued an updated EIA notification. And after the reaction from the state governments, it is not clear how the MoEF intends addressing the conflicting concerns. After all, it is not just the civil society organisations that are upset with last year's draft, but the state governments who are to execute it are opposing it as well, even though their reasons might differ.