Environment clearance as patronage

Environment clearance as patronage
The Economic Times, January 12, 2010, Page 21

STATES RESIST THE FORMATION OF NATIONAL ENVIRONMENT PROTECTION AUTHORITY

M RAJSHEKHAR

THE ENVIRONMENT MINISTRY WILL, IN THE coming monsoon session, place a Bill for creating the National Environment Protection Authority (Nepa), an authority modelled on the lines of the US Environmental Protection Agency. What is less clear is whether this body will be a powerful watchdog, or a toothless old hound.

Today, the ministry of environment and forests (MoEF) creates most of our environmental policies and implements some of them — it grants industrial clearances to large projects, for instance. The pollution control boards, at the Centre and at the states, enforce laws pertaining to some aspects of environmental management — they grant clearances for smaller projects, and tracking air and water quality.

For the most part, these roles have not been essayed very well: environmental laws are being diluted, their implementation has been weak, corruption is endemic, the MoEF and the pollution control boards are understaffed, and worse, it is unclear if this institutional arrangement is capable of adequately responding to emerging environmental challenges: climate change, polluted rivers, management of wastes, urbanisation.

In the new regime, the MoEF will move away from regulatory functions to focus on policymaking. Regulation, monitoring and enforcement of policies will be handled by the Nepa, and disputes will be resolved by the proposed National Green Tribunal.

There are advantages to such an overhaul. As K P Nyati, principal adviser to the Federation of Indian Mineral Industries, says, “There has to be a distinction between those who make laws and those who enforce laws.” Second, having separate institutions in charge of law-making and implementation creates better oversight. The implementing agency has an incentive to flag whenever laws are unimplementable, and the law-making agency can shout whenever implementation is poor. Today, as creator and implementer, the MoEF has no incentive to identify flaws.

For all that, it is hard to say what the Nepa will eventually look like. It may be recalled that the MoEF had uploaded a concept note on the Nepa on its website in September 2009. This note said the Nepa will be a statutory autonomous body, but was sketchy on the source of its autonomy, the relationship between the Nepa and the statelevel bodies, its funding, etc. Since then, the ministry has received inputs from industry bodies, environmental NGOs/thinktanks and others. Last November, it held a workshop with states’ environment secretaries and pollution control boards. And these three stakeholders have divergent views on the Nepa.

Industry bodies, for instance, insist that statelevel bodies like state pollution control boards (SPCB), state environment impact assessment authorities, state expert appraisal committees, coastal zone management authorities, etc, should report directly (and exclusively) to the Nepa. Not doing so, says Nyati, will result in companies still needing to visit multiple agencies for clearances.

State governments, on the other hand, bristle at the prospect of greater centralisation, questioning the need for creating a new institution. This will result in either duplication of responsibilities or in the transfer of responsibilities from the states to the Nepa which, apart from running counter to the larger trend of devolution of power to the states, will also result in opposition from political parties (environment clearances, etc, are a large source of rent for parties ruling at the state level). Instead, the states have suggested that the CPCB should be merged into the Nepa, that the Environmental Protection Act should be strengthened to permit SPCBs to impose penalties, and that the SPCBs should be left under the state governments.

A third set of reservations has been raised by civil society. The concept note describes the Nepa as a statutory autonomous body. One question, as environmental lawyer Ritwick Dutta says, is how this autonomy is guaranteed? Should the Nepa be a constitutional body? What should be its source of funding? How will its governing body be set up? The other question is whether such autonomous bodies even deliver. At this time, India has several autonomous bodies in environment alone — such as the National Tiger Conservation Authority and the National Environmental Appellate Authority — and none of them has delivered very good results. And so, whether we would not be better off investing in India’s understaffed, underfunded SPCBs?

In all, it is hard to say what form the Bill will acquire. That will be the outcome of hectic negotiations. For now, an MoEF team is slated to leave soon for the US to study the nuts and bolts of the Environment Protection Agency. Also, the ministry is in the process of identifying a consultant to develop an organisational design for the Nepa. Separately, it is working out the legal provisions within the government.

In all, the ministry expects to have a draft Cabinet note ready by April. The Bill itself should reach Parliament by August.