Path-breaking but should not be a missed opportunity

Subramanian Panel and the proposed environmental regulator

mukul

Mukul Sanwal | December 3, 2014



The Subramanian Panel has made some path-breaking recommendations, but, unfortunately, has not followed the sound dictum of ‘maximum governance, minimum government’, and the work of new regulator should draw upon those recommendations.

For example, recognise the potential of the digital transformation by providing clarity on the facts in resolving the inherent tensions between the administrative political and judicial roles.

The reliance on technology, self-declaration by industry and strict punishment for incorrect data are game-changers, but the potential of this strategic shift remains unexploited. On fast-tracking of infrastructure projects the Panel has not delved into the complexities of our forest laws and why matters end up in the courts. We do not need new legislation, administrative structures and district courts because whatever has been suggested can be implemented under the current Environment Protection Act.

The objective should be to reduce bureaucracy and the environmental regulator should have a recommending and review rather than operational role.

The suggestion of new funds treats clearances as a revenue-raising exercise whereas it would suffice to ensure the monitoring, review and restoration is paid for by the industry.

Even for compensatory afforestation, an alternative is to encourage the private and social sectors to establish and maintain ‘tree banks’ along the catchment of hydro projects, for example, in which project proponents purchase shares.

There are also five specific concerns at the policy-implementation interface.

First, the Panel has recognised the environment-development linkage but has not clarified how this would be implemented for projects. The experts are currently required to take an environmental perspective, or ‘risk management’ approach, which is open-ended and subjective. They should really be taking a sustainable development perspective to ‘minimise damage’. Then their recommendations would be specific and subject to monitoring, instead of the common ‘lists’ that are now routinely attached to clearances.

Second, delays in clearing projects primarily relate to their location in forest areas. The issue with forests is not the lack of a clear ‘definition’, as the Panel concludes, but the National Forest Policy of 1988 (which is being reviewed). “Its principal aim is to ensure environmental stability and maintenance of ecological balance, the derivation of direct economic benefit must be subordinated to this principal aim,” the earlier policy of 1952 had recognised “balanced and complementary land use”. The current policy does not recognise infrastructure projects as a legitimate land use opening the door for the courts to intervene despite administrative ‘fast-tracking’.

The related problem is that the Panel has also lumped together protected areas, which are demarcated following a prescribed procedure area with 70% canopy cover and eco-sensitive zones around protected areas as ‘no go’ areas, which are declared through executive action.

This demarcation must be done on a priority basis for transparency along with the settlement of community rights of tribal communities to protect this common property resource. This would avoid unnecessary resentment, law and order problems and PIL cases.

Third, implementation could be streamlined extending the concept of ‘self-declaration’ by industry to post-approval scrutiny of the data. The regulator should obtain written comments from domain experts on the specific issue of additional steps to further reduce damage to the environment and for its restoration along with the additional costs rather than having domain experts as members.

Its recommendation should go to the minister because approvals require judgements to be made between conflicting perspectives for which the elected minister must take responsibility: this is what happens in other countries.

Fourth, reliance on technology should lead to enforcement by exception, doing away with the need for the army of traditional inspectors while improving transparency and accountability by providing public access to data.

The regulator should suggest a strategic plan to target enforcement to the most significant pollution problems. For example, not focus on air pollution in general; most of it is caused by vehicles but on toxic emissions. We could also learn from the experience of the US EPA, where some 200 specially-trained agents, 70 forensic scientists and technicians and 45 prosecutors are responsible for civil and criminal enforcement based on computer evidence retrieval and evaluation. They could function under the proposed regulator. The Environment Protection Act that we already have allows the central government to do this.

Fifth, the impact of air, water and hazardous waste depend on the technology used in the plant; their characteristics are known and could be measured by automatic monitoring devices and results transmitted to centralised centres for review. Clearance is given to ‘projects’ because in addition, they change the land use, which could now be determined by cadastral maps and GPS coordinates, and requires restoration, which could be monitored by satellites. Instead of a new bureaucracy, IIT’s and other technical institutes could be funded to establish programmes on environmental management with reconciling and analysis of this data a part of their research work, providing reports to the environmental regulator.

Six, do the “current requirements and objectives” really need a National Green Tribunal, with the authority to issue directions?

Or, in accordance with our constitutional framework, we now need to supplement the ‘performance audit’ by the CAG with an adequate component of staff to prepare an annual report to be discussed in parliament and in the state legislatures, assessing the reporting, monitoring and enforcement work at the central and state levels. The focus should be on removing the policy and implementation gaps and inconsistencies rather than adding additional layers of decision-making that deal with the symptoms and not the causes of the problems.     

The Panel’s new strategic direction relying on digital technology must now be integrated into the work of the proposed regulator to respond to the needs of industrialisation and infrastructure development while minimising bureaucracy and maximising transparency. That would be the optimum policy to balance competing needs and perspectives.
 

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