A new environment ministry rule may make clearances smoother, but raises fresh concerns

Until now, development projects proposed in protected areas, like wildlife sanctuaries or national parks, could seek forest and wildlife clearances simultaneously. But henceforth, they will have to follow a sequence: first, they will have to obtain a wildlife clearance and only then can they seek a forest clearance.

The decision was announced by the environment ministry through a letter on July 8, 2024.

Wildlife clearances are issued by the standing committee of the National Board of Wildlife, which is responsible for guiding the government’s decisions on matters related to wildlife conservation. Forest clearances, which must be procured by projects in protected areas, as well as those in areas that are not protected but are forested, are issued by the forest appraisal committee in a separate process.

Apart from these, projects must also procure an environmental clearance, which is issued by an expert appraisal committee.

Environmental experts have demanded some streamlining of the clearance process in the past. In 2014, the Centre for Science and Environment wrote that “multiplicity in the clearance/permitting process is a major problem that leads to poor decision making and also sustains unscrupulous activities”, and that a “holistic system” was needed to “integrate” permissions from pollution control boards, and environment, forest, and coastal clearances.

“In protected areas, prioritising the wildlife clearance is the right regulatory approach,” said Arpitha Kodiveri, an environmental lawyer and assistant professor at Vassar College, New York. Kodiveri explained that since the functions of the National Board of Wildlife require it to apply the highest level of scrutiny to proposals, if it performs its role with rigour and coherence, its findings could prove instructive to the other bodies also.

But she wondered if the new policy could “concentrate a lot of power in the hands of the wildlife boards”.

Further, Kanchi Kohli, an independent legal policy researcher, noted that the move did not appear to be aimed at improving the nature of the evaluation of projects that seek to operate in protected areas, but only to improve the efficiency of the process. “It seems to address the bureaucratic paperwork for the ministry and those who seek to use this land, and not the quality of the decision of a development project inside a protected area,” Kohli said.

The ministry’s reversal

The recent policy is a reversal of suggestions the ministry made earlier this year.

In January 2024, during a discussion about the construction of a road in the Rajaji Tiger Reserve in Uttarakhand, the standing committee of the National Board of Wildlife suggested that “unless a project proposal receives forest clearance, the same should not be placed before the Standing Committee for its consideration”. At the end of this discussion, the committee suggested that the environment ministry should “issue policy guidelines” on this matter.

In response, in March, the ministry issued a letter implementing this suggestion – it directed that all proposals that required a clearance from the wildlife board’s standing committee should first procure a forest clearance.

With the July 8 letter, the sequence stands reversed. Experts are not sure why this change was made. Kohli suggested that the reversal could be a reflection of the type of environmental landscape the ministry thinks needs to be prioritised for conservation.

“Within forest conservation, protected areas have for the longest time been given the maximum amount of protection, they have always been up in hierarchy,” said Kohli. “The letter in some ways reflects how the ministry is treating landscapes, and that the most important are protected areas.”

A current member of the National Board of Wildlife, who requested anonymity, also made the same guess about the reversal. “The decision seems to have arrived from internal decisions of the ministry,” the member said. “Maybe it is because the ministry wants to reiterate that in the protected area context, the wildlife clearance is the most important clearance, and if you do not get this, then why bother to get the rest.”

Kohli added that another reason for the ministry’s move could be that it was seeking to smoothen out parts of the clearance process which it thought had the most significant “roadblocks”. Its assumption, she said, is that “once that hindrance is addressed at the outset, the rest of the process would flow”.

The letter specifies that the sequence it lays down should be followed in two kinds of cases – one, if a project is located within a protected area, and second, if it is spread in such a way that it is located both within and outside a protected area. If the project is in an eco-sensitive zone, which is the area up to 10 km outside a protected area, wildlife and forest clearances can be obtained simultaneously, the letter says.

But some experts are unsure of the benefits of this sequencing because of what they see as the poor track record of the National Board of Wildlife. “Prima facie, the sequencing could make a difference if the standing committee was doing the job it was meant to be doing in line with the Wildlife Protection Act,” said MK Ranjitsinh, a former member of the board. As indications of problems with the board’s functioning, he cited the low numbers of proposals it rejected, the poor representation of non-governmental conservationists in the board’s standing committee, and the diminishing scrutiny of projects that are placed before the standing committee.

“The standing committee has become a project clearance committee, and so this sequencing just seems like another rubber stamp to show that a better structure is being made and to get greater acceptability in the eyes of the people,” he said.

The letter also sets out guidelines to avoid “fait accompli” situations – that is, situations when proponents start work on projects without getting the requisite clearances, and then argue that clearances should be granted since they have already made financial investments.

The letter specifically seeks to avert such situations in projects that are located on both protected and non-protected land. It states that in such projects, proponents can only be granted “in-principle” clearance to use land outside the protected areas, and that the final “stage II” clearance can only be granted if the standing committee clears the use of the protected area in question.

What happens to public consultations?

Experts are also concerned that the new sequence of approvals could negate the role of public consultations in the clearance process.

Of the three clearances, only an environment clearance requires a public consultation to be held. Under this process, persons affected by the proposed project are given a forum to raise any objections regarding the project; developers must address these concerns, and submit a final environmental impact assessment to the ministry for approval.

On the other hand, before a forest clearance is granted, under the guidelines of the amended Forest Conservation Act, 2023, the project proponent only has to “ensure fulfilment and compliance of the provisions of all other Acts and rules”, including those pertaining to the settlement of rights under the Forest Rights Act, 2006.

The process of granting wildlife clearances also does not entail any consultations with people who might be impacted by the upcoming project.

“In this new sequence, we do not know when the environmental clearance is happening,” said Kodiveri. “If the situation is that both wildlife and forest clearances are given, then it almost corners the community in consultations during the environmental clearance.” She added that giving primacy to the wildlife clearance could coerce people in what might be the last clearance to be approved, “instead of having a say from the get go of the process”.