Its recommendations could change the landscape of the country for years to come. It has begun with a contention that has left environmental groups disquieted: the committee has expressed "utmost faith" in Indian industry, declaring that businessmen are responsible enough to declare, in full measure, the impact of the projects on the environment at the time of seeking government approval for a project.
The committee, headed by former cabinet secretary TSR Subramanian, was asked by the Ministry of Environment, Forest and Climate Change to review laws on environment and climate change – specifically the Environment (Protection) Act, the Forest (Conservation) Act, the Wildlife (Protection) Act, the Water (Prevention and Control of Pollution) Act, and the Air (Prevention and Control of Pollution) Act. After a little more than two months and a couple of public consultation meetings, the committee submitted has submitted a report that puts under scrutiny many environmental regulations, including the Forest Rights Act and the role of the National Green Tribunal.
A major thrust of the report is to consolidate all environment-related clearances into a “single window”. This has been a long-standing demand from corporate India. Jayanti Natarajan had promised a single-window mechanism for large projects during her tenure as environment minister in the United Progressive Alliance regime. The National Green Tribunal chairperson, Justice Swatanter Kumar, has endorsed the idea. Most importantly, the Bharatiya Janata Party promised in its 2014 Lok Sabha election manifesto that “our attempt will be to move towards a single-window system of clearances both at the centre and also at the State level”.
The committee has gone a step further to clear green hurdles from the path of Indian industry. It has recommended a system by which a company will state, in its initial application, details of its procedure, what effluents will be released and how it plans to clean them up, and what the final quality of water or air released will be. All this information is expected to be made in "utmost good faith" and such self-certification will be accepted by government authorities.
The new system, the report says, will cut out the "inspector raj" – a regime of physical checks that is thought to give government inspectors opportunity to seek bribes. The panel would rather take a company’s word – supported by technologies like GIS and satellite imagery of project sites – than send in a government or third-party monitor to verify the claims in its application.
The report borrows the concept of "utmost good faith" from an insurance industry doctrine which reasons that a person applying for life insurance knows his medical conditions best and is obliged to disclose all relevant information. The Subramanian panel applies the same logic to other industries, some say mistakenly. While a company might best know its building and manufacturing processes, is it equipped to assess the full impact of its projects on the environment? Will it actually reveal all such information that might be used against it?
Pushp Jain, director of the EIA Resource and Response Centre that analyses environmental clearance procedures and governance, says that the Indian experience indicates otherwise. Many companies tend to suppress details to get through the system and be awarded the highly-prized clearance. “A project proponent prepares the documents and makes presentations before the Expert Appraisal Committee,” Jain asserted. "f you look at the minutes of these meetings, there is no way of independent review of the facts and figures and statements made."
Not so straightforward
Many environmental researchers, lawyers and activists are sceptical of the Subramanian panel’s trust-based recommendation. Many point to the Bhopal gas disaster and the lack of justice 30 years after the disaster to illustrate how miserably that faith has been breached in India and how long deadly offences go unpunished. Others list more recent transgressions of environmental laws.
The Bangalore-based Environment Support Group conducted an analysis last year for the Karnataka government of compliance among 470 industrial projects in the state. In their site visits to at least 10% of these projects, the group found many facilities operating without licences. In some cases, project managers were unaware of the clearances required, reports researcher Bhargavi Rao. Many companies, large and small, were found to be wilfully misrepresenting facts. For example, a bus-making facility of a large company was operating under a licence for truck-manufacturing. To obtain this licence the company would have under-represented, in its application for environmental clearance, the amount of material needed, water consumed and pollution generated.
“Given that these come under small-scale clearances at the state level, you can imagine what big lies will happen at the central stage where there are big power plants or mining projects,” Rao said.
The current environmental regime puts some onus on industry by encouraging it to monitor pollution from its operations itself and report the data to the government. Last February, the Central Pollution Control Board issued orders to 17 highly polluting industries to install sensors in air and water outlets that would relay real-time data back to their respective State Pollution Control Boards. However, the Economic Times reported, there is widespread tampering of the monitoring instruments for fear of stiff penalties imposed on these highly polluting facilities.
A system of penalties
"Utmost good faith" is only one side of the coin, TSR Subramanian asserted when speaking with Scroll.in. The flipside of that coin, he said, was serious consequences for breach of faith. The committee suggests that in case of a violation the offending company can be asked to pay a spot fine. In addition, it may have to pay a deposit of more than twice the amount needed to repair the environmental damage it has caused. If the project continues to violate environmental norms, its clearance can be revoked. The final step, the report says, is that "the project proponent may be liable for punitive or preventive action permissible in respect of serious offences".
“Even if a few high-profile cases go to jail, or shut down, it would very clearly have demonstrable effects on others,” Subramanian said. "They can follow the law and make money or go to jail. It is a free country and they are free to follow the law."
The current punishment for violations under Environment Impact Assessment rules are more stringent that the committee’s recommended penalties. If a project is found to be concealing or falsifying data its clearance is cancelled at once.
“TSR says his report is based on the principle of natural justice,” said environmental lawyer Sudiep Shrivastava. "If someone is lying, then shouldn’t their clearance be taken away completely?" Shrivastava notes that the panel uses the words “may be” while referring to penalties imposed instead of a firm “shall be”, giving the government wriggle room on this provision if it accepts the recommendation. “Then we might as well abolish all checks completely,” he added.
Carrot and stick
Meanwhile, industry is studying the Subramanian report carefully, said Seema Arora, executive director with the Confederation of Indian Industry. "Companies will not mind if the government lays down penalties as a deterrent, but at the same time appropriate incentives also need to be designed for those companies who are going beyond compliance on environmental performance," Arora said. "An intelligent company would choose the path of least cost of compliance. Companies will choose going beyond compliance and earn incentives."
Subramanian agrees that companies that go beyond the government’s brief in making sure that their processes are environment-friendly should be given preferential treatment. But industry must also undertake the burden of reporting environmental data. “If the industry is polluting, they need to make sure they are not,” he said. "This burden is on them to put the correct machines in."
This is the first of a three-part series on the overhaul of environment regulation suggested by a high-level committee to the Ministry of Environment, Forest and Climate Change.