How environment decision-making is done in India.
THERE has been heightened concern within India's civil society about the threats to the environment caused by the pressures of development and industrialisation. This concern has manifested itself in the form of instant analyses in the media as well as serious academic works seeking to examine the decisions taken by the government and the judiciary over a period of time. The media analyses have often failed to notice, let alone question, the inconsistencies inherent in these decisions.
The recent decision of Minister of State for Environment and Forests Jairam Ramesh to reject the application of Vedanta Aluminium Limited for clearance to start bauxite mining in Orissa's Niyamgiri hills has been hailed by the media and civil society. But the inconsistency in the Ministry's decisions on other environmental issues has not been sufficiently explained. The six books under review help us understand better the intractable issues in environmental decision-making in India.
Justice T.S. Doabia, author of Environmental & Pollution Laws in India, is a former judge of the Madhya Pradesh and Jammu and Kashmir High Courts. The first edition of the book was published in 2005. The second edition throws considerable light on the issues and themes that have emerged since then. Of special interest is the elaboration of certain legal concepts that have entered popular discourse on environmental issues. These are sustainable development, precautionary principle (PP), strict liability, polluter pays, climate change, biodiversity and the doctrine of public trust.
This is how the author enunciates the doctrine of public trust: In a hot summer, thirsty soil expresses its gratitude to a mild drizzle by exuding a heavenly fragrance scented with pinion pine the like of which no flower or perfume has succeeded in matching. If human efforts cannot reproduce a fragrance like above then there is a need to preserve these natural fragrances, beauties and bounties of nature. Public Trust Doctrine underlines the importance of these gifts of nature and seeks to protect the nature and its gifts which no computer may be able to register or record.
The doctrine means that the state is the trustee of all natural resources, and, as such, has a legal duty to protect them. The Supreme Court of India has invoked this doctrine in a number of cases. In a judgment delivered in 2006, it ruled that the doctrine imposed certain restrictions on governmental authority. Thus, the property subject to trust should not only be used for public purposes but must be made available for use by the general public, and such property should not be sold even for a fair cash equivalent.
SUSTAINABLE DEVELOPMENTThe author explains the concept of sustainable development succinctly as an attempt to balance the scale between the quantity of development and the quality of the environment. In other words, it means that the earth's biodiversity would be conserved for future generations by greatly slowing and, if possible, halting extinctions and habitat and ecosystem destruction and by not risking significant alterations of the global environment. The required standard is that the risk of harm to the environment or to human health is to be decided in the public interest, according to a reasonable person's test. According to this test, the decision-maker has to examine whether the damage to the environment will be irreparable if the proposed activity is allowed, and whether the economic interest will suffer irreversible loss if it is not allowed.
The author deplores the apathy and laxity of the administrative agencies in not taking effective measures to regulate the sale of toxic pesticides. Careless use of these chemicals has resulted in the destruction of organisms and several other life forms. The author calls for the revision of the Insecticide Act, 1968, to ensure that only properly trained and licensed persons handle pesticides at the field level.
An elaborate discussion on the various inter-State water disputes is another strength of this book. Lamenting the delay in settling the disputes, the author endorses the recommendation of the National Commission for Integrated Water Resources Development Plan, 1999, that Parliament enact a National Water Code, which will be an integrated set of water laws.
The book examines at length the measures taken by the Central government following the Bhopal gas disaster and their effectiveness. These include the Environment (Protection) Act, 1986; the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989; the Environmental Impact Assessment Notification, 1994; the Coastal Regulation Zone Notification, 1991; and the Public Liability Insurance Act, 1991.
The author regrets that in spite of these measures to prevent and manage man-made disasters, there has been no adequate disaster management policy in the context of natural disasters. The State governments provide relief under the Colonial Relief Codes by treating them as local events. The author reminds the government that action on the National Calamity Management Act, recommended by a High Power Committee in 2001, is long overdue. The absence of a critical discussion in the book on the Supreme Court's and the Central government's roles in the 1989 Bhopal gas disaster claims settlement, which finds space in the book, is a disappointment.
Volume 2 of the book includes chapters on noise pollution, radiation threat, mining activity, ancient monuments, wildlife and national parks and puts together in the appendices all the relevant Acts, rules and notifications, including the National Green Tribunal Act, 2010. These two volumes together offer the interested reader a rich compendium of material on India's environment jurisprudence.
PRECAUTIONARY PRINCIPLEThe chief merit of P.B. Sahasranaman's book lies in its treatment of some of the jargon that characterises the contemporary academic discourse on the environment. Providing a comparative perspective, the author, an advocate in the Kerala High Court and the Supreme Court, has discussed complex issues in an easy-to-understand style.
Take, for instance, the chapter on the principle of reversal of the burden of proof, an essential element of the precautionary principle. Put simply, PP means the proponents of activities that might lead to serious or irreversible damage are obliged to take measures or permit measures to be taken to prevent this damage (including the halting of proposed activities), even if there is a lack of full scientific certainty as to the existence of the risk, its nature, or the potential damage. Jairam Ramesh halted the proposed mining project at Niyamgiri invoking this principle.
The normal rule is that the burden of proof lies on the person who wants to prove his or her case, that is, if a person wants a judgment that punishes another person for committing a crime, the person wanting the judgment has to prove that the other person has committed the offence. The reversal of this rule in environmental cases means that the burden to prove the absence of any injurious effect of the proposed activity is placed on those who want to change the status quo. The Supreme Court recognised this principle in 1999.
The chapter titled Environment Impact Assessment: An Early Warning System is another useful introduction to an important legal instrument to reconcile environmental considerations with socio-economic development. The EIA is the process of identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effects of developmental proposals before major decisions are taken and commitments made. Until 1994, the EIA was purely an administrative decision with its inherent discretionary element. This resulted in lack of transparency in project clearance and in the neglect of environmental and human concerns. As the author says, the Bhopal gas disaster was an inevitable outcome of this fiasco.
In 1994, the MoEF promulgated the EIA notification making environment clearance mandatory for the expansion or modernisation of any activity or for projects listed in Schedule 1 of the notification. In 2006, a new EIA notification with the objective to create a transparent, decentralised and efficient regulatory mechanism was issued in place of the old one. Unlike the former notification, the current one put the onus of clearing projects on State governments, depending upon the size or capacity of each project.
The book has a separate section on dealing with the pollution of air, freshwater-bodies and the sea; degradation of land and forests; endangered wildlife; and safe disposal of waste, and on the law on public nuisance.
Of special relevance is the author's treatment of the challenge of climate change. He points out that there is an array of waste management legislation in India that is not very climate friendly. Incineration as a means of dealing with waste is recommended by a number of statutes and is not adapted to address climate change, he says. We have to think globally but act locally to tackle climate change, he says.
O.V. Nandimath's book takes the discussion on EIA even further. The author is Associate Professor and Faculty Coordinator, Centre for Environmental Education, Research and Advocacy, National Law School of India, Bangalore. He is critical of the MoEF's lack of initiative and foresight. In a separate chapter, he offers a detailed critique of the 2006 EIA programme.
KALPAVRIKSH'S REPORTSIn contrast to the three books, which explain the laws on the environment in all their dimensions, the three published reports of Kalpavriksh analyse their implementation. Kalpavriksh is a non-governmental organisation (NGO) that has been working on environmental awareness, campaigns, litigation, research and other related areas for 30 years. Of the three reports, the one on ecologically sensitive areas (ESAs) raises many questions about the MoEF's role. The MoEF has identified and notified ESAs since 1989 under the Environment (Protection) Act.
The MoEF has declared Murud-Janjira (Maharashtra), Doon Valley (Uttarakhand), Dahanu taluk (Maharashtra), Aravalli (Rajasthan and Haryana), Numaligarh (Assam), Taj Trapezium (Uttar Pradesh), Mahabaleshwar Panchgani (Maharashtra), Matheran (Maharashtra), Mount Abu (Rajasthan), and Sultanpur (Haryana) as ESAs.
According to the authors, the criteria for declaring an area ecologically sensitive are based only on ecological sensitivity and thus limit the kind of areas considered for ESA declaration. Environmental sensitivity is a much broader term and encompasses more factors on the basis of anthropogenic activities.
The authors are critical of the MoEF because it has remained a respondent to requests from conservation groups for notification of ESAs. The facilitation of ESA declaration of large landscapes, subject to multiple uses and under different owners, requires a much more active role by the MoEF, they say. For example, the MoEF is not in favour of a proposal to declare a stretch of the Western Ghats an ESA as it stretches across three States. Several proposals are pending with the Ministry.
Calling the Bluff is a shocking revelation of the MoEF's appalling lack of interest in collecting data on the degree of compliance achieved by projects with the conditions it had imposed on these at the time of environmental clearance and the absence of any retrospective EIAs (study of impact after the commissioning of a project).
The MoEF is entrusted with the task of monitoring over 6,000 live projects that are in various stages of construction or operation. Its six regional offices are in a position to cover only up to 20 per cent of the projects in a single year. Although the Ministry is aware of this, it has failed to address its incapacity to achieve the EIA process. It has only paid attention to the clearance of projects under the EIA process.
According to the report, the limited attention paid to issues of monitoring contrasts with the excessive action paid by the Ministry (in association with consultants, investor groups and other Ministries) to reduce the time for grant of clearance, exclude more projects from requiring clearance and dilute conditions of clearance, all in the name of facilitating development.
6 Years of the Biological Diversity Act in India is another expose of the MoEF's flawed agenda. The authors of this report critique the implementation of the Biological Diversity Act, 2002, and the Biological Diversity Rules, 2004. The report points out that while 315 approvals for access to biological resources and related knowledge were granted by the National Biodiversity Authority, located in Chennai, as of September 2008, the corresponding conservation duties of the government did not receive equal priority.
The report reveals, with the help of data collected systematically, that the neoliberal paradigm of growth leaves little room for concerns relating to community sovereignty or even biodiversity conservation. The authors complain that the Act is rendered ineffectual in a policy milieu in which control over biological resources is effortlessly and frequently shifted from communities to corporations, facilitating over-exploitation of resources and destruction of biodiversity.
By making information on endangered species and documentation of biological resources accessible without adequate safeguards, the Act may contribute to further loss of biodiversity and the disenfranchisement of local peoples who have until now been its sole guardians. Given the political economy of control over resources, there has been no significant progress in either conservation or livelihoods objectives under the Act, the report says.
Given the authenticity of Kalpavriksh's reports based mostly on data obtained under the Right to Information Act and those available in the public domain one wonders whether the adulation that Jairam Ramesh earned in the wake of his decision on Niyamgiri is warranted at all. His critics are perhaps right in attributing his decision to political considerations.
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