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The National Environment Assessment and Monitoring Agency: A Step Forward?

The Ministry of Environment and Forests' initiative to set up an independent environmental regulator is a positive one and acknowledges the problems in the current system of regulations. Yet, a perusal of the proposal suggests that it has a number of limitations and therefore has to be rejected. But it is equally important that viable alternatives to the proposed agency are actively constructed.

COMMENTARY

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The National Environment Assessment and Monitoring Agency: A Step Forward?

Shibani Ghosh

--being promoted to a cabinet position in the Ministry of Rural Development and a “relative novice”2 Jayanthi Natarajan replacing him. Also, interestingly, not too long back, another branch of the government – the judiciary – expressed need for a similar institution.3

Questions

The Ministry of Environment and Forests’ initiative to set up an independent environmental regulator is a positive one and acknowledges the problems in the current system of regulations. Yet, a perusal of the proposal suggests that it has a number of limitations and therefore has to be rejected. But it is equally important that viable alternatives to the proposed agency are actively constructed.

The author is grateful to Navroz Dubash for his guidance and insightful comments and to Bharath Jairaj, Kanchi Kohli, Ritwick Dutta and Manju Menon for stimulating discussions and comments which helped in writing this article. All errors and omissions are my own.

Shibani Ghosh (shibanighosh83@gmail.com) is with the Centre for Policy Research, New Delhi and also a practising environmental lawyer with the Legal Initiative for Forest and Environment, New Delhi.

D
uring an international conference on environmental law held in Delhi recently, Prime Minister Manmohan Singh announced that the government is planning to set up an independent environmental regulator, which would “lead to a complete change in the process of granting environmental clearances” and “staffed by dedicated professionals, it will work on a full-time basis to evolve better and more objective standards of scrutiny” (Press Information Bureau 2011). Manmohan Singh was referring to the National Environment Assessment and Monitoring Authority (NEAMA) that was proposed by the Ministry of Environment and Forests (MOEF) and has been on the drawing board since November 2010 (MoEF 2010a).

The prime minister’s announcement follows a string of controversies relating to approvals for high profile infrastructure projects in the country.1 It comes soon after a change of guard at the MOEF, with Jairam Ramesh, who was at the helm of affairs during the recent controversies,

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The timing of this announcement lends itself to many alternative explanations – is this to appease the industry faction that is blaming the environment ministry for slow growth and disincentivising foreign investment? Is this a response to the largescale public opposition to projects such as in the case of POSCO’s steel plant? Or is it to pacify members in the coalition union government and other state governments?

The pressures on the government are significant, arguably, because they would affect any analysis that is undertaken of the existing environmental governance system and also define the nature and extent of the proposed changes. For instance, if the government wishes to change the current environmental clearance process because it seems to make for a lengthy and uncertain route for businesses, then the new institution it proposes will address a very different set of issues than an institution created to respond to issues of systemic failure in environment impact assessment and public partici pation in decision-making. At the same time, institutional design can affect centre-state relations if it causes a

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change in the balance of decision-making and regulatory powers. However, the prime minister does not provide any justification in his speech, for this new “independent regulator” NEAMA.

A revamp of the Indian environmental governance system has been under consideration for many years now. Civil society groups have been raising demands with regard to various aspects of the system – from increased transparency and public participation in environmental decision-making to better quality and credible environment impact assessment and appraisals to effective monitoring of post-clearance conditions (Menon and Kohli 2007; Kohli and Menon 2009; Saldanha et al 2007).

In 2001, a high-powered committee constituted by the Supreme Court recommended the setting up of a national environment protection agency as a technical arm of the ministry (High Powered Committee 1998). Two years later, the Supreme Court observed that no action had been taken on this recommendation by the government and directed the central government to consider the recommendation for restructuring “with all seriousness”.4 In 2007, a task force of the Planning Commission recommended the setting up of a National Environment Impact Assessment Authority (NEIAA), a statutory body independent of the government (Planning Commission of India 2007a). This body, it was suggested, would have the power to grant environmental and forest clearances and monitor compliance of conditions imposed in the clearances. The steering committee of the Planning Commission on Environment and Forests Sector adopted the recommendation but called the new institutions National and State Environment Clearance Authorities (Planning Commission of India 2007).

In August 2009, the national conference of ministers of environment and forests endorsed the creation of a new independent body. The conference identified the need for urgent institutional reforms which were commensurate with growing pressures on ecosystems and the goals of various environmental legislations. It proposed

an autonomous, professional and sciencebased body, fully authorised to undertake effective implementation of the legislation and rules therein, as well as monitoring compliance with safeguards stipulated as part of environmental clearances...

It also agreed that there was a need to establish “an empowered Environmental Protection Authority, within a year, under the Environment Protection Act” (Press Information Bureau 2009).

Discussion Papers

The outcome of the ministerial conference was followed up by the MoEF with the release of three discussion papers. The first one released in September 2009 (discussion paper no 1) proposed the setting up of an independent statutory body which would take on part of the ministry’s functions (MoEF 2009). It proposed four possible models for the new central authority according to the apportionment of responsibilities between the existing institutions (such as MoEF and Central Pollution Control Board (CPCB)) and the new authority. The discussion paper was put in the public domain for comments.

Subsequently, discussion paper no 2 was released by the ministry in May 2010 (MoEF 2010). In this paper, the ministry expressed a view that the dual role of the ministry – that of a regulator and a policymaker – was a dysfunctional model and that decision-making had to be insulated from political interference. The ministry proposed two models for the new authority

– a National Environment Protection Authority (NEPA) or a National Environment Monitoring Authority (NEMA) – and a public consultation was organised by the ministry on the issues raised in the discussion paper.

In November 2010, discussion paper no 3 was released (MoEF 2010a). This paper proposed the establishment of a NEAMA which replaced the earlier pro posal for the NEPA. Although the ministry offered an explanation for the change in the nomenclature from NEPA to NEAMA, the proposal changed much more than the name.5 The NEAMA would focus on appraisal and monitoring and not perform any of the approval functions that the earlier proposal had envisaged. This proposal of the ministry relied on the recommendations of the high powered committee on statutory clearances constituted by the MoEF which gave its final

Table 1: Comparison of the Current Environment Clearance Process with That Proposed by the Ministry
Current Set-up (under the Environment (Protection) Act 1986) Discussion Paper No 3 Appraisal of projects Undertaken by Expert Appraisal Committees (EACs) Undertaken by Thematic Appraisal Committees (TACs) which would constituted by the MoEF for different categories of projects. be part of the NEAMA and members would have domain specialisation. Appraisal of "strategic projects" to be done by the MoEF. Strategic projects have not been identified. Clearance functions MoEF is the final decision-making authority. Recommendations MoEF is the final decision-making authority. Recommendations by the by the EACs are considered by the MoEF before deciding on TAC will be considered by the MoEF before deciding on whether whether Environmental Clearance is to be granted or not. Environmental Clearance is to be granted or not. Monitoring and Regional offices of the MoEF are responsible for monitoring The NEAMA with its network of zonal offices will monitor and enforce enforcement functions compliance of conditions imposed in the Environmental compliance of conditions imposed in the Environmental Clearance. Clearance and have limited powers of enforcement. Matter of non-compliance has to be referred to the central office in Delhi which has the power to revoke a clearance. Legislative/ With the MoEF. No change suggested. policymaking functions Financial resources The MoEF receives money from the central government budget. Grant-in-aid from the central government. NEAMA can also levy Cannot augment it by charging fees. fees for specific services. Accountability Parliamentary accountability – minister of MoEF answerable • “Configuration and positioning of NEAMA” to ensure accountability. mechanism to questions raised in Parliament. • Separation of appraisal and approval functions is expected to lead to a system of checks and balances. Economic & Political Weekly september 17, 2011 vol xlvI no 38 13
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report in April 2010 (Central Pollution Control Board 2010) and on inputs given by Indian Institute of Technology (IIT), Delhi (Bhal and Shankar 2010) as part of their ongoing study. Interestingly, the NEAMA proposal has similarities with one of the first four models proposed by the ministry (NEMA) in its discussion paper no 1 but which had not found place in discussion paper no 2.

Besides proposing a new institution, discussion paper no 3 also suggested a system of civil adjudication to fast track cases of environmental offenses and increase in the amount of penalty for non-compliance of legal provisions, and emphasises on the need for improving processes for self-monitoring, reporting and verification by industries and social audit by civil society groups.

Shortcomings

According to this paper, the rationale for introducing NEAMA is based on several current shortcomings in the system:

  • Existing regulatory institutions at the centre and state level are unable to cope with current environmental challenges.
  • Higher level of application of technological knowledge required.
  • Appraisal should be a continuous process – there is no institutional memory, consistency and accountability in the present process.
  • Dual role of appraisal and approval results in perception of conflict of interest.
  • Need for professional body to undertake inspections and enforcement.
  • Capacity and resources of the MoEF and other agencies limited.
  • No national level impact assessment agency. Table 1 (p 13) compares the current environment clearance process with that proposed by the ministry in discussion paper no 3.
  • With regard to the environmental clearance process, the discussion paper no 3 proposes mainly three changes. First, it shifts the appraisal related functions from Expert Appraisal Committees (EACs) constituted by the government to “a professional autonomous body with domain experts” with fixed tenures. Second, the monitoring and enforcement functions which were with the regional offices of the MoEF will now be discharged by the NEAMA and its zonal offices. Third, an independent body at the centre will coordinate the functioning of the state-level environment impact assessment authorities (SEIAAs) and provide them technical assistance.6

    It is important to signal here that discussion paper no 3, like the previous two papers, does not propose modification in the powers and functioning of any of the state environmental agencies, i e, the State Pollution Control Boards (CSPCBs), the State Environment Appraisal Committee (SEACs) and the SEIAAs. The decision to keep away from the state-level problems is very likely influenced by political considerations as the state governments are likely to resist increased intervention by the central government.

    Analysis

    Having discussed the main recommendations made in paper no 3 with regard to the NEAMA and the environmental clearance process, it is helpful to turn back, once again, to what the prime minister said – he referred to the NEAMA, as an independent regulator, which would completely change the process of environmental clearances and staffed by “dedicated professionals” will evolve better and more objective standards of scrutiny.

    The NEAMA, as it was proposed by the MOEF, was never envisaged as an independent regulator. In fact, the ministry consciously moved away from a previously proposed model of an independent regulator in the form of the NEPA to an institution with limited regulatory powers. In discussion paper no 2, the ministry had intended the new institution (NEPA) to exercise all regulatory powers as the existing regulatory institutions at the centre and state level were unable to cope with the environmental challenges. The discussion paper no 3 instead responds to the need for a “higher level of application of technical knowledge” and consequently the NEAMA’s functions relate to appraisal and monitoring, while the ministry retains the power to grant approvals. The ministry through this change prioritised better appraisal and improved monitoring of projects over autonomy and independence of the regulatory authority. Whether it is a strategic political move or a reasoned prioritisation in policymaking options is not known.

    Demands for change in the environmental clearance process have been raised for

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    many years now – mainly by civil society groups who have found the clearance process to be entirely inadequate to protect environmental and social interests. The inadequacy arises from several factors including lack of guiding principles in environmental decision-making, lack of mandatory legal provisions requiring comprehensive cumulative impact assessment, poor quality of environmental impact assessment, flawed public consultation procedure, dubious appraisal and negligible monitoring of post-clearance conditions. Given the wide spectrum of problems that the current environmental clearance process is affected by, better appraisal of project proposals and proper monitoring and enforcement of postclearance conditions would only address a narrow slice of this spectrum. It may be argued that there can be no single solution to all problems that ail the system today and given various political constraints, the central government can only go for the good as opposed to best options.7 But even in that scenario, the solution proposed in the form of NEAMA seems rather unambitious. The proposal does not distinguish itself significantly from the existing mechanisms. It is therefore difficult to believe that any substantive improvement would take place from the current quality of appraisal and monitoring. Some of the aspects of the proposal are highlighted below.

    Staff

    The Thematic Appraisal Committees (TACs), which are to replace the EACs, will draw from the NEAMA staff that would include “multidisciplinary manpower with functional competencies” in various subject areas and would have a fixed tenure. This is similar to the provision in the EIA Notification 2006 which envisaged the appointment of experts from different fields and disciplines to be appointed as members of the EACs with a fixed tenure. The power to co-opt persons with specialisation in a relevant field, which has been given to the chairpersons of the TACs, has always been enjoyed by chairpersons of the EACs.

    The monitoring and enforcement functions that the NEAMA will be taking on are currently the responsibility of the regional offices and the central office of the ministry which have a very poor performance record (Kohli and Menon 2009). Although

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    the proposal acknowledges that regional offices have constraints in terms of manpower and infrastructure, it does not state as to how the ministry will meet the significantly enhanced requirements of the NEAMA which is expected to monitor projects more frequently.

    It is also not clear from the proposal whether the current staff of the ministry which deals with impact assessment, appraisal and monitoring would move to the newly formed institution. The current staff would have prior experience in appraisal and monitoring which might be useful. But at the same time, if the intention of the ministry is to improve the current regulatory processes, it would have to infuse the new institution with fresh minds. Retired and serving government officials may bring with them a conditioned mindset and approach which may affect the functioning of the institution.8

    Autonomy

    With regard to autonomy, the study undertaken by IIT Delhi for the NEAMA states that if the new institution has a statutory basis it would ensure autonomy (Bhal and Shankar 2010). A similar proposal had been made with regard to NEPA by the ministry in discussion paper no 2 but it has come under criticism due to lack of specificity (Lele, Dubash and Dixit 2010). The independence and autonomy of any institution could be undermined by several factors, such as the funding structure. The NEAMA is to receive grants from the government and would also be able to charge for its services to generate its resources. A similar model is followed by the SPCBs which are dependent on state governments for funds and can levy cess. Dependence on state government funds has in many ways curbed the independence of SPCBs. If the main source of funding is the central government, the new institution’s staffing choices could be restricted and problems faced by the PCBs with regard to staffing could also be faced by the new institution (Centre for Science and Environment 2009).

    Accountability

    The ministry has stated in discussion paper no 3 that by bifurcating the appraisal and approval functions of the ministry by the formation of NEAMA, “a system of

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    checks and balances” is created in the environmental clearance procedure which would lead to “greater accountability and enhanced quality of decision-making”. As the NEAMA would be appointed by the central government it would be accountable to the ministry in some way. But in what circumstances and how the ministry could be “checked” by a recommendatory body like the NEAMA needs further thinking.

    Quality of Decision-making

    The TACs would be responsible for appraising projects which will potentially have immense social impact due to displacement of persons, impact on sources of livelihoods and/or destruction of religious and cultural sites and symbols. The NEAMA is likely to take on considerable monitoring and enforcement functions. Many post-clearance conditions are either mitigative or ameliorative in nature responding to adverse social impacts of the project. Therefore an institution based on such a model would hugely benefit from having manpower with wider experience and knowledge which is not r estricted to the technical sciences, as has been currently proposed by the ministry.

    Inter-institutional Linkages

    A new institution would add yet another institution in an already institution-heavy environmental governance structure in the country. Given the functions that the institution is likely to perform, it would have some form of interaction with the existing institutions such as the CPCB, the PCBs, the SEACs, the SEIAAs, and the NGT. But without proper clarification as to the nature of the interaction between institutions, institutional linkages could lead to functional overlap between bodies resulting in inefficiency. For instance, the NEAMA is supposed to coordinate the functioning of the SEIAA and provide them technical assistance. But besides appointing the SEIAAs, the central government till date does not have much functional interaction with the SEIAAs. If a new level of interaction is being introduced between the centre and the state-level institutions, it has to be clearly laid down in the law to avoid confusion and overlapping jurisdiction.

    With continued demand for high levels of economic growth, the tensions between growing pollution and unfettered use of

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    natural resources for growth on the one hand, and environmental protection to secure the livelihoods of the poor, ensure long-term integrity of our natural resource base, and minimise environmental health hazards are likely to only grow. To avoid falling into case by case battles over environmental issues will require more robust environmental governance based on consistent principles, an effective legal framework and adequately institutionalised implementation.

    The initiative by the MOEF and highlighted by the prime minister represents an important moment, not least because it acknowledges at least part of the pathologies of the current system. However, to remake environmental governance, greater engagement with proposals for institutional change than has taken place so far will be required. Otherwise there will be a risk of failing to do justice to the magnitude and deep entrenchment of the problems. While it is important to reject the ministry’s proposal for its limitations, it is equally important that at the same time viable alternatives are actively constructed. This paper has sought to lay out some of the issues with the current NEAMA proposal, in order to help build a more robust framework.

    Notes

    1 Some of the recent controversies include the environmental clearances granted to the Jaitapur nuclear power plant (Bidwai 2011; D’Monte 2011) and the Navi Mumbai Airport (Goenka and Patel 2010; MoEF 2010b); the withdrawal of the forest clearance granted to Vedanta for bauxite mining in the Niyamgiri hills in Orissa (MoEF 2010c); and the affirmation of the approvals granted to POSCO by the Ministry of Environment and Forests after reexamination (MoEF 2011; Mishra and Nayak 2011).

    2 Praful Bidwai uses this phrase to describe the new minister (Bidwai 2011a).

    3 The Chief Justice of India, justice S H Kapadia in his recent judgment permitting limestone mining by M/s Lafarge in Meghalaya opined that “the Central Government should appoint a National Regulator for appraising projects, enforcing environmental conditions for approvals and to impose penalties on polluters”. Judgment of the Supreme Court in T N Godavarman vs Union of India, I A Nos 1868, 2091, 2225-2227, 2380, 2568 and 2937 in W P (C) 202 of 1995 dated 6 July 2011.

    4 See Research Foundation for Science Technology National Resource Policy vs Union of India (2005) 10 SCC 510; para 21.

    5 In the discussion paper, the ministry explains the need for changing the nomenclature – globally Environment Protections Authorities (EPAs) deal with development of discharge standards as well as compliance and enforcement of these standards. In the Indian context, these functions are performed by the Pollution Control Boards and the proposed Authority would complement the Pollution Control Boards but not replace them (MoEF 2010a).

    6 SEIAAs have the power to grant environmental clearances to projects which fall in category “B” according to the EIA Notification 2006. These

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    projects are generally smaller in size/capacity than category “A” projects which require clearance from the central government.

    7 When Jairam Ramesh was asked during a public consultation held in May 2010, why the environmental clearance process was not being improved as part of the ministry’s initiative to restructure environmental governance, he said that while trying to accomplish an ideal solution, one must not stop other changes.

    8 Different reports have documented the large number of retired bureaucrats occupying significant positions in the Pollution Control Boards (Departmental Parliamentary Standing Committee on Science and Technology and Environment and Forests 2008; Centre for Science and Environment 2009). These bureaucrats often do not have the required technical qualifications and having been part of the bureaucratic structure are amenable to political influence.

    References

    Bhal, Kanika T and Ravi Shankar (2010): “Draft Report on Scope, Structure and Processes of National Environment Assessment and Monitoring Authority (NEAMA)”, Department of Management Studies, Indian Institute of Technology, Delhi.

    Bidwai, Praful (2011): “People vs Nuclear Power in Jaitapur, Maharashtra”, Economic & Political Weekly, XLVI (8): 10.

    – (2011a): “Green Challenges”, Frontline, (28 July12 August ).

    Central Pollution Control Board (2010): “Report of the High Powered Committee on Statutory Clearan ces”, New Delhi.

    Centre for Science and Environment (2009): “Turn Around: Reform Agenda for India’s Environmental Regulators”, New Delhi.

    D’Monte, Darryl (2011): “Nuking Dissent Over Jaitapur”, India Together http://www.indiatogether. org/2011/jan/env-nuke.htm.

    Departmental Parliamentary Standing Committee on Science & Technology and Environment & Forests (2008): 192nd Report on the Functioning of Central Pollution Control Board, New Delhi.

    Goenka, Debi and Gautam S Patel (2010): “The Plane Truth”, Economic & Political Weekly, XLV (37): 19.

    High Powered Committee (1998): Report of the High Powered Committee on Management of Hazardous Wastes.

    Kohli, Kanchi and Manju Menon (2009): Calling the Bluff: Revealing the State of Monitoring and Compliance of Environmental Clearance Conditions (New Delhi: Kalpavriksh).

    Lele, Sharachchandra, Navroz K Dubash and Shantanu Dixit (2010): “A Structure for Environment Governance: A Perspective”, Economic & Political Weekly, XLV (6):13.

    Menon, Manju and Kanchi Kohli (2007): “Environmental Decision Making: Whose Agenda”? Economic & Political Weekly, 42 (26): 2490.

    Mishra, Banikanta and Birendra Kumar Nayak (2011): “Paan or POSCO?”, Economic & Political Weekly, XLVI (26 and 27): 12.

    MoEF (2009): “Discussion Paper for Comments: Towards Effective Environmental Governance: Proposal for a National Environment Protection Authority”, New Delhi.

  • (2010): “Discussion Paper: Workshop on Reforms in Environmental Regulation: With Specific Reference to Establishment of National Environment Protection Authority”.
  • (2010a): “Discussion Paper: Reforms in Environmental Governance: With Special Reference to
  • --

    Establishment of National Environment Assessment and Monitoring Authority (NEAMA)”, New Delhi.

  • (2010b): “Environmental and CRZ Clearance for Establishment of Navi Mumbai International Airport by M/s City & Industrial Development Corporation of Maharashtra Ltd”, dated 22 November, New Delhi.
  • (2010c): “Decision on Grant of Forest Clearance in Kalahandi and Rayagad Districts of Orissa for the Proposal Submitted by the Orissa Mining Corporation Ltd (OMC) for Bauxite Mining in Lanjigarh Bauxite Mines”, dated 24 August, New Delhi.
  • (2011): “POSCO: Final Order and Relevant Documents”, dated 31 January, New Delhi.
  • Planning Commission of India (2007): “Report of the Steering Committee on the Environment and Forests Sector for the Eleventh Five-Year Plan (2007-12)”, New Delhi.

    – (2007a): “Report of the Task Force on Governance, Transparency, Participation & Environmental Impact Assessment and Urban Environmental Issues in the Environment and Forests Sector for the Eleventh Five-Year Plan (2007-12)”, New Delhi.

    Press Information Bureau (2009): “National Conference of Minister of Environment & Forests Emphasise on Sustainable Environmental Management and to Increase Green Cover”, (ed.) by MoEF, New Delhi.

    – (2011): “Prime Minister Addresses Valedictory Session of International Seminar on Global Environment and Disaster Management” (ed.) by Prime Minister’s Office, New Delhi.

    Saldanha, Leo F, Abhayraj Naik, Arpita Joshi and Subramanya Sastry (2007): Green Tapism: A Review of the Environmental Impact Assessment Notification

    – 2006 (Bangalore: Environment Support Group).

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