Industry expects the move to make the process, now fraught with uncertainties and huge delays, more transparent and efficient. At present, more than 4,600 proposals are pending with the forest advisory committee (FAC) for final clearance. Seventy-five coal projects are awaiting environmental appraisal committee (EAC) clearance including Neyveli Lignites project in Bikaner, while 20 thermal power projects like Tata Powers two projects in Orissa and Maharashtra are waiting for the final nod. Similarly, there are 122 industrial and 91 mining projects awaiting the EAC nod.
The SC wants the new regulator to be a neutral umpire that would appraise the clearances given by the ministry through its EAC and FAC.
As per an earlier plan by the environment ministry, the two committees were to be subsumed in the regulator which would grant clearances.
It was felt that the current procedure is inadequate and one more layer of scrutiny was required. The proposed regulator will be the ultimate authority when it comes to clearances over and above the existing regulatory regime. It will comprise members with technical expertise. However, one would have to approach the National Green Tribunal to challenge any clearance or its denial, said Haris Beeran, a Delhi-based lawyer.
A three-judge green bench of the apex court headed by justice AK Patnaik directed the central government to appoint a regulator with offices in as many states as possible as directed earlier in the case of Lafarge Umiam Mining.
The Centre had also been asked to file an affidavit along with the notification appointing the regulator in compliance of the Mondays direction by March 31.
Rejecting solicitor general Mohan Parasarans argument that the central government alone is the regulator, it said that the present mechanism under the Environment Impact Assessment (EIA) Notification of September 2006, issued by the government with regard to processing, appraisals and approval of the projects for environmental clearance, is deficient in many respects and what is required is a regulator at the national level having its offices in all the states which can carry out an independent, objective and transparent appraisal and approval of the projects for environmental clearances and which can also monitor the implementation of the conditions laid down in the environmental clearances.
The court said that a tribunal is basically an authority that reacts to a given situation brought to its notice whereas a regulator is a proactive body with the power conferred upon it to frame statutory rules and regulations.
Another reason for having a regulatory mechanism in place is that identification of forest area is solely based on the project proponent who, as per the current procedure, has to get an EIA done by an expert body or institution based on which the state or central government takes further action. However, at times the court is faced with conflicting reports, the order said.
The regulator can exercise only such powers and functions of the central government under the Environment (Protection) Act as are entrusted to it and will ensure that the National Forest Policy, 1988, is duly implemented, the apex court said. However, it clarified that the regulator cannot exercise the powers of the central government under Section 2 of the Forest (Conservation) Act, 1980, which deals with tribals rights over forest land.