Pushing the green cart, legally

Written by Indu Bhan | Indu Bhan | Updated: Apr 9 2014, 09:05am hrs
Two days after the deadline for setting up of an environment regulator expired on March 31, the government moved the Supreme Court saying that it can only set up a body sans power to penalise violators and polluters.

While asking for setting up an independent and powerful regulator at both the central and state levels by March 31, the apex court had on January 6 ordered that the regulator should evaluate projects, enforce environmental conditions for approvals and impose penalties on polluters. The thrust of the courts order was to take away from the government the appraisal function and give it to an independent regulator so as to weed out corruption in grant of environmental clearances and monitoring of implementation of the conditions laid down in environmental clearances.

It had first suggested setting up of a national regulator over two years ago on July 6, 2011, in the case of Lafarge Umiam Mining Private Ltd in Meghalaya.

However, the ministry of environment & forests (MoEF) has now sought a six-month extension of the deadline as it expressed inability to follow in letter and spirit the apex courts order that also stressed the regulator be entrusted with mechanisms for rigorous monitoring and enforcement. According to the ministry, penal powers could not be given to the regulator as the Environment Protection Act (EPA) provided that only a competent court could impose penalty for violation of provisions of the environmental laws. The Act does not provide for any civil penalty that could be imposed on polluters by the government or any other authority constituted under the Act, it said.

A regulator with penal powers could not be set up under court orders as it would require statutory backing through a legislation enacted by Parliament. Thus, there could be a valid case for considering setting up of the proposed environment sector regulator through an independent Act instead of setting it up under EPA, according to the MoEF, which has prepared a draft Cabinet note proposing the functions and broad structure of the proposed regulator/authority and is seeking approval of the Cabinet to the proposal.

As the process would take some time because various approvals from different ministries had to be obtained, the ministry has sought six more months to complete the requirements.

The idea of having a national regulator for environmental impact assessment (EIA) of projects is about more than just insulating the process from political interference. The move to keep the regulator independent is consistent with the way regulatory bodies are structured. Be it stock market regulator Sebi, Telecom Regularity Authority or insurance regulators, which operate with a certain level of autonomy from their parent ministries.

Experts feel that delinking the new regulatorin aspects like staffing and fundingfrom political pressures is the most important step towards setting up of an independent regulator. In an earlier draft note on the regulator, first proposed by then environment minister Jairam Ramesh in 2011, it was suggested the regulator draw its funds not from the MoEF but from the Centre.

If the regulator has to be autonomous, then it is important for it to be financially independent too and needs to raise its own resources rather than be dependent on the parent ministry.

The government needs to ensure that adequate technical manpower and infrastructure resources are made available to these authorities, supplemented with e-governance tools to make them accountable, effective and transparent. Besides, the regulator needs staff with expertise in handling environment issues. Further, the members of the bodies that appraise the projects need to have longer tenures to maintain continuity so that projects are cleared on time.

Although the outgoing government cannot enact laws with the elections round the corner, it still has to comply with the directions of the Supreme Court. Enacting the required legislation will be the problem of the new government, which will take over in May.