One more green signal

Written by Kirtika Suneja | Updated: Jan 9 2014, 08:15am hrs
Why has the Supreme Court asked the environment ministry to set up an environment regulator Will it make the entire process of appraising and monitoring clearances longer

At present, the mechanism under the environmental impact assessment (EIA) notification, 2006part of the Environment Protection Actdeals with processing appraisal and approval of projects for environmental clearance. The Supreme Court found this mechanism deficient in many respects and, therefore, directed the Ministry of Environment and Forests (MoEF) to set up an environment regulator, at the national level, to carry out independent, objective and transparent appraisal and approval for environmental clearances to projects. 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 present procedure, has to undertake an EIA by an expert body or institution, based on which the state or central government take further action. This has often led to conflicting reports.

The apex courts green bench, headed by Justice AK Patnaik, said the environment regulator should be set up by March 31 this year. The regulator will have offices in all states for monitoring the implementation of the conditions laid down for the granting of environmental clearances.

Though the introduction of a regulator will add one more step in the already complex process of appraising projects and granting clearances, it is expected to make the mechanism more transparent and fair.

How different will the regulator be from the existing environment appraisal committee and the forest advisory committee of the MoEF Can it grant clearances to projects

The existing regulatory regime, where the environment appraisal committee (EAC) and the forest advisory committee (FAC) of the ministry grant clearances to projects, will continue. The proposed regulator will not grant clearances but will only check if the process of approvals given by the committees is transparent. The regulator, at the state and at the central level, will appraise projects, enforce environmental conditions for approvals and impose penalties on polluters.

When it comes to forest clearances, the regulator will check if the National Forest Policy, 1988, has been duly implemented. But, it cannot intervene in matters that relate to the powers of the central government under the Section 2 of the Forest (Conservation) Act, 1980, which deals with tribal rights over forest land and comes under the purview of the Ministry of Tribal Affairs.

Hence, the new body will be integrated with the MoEF since an existing set-up is in place.

Besides, one would have to approach the National Green Tribunal to challenge any clearance given or denied.

Who will be the members of the regulating authority

Though the government is yet to decide the structure of the regulator, it will comprise members with expertise in the area of environment and forests.

What are the similarities between the environment ministry's proposal to establish a regulator in the form an authority called the National Environment Assessment and Monitoring Authority (NEAMA), in August 2011, and the new regulator

In 2011, the court had asked the government to set up a national environment regulator, while allowing French cement major Lafarge to mine limestone in the forests of Meghalaya's East Khasi hills. It also stated that until this was done, an interim arrangement would be put in place by the MoEF in consultation with the states, in a move to lay down comprehensive guidelines for forest clearances.

However, when the issue was raised in September last year, after the ministry's failure to set up the regulator, the government negated the need of a regulator and argued that it was the absolute authority under the law. Incidentally, the regulatory body was to be established on the basis of a 2011 report by the Indian Institute of Technology, Delhi, on the scope, structure and processes of NEAMA.

NEAMA was supposed to subsume the EAC and FAC and maintain its own real-time and time-series databases on pollution loads across the country, which it would use to appraise proposed projects, instead of relying on data provided by project proponents as is the current practice.

The authority was expected to remove the conflict of interest between appraisal and approval by separating the two processesit would appraise the projects while the ministry would be responsible for the final approval.

However, the new regulator will only appraise and monitor projects while the two committees would be responsible for granting clearances.

What is the role of environment regulators in other countries such as the US and the UK, where they have been present for a long time

The Environmental Protection Agency (EPA) of the US holds entities legally accountable for environmental violations. It issues policy and guidance documents to assist the public and regulated entities. Once a law is passed by Congress, the EPA drafts regulations to clarify how to put it into effect to ensure consistency and fairness. It also develops enforcement programmes. Besides, it uses policies and guidance to assist the regulated community to interpret and

implement the regulations.

The UKs Environment Agency is tasked with taking action against businesses who don't take responsible environmental action, protection of wildlife and habitats and, regulating high risk businesses with hazardous operations

Similarly, Canadas environment regulatorcalled Environment Canadaadministers over 80 regulations that regulate certain activities of industries, other levels of government, trading partners. Interestingly, in 2011-12, Environment Canada conducted an internal assessment of its regulatory activities against five world-class regulator criteriaevidence-based decision-making, effectiveness, efficiency, transparency, and adaptability. It is also touted to be Canadas most active regulator.