Multiple clearances are neither leading to the construction of environmentally sound buildings nor improving the environmental quality in urban areas
The Environment Impact Assessment (EIA) and the prior Environmental Clearance (EC) process for the Building and Construction (B&C) sector in India has been in the eye of a storm for a while. In December 2016, the ministry of environment, forest and climate change (MoEF&CC) issued a notification that devolved powers to Urban Local Bodies (ULBs) to grant EC to the B&C sector, if they fulfilled certain conditions.
But this was challenged in the National Green Tribunal (NGT). NGT termed some of the changes as “dilution” and stayed it in December 2017. It ordered the ministry to re-examine the notification in light of its judgment. In November 2018, MoEF&CC reissued the notification with some changes. This has again been stayed by the Delhi High Court and the NGT. So what is this fuss all about?
For the purpose of transparency, I was one of the members of the expert committee constituted by MoEF&CC that recommended the December 2016 notification.
When the first EIA notification was issued in 1994, the B&C sector was not included in its ambit. Then, in July 2004, out of the blue, a notification was issued that mandated that building projects with an investment of over Rs 50 crore would require prior EC from the MoEF&CC. This change was reportedly made because of the DMK versus AIADMK politics in Tamil Nadu.
The story goes that, in 2004, the then chief minister of Tamil Nadu, Jayalalithaa, was keen to construct a new assembly building in Chennai. But this was opposed by the DMK party. The DMK, in 2004, was a constituent of the NDA government and A Raja held the portfolio of the environment minister. To stop the construction of the new assembly building, the EIA notification was amended overnight to bring the B&C sector under its purview. At the time, there was no discussion in the country on the validity of this change. No one questioned whether EC was the best route to control environmental impact from the B&C sector.
Subsequently, the EIA notification in 2006 included the B&C sector in Category B projects, and a EC for all buildings with built-up area of more than 20,000 m2 was granted at the state level by the State Expert Appraisal Committee (SEAC) and the State Environment Impact Assessment Authority (SEIAA). As a Category B project, no EIA study is done and projects are cleared based on the information they fill up in a form.
It is common knowledge that the EIA of the B&C sector is a sham. Almost all projects are given EC based on dubious information and the implementation of the clearance conditions is not monitored. Worse, this clearance has become a major source of corruption. It was because of these shortcomings that discussions started in 2014 to reform the EC process for the building sector, especially when the TSR Subramanian Committee was set up by the MoEF&CC to review the environmental laws of the country.
The changes and its rationale
The building sector in India requires multiple environment-related clearances. Under the Water Act and the Air Act, it requires consent from the State Pollution Control Boards. If the proposed building is in a coastal area, a NOC is required from the National Coastal Zone Management Authority. Permission is required from the Groundwater Board for groundwater extraction. Large commercial buildings require an Energy Performance Certificate from the Bureau of Energy Efficiency. On the top of all these, a prior EC is required from the SEAC and SEIAA. But it is evident that these multiple clearances are neither leading to the construction of environmentally sound buildings nor improving the environmental quality in urban areas.
The obvious question is that, if clearances are not working, what other tools can we deploy to improve the environment management in cities? This is where we have to look to other countries to understand how they manage their urban environment.
The first things one learns from other countries is that it is better to have few clearances and better monitoring and enforcement than multiple clearances and poor monitoring. When the One World Trade Center or the “Freedom Tower” was being built in Lower Manhattan, it required one detailed Environment Impact Statement from the Department of Housing and Urban Development. The rest of the planning and permits were issued by the City of New York. The concept of few clearances and better planning and management holds true for cities ranging from London to Paris and from Mexico City to Beijing.
The experience world over also shows that the responsibility of granting building permission and incorporating and enforcing environmental concerns in buildings is done by the local authorities and not by environmental regulators. In fact, in most European countries, the EIA of buildings are either mandated by the local authority or the Town and Country Planning Departments.
Lastly, in most well-managed cities, accredited third-party building auditors are deployed to ensure that environmental concerns are integrated in buildings. Permits are granted based on the reports of these independent auditors. In case the local authority finds any irregularity, stringent penalties are imposed on both the auditor and the building owner.
Based on the above learnings, the December 2016 notification tried to strengthen the environmental management in cities through the following means:
-To connect the environmental concerns in building with the wider city planning, it devolved powers to the ULBs to grant EC to buildings
– To ensure that all large buildings meet certain environment norms, it made EC applicable to all buildings above the size of 5,000 m2. When the threshold was 20,000 m2, 80% of all new buildings were excluded from the EC process
– The devolution of power was incumbent on ULBs amending their building bye-laws and incorporating environmental norms for different categories of buildings in it
– ULBs were mandated to set up an Environment Cell. The Environment Cell was to enforce compliance of environmental conditions and provide an oversight to the third-party auditing process
– To ensure better implementation, a system of third-party auditing through Qualified Building Environment Auditors (QBEA)was introduced. This is a trust-based compliance regime, with heavy penalties for non-compliance.
Whether these changes are a “dilution” of the existing system is for the reader to decide. But it is clear to me that multiple clearances by central and state agencies are not a substitute to local planning, monitoring and management. We will have to build the capacity of ULBs and devolve powers to them to manage the environmental quality in our cities. There is no other option.
-The author is Deputy director general of Centre of Science and Environment. Twitter: Bh_Chandra