The Government’s Environment Laws Amendment Bill May Transfer More Power to the Executive and Weaken the NGT
During November 2015, as the headline-grabbing power tussle between the executive and the judiciary in the judicial appointments case was played out across national media, a less high-profile, but equally crucial, battle between the same institutions was also being enacted on the sidelines. The Ministry of Environment, Forests and Climate Change (MoEFCC) published the draft Environment Laws (Amendment) Bill 2015 in early October.
The bill, which may be discussed in the upcoming budget session of the parliament, was only allowed a rushed fortnight for public comments. The changes it proposes, however, have serious implications for the balance of power between the executive and the judiciary in environmental matters. Much of the language of the bill strenghtens the executive at the expense of the National Green Tribunal (NGT), a powerful independent judicial body that was set up in 2010. The bill proposes that the central government set up new quasi-judicial bodies that will hold the power to assess environmental damage and to penalise polluters, but it is not clear about the relationship of these bodies with other existing institutions, particularly the NGT. Nor does it clarify how these bodies will be appointed. The bill also provides the categories based on which the environmental damage would be assessed, but refrains from clearly defining these categories. Coupled with the government’s uninspiring ways of dealing with environmental issues and its established pro-business stance, in its current form, the Environment Laws Amendment Bill is definite cause for worry.
The draft bill aims to amend two existing acts: the Environment (Protection) Act, 1986 (EPA), and the National Green Tribunal Act, 2010 (NGT Act). One of the key changes the bill proposes to the EPA is the setting up of “adjudicating authorities” that will have the power to hold inquiries into, and make determinations about different categories of environmental damage—“substantial,” “non-substantial” and “minor”—which are vaguely defined by the bill. In its text, the bill defines “non-substantial damage” as damage that is “neither a minor violation or a substantial damage and shall be determined in the manner as may be prescribed.” Depending upon the type of damage, as well as its physical distance from the source, the adjudicating authorities will have the power to impose penalties that are significantly heavier than those under the existing law. The only amendment that the bill proposes to the NGT Act is that appeals from orders of the adjudicating authorities will lie with the NGT. (This amendment has been introduced despite assurances made by the MoEFCC, in response to an RTI query in October 2014, that it had no such plans.)
On the face of it, this sounds like a reasonable, even well meaning suggestion. If implemented well, the adjudicating authorities seem designed to administer civil penalties, and bring polluters to account much faster than the current system. However, the bill is a particularly poor specimen of legislative drafting and lacks clarity. The adjudicating authorities form the centerpiece of the bill, yet the provisions of the bill dealing with their appointment are drafted in such a convoluted way that it is difficult to grasp the extent of the authorities’ jurisdiction, or even the number of authorities that the bill contemplates.
For instance, Clause 2(a) of the bill appears to suggest that adjudicating authorities may be appointed either by the central government or by authorities already constituted under Section 3(3) of the EPA. The authorities set up under this section vary widely in their composition, functions and powers. They include authorities with a very narrow, region-specific remit (such as the Dahanu Taluka Environmental Protection Authority, a Supreme Court-appointed body to ensure environmental conservation in Dahanu Taluka, an ecologically fragile site near Mumbai) as well as the more powerful Central Empowered Committee that supervises the implementation of Supreme Court orders in forest-related matters. It would be logistically absurd for each of these authorities to appoint, in turn, their own adjudicating authorities, as a bare reading of the bill currently seems to suggest.
This definition of adjudicating authorities is also inconsistent with another clause of the bill. Clause 14D states that such authorities will be appointed only by the central government and only in those cases where Section 3(3) authorities have the power to grant clearances or permission under the EPA or rules made under it. It adds that they will be appointed on the recommendation of a “Selection Committee,” which, it later states, will also be constituted by the central government. The jurisdiction of the authority remains unclear. The bill proposes neither a single, central adjudicating authority, nor adjudicating authorities for every state.
The precise scope and effect of the bill, too, is unclear, although there is general consensus among civil society that the government’s motives in creating these adjudicating authorities are suspect. The creation of quasi-judicial authorities, closely controlled by the executive, and with functions similar to the NGT, might have the effect of unacceptably diluting the NGT’s powers. The NGT was set up in 2010 as an expert body with wide powers to decide “a substantial question relating to environment.”In its short history, the NGT has proved to be a crucial bulwark against the indiscriminate use of executive power by the MoEFCC. It has suspended and overturned clearances granted by the MoEFCC in the POSCO steel factory and Mahan forest clearance cases respectively, pulled it up for failing to respond clearly to a special committee report on ecologically sensitive areas in the Western Ghats, and also directed the ministry to take steps to ensure that its website carries comprehensive information on the environmental clearances granted by it. The NGT has come to assume a very important function in safeguarding the environment not just against private actors, but also against the executive, and the bill seems to be an attempt to clip its powers.
In fact, the bill has created a sense of confusion and suspicion regarding its effect on the NGT’s powers. A report published on SmartInvester.in, a website run by the newspaper Business Standard that offers market analysis for investors, states that, according to the text of the bill, the adjudicating authority, not the NGT, would be the first court of appeal against environmental and forest clearances granted by the MoEFCC. An analysis of the bill published by a Delhi-based law firm, Lakshmikumaran & Sridharan remains unsure if the adjudicating authority is intended to be independent and separate from the NGT. Submissions on the Bill to the MoEFCC by the Legal Initiative for Forest and Environment (LIFE), a collective comprising groups of lawyers that work on issues of environmental democracy, argue that the bill “effectively curtails the power and right of citizens to approach the NGT.” LIFE suggests that citizens will be discouraged from approaching the NGT in the first instance and required instead to exhaust the remedies offered by the adjudicating authority. Comments by the Environment Support Group, a charitable not-for-profit trust involved in research, state that by allowing appeals to be heard by the NGT, the Bill makes it easier for polluters rather than the victims of environmental damage to approach the NGT.
The bill is also missed opportunity to genuinely reform the implementation of environmental law. One of the few redeeming features of the bill is that it appears to introduce civil penalties—which can be imposed by these authorities without resorting to the criminal justice system, and could act as an effective deterrent. The manner in which the bill provides for it, however, is likely to lead only to a troubling monetisation of environmental damage. This is because the bill makes no attempt to distinguish between civil and criminal remedies. Theoretically, with its passage, three different judicial remedies for environmental damage could be pursued—complaints before the adjudicating authority, criminal complaints before district courts, and individual claims for damages before the NGT. The bill gives no indication of the manner in which these three claims ought to operate alongside each other, or how orders passed in one forum ought to affect claims pursued in another.
Presumably, such tedious details are to be worked out in the rules, which are framed by the executive. The introduction to the bill already states that the categorisation of the damage, and the penalties that will be levied for it, will be detailed in the rules. This effectively means that the executive will have a free rein in setting out the criteria for determining the different categories of environmental damage.
Apart from such excessive discretion being bad in law, the bill is also weak because it fails to impose any duty on the polluter to clean up or restore the environment. In its introduction, it only suggests that the amount collected via penalties “could be used for remediation and reclamation.” This duty, too, is vaguely transferred to the government, which is charged with crediting the penalties realised to a fund dedicated to the “protection, improvement and management of the environment.”
Unease about the equation between the adjudicating authorities and the NGT is exacerbated by the central government’s dubious commitment to maintaining the NGT’s powers. Even before the now-infamous TSR Subramanian Committee was set up, there were reports that the MoEFCC had initiated discussions to amend the NGT Act and to “clip its wings.” These fears, which increased once the committee was established, received more credence with the release of its report in November 2014.
The TSR Subramanian Committee was a high-level special committee set up in August 2014 by the MoEFCC to review key existing environmental laws. The committee, headed by TSR Subramanian, a former cabinet secretary for the government of India, reviewed the EPA, 1986; the Forest (Conservation) Act, 1980, the Wildlife (Protection) Act, 1972; the Water (Prevention and Control of Pollution) Act, 1974; the Air (Prevention and Control of Pollution Act), 1981; and the Indian Forests Act, 1927.
The committee’s pro-business bias is evident in many of its recommendations. These include waiving the requirement for companies to conduct afforestation, as long as they pay a compensatory amount. The recommendations also emphasised speeding up clearances for proposed industrial projects through the creation of a “single window” system with the idea that companies be granted clearances in “utmost good faith.” This assumes that project proponents applying for environmental clearances will be truthful and transparent in all of their disclosures, belying their abysmal track record.
It is also in this context that the committee’s recommendation regarding the creation of a parallel authority to the NGT must be viewed. The committee suggested that an appellate tribunal or board hear all first appeals against decisions granting or rejecting environment clearances for industrial projects and proposals. The report recommended that the role of the NGT be reduced from conducting comprehensive merits and judicial review of decisions taken by the MoEFCC, to one of judicial review alone. The committee’s report has been heavily criticised for its recommendations, including a particularly scathing rejection in a July 2015 report by the Parliamentary Standing Committee on Science and Technology, Environment and Forests. Given widespread environmental regulatory malaise, the parliamentary report emphasised the need for more careful consideration before setting up yet another authority.
This stricture has been ignored in the bill. Instead, it proposes creating a new adjudicatory authority that duplicates a key function of the NGT. Fortunately, the TSR Committee’s recommendation to strip the NGT of its power of merits review does not appear to have been incorporated in the Bill. The adjudicating authorities are restricted to assessing the extent of environmental damage, rather than examining the merits or legality of clearances granted by the MoEFCC, and the NGT seemingly retains its existing powers. Nevertheless, fears about the amendment of the NGT Act remain. Although the particular amendment made by this bill does not directly limit the NGT’s powers, it is evidently a step in the direction of implementing the more pernicious recommendation of the TSR Committee’s report. “[W]hat the Ministry has now done,” notes the submission made by LIFE, is “run away” with a part of the TSR Subramanian committee recommendations, “slapped upon it a few features that appear progressive, but in the end presenting an architecture of environmental decision making that would concentrate power in the Union Ministry of Environment, Forests and Climate Change.”
The TSR Subramanian Committee report recommended that project proponents that violated the principle of “utmost good faith” be heavily penalised. If the government were to be held to the same standard as far as the passage of this bill is concerned, there would no quantifying the grave damage that it will cause to environmental regulatory processes and institutions.