National Environment Regulator: Civil Services Mentor Magazine - June 2014

National Environment Regulator

There has been a growing concern over the management of the ecological issues in India. While India has committed to maintain a threshold of 33% of the total land area under forest cover, there have been severe lapses due to the increasing number of mining and developmental projects.

In this context, the Supreme Court of India has been acting proactively to promote the ecological concerns in India. Thus, the Court has been pushing for the establishment of a National Environment Regulator, to act as the watchdog over the various issues of environmental protection.

While the Court has been pushing for the regulatory agency for sometime now, the issue has gained substance recently.

Background

Back in 2011, the Supreme Court directed the Center to appoint a National Regulator to oversee the implementation of forest policy in India. The Court also rejected the contentions over the requirement of such a body, asserting the immediate need to have one.

A three-judge Bench, headed by Justice A. K. Patnaik, also ordered the Center to file an affidavit on compliance of its order latest by March 31, 2014.

The Bench stressed the need to set up the regulatory body, rejecting the plea of the Ministry of Environment and Forests (MoEF) that there was no need to appoint a regulator to oversee the implementation of forest policy. The Bench also made it clear that the clearances under the Forest Act would be granted by the MoEF but the regulator will see the implementation of the Forest Policy of 1998.

The Bench also mentioned that the Environment Impact Assessment (EIA) notification of 2006 would now be dealt with directly by the national regulator for every project. The need was felt after the present system for EIA under the Center was felt deficient.

Lately, there has been a disillusionment with the existing mechanism for the Environmental Impact Assessment (EIA), as the process was full of lopholes and inadequacies. As against the legal process, the developers often started the projects before the submission of the EIA report. Further, the EIA Panel did not include experts on ecology and related fields. Thus, the reports were merely based on guess-works and social-political factors.

Another, problem related to the EIA process was that, each project was considered separately. However, the EIA report did not take into account the ‘cocktail effect’ of the multiple projects in close proximity. Thus, while each project did not add much to the environmental degradation, and cumulative impact of a number of projects was highly degrading for the environment.

That is why, a proposal for a centralized agency, was put forward, to shoulder the task of project appraisal and enforcing of environmental conditions.

Mandate for the National Environment Regulator

The Supreme Court has directed the Center to appoint a National Regulator for appraisal of industrial projects in green belt, enforcing environmental conditions and impose penalties against the polluters.

The Court has instructed to the Central government to appoint the Regulator, with offices in as many states as possible, under sub-section (3) of Section 3 of the Environment (Protection) Act, 1986, as directed in the order in the case of Lafarge Umiam Mining Private Limited.

Lafarge Umiam Case

Lafarge is a French multinational cement company, that has been conducting limestone mining in the forests of the East Khasi hills in Meghalaya. The Supreme Court, in February 2010, restrained the Lafarge from carrying out limestone mining in Meghalaya for its cement plant, saying mining in the environmentally-sensitive zone could not be allowed. Subsequently the Environment Ministry gave revised environmental clearance to the Lafarge, which created further controversies.

Thus, in 2011, a Supreme Court bench accepted the contentions of the Lafarge to mine in the forests of Meghalaya and that it had obtained necessary clearances. The Bench asked the Central government to appoint a National Regulator for appraising projects, enforcing environmental conditions for approval and to impose penalties on polluters.The Bench also instructed that the new authority should undertake the Environment Impact Assessment (EIAs) by an expert body. The Bench expressed dissatisfaction over the existing mechanism of providing EIAs.

The Central government, on the other hand, defended its stance arguing that it alone is the regulator and the task cannot be done by any other body.

The original recommendations gave the wide-ranging powers, stretching from appraisal of green clearances to ensuring the compliance of the conditions and standards laid down while giving the clearances. It also placed the Central and state pollution control boards under the NEAMA.

The Authority was recommended to have a full-time chairman, and 6-8 full-time members, each in-charge of a thematic area, such as thermal power, major minerals and hydel power. Each field was to be backed up by a full-time thematic team and subject matter division such as monitoring and compliance, specialized divisions on database management, economic costs, survey and research, legal and support services.

The initial recommendations proposed to create the authority through an amendment to the Environment Protection Act, 1986. But the Environment Ministry has to take the final decision regarding the issue before the deadline of March 31, 2014.

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