An ineffective institutional monster

It has taken the Ministry of Environment and Forests (MoEF) 25 years to communicate to all that it is unable to carry out the regulatory role the institutional structure was designed for. A discussion note recently revealed by MoEF on September 17, 2009, seeks to overhaul the way environment governance will play itself out in the future. The note strategically ackowledges the evidence NGO studies and Planning Commission documents highlight as to how the current decision making structures have failed to achieve environment protection over the years.

To bail itself out of this mess, the MoEF has proposed four formulae to create a magic potion, permutations of which are to be developed into estabilishing India's very own National Environment Protection Authority (NEPA). Prime Minster Manmohan Singh had already set the ball rolling for this when he annonced this intention before all the state ministers of environment and forests a month before the discussion note began doing the rounds in cyberspace. Setting up the NEPA now also appears on the agenda of the US-India partnership following Singh’s visit there last week.

If this proposal has its way, the MoEF will take upon itself the responsibility to draft policies and laws, participate in international negotiations and carry out environment education programmes. The implementation of the existing environment regulatory frameworks like the Environment Impact Assessment Notification (EIA), 2006 or the Coastal Regulation Zone (CRZ) notification, 1991 and also the functions of the MoEF’s regional offices and Pollution Control Boards (PCBs) will be either absolved or networked with NEPA. What this simply means is that NEPA will be responsible for the environment clearance of development and industrial projects and ensure the monitoring as well as compliance of all conditions levied as part of the clearances.

Burden of regulation

Even as the MoEF shifts the burden of regulation, monitoring and enforcement to an “independant” authority, there is no intention stated upfront that brought it to this position. A close examination of these factors is the most urgent task at hand before one hands over an unresolvable legacy to a new generation of enthusiasts.

The foremost of the issues is the dilution of the environmental regulatory framework in favour of industrial expansion and the haste in granting clearance at the cost of sound impact assessments. This has gone hand-in-hand with increased violence at the time of mandatory public hearings and also a rise in ligitiation against clearances. NEPA will be handed over this flawed framework on a platter. With this will come the inability to deal with monitoring and compliance of environment clearance conditions. If MoEF, with its six regional offices, has washed its hands off on this, how will NEPA manage the inheritance of monitoring over 6,000 projects. The number of clearances are on the rise each day.

NEPA is envisaged to be a body independant of the MoEF. Even as centralisation of decision making remains, it will divide itself into two structures: one that determines the agenda and the other that fulfills it. So passing the buck will be much easier than before, with citizens not being able to hold the MoEF and its minister accountable on issues of enforcement.

Failure of proposal

The current proposal fails to deal with a deep-rooted problem of the environment clearance process, with its heavy reliance on scientific experts. Much of the compostion of this authority is proposed to be just that. It ignores the fact that matters of environment are not just related to pollution standards or their management as it is understood among experts. A much broader view needs to take into account principles of natural and social justice as well as long-term ecological security in setting up infrastructure or industrial operations in a particular site. This is irrespective of the fact that the project design promises to comply to pre-determined standards rendered permissible by the politics of scientific expertise.

Many other core concerns of environment governance, like the lack of coordination between the various sets of clearances handled by the ministry, remain. The NEPA mechanism washes its hands over the forest clearance process also handled in MoEF, which ideally should be in coordination (but not combined) with environment clearance considerations. The facts of one regulatory process need to be able to match the claims in the other.

We don’t need to wait another 25 years to ascertain as to what seems like MoEF’s solution to India’s crisis. It is basically nothing less than washing its hands off the muck that pollutes forests and the silt that chokes our rivers.

Instead of breaking heads over creating fresh institutional monstors, why is it that energies are not being combined to reform the known devil?

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