The Good & Bad of Environmental Law Reform in India

In India, a High Level Committee (HLC) constituted by the Ministry of Environment, Forests and Climate Change has submitted its report to the environment minister, Prakash Javadekar, following its review of six of India’s major environmental laws. Some of the laws date back to the 1920s and the report offered an opportunity to strengthen the protection of India’s environment and protect the communities that rely on it for their livelihoods.

When the Committee was set up, Namati and its partner, the Centre for Policy Research,  submitted a set of issues that the Committee needed to address. We also presented to the Committee a Framework of Principles for Environment Law Reform that could guide the reform process.

The report has become public and Namati’s Manju Menon and Kanchi Kohli have written this blog post analysing its likely impact.




By Manju Menon & Kanchi Kohli

The High Level Committee (HLC) constituted by India’s Ministry of Environment, Forests and Climate Change has submitted its report to the environment minister Prakash Javadekar, following its review of six of India’s major environment laws. The committee set up on 29 August, 2014 and headed by former cabinet secretary, Shri T.S.R. Subramanian had been granted an extended tenure ending 28 November 2014.

The six laws which have been reviewed include the Environment (Protection) Act (EPA) 1986, the Forest (Conservation) Act (FCA) 1980, the Wild Life (Protection) Act (WLPA) 1972, The Water (Prevention and Control of Pollution) Act 1974, The Air (Prevention and Control of Pollution) Act 1981 and the Indian Forest Act 1927.

These legislations along with several notifications and guidelines issued under them have been the backbone of a system to regulate, manage and monitor environmental impacts of development in the country since the 1970s.

The environmental laws under the committee’s review are several decades old and each law and its notifications have already been reviewed many times over by government- appointed committees based on judicial pronouncements, institutional practice and expert recommendations. These laws and the experience of their implementation have also been a subject of study and advocacy for many reputed research organisations, NGOs and grassroots organisations working in the field of environment and conservation.

The Committee held consultations with several environmental organisations, experts and government bodies across cities for this review of environmental laws. These consultations were held amidst many concerns over the Terms of Reference of the Committee to bring laws “in line with current requirements,” its composition and its process of consulting with some groups and individuals selectively. The Committee’s report was submitted ten days prior to the time given to it.

Though the full report is yet to be accessible to the public what is available is the executive summary and several interviews by the Committee’s chairman which give a sense of what the major thrust of this report is and what has been prioritised from an expected detailed list of recommendations.

According to the Executive Summary of the HLC’s report, the committee has drafted their recommendations based on seven key principles. These include primacy to conservation of the environment, a push for reconstruction where degradation has taken place, transparency in environment management, use of technology for speedy and accountable decision-making around project approval, effective monitoring of environment compliance, an increase in the capacity of environment management and reduction in litigation and elimination of ambiguity.

A preliminary analysis of the summary’s contents and emerging news reports indicate that the committee has recommended substantial changes in the legal framework for environment regulation, the setting up of new specialised institutions, a new comprehensive law for environment management with an appellate mechanism on approvals and non-compliance, and the creation of a cadre of experts called the All India Environment Services.

The committee’s report also emphasises the need for more decision-making powers at the state level, a process which had already begun with the changes in the Environment Impact Assessment (EIA) Notification, 2006. There is a mention of higher financial costs for forest diversions through more compensatory afforestation per project and increased payment through Net Present Value (NPV) for diversion of forest land for non-forest use.

A major thrust of the committee’s report is on compliance, based on “utmost good faith” and severe penalties for breach by project developers. News reports also indicate that the Committee recommendations intend to reduce ambiguity of laws and therefore litigation, and also the creation of special district courts for redress.

However, all of the above points need to be assessed in the light of the government’s and the committee’s emphasis on “fast tracking” and single-window approvals in sectors such as roads, railways, power and mining. This challenges and restricts the benefits that could be gained from a reform process in the following ways:

  1. The implementation of environment laws will continue to be measured and judged by the number and time taken for decisions, and not necessarily by better and positive environmental outcomes. Due to this emphasis, the main objective of the proposed changes would continue to be ‘approval-focussed’.
  2. The emphasis on speedy approvals is evident in the design of the approval granting and compliance process as those that involve only two parties: the regulator and the project developer. The approval process relies on environmental experts and the compliance process bestows ‘utmost good faith’ in project developers. The third party, the ones who bear the burden of poor regulation, are invisible in the Committee’s reform proposals until the stage of seeking remedies. Speedy approvals without reimagining the role and scope of participation by affected people in the clearance and compliance procedures will not bring down conflict over such decisions or litigation, as expected by the Committee.
  3. The Committee proposes “Technology aided speedy and accountable decision making for project approval”. Presently the ‘burden’ of time that the decision making process entails is due to the extent of data that is hidden or concealed in order to gain approvals. Improving the quality of data available may not only render the grant of approvals more time consuming, but may also increase rejection rates. And this would pose a problem to the objective of speed. The new institutions and experts engaged in decision-making will be bound by the existing inherent contradiction of improving quality and reducing time for decisions.
  4. Allowing for quicker approvals without addressing the issues of existing non-compliance can result in condoning long-standing illegalities, which have had real time social and environmental impacts. Addressing the impacts of past violations and non-compliance and restoration would take much longer than granting approvals. Unless decision-making can address new project proposals and existing violations together, as part of one process, the rate of approvals would continue to effect serious environmental and social consequences in areas already severely impacted.

The Committee has done its work of putting together a wide range of issues and mechanisms that need to be thought through, for a robust environment regulatory system. As the Committee itself has observed, and as would be normally expected of a reform process, most of these will need to be discussed and elaborated upon further.

It is hoped that the government will engage in this process instead of selectively choosing the recommendations that help to fast track the approval process. Such efforts have been made before, too, with many committee reports and processes, but the outcome has been laws and notifications that are piecemeal and motivated by narrow, partisan interests. Indeed, the present government is already chipping away at notifications and rules as we wait for this Committee’s report.

A reform process needs to focus on creating positive environmental outcomes rather than be led by negative and untenable imperatives to the effect that ‘environment laws should not come in the way of economic growth.’ Is this government up to the task?

This blog post first appeared on the India Together website.

December 2, 2014 | Manju Menon & Kanchi Kohli