The TSR Subramaniam Committee submitted its report reviewing the Forest and Environment Related Laws in December 2014. The Report had been criticised and subsequently junked due to its focus on expediting environmental clearances and limiting public participation, to promote economic development. But the real criticisms relate to the approach – missing the forest – and less on the details – for the trees.
First, the Report assumed a bargaining approach to the environment. The administration - acting as an agent of its citizens and environment - accepts development activity will result in environmental damages. Even as the administration is assumed to be able to quantify exactly the level of damages, the onus of providing the information to assess and quantify the damages was primarily from the project proponent undertaking the development activity. The administration placed ‘utmost good faith’ on the project proponent for providing information and also for compliance and monitoring, verified through scientific research centers – e.g. National Environment Research Institute, that would have been set up.
After administratively assessing the ‘exact’ level of damages, the project proponent was to undertake compensatory actions to ‘conserve’ the environment - pay Environmental Reconstruction Cost (ERC), contribute to Environmental Reconstruction Fund (ERF), rehabilitation and resettlement costs, and/or social/compensatory afforestation. Market mechanisms such as trading schemes – cap and trade for incentivizing non-polluting industries and ‘treeland’ trading were proposed.
Assessment: The Report placed ‘utmost good faith’ in the project proponent, and its own yet to be set up institute’s efficacy for technical verification. The report did not consider economic constraints of “utmost good faith” i.e. adverse selection and moral hazard a.k.a. lying, cheating etc. Valuing the environment and converting it into compensatory amounts requires correlation between ex-ante (forecasted) value and ex-post (actual) damages. Assessing environment value and quantifying damages are not exact sciences as they require ascertaining total economic value (TEV) - direct-use value, indirect-use value, non-use value and intrinsic value - and monetarily quantifiable levels of pollutions/degradation during, and sometimes beyond, the life time of the development activity. These approaches are often limited in scope and accuracy. The technicalities needed for the above task are enormous even as intrinsic value affects valuation. For e.g. how is the worth of the discovery of unique species of reptiles to be made in monetary terms? Any administrative figure would thus merely put a plucked out of the air, skewed value - resulting in mismatch between ex-ante value and actual ex-post damages.
Second, the report sought to strengthen the monitoring and compliance mechanisms. For this purpose, National Environmental Management Authority (NEMA) and State Environment Management Authorities (SEMA) would subsume the Pollution Control Boards and become “standing technical organizations having the primary responsibility for processing all environmental clearance applications, in a strictly time-bound manner.”
Assessment: Irrespective of the type of institutional structure, greater monitoring and ensuring compliance is the need of the hour. Whether these new Authorities would be more effective than the PCBs is a moot question. Further, the Supreme Court in the Larfarge case stated that a “National Regulator, enforcing environmental conditions for approvals and to impose penalties on polluters” should be in place, making NEMA and SEMA, technical organizations, legally unviable.
Third, in terms of enforcement, the proposed Environment Law (Management) Act suggested that Special Environmental Courts at the district level be set up for aggrieved parties to approach, either for pre-clearance or post-clearance related complaints/offences. But, NEMA/SEMA officials were to be given first preference in the Courts, while the members of the public ‘must provide credible evidence of bonafides’ (Section 9.2). The second level (Section 13.1 to 6), any person, aggrieved by a final decision of MOEF & CC or of the final decision of SEMA, could appeal before an Appellate Board - constituted by the Government.
National Green Tribunal (NGT) was seen as the final authority for appeal and review. However, limitations on its review powers had been suggested and made ‘subject to limitations applicable to judicial review of administrative actions by the High Courts and the Supreme Court of India’ (Section 16). Even with judicial review, section 15 suggested a bar on jurisdiction for NGT and others - wherein it could not question the government on its decision ‘before nor enquired in to by any court or tribunal either suo-moto or at any ones behest on any ground what so ever’.
Assessment: Appeals process sought to mix and weave the separation of powers at every level. Special judicial courts were to be set up but mandated preferential access to administrative officers. An appellate board set up but made administrative in nature, managed by government officials. Finally, NGT powers were straitjacketed, by making its power only for judicial review of administrative actions. These are all tilted in favour of management of environment issues and not conservation of the environment.
Fourth, the report rested its foundations on information management - ‘technical database’, ‘master database’, ‘central database’ etc. The Report rightly recognized that the present state of environmental information is poor. But, the report hoped that this, information management, ‘will help give project clearances in a transparent, accountable matter, relying upon scientific principles, and sharply reducing delay’.
Assessment: The core issues were of access and utility of the information database by those affected by the projects. The database would not be widely accessible – the controlling organization would charge a price or a cost ‘for data mining and accessibility from the centre’ and access would be limited to project consultants. This would have greatly reduced free flow of information to stakeholders and limited their ability to participate effectively in the environmental governance process.
The Report did not consider our present weaknesses in environmental governance - information gathering capabilities as seen from Environmental Information System (ENVIS) - are patchily organised, while the compliance and monitoring regimes are lackadaisical. This crucially limits our ability to accurately evaluate the environment in monetary terms. Only when transparent, accurate, accessible, and accountable mechanisms are well advanced can such pre/post compensatory and market mechanisms work, ultimately limiting judicial interference and some bargaining with the environment take place. Even then, the vulnerability of species or their ability to change and adapt may not be known– thus making the management exercise one in futility.
