Environmental Compliance is key for Sustainable Development
BY IAPSDIALOGUE on MAY 3, 2017
Written by Manju Menon and Kanchi Kohli. In March this year, India’s Comptroller and Auditor General’s (CAG) office submitted a damning report to the National Parliament on the state of environmental compliance in the country. This report is a national level performance audit of the Ministry of Environment, Forests and Climate Change and its institutional procedures for the grant and monitoring of conditional project approvals. These procedures have been in existence since 1994, through which over 15,000 industry, infrastructure and mining projects have been approved. In addition to this, several hundred projects have undergone this approval process through state governments since 2006 when a revised regulation detailing the process of environmental approvals was gazetted.
… the CAG report acknowledges that the homes and neighbourhoods of marginalized communities have been altered by industrial, infrastructure or mining projects.
This independent audit report by India’s well regarded apex audit institution is a timely and critical intervention and speaks to the concerns of many social movements and civil society organizations who have engaged with India’s environment regulation and its implementation on the ground. The report identified that the Ministry’s database on approved projects was poorly managed and with errors, making any follow-up of the approved projects very challenging. It quantified the significant levels of non-compliance on various aspects of the clearance process; such as time taken for approvals, the quality of Environment Impact Assessment Studies and public hearing procedures. However, the most important contribution of the report is its observations regarding the monitoring process of the approved projects.
A large number of projects are approved every year under the Environment Impact Assessment (EIA) Notification, within the ambit of the India’s Environment Protection Act. The projects are granted a condition-based clearance. The conditions, which have to be followed by the project for the entire period of its operations, are mandatory safeguards meant to reduce and mitigate their ecological and social impacts. However, this system of conditional approvals seems to work only on paper. The report observed that non-compliance with the conditions was as high as 57 percent in the projects studied for the report. Time-bound action plans for implementing these conditions were missing for a large number of the projects.
Why does this matter?
The conditions that are violated in the projects studied by the CAG’s report relate to ground water conservation, creation of buffers between industries causing dust pollution and residential areas, reduction and management of waste material such as fly ash or toxic effluents from production processes and rehabilitation of communities displaced by projects. Why does non-compliance of these conditions matter so much? What is the significance of the CAG’s observations and what do these have to do with social movements?
Firstly, many land and environment laws recognize that the lives of certain groups of people are made more vulnerable by government policies for economic development. We live in an extremely unequal world where the benefits and burdens of government policies and decisions fall unequally on different groups of people. For example, industry, mining or even landfills that have high impacts are usually located on the lands of indigenous people, near tribal hamlets or the homes of communities who are marginalized by society, such as dalits. They are located on lands where pastoralists graze their herds but they may have no formal property rights over these lands. Projects are also located in areas that result in specific impacts on children or women. These groups end up bearing a greater burden of the government’s developmental and economic decisions than others in society.
By focusing on the non-compliance of projects located in these areas, the CAG report acknowledges that the homes and neighbourhoods of marginalized communities have been altered by industrial, infrastructure or mining projects. It shows that the projects located here are already spewing effluents, or causing toxic air pollution and have already taken over large areas of common lands that the poorest people depend on. Unlike the governments at state and central levels who continue to exploit the narrative of development to justify new projects, these areas are evidence of the costs of development. These regions have also witnessed these impacts over long periods, where communities have long forgone the opportunity to live their lives with safety and dignity. In the state of Chhattisgarh in central India, mining companies have been paying affected families “bhatta” or a pay-off instead of complying with the norms on prevention, minimizing or mitigation of air pollution. A similar practice of informal monthly payments of Rs.1000 is prevalent in the mining areas of the eastern Indian state of Odisha too.
Compliance is the weakest part of India’s environment regulation. It has had almost no investment since the 1990s when these systems were set up. A study by the authors of this article revealed that the non-compliance with the approval conditions of the projects was over 90 percent. Each of these conditions is linked with very specific safeguards related to pollution, access to livelihood spaces, restoration of land, use of surface and groundwater, all of which have a bearing on human health, living and work conditions. This situation may not be very different today, because even if compliance rates may have marginally improved, the rate at which projects are granted approvals has exploded. Compared to this scenario, the growth in the size of the official regulatory machinery is nothing. In order to control this situation of rampant non-compliance, the CAG report recommends, among a slew of well-considered suggestions, that projects be granted approvals for new projects or expansions only after verifying the status of compliance on the ground. While this may ‘slow down’ the approval rate of projects, this recommendation is in line with studies that show that strong regulatory compliance in fact improves economic growth by attracting the best in the business.
A problem that the government won’t accept
Ironically, the Ministry is moving in the opposite direction. In the same month that the CAG’s report was tabled in Parliament, the Environment Ministry issued a notification to grant approval to projects that had violated the EIA Notification and started operations without the necessary approval. This amnesty offered to the violators of law reflects the opinion that environment regulation is a bottleneck or a roadblock to economic development, a view held by many within the government including the Ministry of Environment itself. This new notification is only one in the long list of rapid changes being brought to environment law to support the government’s “ease of business” agenda. Much of these so-called reforms are being done behind closed doors, with very little consultation even with policy experts, let alone the public in general. These are also being brought through as executive or subordinate legislation that does not need the oversight of Parliament.
The CAG report is a shot in the arm for civil society groups who have become habituated to being called anti-development or unpatriotic for raising concerns about the fairness and quality of this form of economic development. But unless the government starts to view environment law as a bridge between social and economic development, rather than an impediment to progress, we are not likely to be in a better place.
Manju Menon is a senior fellow at Centre for Policy Research (CPR), where she directs the environmental justice program of Namati, an international NGO dedicated to legal empowerment. Manju researches the environmental decision making process in the regulatory and public arenas. Kanchi Kohli is the Legal Research Director at Namati and also works with the CPR, New Delhi. She is a researcher, writer and campaigner working on environment, forest and biodiversity governance in India and their interface with trade and industrialisation. She tweets @kanchikohli.