Instead of one independent regulator to protect the environment, India must put in place governmental decision-making located within the public sphere of influence

The idea of a new, independent regulator to protect the environment has been revived by the forest bench of the Supreme Court in the Lafarge mining case. The apex court has ordered by mandamus, a new authority to be set up under Section 3(3) of the Environment (Protection) Act, 1986 for appraising projects, enforcing conditions and imposing penalties on polluters. This is to be done by March 31, 2014. The Environment Ministry had responded to the court in November 2013 that it had enough means to regulate the environment through existing institutions and procedures. The court was not convinced.

The idea of a new regulator seems to grab eyeballs and attention from all quarters. It also seems to have little resistance in principle for three reasons. Firstly, this government and its Environment Ministry have lost practically all their supporters among citizens due to the manner in which they have dealt with environmental and forest clearances. Any move to take away decision-making powers from them will only improve the situation.

Secondly, the Supreme Court seems to want to shake the status quo by bringing in a new regulator. Most environmentalists believe that the system deserves to be shaken. They also have great faith in the Supreme Court’s wisdom on complex matters of governance. Thirdly, there is a real fear about opening up the laws on grant of clearances even though everyone agrees that we can barely expect good decisions without several amendments to green laws. So creating a new institution is at least doing something.

Institutional structures

For those who have studied the institutional structures of the environment, this announcement is like an advertisement for a new and improved version of a product that has already been around a long time. In fact, in the field of environmental governance, setting up new institutions has been a routine way of taking away attention from the real causes of environmental degradation. The Supreme Court has used this route the most; and its setting up of the Compensatory Afforestation Fund Management and Planning Authority (CAMPA) is an example of institution-building where the core problem remains unabated.

This authority came out of a case that should have ensured that the long-pending objectives of compensatory afforestation are achieved. Instead, what we got was a body that collects and disburses monies earned from granting forest clearances.

The Supreme Court does not clearly state what such a new regulator is meant to achieve that has so far evaded the environmental governance system. Did the court and the amicus not find it fit to assess whether the existing regulatory bodies set up under 3(3) are able to perform at all? From the order, it appears that the only point cited in favour of independent environment institutions doing well is the Arunachal forest protection authority.

There is no study whatsoever to prove that this authority is indeed arriving at better environmental results. This is pretty much the case with some of the better known institutions set up under the same clause of the EP Act; The Biodiversity Authority, the Coastal Zone Management Authorities and the Authority set up to monitor the state of notified Ecologically Sensitive Areas. There aren’t any such studies from within the official system to show if they have been useful environmentally.

Working to what end?

A serious assessment of the functioning of these institutions will reveal that they are floundering primarily due to one reason: the laws under which they are set up don’t provide any clarity on what is to be achieved in terms of environmental outcomes. What are the outcomes they are to be working towards with all their procedures, their methods and their discussions? Our laws have no end results they are expected to bring about, only procedures. To not have desired outcomes attached to laws is in our view the cause of environmental degradation and conflict. By desired outcomes of environment laws, we mean not a grant or rejection of clearance but substantive results like reducing environmental conflict, achieving social justice through decisions and ensuring the highest order of environmental compliance.

If routine decisions by all actors in the environment field are not assessed against these outcomes, a new regulator will buckle under pressure from all sides exactly the way all the ones before it have.

Diabolical

The proposals for the new regulator so far have also suggested that they be kept independent so that such buckling under pressure does not occur. This promise of independence seems to create much support for the idea of a new regulator. However, the idea of a regulator outside of the sphere of social and public influence sounds diabolical as then it will serve the interests of only the political class. It, of course, needs no explanation that we cannot create a body that is outside of the influence of the latter. It is far more important that we have decision-making bodies that can be subject to public influence so that their decisions reflect our concerns of being citizens dependent on common resources. Rather than one independent regulator, what we need is a practice of outcome-based governmental decision making located within the public sphere of influence. It needs to be democratic in its form and method rather than leaving decisions to a group of selected experts. Through it, we must achieve substantive justice rather than procedural efficiency.

(Manju Menon is Program Director, Namati-CPR Environment Justice Program. Kanchi Kohli is an independent researcher and writer.)

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