The Supreme Court on Monday directed the government to appoint a Regulator with offices in States under the Environment (Protection) Act, 1986 for appraising projects, enforcing environmental conditions for approvals and imposing penalties on polluters.

A Green Bench of Justices A.K. Patnaik, T.S. Thakur and Ibrahim Kalifulla gave the Centre time till March 31 to make the appointment and directed it to file a compliance report. The Bench told Solicitor-General Mohan Parasaran that it would have ordered the appointment with immediate effect but granted the government time keeping the interest of economy in mind.

Writing the order, Justice Patnaik said: “The present mechanism under the Environment Impact Assessment Notification dated 14.09.2006 ... is deficient in many respects and what is required is a Regulator at the national level having offices in all States which can carry out an independent, objective and transparent appraisal and approval of the projects and also monitor implementation of the conditions laid down for environmental clearances.”

The Regulator could exercise “only such powers and functions of the Central government under the Environment (Protection) Act as are entrusted to it and obviously cannot exercise the powers of the Central government under Section 2 of the Forest (Conservation) Act, 1980.” While exercising powers under the Environment Protection Act, the Regulator would ensure that the National Forest Policy, 1988 was duly implemented as held in this court’s July 6, 2011 order in the case of Lafarge Umiam Mining.

The Bench rejected the Centre’s contention that the government alone was the Regulator. “We do not find any force in the submission of Mr. Parasaran that as under Section 2 of the Forest (Conservation) Act, 1980, the Central government alone is the Regulator, no one else can be appointed as a Regulator.”

In the Lafarge Umiam Mining case, the court laid down guidelines to be followed in future cases and called upon the Centre to appoint a National Regulator. But the Centre failed to do so for nearly three years.

The Bench said: “The presence of the MoEF Secretary in both the appraisal and approval processes leads to a perception of conflict of interest. The current EIA and CRZ clearances rely predominantly on the data provided by the project proponent, and the absence of reliable data and lack of mechanisms to validate the data provided by the project proponent might lead to subjectivity, inconsistency and inferior quality of EIA reports.”

Further, “though the EIA notification requires several documents like ToRs [for every project], minutes of public hearing meetings, EIA report [with clearance conditions] and self-monitoring reports to be put in the public domain [predominantly on the website], this has not been done for lack of institutional mechanisms. This leads to a perception of lack of transparency in the processes. Several studies have pointed to the poor monitoring of the clearance conditions. Huge gaps in monitoring and enforcement of clearance conditions defeat the very purpose of grant of conditional environmental clearance.”

Further hearing is posted to April 7.