The Telegraph
Tuesday , January 7 , 2014
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Court order to set up green regulator

New Delhi, Jan. 6: The Supreme Court today overruled the Centre and directed it to set up a national regulator to deal with the mandatory environmental impact assessment processes for forest-related projects that can range from mining to industrial ventures.

The implications of such a watchdog for industry were not immediately clear in the absence of specific modalities but a clearance logjam blamed on the environment ministry was seen as one of the biggest factors that strengthened a perception of policy paralysis that dogged UPA II.

Another fallout of the ruling was a fresh debate on the reach of the courts. Although environment analysts felt such a watchdog was needed because of government laxity, at least one wondered whether the court should have ordered its formation instead of letting the executive take a decision.

“Ideally, the court should be punishing wrongdoers, but then we don’t have a reliable EIA process right now,” an environment scholar said in response to a question.

Under EIA or environment impact assessment, experts evaluate the impact a project might have on the forest environment and recommend remedial measures in advance.

A three-judge bench of Justices A.K. Patnaik, S.S. Nijjar and Ibrahim Kalifullah has asked the Union government to set up the regulator by March 31 this year. The regulator should have branches in different states for dealing with the environment impact assessment before sanctioning any project.

“We direct the Union of India to appoint a regulator with its offices in as many states as possible as it has become necessary since the present system for the environmental impact assessment under the central government is found deficient,” Justice Patnaik, heading the bench, said in the order.

The court clarified that the regulator has to function within the ambit of the Environment Protection Act and it should not exercise the powers of the Centre under the Forest (Conservation) Act that the government had cited to oppose a separate watchdog.

The court did not specify the modalities for the functioning of the regulator or the number of branches to be set up, leaving that to be determined by the government. The court will take up the issue again on April 7.

During earlier arguments, the Centre had opposed the move for a new regulator on the ground that the Union environment and forests ministry is equipped to deal with the process. The Centre has also contended that the National Green Tribunal closely monitors the functioning of all forest projects.

“The court is obviously not happy with what the environment ministry has been doing,” said a senior environmental scholar who requested not to be named. “The EIA in many cases has been nothing more than an eyewash. If the EIA is overseen by a genuinely independent regulator, it will be good.”

Some officials wondered whether projects would be delayed further as the regulator will have to assess the impact and then clear the proposals that come under the purview of the Environment Protection Act.

But others felt the process might pick up speed because a regulator might be less indecisive than the political establishment that has lost the stomach for taking decisions in the current mood of mistrust and season of scandals.

The regulator will also be entrusted with the task of imposing penalties on the polluters, a task otherwise being performed by the National Green Tribunal.

The tasks raise the question whether the ministry will become redundant. “We are not sure what will be the role of the ministry of environment and forests, once the regulator is set up. We may seek clarification from the court if necessary,” a central government counsel said.

“It is a good idea to have such a regulator,” said Naresh Saxena, a former administrator who had chaired a Union environment ministry panel that investigated the likely impact of a bauxite mining project on a tribe in Odisha’s Niyamgiri hills.

In 2011, the Supreme Court had refused to interfere with the decisions of the ministry but had asked the Centre to establish a national regulator under the Environment Protection Act of 1986. The section says that the “central government may, if it considers it necessary or expedient so to do for the purpose of this act,… constitute an authority or authorities….”

But solicitor-general Mohan Parasaran has submitted that under the Forest (Conservation) Act of 1980, the duty of a regulator has been cast upon the central government.