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Outsourcing environment decisions
Source: The Hindu, Date: , 2014
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.
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