Treating Environment as Secondary: Analyzing the Frail Environmental Governance of India
With the increasing number of human activities that lead to the degeneration of the planet, the climate crisis is one of the most talked-about topics today that concerns not just the present but also our future generations. For a long time, human civilization has plundered the earth and its resources for its gain and development without consciously realizing the importance of concepts like sustainable development and the eco-friendly use of resources. It has been globally acknowledged that the climate crisis is not a phenomenon that can be ignored but it is an issue that needs to be addressed urgently and swiftly. The impact of human plunder is already visible in the horrifying images of forest fires, floods, and extreme weather and is being felt by not just humans but the flora and fauna across the globe. However, the impact felt by all is not evenly distributed. Poor and underdeveloped countries, especially economies dependent on agriculture, are home to the most vulnerable population and will be most affected by climate change despite contributing the least towards the same. What is worrying is that we have hit a roadblock with regards to an effective implementation for saving the planet. Promises on promises have been piling up. To ensure a strict action against climate change, laws and policies can be of great help. However, in the current situation, these laws and policies are usually circumvented and the consequences of it are not severe, to say the least. Thus, there is no dearth of legislations on environment protection, but their enforcement is far from satisfactory. There is a need for an effective enforcement of the Constitutional mandate under Article 48(A).
The Central Vista Project fiasco
The Central Vista Redevelopment Project is an ongoing project through which the government of India seeks to revamp and redevelop Central Vista. Originally designed by Edwin Lutyens and Herbert Baker, Central Vista is India’s central administrative area located near Raisina Hill, New Delhi. The project entails the complete overhaul of various government buildings, several renowned landmarks, and the construction of a new Parliament at the total cost of Rs. 20,000 crores. In April 2020, a petition was filed in the Supreme Court that sought to challenge various aspects of the project which included the change of use of land under the Delhi Development Act as notified by the Centre, the lack of environmental clearances due to insufficiency of scientific studies and the absence of architectural or heritage considerations to name a few. The petitioner also claimed that the project was in contravention to the Right to Life guaranteed under Article 21 as it deprives the public of open and green spaces. A bench of Justices A.M Khanwilkar, Dinesh Maheshwari, and Sanjeev Khanna heard the case on several grounds and cleared the project on January 5, 2021. The bench held the project to align with various environmental laws and found the findings of the environmental committee to be just and valid. However, the government was directed to set up smog towers along with the strict usage of anti-smoke guns to prevent large amounts of pollution. Justice Sanjiv Khanna, however, disagreed with the bench on the issue of the change of use of land and the undue environmental clearance provided for the project.
While the court was found to be satisfied by the environmental precautions and mitigation measures adopted by the Central Public Works Department (“CPWD”), it opined that the environment was not to be a hurdle in development as long as trees are protected and pollution is controlled. Under the Environment Impact Assessment (“EIA”) Notification 2006, the information of certain projects needs to be honestly and fully disclosed to assess the physical scope and actual environmental impact of the same. However, CPWD’s application for environmental assessment was found to be filled with solid misstatements and misrepresentations of scientific data without any basis for either the short-term or long-term impact of the project. Furthermore, the issue of only half-disclosure made by CPWD of only the parliament building while easily negating the other factors and impacts of rebuilding was very conveniently ignored which resulted in an ill-fashioned and deficient impact survey instead of what a project as large as the rebuilding of the Central Vista demanded. Under the principle of “Environmental Rule of Law,” it is imperative and important for the state to avoid further environmental pollution unless it is necessary or unavoidable and is backed by reasonable justifications which adds an increased burden on the Centre to not take up projects that would cause large scale destruction and regression of the environment.
Furthermore, the Capital is one of the lowest ranking states in the country in terms of its air quality and groundwater levels which not only exacerbates the problem but may also prove to be dangerous for the residents. The Centre managed to come up with a project as ambitious as the renovation and up-gradation of the Central Vista, however, failed to justify how and why a huge environmental burden should be taken up despite the critical environmental conditions Delhi is already facing. The court aptly noted how environment and development must go hand in hand and neither can be ignored nor negated at the cost of the other. Moreover, the court stressed the need for sustainable development as even our future generations have a right to a safe and secure environment while also enjoying the facilities and comfort provided through the development of the nation.
Jeopardizing the Environment Impact Assessment
Recently, the Ministry of Environment, Forest, and Climate Change had introduced a notice wherein it said that the ranks and scores of the State Environment Impact Assessment Authority (“SIEAA”) of various states would be scored and ranked based on the amount of time they take for clearing proposals. The intention behind this was to accelerate the speed of governance. Earlier, there were timelines for all environmental clearance processes, but not complying with the timeline was not one of the criteria on which the SIEAA would be marked. Now, the average number of days taken in granting the clearance would be one of the factors on which the SIEAA would be ranked. It is notified that even if the SIEAA fails to meet the timeline, it would not be negatively marked. Instead, the SIEAAs which follow the timeline would be awarded 1 mark.
This new change might encourage the SIEAAs to abide by the timelines, resulting in greater efficiency, but it is neglectful of the very purpose the procedure of granting an environmental clearance plays. EIA is undertaken to evaluate the possible damage that a proposed project can cause. From screening the project plan to identifying possible alternatives, the whole procedure of evaluating environmental impact is quite holistic and requires careful examination. If speed over diligence is being prioritized, it is undermining the role of regulatory oversight in environmental protection. By rewarding SIEAAs for speedy clearance, it is opening an avenue of circumventing the elaborate procedure of granting a clearance. Thus, this new notification is in flagrant disregard to the established procedure of granting clearances.
Furthermore, it is imperative to note that the framework of EIA is just a ‘Notification’ under the Environment Protection Act, 1986, which makes it a subordinate legislation. It was brought into effect without the full power of statutory law and without any parliamentary discussions. At its core, the objective of EIA is for commercial projects to obtain an Environmental Clearance (“EC”) which will be given after assessing the environmental impacts of the project. One of the most important steps in granting clearances is the Public Consultation. It is done in two ways- through public hearings and written submissions. It provides for a space whereby the general public can voice their concerns. However, there are several dilutions within the public consultation process.
The agency, called the Impact Assessment Agency (“IAA”), undertakes the consultation process and can conveniently say that it is ‘impossible’ to conduct the public hearing in a way that will enable the views of the concerned public to be expressed freely. Depending on this, the Agency can decide if a public hearing is even required.
The contentious EIA Notification, 2020, mandates that public consultation can happen only once during the whole assessment process. This undermines the significant role that the general public plays at every stage of granting a clearance because ultimately it is the people whose right to enjoyment is being affected. This is also in stark contrast to countries like Sweden, where the public is consulted before even applying for a clearance.
In order to undertake a holistic analysis of the environmental impact, public consultation cannot be considered of little importance. It must be borne in mind that the purpose of EIA is to strike the right balance between ‘economy’ and ‘ecology’ and not to act as a mere obligatory practice of legitimizing environmental damage.
Combating climate change
The Six-Sector Solution to climate change: Formulated by the United Nations Environment Programme, the worst effects of climate change can be avoided if humanity together achieves to keep the levels of a spike in temperature below the average of 1.5 degrees Celsius above pre-industrial levels. The planet has already reached a temperature of 1 degree Celsius of human-induced heat which has brought with it some harrowing effects such as melting of ice caps which has further led to flash floods, wildfires, and drying up of groundwater resources. For us to achieve the 1.5-degree Celsius level, the world must cut down on at least 30 gigatons of greenhouse gas emissions annually by 2030. In accordance with the 2020 edition of the emissions gap report, the UNEP extrapolated and found 6 sectors that can easily bring down their levels of greenhouse gas emissions to achieve the 1.5-degree Celsius mark. These six sectors include- Energy, Industry, Agriculture, Food and Waste, Restoration of ecosystems, Transportation, Buildings, and Cities.
Geoengineering– Geoengineering refers to a method of designing such activities that work towards altering the climate of the planet. E.g., blocking the sun, sequestering carbon into the ocean, and reforestation at a large scale. Through such interventionist models, natural phenomena like rainfall and drought can be controlled, induced, or avoided to create a balance in nature. Steadily warming oceans to induce more rainfall in dry areas while increasing carbon dioxide in the tropics to reduce transpiration to further reduce rainfall is one of the few methods to achieve a balanced state of nature. Generally, geo-engineering models fall under three categories which are- Solar radiation management, carbon dioxide removal, and weather modification. While geoengineering is one of the most technologically advanced methods of reversing impacts of climate change, one of the biggest fallacies around these experiments is the large-scale effect of these tests that may result in an even larger decrease in natural self-regulation of ecosystems.
Legal Personhood– Moreover, it is necessary that remedies should now be looked into legal spheres and not only limited to administrative management. It is the need of the hour that the concept of legal recognition or legal personhood should be extended to crucial natural resources to keep a check on the density and frequency of environmental harm. For example, Lake Eerie Bill of Rights provided America’s greatest five lakes with legal personhood that not only recognized the river’s rights but also allowed it to file a suit in case of any harm caused to it. While the same was declared unconstitutional, it will be unfortunate if the remarkable progress made due to the granting of legal personhood is ignored. Similarly, the Ugandan government in the year 2019 allowed for its citizens to file cases on behalf of natural entities under the National Environment Act, 2019. It is not unprecedented as time and again legal recognition has been given to non-living entities like Whanganui River, Te Urewera national park in New Zealand, the Ganges, and the Yamuna rivers in India. In addition to that, the entire ecosystem in Ecuador has been given legal status. These positive developments towards granting a right as huge as legal personhood to nature only puts more pressure on India to further enhance and broaden its environmental law while reducing the shortcomings of the same. Although this measure does not directly reduce the threshold of environmental harm caused, however, giving nature the legal status can ensure a significant reduction in non-approved destruction of the environment because in such cases, the other person who causes harm to the environment can be sued personally by those nature entities through their trustees (state government or central government, as the case may be). Therefore, this also puts the environment into center thus promoting an ecocentric approach over an anthropocentric one.
The way forward
In India, environmental governance is not given its due importance and the weak legal framework ensues complacency. With the changing time wherein the world is dominated by the rush of complex development and growth, the environmental damage goes unaccounted and so does the concept of sustainability. The environment is one of the necessary elements of positive growth that has to be taken seriously with immediate effect. Special policies and judicial activism in this regard can further amplify the global concern of protecting the environment. Undeniably at present, the need of the hour is that precautionary measures are used to ensure protection. In the pursuit of prevention of damage, local communities cannot be left behind. Emphasis needs to be laid on the role of stakeholders and its effects. Hence, unless the focus on environmental accountability is made stringent, there can be no development in the real sense.
This article has been authored by Sunidhi Kashyap and Hunar, Assistant Editors at RSRR. This blog is a part of the RSRR’s Editor’s Column Series.