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Green law to subsume existing authorities mooted -Nitin Sethi & Somesh Jha
-Business Standard

A committee set up to review laws related to protection of environment and forests, headed by former Cabinet secretary T S R Subramanian, has recommended an omnibus green law that will not only subsume existing legislation, but also hold the potential to undo existing judicial pronouncements on environmental issues. The proposed law will also do away with all existing authorities created under the Environment Protection Act, 1986.

The panel's report, which hasn't been made public yet, was reviewed by Business Standard . If the proposal is accepted, the government could do away with the Supreme Court-appointed central empowered committee (CEC) on forestry issues, as well as the Environment Pollution Control Authority (EPCA). The two bodies have driven the environmental agenda on urban pollution management and forestry for several years.

The Subramanian has recommended new national and state level authorities, the National Environment Management Authority (NEMA) and the State Environmental Authority (SEMA), be set up under the new law proposed by the committee, the Environmental Laws (Management) Act, 2014.

In its report, the panel also provided a draft of the law. "All (existing) appellate or revising authorities under the environmental laws shall, from the date of commencement of this Act, cease to have power or jurisdiction conferred on them under those laws in respect of matters covered under this Act," said the draft, reviewed by Business Standard .

The panel has also recommended once the new law is in place, suo moto and other powers of courts to intervene in environmental governance be severely curtailed. "Subject to the powers of the National Green Tribunal (constituted under Act 19 of 2010) reserved under the succeeding provision of the decisions of the government, NEMA or SEMA under this Act or matters related thereto shall not be questioned before, nor enquired into by any court or tribunal either suo moto or at anyone's behest on any grounds whatsoever to question the new authorities," the report said

"The provisions of this Act shall prevail over anything to the contrary contained in any judgment or order of any court or tribunal and other enactments, including the environmental laws dealt with under this Act," read the provision of the draft law.

In May 2002, the Supreme Court had formed a CEC, following several instances of environmental irregularities. Since then, the CEC has looked into various critical issues across the country, including widespread illegal mining in parts of Odisha, Goa, Karnataka and the Western Ghats. Based on the recommendations of the CEC, the SC has cancelled many mining leases.

The EPCA, formed in 1998, had, among other moves, recommended a ban on diesel vehicles in Delhi. It had also played an advisory role on issues such as fuel quality and vehicle emission.

Together, these two authorities have been involved with about 3,000 cases that have come up came before the Supreme Court so far.

Even before the formation of the high-level panel, the environment ministry had already discussed dilution of the powers of the National Green Tribunal. It had also held discussions on whether the setting up of a new regulator was a legitimate reason to ask for the Supreme Court to wind down the CEC. Previously, the Prime Minister's Office had also been concerned about litigation on environmental issues in the apex court and the green tribunal.

The Subramanian panel has also recommended the setting up of an appellate board, to be headed by a retired high court judge; two officers of the rank of secretary in the government, retired or serving, will be the first level of appeal against clearances. Appeals would have to be made within 30 days of a clearance order. As of now, such appeals lie before the National Green Tribunal and can be made within six months of a clearance. The decisions taken by this board will be judicially reviewed by the environmental court --- the National Green Tribunal. But the tribunal won't be able to carry out a technical review of the clearances, as it is empowered to do as of now. The panel has recommended the tribunal's reviews be conducted only "on grounds permissible and subject to limitations applicable to judicial review of administrative actions by high courts and the Supreme Court."

The panel has suggested special environmental courts be set up at the district level. These courts, headed by a judge of the rank of a sessions or additional sessions judge, will be solely empowered to deal with infringement of environmental laws.

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THE PROPOSED ENVIRONMENTAL LAWS (MANAGEMENT) ACT 2014

The Act seeks to create an umbrella law to tackle the multiplicity of agencies processing environment and forest clearance and revamp the project clearance procedures
What will it create?

National Environment Management Authority (NEMA) - recommend environment clearance to projects with high potential environmental impacts, presently done at the Central level.
State Environmental Authority (SEMA) -- recommend environment clearance to projects with medium potential environmental impacts, presently done at the state level.
Appellate Authority - to look into appeals related to decision on environment clearance taken by the MoEF or SEMA
Special Environmental Courts in every district to try offences under this Act

What will it subsume?

Central Pollution Control Board
State Pollution Control Board
Existing Supreme Court committees on environment, including the Central Empowered Committee (CEC) and Environment Pollution Control Authority (EPCA)
Various provisions of the Water Act and the Air Act

Salient features

NEMA and SEMA will act as fulltime processing, clearance and monitoring agency thereby replacing the existing bodies such as Forest Advisory Committee and Expert Appraisal Committee
NEMA and SEMA will be given statutory status to deal with all various environmental Acts administered by the government
NEMA and state governments cannot give directions to the SEMA on project clearances accorded by the latter
The ELMA Act will work on the "utmost good faith" principle where the project developers would be obliged to disclose everything about the project and self-certify the facts; concealing facts will draw heavy punishment
An appeal can be filed with the new appellate authority within 30 days of the final decision taken by the union government on environment clearance
This new authority will lead to ceasing of powers and jurisdiction of existing appellate authorities