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Intelligent design for the environment by Prodipto Ghosh

The announcement last weekend by the prime minister that an independent National Environmental Appraisal and Monitoring Agency (NEAMA) would shortly be set up has been welcomed in the media. The PM indicates that it would be staffed by professionals, will set up a new process for environmental appraisal of projects, and monitor the observance of environmental management plans. It would be a recommendatory body, subject to final decision-making by the environment minister. The PM hoped that the new agency would not degenerate into a new licence raj.

The apparent motivation for setting up a new agency is frustration with the existing process, under which, from start to finish, an environmental application could take up to two years. Moreover, enforcement of the conditions for clearance is weak. However, the success or failure of the new agency depends on a correct diagnosis of the perceived problems, and a sufficient understanding of the culture of Indian public agencies.

Environmental appraisal as a regulatory requirement in India for specified types of industrial and infrastructure projects goes back to 1986. Under that regime, environmental impact assessments (EIAs) of projects were prepared by consultants on behalf of project proponents. These were subject to technical review by the ministry, considered by panels of external multidisciplinary experts, and finally approved, or rejected by the environment minister. Several problems were revealed in the process. The system was totally centralised, there were repeated queries to the proponents by the ministry at every stage, no time-lines were prescribed, there was no concept of “first-in first-out” scheduling, the process for public consultations was chaotic, and there was little transparency in the reasons for decisions. Horror stories, about cases of environmental appraisal taking up to seven years were told; several were verified to be true.

Accordingly, a major reform of the process commenced in 2003, with World Bank assistance to ensure that global lessons and best practices were assimilated, culminating in a new environmental appraisal process in 2006. The 2006 regime revised the original categorisation of projects (A, B) depending upon their likely scale of environmental impacts, set up a state-level regime for category B projects, involving independent expert panels for technical review, and non-political administrative panels for decision-making. Category A projects, involving larger potential impacts were to be decided by the ministry, with independent expert appraisal committees for technical review of EIAs, and a final decision at the level of the minister. Time-lines were prescribed for every stage, the “first-in first-out” principle enforced, requirements of public consultation — both on-site and by outsiders were detailed, and consequences for default of these prescriptions were laid down. The role of the ministry’s own staff were to assist the expert panels and the minister, but only within prescribed time-lines, with no discretion to subvert “first-in first-out”. The schedule of consideration of applications by the expert panel, and minutes of its meetings were put up on a regularly updated website.

A persistent feature of India’s middle-level government bureaucracy, administrative or technical, is that given job security, the availability of discretionary powers over things of value to the citizen leads invariably to a culture of cussedness and tyranny — the essence of licence raj. This, more than anything else, accounted for the failures of the 1986 regime. In essence, the 2006 regime strictly limited the ability of the ministry (and state-level) officials to disrupt the appraisal process, while enabling them to provide legitimate technical inputs, and ensured that technical appraisal (and state-level decision-making) was conducted by independent, expert professionals. Moreover, these were largely drawn from outside the government — universities, research bodies, industry professionals, NGOs, in each case with clear criteria to establish expertise and non-conflict of interest, and with strictly limited but secure tenures. Collegial decision-making by a diverse group, and limited tenures, make for an effective antidote to arbitrariness.

However, serious problems remain. First, an EIA is not a simple checklist, but a detailed multi-disciplinary scientific assessment of the environmental and socio-economic attributes of a location, the potential impacts of the project on these attributes, ultimately the impacts on human communities, and identification of remedies. A proper EIA study would take competent professionals a year to complete. Twenty-five years after environmental appraisal was instituted, many project proponents, including several infrastructure ministries, remain unaware of the nature of the required documentation and appraisal process — and put off consideration of this aspect till very late. Second, there is insufficient technical capacity in the country to prepare quality EIAs on the required scale — a large number of poorly equipped EIA consultant firms have emerged, leading to malpractices such as “cut-and-paste” jobs, and sometimes fabrication of technical analysis. When reviewed by the expert panels, such EIAs have to be sent back to the drawing board, and sometimes the consultants need to be blacklisted. A scheme for mandatory accreditation of EIA consultants is being implemented by the Quality Council of India, but the process will take time, and in any case, even the accredited consultants require further capacity-building. Third, much of the data required for EIA studies is with government agencies, which frequently respond to requests for supply of such data as though a donation of their teeth was sought. A publicly hosted website with secure and accessible links to the required data would greatly help EIA preparation. Finally, the question of human resources — the number of EIA applications has increased five-fold since 1986, without any increase in staffing.

Three other issues must be taken account of in designing the NEAMA. One is the question of ensuring continuation, if not extension, of the present level of decentralisation to state level bodies. Second, that of conflating regulation with enforcement. This would engender perverse incentives for the organisation, in a “prosecutor and judge” situation. There is no question that the enforcement regime, comprising of the Central and state pollution control boards requires serious reform, but this should be done separately. Third is the more general question of accountability of independent statutory regulators, in particular to Parliament. If the regulator is independent of the ministry, how does the minister accept responsibility to Parliament for the former’s actions?

A properly conceived and designed NEAMA may, over time, greatly improve the environmental appraisal process. However, if done with insufficient thought, the PM’s fear of a new licence raj may indeed come to pass.

The writer is a former secretary in the ministry of environment and forests