#eia notification

Draft Environment Impact Assessment (EIA) Notification ignores health and welfare aspect of the people: Jairam Ramesh

Congress leader Jairam Ramesh on Saturday sent in his strong objections to the draft Environment Impact Assessment (EIA) Notification 2020 to Union Environment Minister Prakash Javadekar and said the proposed changes display a mindset that “environmental regulations are unnecessary regulatory burden”.

The former Environment Minister, who now heads the Parliamentary Committee on Science &…

Environment ministry to amend EIA norms to help businesses

The environment ministry would soon be coming out with an amendment to the Environment Impact Assessment Notification (EIA) with the aim of enhancing the ease of doing business, said environment minister Prakash Javadekar, in a meeting with the 15th Finance Commission (FC).

The NK Singh-led FC called for the meeting with the ministry of environment, forest and climate change (MoEFCC) for its…

The second part of my dissertation. 

1.34 The black box of policy making

The only way to answer questions such as the ones above is to reconstruct the negotiations. Given that I was in India for just 45 days -- too short a while to reconstruct all the negotiations which took place after the ERM report’s submission -- I focused on one phase of the public consultations. This is the one after the draft notification’s public release. Part of the reason for choosing this period is rank opportunism. During the fieldwork, I managed to get my hands on a set of internal MoEF documents that contained over a thousand representations from stakeholders that the ministry received as feedback during this period. This, while not the complete set of submissions (a lot of the suggestions were made during the negotiations themselves), offered sharp insights about the concerns of participants in this stage. Also, this being the latest round of consultations, it was felt that recollections among the people being interviewed would be the sharpest. (Needless to say, it is hoped that this section will leave the reader with a sense of what previous rounds of negotiations had been like.)

One of the most contentious debates centred on decentralisation. Within this were several small disputes -- on the pace of decentralisation, on whether projects should be cleared by the state bureaucracy or the state’s political executive, and whether the centre (or the states) should set up the state EC institutions.

The centre wanted to delegate only less polluting industries. The stated reason for not wanting to decentralise more was that all the states are not equally well equipped in terms of capacity for appraisal. And so, given that it was not practical to differentiate between states in terms of the extent of delegation, the centre wanted capacity-building in all states to precede decentralisation (26). This might have been a somewhat prejudiced point of view. It can be argued that the states are in closer touch with ground realities, which might enable them to gauge the potential impacts better than a mandarin sitting a thousand miles away in Delhi. Also, the MoEF is not all that great at managing the environment either.

Further, the centre wanted the delegated projects to be appraised by professional independent bodies (SEIAA and SEAC), not by the political executive. The fear was that, between corruption and a hurry to get the state economy growing, politicians might disregard environmental norms altogether. Further, the centre argued, appraisal and decision-making based on the appraisals require a good knowledge of a variety of subjects ranging from air quality/water quality modelling to biodiversity. Hence, the need for a multi-disciplinary panel for appraisal and decision-making. And so, the institutions would have to be staffed by professionals with defined skills, they would have to be independent so that they could arrive at independent decisions, and not be moved about at the state’s whim (27). It is pertinent here to mention the MoU between Orissa and Korean Steel major Posco, the state commits in writing that it will help the company get all clearances for its steel plant at Paradip – even the EC (28).

With those ends in mind, the draft notification had stipulated that the SEIAA would be constituted by the “Central government in consultation with the state government or union territory concerned.” It, however, was a great deal more ambiguous about the SEACs. Contradicting itself by first saying the SEACs will be formed by the state, and then saying a little later that they would be constituted by the centre in consultation with the concerned state or union territory (Draft EIA notification, 2005).

For their part, while all states favoured decentralisation, they split on the question of how the ECs should be granted. A few (West Bengal, Karnataka, Maharashtra and Gujarat) wanted them to be granted by a professional body. The rest wanted a process where the final approval came from the political executive. Then, they bristled at the suggestion that the centre should set up the state level bodies. And rejected the idea that capacity-building should precede delegation of projects. One, they said, the SPCBs and relevant academic institutions in states could appraise any project. Two, how could capacities be built without knowing which industries were going to be delegated? And three, why should they invest money in capacity-building even before the decentralisation had been finalised?

As for the other actors, the central ministeries with PSUs (coal, power, highways, water resources, petroleum, etc) opposed decentralisation. Under the current system, they can swiftly redress any regulatory roadblocks through inter-ministerial avenues (29). Incidentally, this is one of the primary explanations for the amendments to the 1994 notification. At the behest of any ministry facing problems getting its projects approved, the MoEF would amend its laws. The Ministry of Oil and Gas might, say, seek a relaxation so that oil and gas exploration could extend to areas currently barred by the notification (30). Such options would not be available once project clearance moved to the states -- it is easier to prevail upon one’s colleagues in the central ministeries than it is on the Chief Ministers -- especially if they belong to an opposition party.

Industry seemed unmoved. The representation from the Confederation of Indian Industry (CII), one of the biggest industry associations in the country, called “Relatively higher decentralization to state environmental authorities” a positive step (31). Distrustful about the environmental pedigree of the state governments, NGOs opposed decentralisation bitterly (32). Within the government, the only actors asking for total decentralisation were the PMO and the Planning Commission (33).

In the end, the MoEF won two and lost one. It got everyone to agree that the state-level clearances should be based on expert judgement. As for who would set the committees up, it cited the EPA. Under its section 3(3), only the centre has the power to set up committees. And, so, it was able to insist on the kind of committee that would be set up. It also ensured that while the states will nominate candidates for the committees, the central government would retain the powers to approve them.

It fared less well on the question of capacity-building versus immediate delegation. Capacity-building-first meant the states would have to wait for another 1.5 years. And it was evident that they would react strongly to such a move. The Punjab CM’s strongly-worded letters to the Indian Prime Minister about projects not getting off the ground were being passed down to the MoEF.

Then, there were about three meetings of the state environment ministers. From each of those, the signals came back loud and clear: “Where was the decentralisation?” Delegation would go ahead. ASCI (Administrative Staff College of India) was asked to write manuals for technical guidance. Capacity building would have to take the form of ‘learning by doing’ (34). An insane idea given that environmental management is supposed to be predicated on the precautionary principle.

And then, there was Indian industry. It contested the thresholds which had been set for separating categories A and B, for determining inclusion in the EC process. Why this size for a project, industry would ask. Was the ministry aware that, given that threshold, it would have to clear an additional 5,000 new projects every year? Did it have the capacity to do that? Or would it just end up delaying development some more? (35) Note that last question. One big reason why the MoEF has been on the defensive is questions like that. Another contentious issue was the inclusion of industries. Why the auto sector? It does no manufacturing. All it does is assembly. Why urban railway projects? These reduce pollution. Surely they don’t need an EC? Why small mining? It creates jobs (36).

Of these, no one pushed the envelope as far as the real estate lobby. The draft notification had enveloped all real estate projects with an activity area of 20,000 sq metres or more under its purview. This idea came about shortly after the floods in Bombay when the local river, constricted over several years at its delta due to illegal construction and dumping of waste, burst its banks after uncommonly heavy rains and flooded several suburbs (37) Feeling that Indian cities were growing in an extremely unplanned fashion and that, for the most part, the states didn’t care, the MoEF stepped in.

For its part, CREDAI, the real estate lobby, wanted the sector to be exempted from the EC process altogether. With that intent, it had several meetings with the MoEF. And when it did not get a receptive ear, the association began talking to the PMO, the Ministry of Finance and the Planning Commission. And, much to the MoEF’s horror, all three agreed with CREDAI.

In response, the MoEF made a presentation to the PM on the environmental issues at stake. It argued that CREDAI’s suggestion that environmental requirements for the construction sector should be built into the municipal bylaws was impractical. All municipalities have their own bylaws, harmonising them to ensure a national approach would take time. And so, the best way to bring about a coherent national level plan was to work through the EPA. The engineers with the municipalities had little competence in dealing with the issues that needed to be considered for an EIA. Finally, the centre did not have any power to bring these changes about anyway – municipalities are run by states. And thus argued that real estate belonged in the EC process (38).

It worked to some extent. Real estate stayed under the purview of the EIA notification but got bumped down to category B. A clause that brought all real estate projects (covered in the notification) in cities with a population over 3 million under the purview of the central government got deleted. The lobby also got itself exempted from public hearings as long as the land use is in line with land use rules (Final EIA notification, 2006).

Then, the notion of scoping proved controversial. Industry wanted generic TORs for every industry. No one was happy with the A/B category. The states saw it as another move to perpetuate the power of the centre over them. Similarly, industry, weary of the bureaucracy, hated the idea. It did not want an additional stage in the process. And then, there were the public hearings. The NGOs wanted these to approve projects. Industry wanted minimal consultation. Then, draft notification had made it mandatory that the local MLA should be present at the public hearings. Which was opposed by everyone (39).

Action was taken on these right at the end. A few days before the notification was to be promulgated, a two-member delegation representing India’s three major industrial associations (CII, Ficci and Assocham) came to meet Ghosh. They demanded that the notification be scrapped. And that work on the new EIA notification begin all over again. A compromise was worked out. In return for meeting their primary demands -- crunch the timeframes further, drop the MLA – they would drop their demands (40). (I should add here that they came with three demands, not two. I could not confirm the third one. A former MoEF mandarin felt it had to do with restricting the public hearings only to the affected persons. (41))

1.35 Policy making by confrontation

As policy processes go, this one was suboptimal. With the exception of the timelines, the TORs and the screening of projects, hardly any other problem in the previous notification had been resolved. Instead, new problems had come in. The new notification delegates power to the states even before the SEACs and the SEIAAs were set up. When I visited India, nine months after September, 2006, just one state had set up the two institutions (42). No one else had. As a stopgap, the MoEF was clearing all the projects. Clearance delays, I heard, were higher than ever before (43).

In this section, I try and reach some conclusions on why such outcomes came about. One, to revisit the theoretical review, Foucault’s teachings reverberate better with this case than a lot of the policy process theory. Take cooptation. While the secretary undertook a lot of public consultation, I doubt these were held to protect the ministry. He had been sent to the ministry with a specific mandate – to overhaul the environmental clearance process. And that is what he did. The primary reason for holding the consultations, for Ghosh was to build support for the new notification. Or take policy network theory. It too is only partially applicable. While the states, industry and the MoEF did come together to shape the policy, within the network, the attitude of the actors wasn’t one of bargaining and stressing common interests as the policy network school says.

Far from it. This was policy-making by confrontation. The companies wanted to reduce the footprint of government in their operations. The states wanted to reduce their dependence on the centre. The MoEF, for whatever reason, be it the fear of losing a profitable franchise, unwillingness to let go of power, or a lack of confidence in the others’ ability to manage these issues, was resisting them.

Now, go back to the negotiations. The states won immediate delegation. Industry won some exemptions, got (with the help of others) AB dropped. It got the MoEF to drop the MLA (again, with the help of others) and to agree that data confidentiality would be protected. For its part, the MoEF ensured that state clearance would be given by institutions, not the political executive. It also retained its control over these institutions and beat back opposition on a range of fronts – to delete scoping, from the need to exempt expansion/modernisation from the EC process, to bring in generic TORs, to ensure that only environmental, not livelihood and social, concerns are discussed at the public hearings.

Think about it. For an actor widely believed to be low on political power, the MoEF made nowhere as many concessions as it could have been expected to. This raises a question about its sources of power in these post-Indira Gandhi, post-Rajiv Gandhi times. Partly, I guess, as the negotiation on who constitutes the state committees shows, from the legal framework. Partly, perhaps, from the fact that it was the only party negotiating with the other two (especially for industry, a lot would have been riding on the MoEF’s negotiations with the states). A third source could have been the DMK, the regional party whose MP was the minister at the ministry when the notification was developed. From all accounts, this MP was quite apathetic towards national environmental policy. But it is important that this point be made anyway. Whichever political party gets ministership at the MoEF gains power over other states and political parties (44). Seen like that, and given the realities of coalition politics where the PM cannot assert himself, the process of environmental policy formation then leaves the purview of the ministry and becomes a decision taken at a political party level.

Another source of power was the secretary. The centre tries to place a strong bureaucrat in every ministry where it has an MP from a coalition ally (45). In this instance, it is Pradipto Ghosh who shaped the notification, not his ministers. The impact that Ghosh, a Phd in environmental economics, had on the EC process can be seen by contrasting the Environment Protection Act with the National Environment Policy (2006). If the focus of the EPA was on protecting the environment, under Ghosh, the emphasis shifted to economic efficiency -- thresholds would now be set at a level that called for minimal consumption of the resources available with the ministry; industry would now be pushed to accommodate these mitigatory mechanisms only to the extent it was cost effective for it; development itself was placed on a pedestal; and the ministry gradually distanced itself from civil society (Lele and Menon, 2005).

Then, the process was exclusionary. At two levels. One, for a while now, as scientific posts in the MoEF fall vacant, they have been converted to non-scientific posts and taken over by the IAS and allied services (46). Similarly, expertise outside the ministry has been whittled down as well. Institutions like the Wildlife Institute of India or NEERI are funded by the project evaluations and other studies they do – this affects their ability to speak impartially on policy matters (47).

Now, after the second round of consultations, Ghosh blocked environmental NGOs from the consultations. It was partly the NGOs’ fault. During the consultations, they, as ideological as ever, accused the MoEF of being in cahoots with corporates, proceeded to tear up a copy of the NEP, and burnt an effigy of Ghosh. Who in turn decided that there would be no more face-to-face consultations with the NGOs. That they could, if they liked, send in their comments by letter.

Three points can be made here. One, obviously, the secretary was overstepping his limits. It was his role to facilitate discussions, and to get all points of view into his thinking. Regardless of whether he approved of the way they were being expressed or not (48). Two, the NGOs, for all their stridency, could not force their way back into the consultations. It shows how politically marginal, how bereft of clout, India’s environmental NGOs really are. It is ironical. India is filled with robust grassroot-level environmental movements. But the country’s NGOs have failed to convert that into political leverage. And three, the cost of these exclusionary tendencies has been high.

Here is why. The fact that the notification was promulgated anyway shows the lack of any checks and balances. Due to the Indian system of governance which works on the back of enabling legislation (acts laying down broad values and directions) which then empower the government to govern through notifications, any parliamentary scrutiny can be ruled out. Given that the central government is too busy chasing growth to worry about luxuries such as the environment, that left, within the government, the MoEF to look after the environment. And here, even notions like cooptation cannot dispel the impression that the ministry doesn’t care about environmental governance. Look at the decisions it has taken -- setting pollution thresholds at a level where its workload would be manageable, capitulating to the demand for instant delegation… It shows that the ministry is keener to protect itself than the environment.

Put this, the observations about policy-making through confrontation and the exclusionary pressures together, and you see that in the policy-making negotiations, no one was talking, at an institutional level, on behalf of the environment. This is why the cost of the NGOs’ exclusion was severe. A voice speaking for the environment went missing. With their exit, the power over decision-making moved entirely to the political economy.

The rest was always going to be predictable.

1.4 Conclusions:

This paper has advanced a new hypothesis about the process that resulted in the EIA notification of 2006. It has argued that while the first drafts of the notification were promising, things began to unravel once the MoEF embarked upon a series of public consultations to build support for the proposed notification, that the policy became a contested space with the actors in the consultations – the state governments, industry, the MoEF itself – trying to reshape it into something that served their individual interests. Further, it has argued, that this process is exclusionary, that it relies only on inputs from three stakeholders – the industry, the ministry and the state governments – while creating the new policy. In the process, more sceptical voices on whether this tightrope on environment versus development can be walked have been excluded.

I will close by making two points. One, the interesting aspect here is that the process is confrontational. This represents an opportunity for excluded actors. Can they ally with (and helping to bolster the case/power of ) any of the actors taking a similar stance on an issue as them – helping the MoEF on this issue of decentralisation (since that is the NGO stance), helping the rightwing parties opposing Sethusamudram – even if that means burying ideological differences for the greater good of India’s increasingly beleaguered environment?

But even that is an imperfect solution. It still leaves the excluded actors (and desired outcomes) at the mercy of the political economy. And so, how does one reform something like this? The NGOs were insisting that the EIA notification was too important to be left in the hands of the bureaucrats. And that it must be passed by the Parliament (49). But that is to assume that the Parliament would give it the attention it deserves. Then, there is the legal option. But, between the fact that Indian court rulings tend to be subjective and that policies can be challenged only after they get promulgated (50). which leaves a lot of scope for harm to be done before they can be struck down (assuming they are struck down), this is not a foolproof option either.

It raises a bunch of questions. Like where should the authority for environmental governance rest? With the bureaucracy? Or, should it be driven, as in the US, wholly through the courts? Or, should it be a run by a panel of experts? What’s more, the sad fact is that even this is a decision that has to be taken by the centre. And, right now, it is hard to imagine any reason why it, or this political economy served so well by the current system, would wish to cede their power away.

We are surrounded by questions we know nothing about. Take the negotiations. It is possible to problematise each of the individual outcomes – on decentralisation, on the MLAs, etc – further. How did these outcomes come about? In this process of negotiation, what were the strategies of the actors? Which areas were they willing to compromise on? And which areas where they unwilling to compromise? And what are the factors that determine these choices every actor makes? These are questions that need to be understood. Because, again, it is not possible to change a policy without understanding how it comes about.

Either that. Or game, set and match to the political economy.

1.5a References

1. Personal communication from Professor Shekhar Singh

2. Off the record communication from a former senior employee of ERM.

3. Personal communication from Professor Shekhar Singh

4. Personal communication from Dr MV Ramana, CISED

5. Personal communication from Professor Shekhar Singh

6. Personal communication from Mangesh Dakhore, previously with ERM

7. Personal communication from R Chandramohan, ex-joint secretary, MoEF

8. “Dissent will be brushed aside if it impedes growth”, Hindu Businessline, 2006. www.blonnet.com/2006/09/11/stories/2006091102260300.htm)

9. Personal communication from Dunu Roy

10. Personal communication from KPS Chauhan, independent environmental consultant, ex-scientific advisor, MoEF

11. Personal communication from Ashish Kothari, founder, Kalpavriksh

12. Personal experience reporting on these issues; Personal communication from Ashish Kothari, founder, Kalpavriksh;

13. Personal communication from Dr Prodipto Ghosh, former secretary, MoEF

14. Personal communication from a senior ex-employee of ERM

15. Personal communication from Mangesh Dakhore, previously with ERM

16. Personal communication from Professor Shekhar Singh; Personal communication from Mangesh Dakhore, previously with ERM

17. Personal communication from Mangesh Dakhore, previously with ERM

18. Personal communication from a senior ex-employee of ERM; Personal communication from Mangesh Dakhore, previously with ERM

19. Personal communication from Mangesh Dakhore, previously with ERM; Personal communication from Dr Prodipto Ghosh, former secretary, MoEF

20. Personal communication from Mangesh Dakhore, previously with ERM

21. Personal communication from Manju Menon, Kalpvriksh

22. Personal communication from Dr Prodipto Ghosh, former secretary, MoEF; Personal communication from a senior ex-employee of ERM

23. Personal communication from R Chandramohan, ex-joint secretary, MoEF

24. Submission by the Himachal Pradesh government during public consultation process

25. The MoEF internal document containing submissions on how to improve the draft EIA notification.

26. Personal communication from Mangesh Dakhore, previously with ERM; Personal communication from Dr Prodipto Ghosh, former secretary, MoEF; Personal communication from Dr V Rajagopalan, former head, CPCB; Personal communication from R Chandramohan, ex-joint secretary, MoEF…

27. Personal communication from Dr Prodipto Ghosh, former secretary, MoEF; Personal communication from Dr V Rajagopalan, former head, CPCB;

28. Memorandum of understanding between the Government of Orissa and M/s Posco for establishment of an integrated steel plant at Paradip, 22 June, 2005

29. Personal communication from Dr Prodipto Ghosh, former secretary, MoEF

30. Personal communication from Dr Prodipto Ghosh, former secretary, MoEF; Personal communication from R Chandramohan, ex-joint secretary, MoEF

31. Submission by CII during the final public consultation process

32. Derived from submissions by NGOs during the final public consultation process

33. Personal communication from Dr Prodipto Ghosh, former secretary, MoEF

34. Personal communication from Dr Prodipto Ghosh, former secretary, MoEF

35. Personal communication from Mangesh Dakhore, previously with ERM

36. Based on submissions by industries and industry associations during the final public consultation process

37. Personal communication from Srikanta Panigrahi, previously with Planning Commission, India

38. Personal communication from Dr Prodipto Ghosh, former secretary, MoEF

39. Based on aggregate submissions received by the MoEF during the final public consultation process

40. Personal communication from Dr Prodipto Ghosh, former secretary, MoEF

41. Personal communication from R Chandramohan, ex-joint secretary, MoEF

42. Personal communication from Leo Saldanha, ESG

43. Personal communication from Mangesh Dakhore, previously with ERM

44. Personal communication from Professor Shekhar Singh

45. Personal communication from Nitin Sethi, The Times Of India

46. Personal communication from KPS Chauhan, independent environmental consultant, ex-scientific advisor, MoEF

47. Personal communication from Mahesh Rangarajan, environmental historian

48. Personal communication from Dr Usha Ramanathan, legal researcher

49. Personal communication from Leo Saldanha, ESG

50. Personal communication from Ashish Kothari, founder, Kalpvriksh

1.5b References:

Articles from journals

Fernandes, D and L. Saldanha. 2000 (1). Deep Politics, Liberalisation and Corruption: the Mangalore Power Company Controversy. Law, Justice & Global Development Journal

Keeley, J and I. Scoones. Understanding Environmental Policy Processes. June, 1999. IDS working paper 89

Lele, Sharachchandra and Menon, Ajit. 2005. Draft NEP 2004: a flawed vision. Seminar. 547.

Lu, M and M Cheranik. 2004. Evaluation of the environmental impact assessment for the proposed Sethusamudram ship canal project. Environmental Law Alliance Worldwide

Menon, M and K. Kohli. 2007. Environmental Decision-making: Whose Agenda? Economic and Political Weekly. June 30-July 6. Volume 42 (26). 2490-2494.

Mosse, D. September, 2004. Is Good Policy Unimplementable? Reflections on the Ethnography of Aid Policy and Practice. Development and Change. Volume 35 (4). 639-671

Stuligross, D. 1999. The political economy of environmental regulation in India. Pacific Affairs. Volume 72 (3) 392-406

Books

S. Divan and A. Rosencranz. 2001. Environmental Law and Policy in India. Oxford University Press

Saldanha, L., A. Naik, A. Joshi and S. Sastry. 2007. Green Tapism: a review of the environmental impact assessment notification 2006. AID Publications.

Selznick, P. 1953. TVA and the grassroots: a study in the sociology of formal organization. University of California Press

Shore, C and S Wright. 2004. The anthropology of policy: critical perspectives on governance and power, Routledge

Smith, Martin J. 1993. Pressure, power and policy: state autonomy and policy networks in Britain and the United States. Harvester Wheatsheaf

Wilson, James Q. 1989. Bureaucracy: what government agencies do and why they do it. Basic Books

Policy Documents

EIA Notification, 1994

Amendments to the 1994 notification (SO 356, SO 318, SO 73, SO 1119, SO 737, SO 1148, SO 632, SO 248, SO 506, SO 891, SO 1087, SO 801, SO 942)

Govindrajan Committee Report, GoI, November, 2002

ERM, MoEF EIA Component A – Task Three report

Reforms in grant of environmental clearance. MoEF note.

Draft EIA notification, 2005

Final EIA notification, 2006

Others

Kohli, K and M. Menon. 2005. How effective has it been: eleven years of the environmental impact assessment notification. Kalpvriksh Enviornmental Action Group

Lockhart, William, “The environmental impact assessment process in India: perspective, details and prospects”, September, 2004

Report by the independent fact finding team on issues related to the proposed Posco project in Jagatsinghpur (Orissa), 19th to 22nd April, 2007

1.6 Notes: 

The first amendment, SO 356, that of 4th May 1994, announced, among other things, that it was no longer mandatory for the Impact Assessment Authority (IAA), the institution tasked with studying proposals, to interact with affected populations and environmental groups or conduct site visits; it also freed the IAA from having to necessarily consult the Group of Experts while evaluating proposals; site clearance, previously required for prospecting and exploration of all minerals, was restricted only to major minerals in areas over 500ha; it exempted ports, harbours, airports, some tourism projects and highway projects costing less than Rs 0.5 billion, from the environmental clearance process.

The notification which followed it, SO 318, made public hearings an integral part of the decision making process. from now on, the IAA’s recommendations would have to also be based on the views and concerns of the affected community. It also put all thermal power plants, except those within 25km of a ecologically senstitive area or within 50 km of a interstate boundary, under the purview of the state governments.

The third amendment, SO 73, brought any expansion or modernisation of industrial projects, if resulting in an increase of the pollution load, into the purview of the EIA notification, and exempted small scale industrial units, widening and strengthening of highways, mining projects (major minerals) with lease area up to twenty-five hectares and modernisation of existing irrigation projects, from the public hearing. The fourth amendment, SO 1119, excluded defence-related road construction in border areas from the purview of the EIA notification.

The fifth amendment, SO 737, exempted, in addition to the highways, mining and irrigation projects, small scale industrial undertakings located in industrial areas, and units located in Export Processing Zones, Special Economic Zones et al from the public hearing as well. The next amendment, SO 1148, exempted bulk drugs and pharmaceuticals from the purview of the EIA notification, and announced that all public hearings would be completed within 60 days of the IAA receiving all relevant documents.

The seventh amendment, SO 632, made it mandatory for the Environment Impact Assessment report to be made locally available at least 30 days before the public hearing. Before this change, only an executive summary of the EIA was to be made available. It also exempted pipeline projects from the EIA process while, puzzlingly, insisting that these projects (and highways) hold public hearings in every district through which their pipeline or highway passes. Further, it exempted 16 sets of projects where the investment is less than Rs 1 billion for new projects and less than Rs 0.5 billion for expansion or modernisation (including nuclear power projects, river valley projects, ports, harbours, airports, petroleum refineries, storage batteries, thermal power plants, pulp, paper and newsprint) from the environmental clearance process. And clarified the previous amendment on bulk drugs to assert that the exemption only extended to genetically modified organisms.

In 1999, the MoEF had imposed “prohibitions on carrying certain processes and operations in the specified areas of Aravalli range as specified in the said notification, except with prior permission of the Central Government.” In the eighth amendment, SO 248, this exemption was removed. The ninth amendment, SO 506, exempted improvement work on river valley projects, except that in ecologically sensitive areas, from an environmental clearance.

SO 891, the next amendment, diluted the provisions in the second amendment. From now on, only those projects (including thermal power plants) located in a critically polluted area, within a radius of 15 kilometres of ecologically sensitive areas, other states, would have to obtain environmental clearance from the Central Government. Earlier, all thermal plants located within 25 kms of a ecologically sensitive area, or within 50 kms of a state, had to get their clearance from the central government.

SO 1087 made site clearance mandatory for green field airport, petrochemical complexes and refineries. And exempted offshore exploration activities, beyond 10 km from the nearest habitation and ecologically sensitive areas like mangroves, corals, national parks, marine parks, sanctuaries, reserve forests and breeding and spawning grounds of fish and other marine life, from the public hearing. The next notification, SO 801, made environmental clearance mandatory for construction projects and industrial estate.

i cannot but marvel at the 45 days gone by. i submitted my dissertation. with that, my year long stint at sussex ended. between wrenching goodbyes to my friends there, i spent a week rambling around london trying to sate the hick tourist in me. i saw, among other things, darwin's grave, the terracotta army exhibhition at the british museum, the magna carta, a gutenberg bible, da vinci's notebooks, galileo's first book, a letter darwin wrote alfred russell wallace saying he was mailing the latter a copy of the origin of species. and then, back to india. where i landed a job (will join itc e-choupal in december to conduct ethnographic research on how villagers access farm and non farm markets), finished reworking the dissertation to make it ready for publication, and then, two days later, rode my lovely bike into a lamppost. cue, broken ribs and some days in a hospital. got back home yesterday.

in this post, am appending the dissertation. it is, as ever, perishingly long. college dissertations tend to be. but if you are trying to understand how indian environmental laws get formed, do read it. if pressed for time, avoid the theoretical bit about policy processes. apart from that, the comments are active again. so weigh in.

and now, drumroll, here goes...

1.1 Introduction:

Environmental governance in India is a puzzle. Last September, after four years of toil, the country unveiled a brand new Environmental Impact Assessment (EIA) notification that left almost every shortcoming of the previous notification untouched. The previous notification itself was no less bewildering. In the twelve years it was around, it was amended 13 times (EIA notification, 1994). But there was no logical thread, no commonality of direction binding these amendments together (see notes). Some even contradicted each other (Lockhart, 2004).

So far, while much has been written about both notifications, most of that has focused on detailing their weaknesses and suggesting ways to improve them (Kohli and Menon, 2005; Saldanha et al, 2007). Hardly anything has been written to explain how such notifications could come into being. As for the little that has, that contents itself with dark mutterings about a nexus between India’s Ministry of Environment and Forests (MoEF), the body tasked with environmental governance in the country, and industrial lobbies.

It is a huge gap in our understanding of environmental governance in India.This paper attempts to (partially) fill that void. In the pages that follow, it will advance a new hypothesis about the process that resulted in the EIA notification of 2006 – that while the first drafts of the notification were promising, things began to unravel once the MoEF embarked upon a series of public consultations to build support for it, that the policy became a contested space with the actors in the consultations (the state governments, industry, the MoEF itself) trying to reshape it into something that served their individual interests. It is a narrative development professionals will find grimly familiar. Good policies are unimplementable (Mosse, 2004). They get coopted and twisted into something unrecognizable by existing power structures.

It’s a retelling that throws up several questions. The first lot centre on the mechanics that resulted in this outcome. From that arise another set of questions. If, as this paper argues, something intrinsic to the policy process is making policies suboptimal, then any reform needs to be pitched at the policy process level (Keeley and Scoones, 1999). But how does one reform such a process -- in terms of the changes that are needed, in terms of creating the will for bringing these changes about? Finally, in the background, lurks a third question. What conclusions can we extrapolate from this study of one notification that are applicable to the larger processes of environmental policy-making in India?

This paper will focus, primarily, on the first of these three questions. Environmental governance in India is an under-researched topic. And it is hoped that this paper will provide a new lens through which to look at the policy-making process. I begin by providing three essential sets of background. The first introduces the theories of policy-making that helped shape this paper. The second offers an overview to environmental governance in India. The third provides context for the EC reform process. This is followed by a reconstruction of the process through which the new notification came into being. I point out some striking aspects of this policy process. And then, I close after extrapolating some larger conclusions.

1.2 Methodology:

Reconstructing this policy process called for a mix of primary and secondary research. I began by reading through the trail of policy documents that leads to the final notification. This included the Environmental (Protection) Rules (1986), the EIA notification (1994) and the 13 amendments it saw, the Govindrajan Committee report which advocated India overhaul her environmental clearance (EC) process, the report of ERM (Environmental Resource Management, the consultancy hired to redesign the process), a presentation by the MoEF outlining the new proposed EC process, the draft notification, 500-odd pages of feedback that the government received after putting the draft notification up for public scrutiny and, then, the final EIA notification itself.

It was essential to read these. If policies are tools of governance, they are equally tools for studying systems of governance (Shore and Wright, 2004). These were buttressed by parallel readings of the policy critiques. In this manner, the evolution of the EIA process was tracked as the proposed notification went through multiple iterations.

Once the secondary research created snapshots of the EIA notification at different times in its evolution, primary research, conducted for 45 days between June and July 2007, was used to understand how (and why) these changes to the notification came about. This was done through three sets of interviews. The first was for background (academics, journalists, former secretaries of the MoEF, experts in Indian environmental law). The second was with stakeholders who participated or closely observed the negotiations (environmental NGOs, industry associations, bureaucrats in state environment ministeries, the Planning Commission). The third was with the MoEF. Among the people interviewed in this stage were Dr Prodipto Ghosh, the MoEF secretary who drove the creation and promulgation of the 2006 notification, two other members involved in creating the new notification, and four members from ERM, the consultancy which designed the new EC process and subsequently enjoyed a ringside view to the negotiations.

I should also mention that the second and third sets were used for triangulation – each version testing the veracity of the other. Apart from that, all interviews were unstructured. This being a sensitive topic, interviewees were allowed to go off-the-record if they felt uncomfortable otherwise. Interviewees were selected through referrals -- each of the stakeholders (MoEF, states, industry and NGOs) were asked to suggest others I could meet. Care was taken to ensure that only those people with intimate exposure to the policy process were interviewed. In all, about 37 interviews were conducted.

1.3 A theoretical introduction to policy processes

The theoretical scaffolding for this paper is derived from three sources. The first is the Foucauldian notion that policies, far from being ideologically or politically neutral, are political technologies masking political power under the guise of neutrality. Issues of power and governmentality, while not referred to outright in this paper, hugely influenced my perspective. The second is the literature on policy processes. And the third is a general theory on how governments and their agencies function. On their need, especially, for support.

How is policy created? Is it top-down, as one view goes, with the government (or its agency) setting the agenda, deciding what is to be done, ordering implementation and compliance? In this view, the key moment in policy-making is the instant when the policy decision gets made. The rest is mere execution (Keeley and Scoones, 1999). We see this at work from time to time when a strong department acts directly to achieve its goals – even at the cost of vocal opposition, difficulties in implementing the policy, and so on (Smith, 1993).

For the most part, however, this is a rare event. Contingent on the administrative and financial power of the government/agency, such unilateral action is seen less frequently in this age of the weakening state. In Bureaucracy. Wilson outlines another context in which policy can come about. He describes a regulatory agency set up to confront a dominant interest group hostile to its goals. The concern here is that the social movement which created the department might eventually desert it due to shifting interests or waning passions, leaving it to confront a hostile interest group alone and unprotected (Wilson, 1989). (This, incidentally, has huge relevance for the MoEF. The ministry has haemorraged most of its political support away after the Indira Gandhi and Rajiv Gandhi eras ended. (1))

That is because formal authority needn’t translate into social power. While the former is embodied in a structure and leadership, the latter has to do with the government’s (or its agency’s) constituency. If the formal authority reflects real social power, stability is assured. But if formal authority is divorced from the sources of social power, existence is threatened (Selznick, 1953).

A paradox kicks in. The more interests the government (or agency) can bring aboard, the more stable and dominant its policy will be. And yet, this diversity itself destabilizes and militates against coherence. The greater the number of people invited, the more their needs will shape the policy (Mosse, 2004). Selznick called this ‘Cooptation’ -- the process of absorbing new elements into the leadership or policy-determining structure of an organisation as a means of averting threats to its stability or existence. In the process, he wrote, some constriction of field of choice available to the organisation or leadership in question is inevitable (Selznick, 1953).

And so, as governments’ power dwindles, the fleeting instant in which decisions were made has come to be regarded as a long wait of negotiations and consensus-building with stakeholders. And the top-down view of policy making has been replaced by more participatory paradigms. Approaches like Pluralism use competition between groups (class, region, ethnicity, professional or industrial sectors) over resource allocation to explain the origin of policy. This is a somewhat benign view. While the impact of a group is determined by its resources, that doesn’t result in policies being determined by the powerful. For one, opposing groups form in response to every lobby group that exists. Two, the government has to accommodate a wider set of interests than just the lobbies. Three, business lobbies do not function as a monolith but as a fractious community. For all these reasons, pluralists believe power is well-dispersed within the community -- those without money have votes. It smacks of naivete. Power isn’t as evenly distributed as the pluralists make it out to be. Even if competing groups do come up, there is no certainity that the government will listen to them. For one, apart from financial muscle, industry enjoys some structural advantages which ensure the government listens to it – the latter needs a successful economy for its own sake, and so is automatically receptive to the interests of industry (Smith, 1993).

Another set of approaches attach far more importance to the government. In this view, policy is primarily derived from conflicts within the government rather than conflicts between the government and the groups the pluralists alluded to (Smith, 1993). An offshoot, the bureaucratic politics literature, asserts policy emerges from organisational (increasing jurisdictions, agency resources, retaining or adding to political support) or personal (rent-seeking) imperatives. In this view, policies often emerge from micro-level tradeoffs and contests within the bureaucracy (Keeley and Scoones, 1999). A third approach, that of the policy network theorists, brings government theorists and pluralists together and focuses on the link between the government and the groups. This relationship, they say, is not a zero-sum game where the government and the groups are competing for the same resource. Instead, it is about dependancy. The government needs the groups’ cooperation to achieve its objectives. The groups need the government to change policy for them. In this manner, policy slowly becomes the result of an ongoing process of negotiation and bargaining between the government and the stakeholders (Smith, 1993).

A couple of observations here. One, if stakeholders are defined as only those whose support is essential for the new policy to work, what about the others? Two, what does the government do if different stakeholders want different outcomes? How does it choose?

1.31 India’s environmental governance regime

India’s EIA notifications derive their authority from the country’s environmental (protection) rules (1986). These empower the Central Government to “take all such measures as it deems necessary or expedient for… protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.” The authority vested with these powers and functions is the MoEF. Under the EP Rules, it has the power to create and promulgate EIA notifications, and to conduct the EC process as the ‘impact assessment agency’ designated in the regulations (Lockhart, 2004).

The two paragraphs that follow briefly outline the process as it is mapped out by the 1994 notification. It begins with the project proponent applying to the pertinent state government for project clearance. It is the state regulatory body which, on the basis of a list of activities mentioned in the EIA notification as requiring central clearance, decides whether a clearance is needed from the centre. If so, the proponent submits an application form with basic information about the project, the environment to be affected, a draft EIA report, analyses of project impacts and an environmental management plan with steps for mitigating significant impacts, to the MoEF’s Impact Assessment (IA) division.

After checking the documents to ensure they comply with the EIA regulations, the division forwards the application to the relevant State Pollution Control Board (SPCB) which, apart from making parellel ‘consent to establish’ determinations under the applicable air, water and hazardous waste regulations, conducts a public hearing. Next, it submits a summary of the public comments to the IA division and to the committee of experts adjudicating on the application. After reviewing all the documents, the committee makes its recommendation to the division, which then completes the evaluation and makes its recommendations to the secretary heading the IA division who issues the environmental clearance (Lockhart, 2004). As for the projects falling under state jurisdiction, they have to get no objection certificates as laid out in the Air Act, Water Act, Biomedical Waste Handling Rules and Solid/Hazardous Waste Management Rules (ERM).

In his superb critique, Lockhart says that the Indian EC process can be very robust. Unlike EIA processes like the one in the US, the Indian version enables the authority to disapprove projects on environmental grounds. Further, the public hearings provide a forum for bringing environmental issues ignored by the EIA documents into the open (Lockhart, 2004).

But, for the most part, it is an ineffectual regime. The problems are myriad. Most of the applications the government receives are of a very poor quality. If not because of the ineptitude that characterises India’s EIA consultancies (Kohli and Menon, 2005), then because they are paid by project proponents to carry these studies out. It is hard to see any honest EIA appraisal coming about given that dependence. Complicating this is the fact that the notifications lack guidance on the scope and depth of impact analysis. The only information proponents are mandated to supply is descriptive, confined mainly to existing conditions, resources to be used, operating methods and pollution contents (Lockhart, 2004).

Nor is it easy to catch these weaknesses at the application evaluation stage. The independence and effectiveness of the expert committees evaluating projects is weakened by their dependence on the proponents for data development, their lack of domain and site knowledge, by the lack of authoritative standards for application analysis and by the lack of any legal requirements to ensure the independence of the committee members. Between rising corruption among ministers (2) and senior bureaucrats (3), the average committee member comes under huge pressure to approve projects.

The public hearings are a travesty. One of the people I met while working on this paper was MV Ramana, an senior research fellow researching nuclear energy in India at Bangalore’s Centre for Interdisciplinary Studies in Environment and Development. He described a recent public hearing he attended for a nuclear power plant being set up by the Nuclear Power Corporation of India in the South Indian state of Tamil Nadu. The EIA report, he said, had no useful information. “The spent fuel is meant to be stored in ponds. And the report was silent about the associated risks, the depth of these ponds, even the location of these ponds. Instead, there was irrelevant information about the plant’s sound levels.” There were other problems as well. For a project coming up in rural Tamil Nadu, copies of the draft report were available only in English – not in the local language. Ninety minutes into the proceedings, with several people yet to raise questions, the public hearing was abruptly declared closed. No minutes were read out (4).

This critique is corroborated by the report by ERM, the consultancy which drew up the new EC process. It says, “A critical area of concern in these hearings is the quality of information that is put up for disclosure. The executive summaries of the EIAs, which is (sic) meant to be used as a disclosure document, often is poorly structured and often focuses primarily on the positive aspects of the project… glossing over the adverse environmental and social impacts. For example, the executive summary of the Lower Subansri Hydroelectric Project doesn’t mention the word environment in any of its four pages.”

Also, there is no mechanism for ensuring proportionate representation of stakeholders (ERM). Nor, given that these result in multiple representations about project impacts, is there any guidance on how the government should choose between alternatives5. And, as a sort of grim icing on the cake, public hearings are all too often marred by intimidation and violence to silence criticism of the project (Report by the independent fact finding team on issues related to the proposed Posco project in Jagatsinghpur (Orissa); Menon and Kohli, 2007; Saldanha et al, 2007; Fernandes and Saldanha, 2001).

There are other problems. While the EIA should be conducted at a very initial stage of the approval process, it is held towards the end. By then, site selection is as good as final (6).

Then, ensuring compliance is a huge weakness. In 1995, the MoEF surveyed 300 river valley authorities which had been granted conditional clearances. The conditions pertained to afforestation, rehabilitation of affected people and treatment of the catchment and command area to prevent biodiversity loss. It found that 88% of the projects were non-compliant (Divan and Rosencranz, 2001). Some companies have completely disregarded the environmental clearance itself. In Deep Politics, Fernandes and Saldanha detail how Cogentrix’ power project actually received an EC from the MoEF without an EIA study being undertaken (Fernandes and Saldanha, 2001)!

Part of the blame for this poor record in compliance can be placed on India’s constitutional federalism (Lockhart, 2004). The MoEF cannot intervene in these matters. Its regional offices have to act through the SPCB responsible for enforcing sanctions for noncompliance. Given that the SPCBs are not even accountable to the MoEF, this makes the process cumbersome. All this underscores the need to do the pre-clearance diligence very well (7).

Finally, the context in which the EIA notification operates is changing. As the feeling that India can be the world’s second largest economy if it plays its cards right grows, it has led to a certain hardening of attitudes towards environmental and social factors. P Chidambaram, the Indian finance minister, is on record saying that the Government of India is “willing to tolerate debate, and perhaps even dissent, as long as it doesn’t come in the way of 8 percent growth”(8). Indian industry has been quick to capitalise on this shift, and has been insisting that the country’s ability to raise industrial output is hugely constrained by policies such as the EIA notification and the EPA Rules (9).

One consequence of the corruption, the impatience for growth and the hardlining towards environmental and social concerns, is that the 1994 notification has been repeatedly diluted. The scope of coverage of types of projects subject to EIA review, already limited in the original EIA regulations, has been further limited by repeated amendments creating new exemptions and exceptions (Lockhart, 2004). Small scale industry, one of the most polluting industries in the country, has been exempted from the EC process (Stuligross, 1999). Another outcome of the multiple amendments to the 1994 notification and other notifications for protecting eco-fragile areas at both the state and central level is that there is much confusion among companies on whether they needed a clearance from the state or the centre (ERM).

The result of all this has been grimly predictable. As the approvals to power, industrial, chemical and other environmentally-damaging projects increase, the degradation of India’s environmental quality is intensifying. 67% of the country’s rivers are polluted (10). Of all the forest land diverted for non-forest purposes since 1980, over 50 per cent has occurred in the last six to seven years. Of the 95,000 hectares of forest land given to mining since 1980, 63 per cent has been given in the period between 1997 and 2005. Then, the country’s most biologically- and culturally-sensitive areas are being opened up with catastrophic impacts on indigenous tribes and wildlife (11). For instance, the Gulf of Mannar, a marine biosphere reserve, is threatened by plans to dredge a shipping canal through it. The EIA submitted by the project proponent doesn’t mention the impact a fuel oil spill might have, or even the impact of the dredging itself on the marine ecosystem (Lu and Cheranik, 2004). Such instances are numerous (12).

This, then, is the context in which the new notification has to operate. It has to anticipate, evaluate and avoid unacceptable environmental consequences of all development and industrial projects while balancing environmental needs with long-term benefits of development in achieving essential economic, social and political goals. It needs to ensure that the impact assessment agency has authority, and is protected from political interference. And, as Lockhart sums up, “the transparency and effectiveness of (its) the activities… should be ensured by procedural requirements that promote fulfillment of these goals, particularly emphasizing full public access to project information, documents and impact data, with early opportunity for public comment and criticism before the design of or commitment to a project becomes irreversible.” (Lockhart, 2004)

1.32 The stirrings of reform

The overhaul of the Indian EC process can be traced to the Govindrajan Committee. In 2001, it was set up by the Atal Behari Vajpayee government to identify the reasons for persistent delays between project approval and project implementation plaguing both public and private sector projects (13). The report, when it came out, flagged the EC process as a huge factor. “Cumbersome procedures for environmental clearance and public hearing, submission of incomplete information, poor quality of EIA/EMP (environmental management plans), disproportionate details required with applications, delays in the meetings of the Expert Committees and site visit, etc., are the major reasons behind delays.” (Govindrajan Committee Report, 2002)

Around here, the government got lucky. In 2001, the World Bank, correctly realising there were grave problems with environmental governance in India, had begun funding an Environmental Management Capacity Building (EMCB) programme. This had four components. There was a review of the EC process by a consultancy called Environmental Resource Management (ERM). The National Environmental Engineering Research Institute (NEERI) was roped in to prepare a ‘National Guidance Manual On EIA Practice With Support Manuals On Select Developmental Projects For Enhancing The Quality And Effectiveness Of Indian EIA’. Then, the EMCB funded research on the application of economic principles and tools to environmental management in India at institutions like the Madras School of Economics, the Indira Gandhi Institute of Development Research, the Institute of Economic Growth and the Indian Statistical Institute. Finally, it asked the MoEF to set up an Environmental Information Centre with Infrastructure Leasing and Financial Services (IL&FS). This would function as a professionally-managed clearing house for environmental information (14) (Kohli and Menon, 2005).

Of these, the ERM report provided the template for the new notification. The consultancy began by gauging how efficient and effective the existing EC process was. Efficiency was a function of time -- how long did the process take to grant (or not grant) approvals; how efficiently were the resources of regulatory authority and the project proponent being utilised in the process of facilitating and making the decision? Effectiveness was calculated in terms of whether the process was making the right calls on project proposals. It didn’t appear to be. Environmental indicators were worsening. Not a single project had been refused clearance till date (15) At the most, the process had rejected proposals due to insufficient or irrelevant information -- in which case, the project proponent would massage the numbers and resubmit the application (16). Another suggestion that the process was suboptimal came from the huge number of public interest litigations being filed to contest EC decisions (17).

After studying the process, the consultancy produced a wide-ranging draft report. A big reason for the delays, it concluded, was the lack of direction given to companies on the data their EIA reports should contain. The result: a back-and-forth game between the appraisal committee and the project proponent with the latter asking for several clarifications. And so, the consultancy recommended that the ‘terms of reference’ for the EIA should be set by the MoEF, not the project proponent. Then, it suggested that all the project clearance legislations – on ecologically sensitive areas, coastal zones, etc – should be integrated into the EIA notification. Another provision suggested that the government, in addition to carrying out project level evaluations, should also take a larger regional and temporal view of the project’s likely impact (18). (I should clarify that I could not get my hands on a copy of this report. The consultancy was secretive. The ex-employees I interviewed did not appear to have copies lying with them. And so, the stuff that follows about the draft report is based on interviews with present and former ERM employees who worked on the report, and with MoEF mandarins who saw the draft report.)

After the draft was submitted to the MoEF, its recommendations were contrasted with the conclusions of the Govindrajan Committee. And the consultancy was told to focus the draft only on addressing the flaws identified by the committee – the lengthy EC process, the multiple requests for more information by the committee members, the disproportionate amount of information that was being asked for… (19).

This was a significant moment. The problems in the EIA process had now been defined in a particular way. The main problem, the government was saying, was not the lack of compliance or larger regional temporal studies or corruption or worsening environmental indicators or anything. It was the long timeframes. This is what David Mosse found during his fieldwork. While the need for policy might be defined in a very technical, scientific manner, it is always politically shaped (Mosse, 2004).

It is pertinent to add here that the explanation for this decision offered to the ERM team at that time was that other task forces were studying issues like compliance (20). But, so far, none of them has come out with any notification. The only notifications out so far are the EIA and the draft CRZ notification. Which is another way of assessing the MoEF’s priorities.

1.33 The paper trail 

For all that, the final ERM report, when it came out, was pretty good. It recommended decentralisation. Given the MoEF’s preoccupation with regulatory functions, international commitments and responses to (rising) judicial activities, it remarked, “areas like planning and policy, project implementation and promotional activities are not receiving the attention they deserve. This is one of primary reasons that the legislations governing the environmental clearance process lack some of very basic requirements like direction, clarity and consistency.” Further, it added, given that it is the states who are responsible for enforcing most of the legislations and have a closer interaction with the project proponents... any role and responsibility allocation should very much take that into account. And so, only large projects, or those with inter-state impacts, should come to the centre.

It suggested a four-stage process: screening, scoping, public consultation and appraisal. The first would decide whether a project should be cleared by the centre (known as category A projects) or the state (category B projects). It marked a shift. Under the 1994 notification, all new projects below a Rs 1 billion investment, all expansion or modernisation projects below Rs 0.5 billion, automatically went to the states. Now, ERM proposed that these financial proxies for environmental impact be done away with.

Instead, state or central clearance would now be determined by the project’s likely environmental impact. With that intent, cement, oil/petroleum refining, petrochemicals, fertilizers, distilleries, dyes and dye intermediates, leather, pesticides, pharmaceuticals, sugar, chlor-alkalis, pulp and paper, and primary metallurgical industry (integrated iron and steel plants, copper smelters, zinc smelters, aluminium smelters and lead smelters), power generation (nuclear and thermal), river valley projects, mining projects, exploration for oil and gas, transportation through pipelines and storage, highways, railways, ports, harbours, airports, industrial estates, biotech parks, special economic zones, export promotion zones, ship-breaking yards, common environmental infrastruture projects (waste water treatment plants, municipal solid waste/hazardous waste/biomedical waste treatment and disposal facilities) and all development activities in notified ecosensitive areas – were marked for a central clearance. (I should add that every project in these categories would not fall under the purview of the centre. Only the larger ones would. Further, given that projects going to the states would have lower impacts, ERM suggested these be cleared after a rapid EIA. Only the ones heading to the centre would have to submit a Comprehensive EIA.)

As for scoping, it suggested that Category A projects be scoped by an appraisal committee set up by the MoEF. At the state level, it said, committees could be constituted from officials drawn from the SPCB, the MoEF’s regional office, local NGOs and experts from the respective sectors. The consultancy also advocated representation of the affected public in the scoping committees to ensure their concerns got factored into the study. Not only would this make the process transparent and build ownership among the community, it would help overcome deficiencies in regulatory oversight.

Multiple public hearings were recommended -- with gram panchayats, women, marginal groups, local political groups, community-based organisations and government agencies working on local development works. Further, the targeted outcome of the public hearings was defined as mutual agreement and consensus between the local community, the regulatory bodies and the project proponents regarding the mitigatory measures to be adopted.

As for the appraisal, to make up for low levels of domain knowledge within the appraisal committees, the report suggested a two-tier clearance. After a preliminary scrutiny by the MoEF to raise final queries for the proponent, it suggested, the proponent’s answers and the original report should be sent to three specialists (in the industry, and in the region where the project would be located). Their comments could then accompany the final application to the expert committee, and thus help them decide whether or not to grant approval.

That left monitoring. The report recommended a mix of voluntary and regulatory instruments -- inspections, environmental quality monitoring, third party audits, voluntary agreements linked to incentives, using the local community for monitoring, and so on. Such a system, it said, would protect post-project monitoring from derailment due to lapses by a single authority. It also advocated full decentralisation of monitoring, saying that the current system, of SPCBs and regional MoEF offices, was fragmented and lacked clear roles and responsibilities. Finally, the ERM report had pegged the time frame for its process at about 110 days (ERM).

Reading the report, I was impressed. It was very balanced – as cognizant of the project requirements as of the social and environmental externalities that can accompany these projects. It was a sentiment others shared. In Delhi, when I met Manju Menon, an activist at environmental NGO Kalpvriksh, and one of the strongest critics of environmental governance in India, she described the EIA report as “something one could work with”(21).

In 2004, some months after receiving the final report, the MoEF organised a series of seminars – for industry, states and civil society – to introduce them to the new EIA notification it was working on. Presentations made by the MoEF at that time, titled ‘Reforms in the grant of environmental clearance’, are in the public domain. The process this outlines is somewhat different from the one proposed by ERM.

A third category of projects – A/B – had come into being (Reforms in grant of environmental clearance, 2004). Reasoning that the impact of a project is a function of its location (the impact of a thermal plant in the middle of a desert will be very different from one in, say, the heart of a city) (22), the MoEF planned to set up Screening and Scoping Expert Committees (SSECs) to decide whether such projects should be treated as category A or B. Then, the list of activities under the notification’s ambit climbed from 31 to 38. Pharma, sugar, highways and railways were deleted. Asbestos, knowledge parks, integrated paint complexes, jetties, standalone coke ovens, auto manufacturing, basic organic chemicals manufacturing, manmade fibres, coal washeries, mineral beneficiation, construction in urban areas and isolated storage and handling of hazardous chemicals were added. The clause on involving the local community during scoping was missing. As was the bit about multiple public hearings. The ‘Reforms in the grant of environmental clearance’ papers say only one public hearing will be held. It is similarly silent about the targeted outcome from the public hearings. The time the reworked process would take rose to 10.5-12 months (320-365days) (Reforms in grant of environmental clearance).

I should add here that the ministry had been carrying out informal consultations with stakeholders from the time of the draft ERM report. It had begun work on the new notification by the time ERM was racing to submit its final report. Talking about this period, a mandarin who used to be at the MoEF would say that he worked on about 13 versions of the interim notification in this period (23) The last one in this sequence again entered the public domain as the draft EIA notification, in September 2005.

The process it outlines is different from the one proposed by the ‘Reforms in the grant of environmental clearance’ paper. It laid out more detail on how scoping would be conducted: “The EAC (Expert Appraisal Committee) or the SEAC (State Expert Appraisal Committee) will determine the TORs (terms of reference) on the basis of Form One… if considered necessary by the EAC or the SEAC concerned, a site visit… and any other information that will be available with the EAC or SEAC”. Further, public hearings were now open only to ’local‘ people with a ’plausible‘ stake. Further, these could now be scrapped if the local administration felt conditions were not conducive. Another change was in the public hearing panel. It had to include sector representatives from the state (or union territory) pollution control board, the local MLA, and women and people from backward castes and tribes among the local community representatives.

Failsafe options came in. If the SPCB failed to conduct the public hearing in the stipulated 60 days, another government institution would organise it. If the regulatory authority failed to convey its ruling on a project within 60 days of receiving a verdict from the EAC/SEAC, the proponent could consider the committees’ verdict as the final decision (Draft EIA notification, 2005). This has parallels with one of the recommendations of the Govindrajan Committee: “Expert Committee may raise all issues at the first meeting itself and Members not present may send their comments to the Committee in writing. In case any Member does not give his or her comments within the prescribed period, it should be presumed that he or she has no comments to offer and the next stage of approval process taken up.” (Govindrajan Committee Report, 2002)

Other changes. For appraisal, applications would go to the EAC or the SEAC which initially screened and scoped the proposal. The validity of the EC changed. As per the 1994 notification, a company had to begin construction or operation of the project within five years of getting the clearance. Now, companies would now have to begin production operations (or complete all construction operations in the case of construction projects) within the five years for which the clearance was being granted.

The total number of activities under the purview of the notification rose to 46. But the number of projects in category A came down to 15. A/B, which had 15 projects earlier, shrank to three. Projects moved either entirely to B (nine) or got split between A and B (17). Other clauses from 1994 remained unchanged. There was no change in monitoring – both the 1994 notification and the draft notification asked for half-yearly compliance reports, and little else more. Also, this being a draft notification, other aspects began to get clarified. There was, for instance, more detail about the State-level body granting clearances -- it would be called the State Environmental Impact Assessment Authority (SEIAA) and it would be constituted by the central government in consultation with the state government. The timeline came down to 255 days (not counting the failsafes) (Draft EIA notification, 2005).

A year later, the final notification was promulgated. By now, the timeline had been crunched to 210 days (not counting the failsafes). A/B and the public hearing panel had been dropped. Companies could withhold ‘confidential’ information from the data they furnished at public hearings. Batteries, automobile manufacturing and Mass Rapid Transit Systems had been exempted from the EC process. The real estate sector had been bumped down to category B (in addition to being exempted from both scoping and public hearing). A condition making central clearance mandatory for all construction projects in Indian cities with a population above 3 million had been deleted. Finally, the number of category A projects had fallen again. it was now down to 12 (Draft EIA notification, 2005).

It was odd. In the year-long consultations that took place after the draft notification’s release, some very good suggestions had been made. The north Indian state of Himachal Pradesh, for instance, had suggested that if an SPCB felt a project needs an EC, regardless of whether it is in the schedule or not, that project should be made to get one (24) There were, similarly, reminders about the need to improve monitoring, to address the endemic corruption, and the violence that accompanied public hearings (25).

But, with the exception of the timeline, the TORs, and the categorisation of industries, hardly any of the problems in the previous notification – the poor compliance, the public hearings, the lack of guidance on approving projects, the poor EIA studies, etc -- had been acted upon. If anything, newer problems had been added. For instance, the failsafe measures came in without any penalty being attached to the agency/bureaucrat failing to finish its/his assignment in the stipulated time. What was released in September 2006 was nothing but a terribly diluted version of the ERM report.