India takes the “office order” route to environmental clearance for businesses

Over the past few months, India’s Ministry of Environment, Forest and Climate Change (MoEFCC) has proposed amendments to two key legislations — the Wild Life Protection Act 1972 and the Biological Diversity Act 2002 .

While environmentalists and conservationists focus on the changes proposed in the two laws, dubbing them as dilutions, there are some other office orders that the environment ministry has introduced over the past two months, which push for ease of business and could further weaken the country’s green regulations.

Amendments to legislation are usually done in public consultation while office orders are communication from an authority to carry out/guide certain actions, which do not undergo a public consultation phase.

Among the orders by the MoEFCC, one order paves the way for forest clearance to residential projects up to one hectare on forest lands in exceptional circumstances. Another order introduces a star rating system to incentivise state environment authorities to recommend environment clearances in the least possible time. The ministry also sent out an order to announce revisions in the rates of the net present value that is levied for the diversion of forest lands.

Office orders for changes to environment policy

On Jan. 24, the forest conservation division of the MoEFCC sent a letter to all state governments clarifying the use of forest land for residential purposes under the Forest Conservation Act (FCA) 1980. According to this letter, “in exceptional circumstances, residential projects up to one hectare, can be considered for approval” under FCA 1980 by the MoEFCC on appropriate “justification and recommendation by the concerned state government” and the regional office of the ministry. The order specified that “the utilisation of a forest area for establishing industries, construction of residential colonies, institutes, disposal of fly ash, rehabilitation of displaced persons, etc. are non-site-specific activities and cannot be considered on forest land as a rule.”

However, according to some experts, this latest order fails to spell out the “exceptional circumstances”, leaving the interpretation to the expert bodies deciding on such cases. The decision regarding the office order was based on a recommendation of an expert forest panel, which was accepted by the ministry. The ministry officials, however, defend the move stating that the order removes an earlier misinterpretation that allowed people to exploit the forest areas.

Another decision of the ministry that drew ire during the past month was the star rating system for states, introduced to enable the faster clearing of proposals seeking environment clearance, to promote ease of business. The order dated Jan. 17 stated that the ministry has taken several measures to streamline the environmental clearance process and reduce the time taken for grant of clearances. The issue regarding a ranking system of states granting clearances came up during a meeting on Nov. 13, 2021, chaired by the union cabinet secretary to discuss measures for “ease of doing business.”

An elephant in the forest

Ahammed Sha/Pixabay.Nature Conservation Foundation (NCF), in a representation to the parliamentary standing committee, raised concerns about the amendments rendering state boards for wildlife defunct.

“It has been decided to incentivise the states through a star rating system based on the efficiency and timelines in grant of EC. This is intended as a mode of recognition and encouragement as well as for prompting improvements where needed,” the order said.

The system to decide rating included yardsticks such as the average number of days for granting EC, percentage of disposal of cases seeking terms of reference or clearances, and complaints redressed by authorities.

Ease of business at the cost of the environment?

On Feb. 1, during the budget speech , India’s finance minister Nirmala Sitharaman announced a single form for faster approvals to proposals seeking green clearances.

“A single window portal, Parivesh, for all green clearances was launched in 2018. It has been instrumental in reducing the time required for approvals significantly. The scope of this portal will now be expanded, to provide information to the applicants. Based on the location of units, information about specific approvals will be provided. It will enable application for all four approvals through a single form, and tracking of the process through Centralised Processing Centre-Green,” she declared.

Environmental lawyer Rahul Choudhary told Mongabay-India that whether one looks at the series of changes that the government continues to bring or the recently presented budget, the intention is clear. “What the government wants is to simply ensure there is no opposition or checks against their policy of speedy clearances for businesses…even if it comes at the cost of the environment. For instance, what is considered a forest in India, changes with what the government requires at that particular time. It is nothing but regressive,” said Choudhary, who is the co-founder of Delhi-based Legal Initiative for Forests & Environment, a law firm that recently won the 2021 Right Livelihood Award, widely considered the alternative Nobel Prize.

Office orders facilitate decisions without consultation

The system of bringing changes in India’s green regulations through a series of office orders, without public consultation, rather than presenting all of them together in an amendment to an environmental policy or law is not new. Experts in the sector say that this has been a regular feature of the country’s green regulation ecosystem for many years now.

Over the past few year years, India witnessed a systematic dilution of the regulations governing the work in the coastal areas or the environmental clearance process. One example is that of the draft Environment Impact Assessment (EIA) notification 2020 to replace the EIA notification 2006. The proposal drew a lot of criticism among many experts pointing out that many changes proposed in the draft were already brought through office orders over the years.

Debadityo Sinha, an ecologist and senior resident fellow with the Vidhi Centre for Legal Policy, said neither common people nor experts closely tracking the subject, find it is easy to track the changes brought out by the environment ministry.

“Often, the Union environment ministry announces the big-ticket changes through proposing amendments in laws governing environment, forest, wildlife or biodiversity sector. But that is not the only way. Throughout the year, through a series of office orders and notifications, changes are brought in green rules and regulations. If all these changes are taken together and a larger canvas is created, then it becomes apparent that the government has already undertaken a larger shift/dilution in the rules via a series of small changes – and that too with zero public consultation. That is what happened at the time of EIA regulation or CRZ (Coastal Regulation Zone) notification and that is what is happening now,” Sinha explained to Mongabay-India.

Picture of a forest

Ambady Sasi/Pixabay.The star rating system for the state environment authorities enables environment clearances in the least possible time.

“Is there any project that has been rejected by the clearance machinery in the government? There is no safeguard for accountability towards the protection of India’s environment,” he questioned.

Sinha highlighted that even in the latest budget, the allocation was reduced for the air quality commission, National Biodiversity Authority and autonomous research institutes such as the Indian Council for Forest Research and Education, the Indian Institute of Forest Management, Wildlife Institute of India, G.B. Pant Institute, and the Salim Ali Center for Ornithology and Natural History.

The latest in the line of the amendments that the MoEFCC is working on are the amendments to the Wild Life Protection Act (1972) and the Biological Diversity Act (2002). Following widespread criticism over the amendments, the government referred the Biological Diversity Act Amendment Bill (2021) to a Joint Parliamentary Committee and the Wild Life (Protection) Amendment Bill, 2021 to a parliamentary standing committee.

The committees have started the process of reaching out to stakeholders and listening to the concerns raised by them. For instance, the Nature Conservation Foundation, in a representation to the parliamentary standing committee raised concerns about the amendments rendering state boards for wildlife defunct, alignment with rights of local people and provisions of the Forest Rights Act 2006, allowing commercial trade in live elephants or lack of any provision for ensuring the protection of wildlife habitats among other things.

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