Story of the Forgotten Mandamus: The Opportunity to Fulfil the Need of a Regulator

In the recent centuries, with the advent of the industrial revolution and spiral growth in the field of technology, we have caused much harm to the environment. In that event, our environment which can recover by itself, against the menace that we pose, has already surpassed the recovery mechanism and to that effect, we have witnessed evident results of climatic changes, in the form of unbearable weather conditions, unnatural weather cycle, natural calamities and many more. This inhabitable planet, which has been handed to us by our past generations, in its pristine glory, imposes the same responsibility on us, and we are morally bound to hand over the same, in the same condition to our future generations. Now bringing our gaze towards the environmental conditions, its health which is on plummet, mandates enacting, as well as implementation of stringent environmental protection laws and policies that align with the core elements of sustainable development. It is critical to bring our gaze to the fact that our society has become obsessed with economic devolvement, rather than making an effort on the lines of sustainable development and environmental sustainability. It would be safe to say that the benign face of economic liberalisation has brought many devastating effects on the environment.

Despite the vanguard role played by many environmentalists for the preservation of ecology, and the same has been echoed in several judicial pronouncements and research studies, nothing significant has been done, hitherto, towards framing a proper framework for the preservation of the environmental sector. In a country, where politicians are least trusted, and where the crony capitalism determine so much of what passes for environmental policy, the High Courts and the Supreme Court have witnessed a spate of public interest litigations aimed at stopping the degrading condition of the environment.

In India, the cause of environmental conservation in the past two decades has been echoed majorly by the constitutional courts. The executive, per contra, more often than not has either remained a mute spectator or has issued executive dictates in the form of circulars, office memorandums, etc. which has created an impression among the polluters that even, in case, they violate the mandate laid down by the courts, through various judicial pronouncements and as prescribed by the law, their violation would be condoned by way of regularisation, that too, with retrospective effect.

Policies of such nature, notified by the executive, have resulted in corporates and public sector undertakings (PSUs) establishing their industries as well as expanding their capacities by complying with the periodic Environmental Impact Assessment (EIA) notifications, in turn reaping benefits from exploiting the environment entrusted to us by generations and generations yet to come. It can be said with no shadow of doubt that policies of such nature act as a blessing to the violators of environment law and same can only be addressed by bringing in an amendment to the Environment Protection Act².

One such draconian provision that the Draft 2020³ brings is “ex post facto clearance” for projects going back to March 2017 Notification that legitimised all environmental violations. This implies that industrial units and other projects that were in operation as of now, illegally, without an environmental clearance (EC), can now submit a remedial plan to turn their illegal project into legalised one. This clearance also allows projects to merely go back into the time and obtain their EC by merely providing the penalties and without providing sufficient reasons for the same. This is regarded to be a matter of concern as it legitimises the illegal industries which are in operation without requisite environmental clearance (EC), and the Government has not provided its justification for the introduction of such clause that will disregard the environmental damage which will be caused by providing them a new lifeline.

In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati⁴ the Supreme Court stated that any attempt to grant ex post facto clearance would be void as it held that “ex post facto clearances are unsustainable in law and void”. Moreover, the case of Common Cause v. Union of India⁵it was a settled proposition that the “concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence”. Furthermore, in Pahwa Plastics (P) Ltd. v. Dastak NGO⁶. It was held that:

63. Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularisation of operations by the grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with the law, in strict conformity with the applicable rules, regulations and/or notifications….

The said Draft is a brazen attempt to overreach the Supreme Court and to give leeway to the industries which are already running illegally in operation without requisite environmental clearance. Some instances of State action in direct contravention of environmental ethos are referred herein below:

The present status of environmental laws in the country provides for different laws for different aspects of the environment, such as the Forest Conservation Act, 1980¹⁰, the Environment (Protection) Act, 1986, the Air (Prevention and Control of Pollution) Act, 1981¹¹, the Water (Prevention and Control of Pollution) Act, 1974¹², the Wildlife (Protection) Act, 1972¹³, the National Green Tribunal Act, 2010¹⁴, etc. As is clear from the division of scope of all the aforementioned Acts, separate clearances are required to be taken from appropriate authorities to operate any business or industry that falls within the scope of such acts in India.

Such a framework, though intended for the protection, prevention, and welfare of the environment as well as promoting sustainable development, creates ambiguity about the application of laws, bureaucratic lethargy in the implementation of the laws, and unintended red-tapism for industries in availing clearances. Such unintentional consequences in turn have caused tremendous loss to industries on account of ambiguity about the application of provisions and unforeseen waiting periods for attaining such clearances, thus depleting investor confidence and further causing imbalances to the economic and financial growth of the country.

The voice for a single environmental code that would bring within its ambit all the separate environmental laws currently in force across India needs to be paid heed to, which would be a quintessential step toward regularising all environmental laws in the country, which, in turn, would increase investor confidence and help in achieving India's renewed push to become investors' hub.

The framing of a single environmental code is also an astute opportunity to implement the mandatory directions issued by the Supreme Court in Lafarge Umiam Mining (P) Ltd. v. Union of India¹⁵and T.N. Godavarman Thirumulpad v. Union of India¹⁶.

In both the aforementioned cases, the Supreme Court in no uncertain words, directed the Union of India to appoint a National Regulator for environment protection with offices in as many States as possible, for the implementation of the National Forest Policy, 1988¹⁷, appraising of projects enforcing environmental conditions for approvals of such projects and to impose penalties on polluters who violate the mandates of the applicable law.

It is wise to highlight that the directions issued by the Supreme Court in Lafarge¹⁸ as well as in T.N. Godavarman case¹⁹ are in the nature of mandamus and mandatory for the Union of India to implement as has already been held in T.N. Godavarman case²⁰ which observed as follows:

8. It will be clear from the italicised portions of the order of this Court in Lafarge Umiam Mining (P) Ltd.²¹ extracted above that this Court on an interpretation of Section 3(3) of the Environment (Protection) Act, 1986²² has taken a view that it confers a power coupled with a duty to appoint an appropriate authority in the form of a regulator at the State and the Central level for appraising projects, enforcing environmental conditions for approvals and to impose penalties on polluters and has, accordingly, directed the Central Government to appoint a National Regulator under the said provision of the Act. Mr Parasaran is, therefore, not right in arguing that in Lafarge Umiam Mining (P) Ltd.²³, this Court has merely suggested that a National Regulator should be appointed and has not issued any mandamus to appoint a National Regulator.

The establishment of a National Regulator along with the new environmental code would act as a catalyst not only for the protection and preservation of the environment but also for the financial and economic growth of those sectors which are presently dependent on attaining clearances from different authorities to kick-start their operations.

A single National Regulator having the requisite expertise for appraising and granting all required approvals will have manifold benefits as it will not only significantly reduce the time consumed by the industries in attaining approvals but will also act as an aid in the economic development of the country. Such an economic aid would also significantly increase investor confidence and attract greater participation in other sectors such as the mining sector, which is eager to attract foreign investment. The positive result of such growth in the economy of the country would not only help in the eradication of unemployment and poverty but also would significantly contribute towards fulfilling the dream of an Atmanirbhar Bharat.

There are too many licences/clearances for the same thing, and none of them appear to be working to protect the environment or community rights. Much worse than this, they are also adding to the industry's burden in the form of high transaction costs.

(i) The EIA Notification, 2006, provides for environmental clearance. Large projects are evaluated by an Environment Appraisal Committee (EAC) and approved by the Ministry of Environment and Forests (MoEF). State-level Expert Appraisal Committees (SEACs), whereas State Level Environment Impact Assessment Authorities (SEIAAs) handle small projects. Most EIA Reports are not worth the paper they are written on, and the entire clearance process is just a bunch of paperwork. The regulators viz. EAC, SEAC, or SEIAA — are not accountable to anyone. Courts in many cases have rejected these regulators' clearances. On top of that, hardly any post-clearance monitoring is done. The MoEF's six regional offices, which are supposed to enforce the clearance conditions, lack the necessary manpower and resources.

(ii) Forest clearance is under Section 2 of the Forest (Conservation) Act of 1980²⁴. A Forest Advisory Committee evaluates the projects and recommends alternatives. In contrast to environmental clearance, no impact assessment report is required for forest diversion. The report based on which forest land is diverted reads like a botanical report — number of trees, the girth of trees, types of trees, and so on. There has been no evaluation of the impact of the forest diversion on the ecology, water resources, or people living in the area. Worse than what is said, none of the reports are made available to the general public.

(iii) Coastal clearance under the Coastal Regulation Zone Notification of 2011. State Coastal Zone Management Authorities (SCZMAs) and the National Coastal Zone Management Authority (NCZMA) fall under this umbrella. SCZMAs are responsible for mapping the States' coastal zones and developing integrated coastal zone management plans. Based on these, they must recommend clearances for coastal projects to SEIAAs or the MoEF, depending on the case. However, very few States have developed integrated coastal management plans or mapped their coastal zones. There is a conflict of interest in preparing the EIA report and demarcating the coastal areas, just as there is in the case of environmental clearance. The project proponent pays the consultant to complete all these tasks. Although one of the primary goals of the CRZ notification is to protect the coastal community's livelihood, however, the law does little in this regard.

(iv) Wildlife clearance is required under the Wildlife (Protection) Act of 1972 for forestry activities in wildlife habitats and within 10 km of the boundaries of national parks and wildlife sanctuaries. These clearances are granted by State Wildlife Boards (chaired by respective Chief Ministers) and the National Board for Wildlife (chaired by the Prime Minister). In addition to these, the Central Pollution Control Board (CPCB) and the State Pollution Control Boards (SPCBs) are the country's primary pollution regulators. Before starting a project, SPCBs must obtain consent to establish and consent to operate under the Water (Prevention and Control of Pollution) Act of 1974 and the Air (Prevention and Control of Pollution) Act of 1981. Before granting consent, some SPCBs require EIA reports. Apart from the above, there are area/issue-specific regulators like the Environment Protection Authority for eco-sensitive zones, the Compensatory Afforestation Fund Management and Planning Authority, etc.

A project could necessitate all of the aforementioned clearances. The fact that a city like Bengaluru has a Department of Environment and Forests, a regional office of MoEF, a zonal office of the Central Pollution Control Board, headquarters and regional offices of the Karnataka SPCB, the Karnataka SEIAA and SEAC, office of the Karnataka State Coastal Zone Management Authority, office of the Karnataka Forest Department, and so on, demonstrates the multiplicity of regulators.

Despite all the laws, regulations, authorities, and regulators, 99.9% of all projects are granted environmental clearances, and 94% of all projects are granted forest clearances. Despite industry propaganda, the pace and scale of environmental and forest clearances have been unprecedented in the last six-and-a-half years.

For example, since 2007, the MoEF has granted environmental clearance to over 200,000 megawatts (MW) of coal-based thermal power projects — 60,000 MW more than we have installed in the previous 67 years. It has permitted nine more than 350 million tonnes of coal per annum (MTPA) and built more than 100 MTPA of steel capacity.

This plethora of regulations and regulatory authorities benefit unscrupulous elements in the industry and the Government. However, it is detrimental to the environment and economic growth. Environmental degradation is an out-of-control issue that is destroying public health and exacerbating poverty. Pollution in our rivers is worse today than it was three decades ago when the MoEF was founded. The condition of air quality has also deteriorated, which needs no mentioning, and in addition, we are even unable to handle our waste management system. Further to this, Bellary and Goa demonstrate that we are unable to protect our forests.

A second-generation environmental regulation is the need of the hour which will bring reforms into environmental protection and community rights while also reducing time and transaction costs for industry. What is required is a reduction in complexity, the repeal of antiquated laws, and the simplification of regulatory procedures. There is certainly the possibility of establishing a National Regulator to consolidate all clearances viz. environment, forests, wildlife, and coastal so that the project's impact can be effectively assessed, and decisions can be made thereto. This regulator should be given the authority and resources necessary to conduct proper post-clearance monitoring and assessment, as well as imposition of fines and sanctions. The regulator must indeed be transparent and accountable, as well as encourage greater public assessment, participation, and scrutiny. What is more glaring to be ignored is that the development or to say gross domestic product (GDP) of the country, is measured in terms of infrastructural development, which is achieved at the cost of cutting down trees/forests, however, no method is there which transpires, how cutting down of these forests adversely impact the development of the country. In fact, there is no parameter to measure, or which indicates how deforestation adversely affects the GDP of the country. For instance, we take into account the contribution of revenue generated by the sale of an air purifier, into our GDP, but fail to measure the downside of deforestation, which has urged the need for these air purifiers.

It is a high time for the constitutional courts to intervene and fulfil the need of a regulator, whereby much recently the Madras High Court in A. Periyakaruppan v. State²⁵, on a very rare instance invoked ‘parens patriae jurisdiction' (parent of the nation jurisdiction) and thereby declaring the ‘mother nature' as a ‘living being' having legal entity/legal person/juristic person/juridical person/moral person/artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them”. The order with such spirit is the need of the hour and worth appraisal, which protects the rights of the “mother nature” which cannot speak per se, but orders of such nature will certainly do so.

Our planet's alarm is going off, and it is time to wake up and take action!

— Leonardo DiCaprio