Silence of the Lambs

The-silence-of-the-lambs

In a major reshuffle of the Ministers on July 5, India’s Prime Minister Modi elevated the present Union Environment Minister Mr. Prakash Javdekar and inducted Mr. Anil Madhav Dave. Mr. Javdekar will now handle portfolio of Human Resource Development. Mr Dave is a well-known nature conservationalist and I am happy that he has been brought in.

Many said that Mr. Javdekar deserved this promotion as his performance at the Ministry of Environment & Forests & Climate Change (MoEFCC) has been rather bold and outstanding. Amongst the several changes he brought in, his reforms on fast track environmental clearance have been extremely innovative, tech-savvy and very much lauded. These reforms opened gateway to large projects and investments to India – something that Modi Government wanted to achieve and had promised. We need economic development – don’t we?

After all, political governance in India has a vision of only 5 years (I call this not a narrow but focused vision) and so what Mr. Javdekar did was rather fitting and appropriate. Many times thinking of sustainability over longer horizons does not make a sense. Who cares if the so called modernization of environmental governance leads to irreversible and expensive damages to India’s natural assets in the future? As future is anyways so uncertain with growing terrorism, economic and social disparities and above all the indifference that often muffles  the voices on environment. Should environment matter at all?

Just before his departure, in May, 2016 Mr. Javdekar amended the EIA Notification with a new instrument called “Environmental Supplement Plan (ESP)”. The ESP is for companies that violated India’s regulations on environmental clearances. These companies would now simply be fined and then allowed to continue whatever they were doing, instead of being charged with a criminal offense, as they had been before.

The concept of ESP is not new. In the United States, as early as in February 1991, a policy on the Use of Supplemental Environmental Projects (SEPs) was introduced.  This Policy was subsequently revised in May 1995 and later in May 1998. The 2015 Updated SEP Policy  supersedes earlier versions.

Under the 2015 SEP Policy, most federal actions against businesses or individuals for failure to comply with the environmental laws are resolved through settlement agreements. As part of a settlement, an alleged violator may voluntarily agree to undertake “an environmentally beneficial project” related to the violation in exchange for mitigation of the penalty to be paid. A Supplement Environmental Project (SEP) furthers EPA’s goal of protecting and enhancing the public health and the environment. It does not include the activities a violator must take to return to compliance with the law. Some have criticized the SEP but these are again short-sighted people who don’t appreciate United States philosophy of “development”.

According to an investigation by the Indian Express newspaper, it is the United States’ Supplemental Environments Project Policy where India got the idea of ESP.

Jay Mazoomdar, the author of the article in the Indian Express, found that a full 2,900 words of the 3,850 in the Indian ESP were lifted word for word from the American version. This is extremely encouraging. Such approaches of lifting words and strike commonalities should foster the relationships between India and the United States. This what we say as “being on the same pitch” or “sharing of the same thoughts”. We must praise Minister Javdekar for this strategic approach.

Mazoomdar cited following instances of alleged plagiarism:

1. US (Introduction A): Supplemental Environmental Project (SEP) is an environmentally beneficial project or activity that is not required by law, but that a defendant agrees to undertake as part of the settlement of an enforcement action.

 

India (Clause 1): An Environmental Supplemental Plan (ESP) is an environmentally beneficial project or activity that is not required by law, but that an alleged violator of Environmental Impact Assessment Notification, 2006 agrees to undertake as part of the process of environmental clearance.

 

2. US (II D): SEPs provide defendants with an opportunity to develop and demonstrate new technologies that may prove more protective of human health and the environment than existing processes and procedures.

 

India (4 iii): Innovative Technology: Environmental Supplemental Plan will provide the proponent and the Expert Group with an opportunity to develop and demonstrate new technologies that may prove more protective of human health and the environment than existing processes and procedures.

 

3. US (IV A III): The project must demonstrate that it is designed to reduce:

a. The likelihood that similar violations will occur in the future;

b. The adverse impact to public health and/or the environment to which the violation at issue contributes; or,

c. The overall risk to public health and/or the environment potentially affected by the violation at issue.

 

India (5): The project must demonstrate that it is designed to remediate the ecological damage caused due to violations and it will reduce,

a. The likelihood that similar violations will occur in the future;

b. The adverse impact to public health and the environment to which the violation at issue contributes;

c. The overall risk to public health and the environment potentially affected by the violation at issue.

 

The above are only samples quoted by the Author.

MoEFCC officials in India have defended saying that idea like ESP is in vogue in many western countries and the language used of Indian draft is different. (Although they haven’t stated, but I am sure that out of the 2900 words lifted from 3900 words include words like “and”, “but”, “however” etc. Such overlaps are unavoidable and do not really convey plagiarism. Mazoomdar has been rather harsh therefore on the Ministry).


Let us understand a bit more MoEFCC’s ESP.

MoEFCC (Ministry of Environment, Forest and Climate Change) issued a draft notification as required by sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986 on 10th May, 2016.

Section 5 of the Environment (Protection) Act, 1986 empowers the Central Government to give directions which reads as “Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.”

The draft notification on ESP proposes that,  “In case the projects or activities requiring prior environmental clearance under Environment Impact Assessment Notification, 2006 from the concerned regulatory authority are brought for environmental clearance after starting the construction work, or have undertaken expansion, modernization, and change in product- mix without prior environmental clearance, these projects shall be treated as cases of violations and shall be appraised for grant of environmental clearance and the project proponent to compensate may implement the Environmental Supplemental Plan to remediate the damage caused or likely to be caused, and take out the undue economic gain due to non-compliance and violation.”

The process of appraisal of the project for grant of environmental clearance and preparation of the Environmental Supplemental Plan would be carried out simultaneously.

Any person interested in making any objections or suggestions on the proposal contained in the draft notification may forward the same in writing, for consideration of the Central Government within the period so specified, to the Secretary, Ministry of Environment, Forest and Climate Change, Indira Paryavaran Bhawan, Jor Bagh Road, Aliganj, New Delhi-110 003


Indeed, ESP has been devised consistent to what the Government has been already doing (not just Modi Government but the Gandhi Government as well) i.e. the process of “regularalization” that blesses the corporate illegalities. Someone heard Mr. Javdekar saying in the MoEFCC corridors that if Arun Jaitley is offering schemes like Dispute Resolution then why not the Environment Ministry? And I like Javdekar’s straightforwardness of ensuring “evenness” across the Ministries. It’s really so heartening to see the congruence and consistency between the Ministries despite political and personal differences in the interest of this country.

Many argue that ESP as a license to violate. I disagree. These are only mistakes carried out by the developers in enthusiasm while meeting national development targets. How can we create obstacles for them by asking them to follow timely and comprehensive EIA process? The quality of EIAs in India is any case so poor that doing or not doing EIA does not make any difference to the outcomes. Its kind of Javdekar that he did not scrap the EIA process itself mainly to protect the livelihoods of the EIA consultants in India. I salute him for this consideration.

The ESP appears like a crude form of ‘pay and use’ service. Many argue that these payments in reality may not be made. My good friends – Kanchi Kohli and Manju Menon say – “Take the case of the fine of Rs.200 crore on the Adani SEZ in Gujarat, or Rs.5 crore for the Art of Living event on the Yamuna floodplains. Even if one were to be more optimistic about these collections, the government’s ability to use these resources to restore the environment, or provide justice to scores of affected people, is severely lacking. The example of crores of rupees collected to compensate for forest loss, and the Comptroller and Auditor General’s damning report on how these monies have been spent, will help change one’s mind”.

I think that Kanchi’s and Manju’s views are rather biased and incorrect as they do not know the reality. Some tell me that the moneys or fines are and will actually be paid out – but mostly for supporting the political parties. This contribution will support the sustainability and stability of the Government. So in other words fines collected from ESP will help achieve “all rounded” sustainable development in India. Most environmental NGOs don’t appreciate this deep thought and consideration!

When Mr. Javdekar ushered new Minister Mr. Anil Madhav Dave into his cabin, Mr. Dave apparently asked him “Prakash saab, how did you manage to introduce and implement these drastic changes in India’s Environmental Governance and in such a short time? May I ask the secret of your success?”

Mr Javdekar smiled (as he often does – and sometimes without any reason). He said “Mr Dave, there are no organized associations on the subject of Environmental Management in India who can rise and question us. They are either small or dead (like Indian Environmental Association), or narrowed to a subject (like water – e.g. Indian Water Works Association). These associations are busy with conferences and exhibitions. Further, they fight internally on matters that are petty and do not discuss the national interests. So don’t worry and carry on further the good work I did. There is no chance of any opposition”

I must say I appreciate Mr Javdekars observation. Indian environmental associations, experts and activists are yet to wake up in India on a collective basis.

I call the situation as the Silence of the Lambs.

[Wish one day we could form a group that the Government recognizes, honors and consults … a Think Tank and a light house that mainstreams and improves environmental management in this country]


Cover image sourced from http://the-silence-of-the-lambs.wikia.com/wiki/The_Silence_Of_The_Lambs_Wiki

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6 thoughts on “Silence of the Lambs

  1. Good analysis. I need not read so many books to understand the status of EIA and ESP in India, thanks Modak Sir…Obvious pulling the environmental experts and their associations is another way telling his disappointment, because I feel he is also part of that community of lambs who speaks / or maintain silence ……Mr Javadekar, I am his fan….being a practical man….
    On ESP Policy, can’t we copy a law word by word, if it suits us? Do they also come under IPR / Patent regime?………I wonder…

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  2. Dear Dr Modak – excellent capture of current situation of Indian stakeholders in field of environment thru “silenced” sarcasm !! In a similar situation I remember reading recently the Supreme Court asking the Govt the so called “Cess” collected being spent on the purpose for which it was collected ! To be fair to Govt I think the problem lies in scarce resources trying to compete for development of nation. The Judiciary feels helpless since its post-facto work does not necessarily act as a stick to scare the incumbent Govt. So the question is can we debate and define a sensible way out and then make a compulsive bid to policymakers to effect sustainable change ? Lastly, while on Javadekar, can you please shed some i light on his performance at Rio…

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  3. Prasad,

    Good observations and excellent interpretation of current happenings in the present Indian environmental scenario.

    I do not see in near future any of our professional associations rising above their petty squabbles and contributing positively to the future policies.

    But ,obviously blame ourselves for not participating and showing spine at the right time on subjects concerning issues beyond our daily routine.

    Inaction by good people at the right time, is more damaging than destructive action of “not -so -good ” people.

    Lets wake up , try and make a difference in the future.

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  4. Extremely informative as usual. The take home point for me is there is a need to form an association or revive the existing associations like IWWA or IEA who will have a much proactive and participating role in deliberating on the draft notifications and bring out the key issues. It happens in very unorganized manner now in bits and pieces from FICCI /CII and local industrial associations. Fact of life is industrialists and Environmental professional crib about a new notification and the action it enforces but they just do not use the comment period to put forth the objections or suggestions.

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  5. I read all your blogs but this forced me to write back. Very well written indeed. Although i’m a firm believer in Environmental Kuznet Curve that development is necessary and once a country takes care of its people’s basic need, much can be done for environment. In spite of my pro-development thinking I’m against abolishing all regulations and turning a back against gross violations.

    Current situation is not conducive as we have no watch dogs in society or administration. All these ESP’s etc can work well when you have a system for correction or compliance. When all this started it looked a win -win situation but subsequently nothing is done to ensure strict compliance.

    We have all the rules and guidelines (as we are good in adopting (copying ;P) but when it comes to implementation, we are no where near to any developing country.

    Hope things improve and society as a whole gets enlightened.

    Regards

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