A. Overall comment
1. Multiplicity of regulatory authorities has not been carefully considered by the government while proposing to set up the National Environment Assessment and Monitoring Authority (NEAMA). For example, it is not difficult to visualise a situation where in a city we might have a district/regional office of State Pollution Control Board (SPCB), regional office of Ministry of Environment and Forests (MoEF), zonal office of Central Pollution Control Board (CPCB) and zonal office of NEAMA – all essentially for monitoring, compliance and enforcement of environmental standards/conditions for industries and developmental projects. How theses institutions will interact with each other? How will the government resolve the ‘turf-war’? How will the industry respond to this multiplicity? How will the citizens' grievances be addressed? In case of a pollution problem during the commissioning stage, whom should a citizen approach for resolution? Since monitoring reports will be generated by multiple agencies, how will these data be reconciled and made available to the public? There are many more unanswered questions like above that have not been addressed by the ministry in its proposal.
There is a large body of research that shows how multiplicity of authorities leads to poor implementation and enforcement and even poorer accountability. We strongly urge the government to reorient and redesign the existing institutions rather than create a new one.
2. An independent and autonomous regulator is not a pre-condition or an essential condition for better implementation of the law and effective compliance and enforcement. There is more to the institutional design than mere independence and autonomy, as has been proposed by the ministry. If NEAMA is to come about then we see it differently than proposed.
a) We do not think that a technocratic institution in which the appraisal is done internally by internal staff, with limited representation from outside stakeholders/experts, is a suitable institutional design for NEAMA. In fact such a design will be most prone to capture by corporates and lobbyists in the name of ‘sound science and management’. In such institutions the voice of the marginalised and the poor will never be heard.
b) We think the NEAMA board should have broad based representation from different stakeholder groups. Civil society/NGO is a diverse group working on different areas with different stakeholders, we do not think that one representative from this group will be sufficient, as has been proposed.
c) The board should not be a mere ‘stamping’ body, rather it should have a clearly defined oversight authority over the functioning of NEAMA.
d) The job of the staff of NEAMA should be to undertake detailed assessment of each project proposal from all aspects and present the same to the Thematic Appraisal Committees (TACs).
e) The TACs should comprise of outside experts, NGOs and representatives from government organisations. A NEAMA officer can be a part of the TAC as member secretary. NEAMA officers can be invited to TACs to give their opinion or to present their findings. The job of TAC is to add value to the internal assessment of NEAMA as well as to bring transparency to the process of appraisal. Thus essentially, a two-tier system should function where the entire appraisal activity does not have to be carried out by NEAMA.
f) Another important point is that there should be far more TACs than the present Expert Appraisal Committees (EACs). This will ensure that the number of projects handled by one committee is not so large that they do not do justice to the assessment.
B. Comment on NEAMA proposal
Lot of design issues and lack of clarity remains with NEAMA. We would, therefore, encourage the ministry to carefully look at these.
1. IIT, in its report, has said that international practices reveal that there are “independent specialised institutions for conducting EIA, CZM and post clearance monitoring”. We would like to know what countries are these. As far as we know, the international best practice is not ‘independent specialised institutions’. The National/Regional environmental regulatory authority is actually doing environmental clearance in most countries. In countries with better track record of environmental governance, there is no independent authority carrying out these functions.
2. The IIT report advocates “independence of appraisal and approval processes”. Independence of appraisal and approval is not international best practice either. The international best practice is to have a simple institutional structure housed within the regulatory agency with adequate checks and balances and processes designed to ensure institutional transparency and accountability.
3. The proposal advocates the formation of “a civil administrative adjudication system” to ensure fast tracking of penalty imposition on environmental offenders. There are number of issues to be resolved here. For instance, will this power be available to SPCBs and CPCB as well? Where will the “Civil administrative tribunal” be housed? What will be its institutional structure? What will be the principles and policies on which it will work? What will be its role with NGT?
4. The proposal counts “standardisation of databases and integration with decision making” as a major benefit of NEAMA. The provision is sound only in theory. Its important to note first that the organisations like CPCB, proposed as repositories of different kinds of data, do not have any real time data as of now. There is no programme in place at present or proposed that will enable proper data collection. Also, its not just air/water pollution, forest and coastal data that will be required. There will be the need for other kinds of data like river flow, groundwater status, land productivity, population and other socio-economic parameters. No organisation in India is collecting or maintaining this data as of now. Another aspect to be taken into consideration is that these organisation (for instance CPCB) will collect data from its various monitoring stations across the country. It is not necessary that CPCB monitoring stations and the proposed industry will be present in the same area and therefore data won't be a correct reflection of the existing status. We are not saying that data repositories should not be established. In fact, we need a nation-wide data generation plan. But it will require a separate exercise and CPCB is not the correct organisation to do it. CPCB can be a coordinating agency, but data generation will have to be done by the SPCBs. Even if these organisations have the adequate data, we need more clarity on how this will feed into the working of NEAMA. What is important for the purpose of NEAMA is to put the data generated by the project proponents through rigorous assessment. Also, if the data is found wrong, strict punishment should be meted out to the consultants/companies.
5. One of the benefits of NEAMA has been mentioned as “ensuring institutional memory and avoidance of conflict of interest”. The fact is that the government will appoint NEAMA officials; MoEF will have a role in their appointment as well. Therefore the 'conflict of interest' perception will continue. The issue is not the perception of conflict of interest, the issue is how should the institution be designed that the ‘conflict of interest’ is minimised. Unfortunately, the ministry proposal leaves this unanswered.
6. Institutional memory does not have much to do with outside experts. Experts add value to the process and bring in transparency and different stakeholder views. Institutional memory is the job of the implementing institution. In fact, we strongly recommend that outside experts/stakeholders must remain the part of TACs. NEAMA officers should only be involved in internal assessment and maintaining the ‘institutional memory’.
7. The proposal states “improving compliance and enforcement of clearance conditions” as a benefit of NEAMA. In order for NEAMA to carry out this function or to provide this advantage, a very large manpower will be required. Large pool of people will be required to just monitor all the projects periodically. Ministry therefore needs to workout the kind of manpower that will be required to undertake the compliance and enforcement work. We would like to remind the ministry that we have a history of setting up institutions in the country without projecting or providing the required manpower or resources. This is the single most important reason for failure of institutions. This has happened with CPCB and SPCBs and we are afraid the same will happen with NEAMA if we don’t do our homework well.
8. The proposal says that NEAMA will be better able to utilise services like “third party assessments”. There is no mention of who these third parties are. Are they private institutions? Then are we privatising the regulatory function? These are questions that need to be answered. We will strongly recommend the ministry not to think in terms of ‘privatising regulations’.
9. There has to be clarity on how the SEIAAs and Coastal Zone Management Authorities (CZMAs) will be coordinated by NEAMA. If NEAMA finds corruption in these bodies, will it have the power to dissolve these bodies and overtake their role? These are the questions that need to be addressed.
10. IIT recommends that there will be six zonal offices of NEAMA that will monitor compliance and enforcement. Are six zonal offices sufficient? We are talking about hundreds of projects in just one state, in that case will it be possible for one zonal office to look at these functions in a group of states? We need better institutional design than what has been proposed by IIT.
11. The proposal of IIT that “a NEAMA observer be present in public hearings and meetings”, is beyond comprehension. A public hearing is organised by the concerned SPCB and chaired by the district administration. We are now saying that this process is not working (which is correct). Then, what is the guarantee that the presence of a NEAMA observer will make the process work? Also, is it possible that a NEAMA observer be present at all the public hearings for projects across India? Has IIT estimated how much manpower will be required to make this proposal work? IIT need to give us institutional response to a problem, not a ‘perception’ response.
There is a general trend in the country to set-up new a institution if an existing one is not working. This is our first and only political response. Also, the problem with environmental clearance process will continue till the time underlying principle of environmental governance in the country remains unchanged. We believe that NEAMA is not a long-term solution. We need an institutional mechanism which is simple, efficient, recognises the inequality in power relations existing in the society and is decentralised so that it can be effectively implemented. This can only be achieved by changing the exiting laws to increase the scope of people's participation in the decision making process. There has to be a slow and gradual process to assign responsibility to state level regulatory authorities and simultaneously build their capacity as well. In addition, there should be increased transparency and accountability on the part of these institutions. The central authority should act as an oversight agency.