NEW DELHI―At least five controversial amendments to key environmental laws and regulations were sought to be made at the behest of Prime Minister Narendra Modi, publicly available information, legal records and government documents accessed exclusively by HuffPost India shows.
Four of these amendments, which significantly weakened existing environmental norms and safeguards, were implemented only to be stayed by the courts. The fifth—a proposed reboot of the legal framework underpinning environmental jurisprudence in India—ran foul of a parliamentary committee before it was executed.
Among the most recent of these amendments was announced by Modi himself on November 2, 2018 at an official event for the Micro, Small and Medium Enterprises (MSMEs). The amendment, described as a “Deepawali gift” by the Prime Minister, was stayed by the Delhi High Court early this year.
On 12 February 2019, HuffPost India revealed how the Prime Minister’s office (PMO) aided the real estate lobby by pushing the urban development and other ministries to draft new building bye laws with watered down environment clearance procedures. These new bye-laws were crystallised in a notification issued by the Ministry of Environment, Forests and Climate Change (MoEFCC) in December 2016, and struck by the National Green Tribunal in December 2017.
Court records and official documents now show the environment ministry made another attempt to pass two similar notifications, with some minor changes, in November 2018. The November 2018 notifications were stayed by the Delhi High Court within a fortnight of its implementation after civil society groups challenged it.
The documents also reveal how Modi provided direct “guidance” to the then environment minister Prakash Javadekar, who consistently pushed for the dilution of green norms and kept the Prime Minister personally informed about the minutiae of controversial changes to environmental laws and regulations that were being discussed and implemented at the time.
Government documents accessed by HuffPost India also show that senior BJP leader Manohar Parrikar, who was Defence Minister at the time, differed with the PMO’s controversial direction to give local municipalities the power to grant environment clearance to large-scale construction projects — a task they are clearly ill-equipped to do.
Taken together, these instances establish a pattern of the current government’s obsessive and repeated pursuit of measures to water down environment safeguards at the behest of the Prime Minister who has a reputation for micromanaging things. While some of the controversial environment policy measures that have been pushed over four years often invited the ire of institutions like the National Green Tribunal, Parliament and the courts, they also seem to represent a lost opportunity about addressing the serious crisis of air and water pollution.
“In the last four years, not even a single legislative step has been taken by the Central Government to protect the environment,” said environment lawyer Ritwick Dutta, in an interview with HuffPost India. ”Every single law related to environment is being diluted which will make urban areas unliveable.”
Dutta, who has contested many of these changes in court, was particularly concerned that these changes were being rammed through by executive decree, rather than amended through parliamentary debate.
“Most of the dilution is taking place through executive instructions or office memorandums as they are called, and not through the Parliament,” Dutta said.
HuffPost India has reached out to Javadekar for comment. This report will be updated if he responds.
Few days before Diwali 2018, Prime Minister Narendra Modi stood on stage in Vigyan Bhawan, the central government’s official convention centre for decades.
Addressing a large gathering on the occasion of what was billed as the “launch of historic support and outreach initiative for MSME sector”, Modi made 12 specific announcements which he described as “a great gift for Deepawali” for the country’s MSMEs. The eleventh was the “simplification of the process of environmental clearance and self-certification”.
“Friends, you all know that to set up an enterprise till now, it is necessary to cross the two stages of Environmental Clearance and Consent to Establish,” Modi said. “The government has decided that by consolidating both these for MSMEs under air pollution and water pollution laws, only one Consent will be mandatory now.”
A “direction” was issued by the Central Pollution Control Board (CPCB) on the same day, November 2, about implementing the policy measure relating to environment clearance announced by the Prime Minister.
In practise, this eliminated the Consent to Establish, a regulatory clearance granted by the state pollution control boards, that is expected to ensure that a wide variety of industries including mining, thermal power plants, cement factories and others, stay within prescribed air and water pollution norms.
Now only the environment clearance granted by the Central Pollution Control Board would remain.
Within a few weeks, the Social Action for Forest and Environment (SAFE), a non-governmental organisation, filed a petition in the Delhi High Court seeking a stay on the CPCB directive. The NGO argued that the CPCB had no legal power and jurisdiction to issue the direction that made “redundant” one of the key provisions of the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution Act), 1981 about safeguarding the “fundamental right to clean air and water of the public” and “further prevents, protects and mitigates the damage caused to the environment.”
The NGOs lawyers also argued in court that the powers of state pollution control boards could not be truncated by executive actions of governments.
The Delhi High Court, as its order dated 9 January 2019 shows, agreed and stayed the direction.
The First Attempt: TSR Subramanian Committee
On August 29, 2014, the environment ministry under Javadekar set up a “High Level Committee” of six experts led by former cabinet secretary TSR Subramanian to review the implementation of, and possible amendments to, India’s five most significant green laws: The Environment (Protection) Act, 1986; Forest (Conservation) Act, 1980; Wildlife (Protection) Act, 1972; The Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. Subsequently, in September that year, the Indian Forests Act, 1927, was further added to this list.
The committee members were handpicked by the government and given only two months to submit their report. All other stakeholders, the Indian Express wryly noted at the time, were given one month and 1000 characters (about the length of 7 tweets) to submit any objections.
The Subramanian Committee report, submitted a month late in November 2014, listed 55 significant recommendations amounting to a whole scale overhaul of the current environmental framework. One particular suggestion — to dispense with village-level Gram Sabha consent for granting clearance to linear projects — attracted much criticism from civil society organisations. Linear projects include projects like roads, railway lines, transmission lines, and pipelines.
The report also suggested replacing the pollution control boards by new institutions, setting up a new umbrella law for environment and overhauling the environment clearance procedures.
The report generated so much controversy, it was taken up by a Parliamentary Standing Committee on Science & Technology, Environment & Forests, which came away unimpressed by the report’s conclusions.
“Some of the essential recommendations of the HLC have been doubted and would result in an unacceptable dilution of the existing legal and policy architecture established to protect our environment,” the parliamentary committee said in its report which was tabled in Lok Sabha in July 2015. “Further, an impression should not be created that a Committee whose constitution and jurisdiction are itself in doubt, has been used to tinker with the established law and policy.”
Official correspondence indicates this entire exercise of overhauling India’s green laws began under the “guidance” of Modi.
In a 24 June 2015 letter addressed to Modi, Javadekar wrote, “As per your guidance, the ministry has undertaken a comprehensive review of all Acts, Rules and Laws pertaining to this ministry.” This was not the only instance of Javadekar implementing controversial decisions at the behest of the Prime Minister.
How Javadekar Prepared The Ground For 3 Controversial Notifications
Much of the spadework for diluting the environment clearance procedures for large-scale construction projects was done by Javadekar in his stint as environment minister―even if the actual implementation was done after he left.
At the heart of the problem here is the legally controversial and unsustainable provision of delegating the power to the municipal corporations to grant environment clearances to large-scale real estate projects.
The PMO, following Modi’s policy priority of creating ease of doing business, pushed the environment and urban development ministries beginning in late 2014 to implement the controversial legal provision.
HuffPost India has, in February 2019, reported on the detrimental impact of the December 2016 notification in substantial detail. In a nutshell, the new provisions in the notification risked the health of millions of Indians by overturning vital checks and balances on the environmental impact of the construction sector which emits 22 percent of India’s total annual carbon-dioxide (CO2) emission, and contributes to construction dust which is a key cause of air pollution in urban areas.
Fresh batch of official documents accessed by this reporter under the Right to Information reveals that the Prime Minister was receiving detailed inputs directly from Javadekar about the specifics of policy measures being discussed in an inter-ministerial group helmed by then urban development minister Venkaiah Naidu as well as within the environment ministry.
For instance, in his June 24, 2015 letter, Javadekar also wrote that the environment ministry had reviewed the provisions of the Environmental Impact Assessment Notification of 2006 and had come up with comprehensive guidelines for new construction projects.
If these new norms (which Javadekar described as “environment friendly” with little substantiation in the letter) were incorporated in building bye laws, his letter said, “there would not be any need for separate environmental clearance for such projects from the ministry.” Official documents show there were at least four more letters written by Javadekar to Modi on the same day.
Seven months later, on 14 January 2016, Javadekar wrote another letter to update the Prime Minister on his ministry’s progress in formulating the new framework for environment clearance conditions. A new framework related to the building and real estate sector was ready, the letter said. States that adopt these bye laws “will not require a separate environmental clearance for individual buildings”, while states that didn’t would “continue to follow the present arrangement of appraisal of individual projects and grant of EC for buildings by State Environment Impact Assessment Authority.”
Freeing state governments to adopt the weakened environmental norms, Javadekar wrote in his Jan 2016 letter, “will not only go a long way in easing the procedure for doing business without compromising environment conditions, it would also instil a spirit of competition among states.”
The final version of the notification mentioned in Javadekar’s letter was finally issued in December 2016, only to be shot down by the National Green Tribunal in December 2017.
In its order dated 8 December 2017, the NGT noted that the notification had been passed without conducting any scientific studies to assess its likely impact on the urban environment.
Over the course of Javadekar’s correspondence with the Prime Minister, he kept up a parallel conversation with Venkaiah Naidu, his counterpart at the Ministry of Urban Development, to ensure that both ministries were on the same page regarding the rewriting of municipal bye laws.
A key change was that now builders could get both the building plan approvals and environment clearances for their large-scale construction projects approved from their respective local municipal corporations, rather than from two state-level authorities: the State Expert Appraisal Committee and State Environment Impact Assessment Authority.
These municipal corporations did not, and still do not, have experts on hand to evaluate these projects. But the notification blithely assumed that local municipalities — which often struggle to pay sanitation workers on time — would set up environmental cells capable of assessing mega projects.
While Naidu and Javadekar were both in agreement with this clearly unworkable proposal, meeting minutes accessed by HuffPost India show that the only person to push back against the idea was Manohar Parrikar, former Chief Minister of Goa who was Defence Minister at the time and also attended the inter-ministerial meetings.
At a meeting held by Naidu in his ministry in Nirman Bhawan on October 28, 2015, the official minutes say, Parrikar suggested that powers of regulation be delegated to state governments.
As the minutes, recorded tersely, note, “Hon’ble Defence Minister opined that the powers could be delegated to states instead of ULBs.”
But the obsession with granting ill-equipped Urban Local Bodies powers to grant environment clearances for large-scale construction projects continues in the government.
“While Naidu and Javadekar were both in agreement with this clearly unworkable proposal, meeting minutes accessed by HuffPost India show that the only person to push back against the idea was Manohar Parrikar, former Chief Minister of Goa who was Defence Minister at the time and also attended the inter-ministerial meetings.”
Another Recent Attempt & Failure
On November 14 and 15, 2018, the environment ministry issued two notifications which also had a provision akin to the December 2016 notification but with some changes.
According to the notifications, building construction projects with a built-up area of 50, 000 square metres and below no longer required to seek prior environment clearance from the union environment ministry’s bodies, local bodies like municipal corporations or even District Panchayats could perform the same function now. Studies show these buildings form a majority of the planned projects.
Ritwick Dutta, an environmental lawyer who argued against the December 2016 notification in the NGT successfully, told HuffPost India in an interview that “the sum and substance of the November 2018 Notifications is same as the December 2016 notification. Only that the (built up) area is reduced to 50,000 square metres.”
Within a week of their being issued, two fresh petitions landed in the Delhi HC seeking to quash the notifications. One of the petitions was filed by Aakash Vasishtha, Secretary of Society for Protection of Environment and Biodiversity. His petition sought directions from the HC to quash both the notifications. Both petitions stated that the two notifications issued in November 2018 by the environment ministry are an “abridged and inferior version of the earlier notification dated 9.12.2016”.
Both petitions cited multiple study reports about air and water pollution caused by the construction sector. The court, as a consequence, stayed both notifications in the same month.
As on date, the stay remains in force while the government continues to back the controversial measures.