The latest suggestion of the Ministry of Environment, Forests and Climate Change to increase green penalties from `1 lakh to `5 crore sounds progressive on the face of it, but it may send a wrong signal to the established legal concept of “polluter pays principle” and end up as “pollute and pay principle”.
Financial deterrent has proved to be ineffective in the long run and can only be a part of the solution. There are more important aspects that need urgent attention for protecting the environment. The Supreme Court as early as in 2011 had stated the need for an independent environment regulator. It is yet to see the light of the day, primarily on feeble arguments of existence of a number of institutions and therefore the futility of another. While the merit of that argument may be debated, what is clear is that regulatory and appellate institutions, which have been statutorily created, have received little attention by all governments. Enough global examples exist where strengthening of compliance and regulatory institutions have brought good results. Incentive-based mechanisms have proved to be better tools for environment conservation.
Perhaps the seeds of a significant proposal were sown by the government in February 2014, where it issued a memorandum to all state environment impact assessment authorities to suggest an effective monitoring mechanism for compliance of all conditions that are imposed by them in granting clearances. A great beginning but little follow-up to see those mechanisms in place. The recently proposed relaxations on environment clearances by way of integration of environment clearances in building bylaws or decentralisation of clearance procedure to district level for minor minerals mining may not be long-term solutions in both law and practice, and perhaps go against the basic tenets of environmental law jurisprudence. What is required are technically qualified, adequately resourced, independent, regulatory and monitoring institutions with ample civil appellate institutions to oversee compliance of environmental laws. Little thought or debates around such institutions have happened in the country.
Another important aspect relates to incentives for pollution control, conservation of environment and its recognition in law. Financial incentives and assistance on pollution control equipment and on consent processes, technical assistance on planning, and handholding on restitution may be other innovative approaches to environment conservation. The concept of environment audit needs to be revisited with more vigour and publishing of the results by independent agencies must be put in place.
The recent initiatives due to judicial orders need an institutional response by the government of the day rather than denial and fire-fighting approach. Several judicial orders have now resulted in online monitoring, regular compliance reporting and installation of flow meters. This has forced companies to establish more sophisticated pollution control equipment, closure as a deterrent, capacity expansion of effluent treatment plants, empirical research-based solutions such as independent assessments of damages, independent inquiries, plugging gaps on monitoring, compensation charges and removal of polluting sources. These are some of the tools that the courts and National Green Tribunal are employing and continue to monitor. What is perhaps required is a serious thought on such suggestions and institutionalising the same.
Lack of platforms to discuss alternative solutions with the corporates is another issue that needs to be addressed. The stereotype has to give way to innovative solutions that can be jointly worked out. There have been several examples of trust deficit and lack of opportunities to discuss ideas where win-win solutions emerge. It’s time to strengthen such platforms and spaces to discuss solutions that are site-specific and solution-oriented. An important concept was again mooted by the ministry by way of “corporate environmental responsibility”, which was to be part of the terms of reference for all environmental clearance procedures. But again little to demonstrate on how it is being operationalised. The corporates too have to move beyond CSR to a more definitive corporate environmental responsibility, especially those which are extractive industries and who have direct impact on environment and natural resources.
Another concept that’s now gaining currency is enviro-legal due diligence. It’s better to promote and strengthen institutions that specialises in the area than a post non-compliance adversarial scenario. Accreditation, developing expertise, incentives to such institutions and strengthening appellate mechanisms to prevent environmental damages are more necessary than ever. Else only a post facto, post damage control and increasing fines may set a wrong precedent. Perhaps it’s time to give a clear message to all concerned that environmental compliance is cheaper than non-compliance. sanjay@eldfindia.com