Assault on Environment Regulations Continues

The Bharatiya Janata Party (BJP) government’s relentless assault on environmental regulations, and therefore on the environment itself, to serve the interests of corporates and their industrial, infrastructure and commercial projects continues unabated.

In a recent issue of this publication, readers would have seen a detailed critique of the atrocious amendments made by the Union government to the Forest Conservation Act (FRA), giving free rein to the government to divert forest lands completely bypassing the rights of tribals, other forest-dwellers and their gram sabhas as enshrined in the Forest Rights Act. The changes were also made unilaterally, giving no opportunity to the wider public to respond and suggest alternatives.

In early July 2022, the Union government also announced amendments to a set of environmental acts, viz. the Environment Protection Act (1986) (EPA), the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. Mercifully, these were placed in the public domain, and stakeholders such as state governments and the wider public were called upon to submit responses by July 21, 2022.

The EPA is the ‘parent Act’, and the Water and Air Acts are, in a sense, framed under it; therefore, these amendments form part of a single set of amendments which must be read together. Since these acts were legislated under relevant provisions of the Constitution, they must finally be approved by Parliament and at least two states.

Since the proposed amendments are far-reaching and propose fundamental changes to the relevant legislation and the resultant regulatory framework, a closer examination is called for. As stated above, the three sets of amendments would be considered together, noting specific provisions in individual acts as we proceed.

DEFECTIVE PURPOSE

Brief introductory notes accompanying the three sets of amendments spell out the main purpose of the amendments, viz. decriminalisation of violations of the different provisions of the acts. Before one jumps to conclusions about the motives for this, it would be useful to look at the antecedents of thinking behind the “decriminalisation” of environmental regulations.

It has long been argued by a sizeable section of academic, legal, regulatory and policy circles that criminalisation of violations of environmental regulations mainly drives such violations underground and encourages subversion of the regulatory system and bribery, etc., involving regulatory officials. The argument is that making simple violations criminal offences will not achieve the desired purposes of deterrence of violations and promotion of conformity with regulations, which are better achieved by strengthening regulatory measures and mechanisms, and building-in other incentives and disincentives.

However, the proposed amendments to the EPA, Water Act and Air Act do not advance this or any other rationale for introducing the amendment. The introductory notes only highlight decriminalisation as an end in itself, for instance, stating that the aim is to “weed out fear of imprisonment for simple violations.” Therefore the effect of the amendment is not to reform the environmental regulations and punitive measures in them to improve compliance but only to weaken deterrence, giving more leeway to evade or defy regulatory measures. This conclusion is reinforced by the fact that no countervailing measures are spelt out to strengthen enforcement or otherwise incentivise compliance and discourage violations.

All three sets of amendments propose removing punitive action in the form of imprisonment and substituting it with financial penalties or fines of varying amounts ranging from several lakhs to five crores for repeat and continued offences. The problem here is that, if the penalties are too small, say a few lakhs, the violator may well prefer to pay the fine and carry on with his business or, if they are too high, say a few crores, once again resort to the subversion of the regulatory system through bribery, etc.

The simple fact is that, as long as monitoring and enforcement are weak, tweaking regulatory systems and punitive measures will not yield the required results. Today the State Pollution Control Boards (SPCBs) are the main institutional instruments but have poor capacity, extremely few qualified personnel, and are starved of funds, thus being rendered completely disarmed in the face of widespread and systemic violations of environmental regulations. Ironically, these acts and their amended version do nothing to strengthen the SPCBs. Needless to say, strengthening the regulatory system is not at all the purpose of these amendments, whose real aim is to further weaken regulatory provisions and mechanisms and further promote a culture of impunity among the corporate class who, at most, will get away with small fines.

ALL VIOLATIONS VIEWED AS EQUAL

The above weakening of regulatory systems and related punitive measures are compounded by the amendments treating most violations at par. The introductory note to the amendments to the EPA makes some attempts to sing out serious violations. The relevant paragraph makes an exception to the general pattern of shifting from punishment through imprisonment to financial penalties, stating that “in case of serious violations which lead to grievous injury or loss of life, they shall be covered under the provision of the Indian Penal Code 1860 read along with Section 24 of the EP Act.”

It would have been far better if such “serious violations” had been better defined at the outset and if the amendments had unequivocally specified that such grave violations would continue to be viewed as criminality and attract suitable penal provisions. This proviso also carries over to the Water and Air Acts, which do not define “serious violations.”

For instance, the amendments could have defined serious violations as those involving, inter alia, toxic and hazardous chemicals, micro-organisms and/or chemical accidents covered under relevant Rules (e.g. of 1986 and 1989) and which lead to grievous injury, loss of life and/or major damage to the surrounding environment and all forms of life therein. It would also be desirable if the CrPC also be invoked besides relevant sections of the IPC. Penalties could include, besides a vague provision for penalties “equivalent to the damage caused” as in the present amendments, “compensated for on to affected persons and all costs of remediation” as estimated by the Adjudicating Officer provided for.

It follows from the above that, in case of serious violations like the above, related violations such as interfering with enforcement officers, monitoring devices, and other willful tampering with evidence would also be treated as criminal offences.

EIA2020 THROUGH BACKDOOR

In an atrocious attempt to smuggle in through the backdoor provisions from the infamous Draft EIA 2020 Notification, which the government was forced to keep in abeyance due to widespread protests, all three sets of amendments authorise the government to notify categories of industries that do not require Prior Environmental Clearance or Consent to establish or operate under the Water and Air Acts. Readers would recall that such a provision, albeit spelling out such categories which the present amendments do not even care to do, was proposed in Draft EIA 2020 and widely criticised.

Various other types of industries were also put into such categories under spurious grounds, such as “national security” or unspecified “green” industries. These clauses have no place in these amendments. Again, the effort here is to widen the scope of de-regulation, not just decriminalisation, to allow corporations to operate with impunity.

The amendments also authorise the Central government to issue guidelines for giving or refusing consent to operate and virtually compel states to follow these guidelines.

TRAMPLING ON STATES’ RIGHTS

Other provisions aim at further eroding the rights of States on top of the dis-empowerment already in place and underway through other means.

The amendments throughout refer only to the Central government, despite knowing fully that the agencies mainly responsible for monitoring and enforcing regulations are the SPCBs. How will enforcement get done if corporates are not even obliged to take SPCBs seriously?

All three amendments provide for the establishment of Funds under the Central government where penalties for violations under EPA, Water or Air Acts are to be deposited. In a situation where State governments are already starved of funds and where State PCBs carry out most functions of monitoring and enforcement of environmental regulations, it is not understood why these penalties are not shared equally by the Central and concerned state governments. In fact, all provisions in the amendments pertaining to such Funds for depositing penalties should specify the division of penalties equally between the Central and concerned state governments, both with the same purposes for which the Fund(s).

To strengthen the monitoring and enforcement of environmental regulations, it is important to strengthen the state-level agencies such as the SPCBs. Provided, of course, that is the intention!