Environmental regulation in India is a maze of rules, laws and overlapping jurisdictions. Today, in practical terms it is the Supreme Court and the high courts that now play a leading role in enforcing environmental laws. It is a space ceded by the Union and state forest and environment ministries and departments. At the same time, private players still have to run to ministries for environmental clearances.
All this might be history soon. The Union ministry of environment and forests (MoEF) has plans to create an independent regulator, the National Environment Protection Authority (Nepa). The proposed Nepa will take over regulatory functions such as mandatory environmental clearances, enforcement of the Environment Protection Act, 1986 and, in general, protecting the environment. Until now, this task fell on MoEF and various authorities in states such as the state pollution control boards and other departments. When this did not work, the courts stepped in. The results, while they were positive (the landmark case of M.C. Mehta v. The Union of India, where the Supreme Court took on a role that actually belonged to the executive, is a well-known example), are hardly sustainable. Judges are specialists in interpretation of law, not in policymaking and regulation. In addition, with the huge backlog of cases from other domains, the burden on the courts is heavy.
Illustration: Jayachandran / Mint
MoEF, in a discussion paper, has outlined a threefold division of environmental governance. Policymaking and initiation of legislation will continue to rest with MoEF. Nepa will be the environmental regulator and the judicial space will be occupied by the proposed national green tribunal.
If this new governance architecture materializes, it may go a long way in ironing out the conflicts of interest that mar environmental regulation. Today environmental clearances, impact assessments, legislation and coordination, along with implementation of forest and environmental laws, rest with the same set of officials. This has created perverse incentives: Bending of laws, creation of irregular precedents, delays and corruption are the net result. With Nepa, all this may change.
Changing the present structure will call for some political will. What will happen to organizations such as the Central Pollution Control Board (CPCB) once Nepa comes into being? The discussion paper looks at different options such as merging CPCB with Nepa or keeping it alive as a distinct identity. If the government is serious about ending the present impasse, it should ensure that there is no regulatory overlap.
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