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National Environment Appellate Authority: Puppet of the MoEF?

By Manju Menon

The National Environment Appellate Authority was set up as an independent body to address cases in which environmental clearances granted by the ministry of environment are challenged by civil society. But is the authority really independent of the ministry?

Recently, Coastal Action Network, a group that's been fighting for the survival of 70,000 fisherfolk families threatened by the Sethusamudram Project, filed a case in the Madras High Court challenging the environment clearance granted to the project by the Ministry of Environment and Forests (MoEF). The court dismissed it on grounds that there was an adequate alternative remedy by way of appeal to the National Environment Appellate Authority(NEAA).

The petitioners responded that the Appellate, the highest body in the country for redressal of environment-related cases, is technically unqualified to take a decision on the issue. It operates as a one-person body and has dismissed most cases only on procedural grounds, without looking into substantive technical issues in the petitions. This has worked to the advantage of several environmentally or socially destructive projects, and the MoEF, which has turned into a 'clearance granting agency' rather than one that protects the country's environment.

Heeding the plea of the petitioners in the 'Sethu' case, the high court ordered the central government to appoint a chairperson to the NEAA within 30 days; it further ordered that the Sethusamudram case be heard by the NEAA following this appointment.

The 30-day period ended in July, as did the term of the present vice-chairperson of the NEAA, Vishvanath Anand. At present, there is hectic activity within the chambers of the MoEF to ensure that the "right" person heads the Appellate, someone who would uphold the cause of the DMK coterie in the United Progressive Alliance (UPA) government -- which includes Surface Transport Minister T R Baalu and Environment Minister A Raja -- by giving the nod to the Sethusamudram Project. In the interim, the MoEF has given additional charge to a joint secretary in the ministry to oversee the administrative functions of the NEAA. Meanwhile, nothing appears to be happening in the Appellate as far as the environmental function goes, for which it was specially set up. The fact that the full committee has not been constituted since 2002 -- at present there is no committee at all -- clearly reflects the priority that environmental concerns are given today.

NEAA: A critical body to ensure environmental justice

The Authority was established on April 9, 1997, after the enactment of the National Environment Appellate Authority Act. The most important and critical expectation was that the Authority, appointed under Section 3 (3) of the Environment (Protection) Act, 1986, would address grievances regarding the process of environmental clearances and would implement the 'precautionary principle' and the 'polluter pays principle'.

The order in the AP Pollution Control Board v Prof M V Nayudu case (January 27, 1999) articulated the problems of earlier tribunals and the expectation from the National Environment Appellate thus:

"(T)he judicial and technical inputs in environmental appellate authorities/tribunals fell short of a combination of judicial and scientific needs. Things are not quite satisfactory and there is an urgent need to make appropriate amendments so as to ensure that at all times, the appellate authorities or tribunals consist of Judicial and also Technical personnel well versed in environmental laws. Such defects in the constitution of these bodies can certainly undermine the very purpose of those legislations. The Court opined that the Government of India should bring about appropriate amendments in the environmental statutes, Rules and Notification to ensure that in all environmental courts, Tribunals and appellate authorities there is always a Judge of the rank of a High Court Judge or a Supreme Court Judge -- sitting or retired -- and a scientist or a group of scientists of high ranking and experience so as to help a proper and fair adjudication of disputes relating to environment and pollution..."

The creation of what was touted as an 'independent' Authority was welcomed by a cross-section of people in the hope that there would be an improvement in environmental decision-making, with transparency and accountability. However, today, over a dozen cases indicate that the Appellate is far from realising these objectives. This is mainly because the NEAA places an exaggerated emphasis on procedure, such as the time limit for filing petitions, and has a deep distrust of the intentions of NGOs, civil society groups and individuals who seek to draw the attention of the judicial process when the executive machinery, in this case the MoEF, fails to see the negative impact of a proposed project or its violation of environment clearance norms. Most of the cases have been dismissed on grounds of time delays without a single hearing given to substantive issues such as the potential destruction to the environment or the negative impact on local people.

This emphasis on a time limit is downright unfair, as there is no requirement under the regulatory notification that mandates the publication of environmental clearance orders. In cases that have been filed and dismissed so far, on the grounds of time taken to file petitions, reasons such as the inability to access information on clearances, or the Authority being located in Delhi, or the correct procedure for filing a case have not been considered satisfactory reasons for the delay.

An example is the recent NEAA order on the petition filed by Matu People's Organisation, an Uttaranchal-based group that challenged the MoEF's clearance of the Tapovan-Vishnugad dam project. During discussions, Dr S Bhowmick, additional secretary of the MoEF said that the statement made by the appellant that the clearance letter could not be accessed on the Internet, was untrue as other information had been accessed from the web. It is unfortunate that other individuals who track the clearance of projects were not there to narrate similar experiences and support the appellant's statement. Bhowmick got away with a statement that oversimplifies the workings, and ignores the limitations, of an electronic medium of communication that is still exclusive to urban users and which we have come to rely on so much.

In the orders passed in this case, the greatest absurdity is that the petitioners -- local villagers from the area that is likely to be affected and members of community-based organisations -- are accused of "inaction" for having filed the case only on the 53rd day after clearance of the project, when the NEAA seeks that it should be done within 30 days!

The second problem is the manner in which the locus standi of the appellant is determined. In several cases so far, the locus standi of the petitioner has come under microscopic examination while, in contrast, the merit of the issues raised by the petitioner has received much less time and attention.

Take the appeal filed by an activist from Upper Assam against the clearance of the Middle Siang hydel project in Arunachal Pradesh. This was dismissed on grounds that the appellant had no locus standi to file the case, as he did not seem to be the "aggrieved party". The case was filed on the 90th day after clearance, and on grounds that the Environment Impact Assessment report (EIA) prepared by Water & Power Consultancy Services India Ltd (WAPCOS) was inadequate and had not studied the impact of the dam on downstream areas, or of road construction for the project between Akajan in Assam (from where the appellant hails) and the project site. Had these two issues been debated, the reason why a person from Assam had brought the issue to court would have become clear. However, without allowing this to happen, the decision read as follows: "By simply stating that he lives downstream of the Project and that the EIA does not take into account downstream effects does not amount to establishing a causal relationship between the Project and the Appellant." This statement comes at a time when evidence on the downstream impact of dams has grown substantially.

Reduced to incompetence...

According to the Appellate Act, the Authority is to consist of a chairperson, a vice-chairperson and up to three other members. While the chairperson is to have been a judge in the Supreme Court or the chief justice of a high court, the vice-chairperson must have been a secretary to the Government of India or any other equivalent post and have expertise or experience in administrative, legal, managerial or technical aspects of problems relating to the environment. Members of the Authority require professional knowledge or practical experience in conservation, environmental management, law or planning, and development.

The Authority, when it was first established, consisted of:

  1. Justice N G Venkatachala, chairperson (former judge of the Supreme Court)
  2. Nirmala Buch, vice-chairperson (former secretary to the Government of India)
  3. Mohinder Singh, member (former principal secretary to the state government of Uttar Pradesh)
  4. Ejaz A Malik, member (former principal chief conservator of forests, Jammu and Kashmir)

However, since 2002, the Authority has not had a chairperson or members with technical expertise in environment-related fields, thereby negating the possibility of arriving at decisions that draw on scientific reasoning for or against a project based on its potential impact. Even prior to that, the Authority's decisions gave greater importance to economic imperatives than environmental and social concerns regarding projects.

The NEAA's order in 1998, in a case filed by Dakshina Kannada Parisara Saktha Okkoota regarding clearance granted to a barge-mounted power plant in Dakshina Kannada in an ecologically sensitive coastal ecosystem, was given "so that the development project in respect of which environment clearance order is made by the Central Government, shall not be delayed not only in the country's best interest but also for avoiding undue hardships to the proponents of projects who may lose interest in such projects due to delays and project cost escalations". This statement is proof that the NEAA's decisions are based neither on technical environmental considerations nor on judicial grounds but the Authority's own perception of 'development' and the country's economic gains and losses, an area in which none of its members have any expertise at all!

A closer look at the independence of the Authority leads to the realisation that the MoEF, whose decisions the Authority is supposed to scrutinise, is in fact the agency that regulates the functioning of the Authority. The MoEF has the power to make rules for carrying out the provisions of this Act, appoint the chairperson and members of the Authority and regulate the procedure for the investigation of misbehaviour or incapacity of the chairperson, vice-chairperson or a member. Unless the selection committee comprises non-MoEF members it is only to be expected that the MoEF will constitute the Authority such that it accepts clearances granted by the MoEF and quashes all cases challenging these clearances.

The MoEF at present seems set on re-engineering the country's environment clearance procedures and drafting a national policy for the environment that will benefit investors more than any other constituency. The link between the MoEF and the NEAA seems designed to hand over the natural environment to those in the business of 'developing' dams, mines, industries, roads, ports. In fact, the bias towards developers is so strong that the best practices guidelines issued by the MoEF last year stated that no project was to be rejected only on procedural grounds. Compare this with the NEAA, where most cases have been dismissed only on procedural grounds!

With the NEAA choosing to spend its time debating whether the petitioner has the appropriate qualifications to appear before it to challenge projects that have obtained clearance through short cuts, or deciding to allow a project with potential negative impacts simply because the case was filed before it on the 31st day following clearance, environmental groups and supporters need to urgently find other spaces or fora that will address the concerns and objectives for which the NEAA was set up -- environmental justice through a fair adjudication of disputes relating to the environment and pollution.

The following words of Lord Woolfe, quoted in the M V Nayadu case, seem prophetic:"Critics have objected that Judges cannot make appropriate decisions because they lack technical training, that the Jurors do not comprehend the complexity of the evidence they are supposed to analyse, and that the expert witnesses on whom the system relies are mercenaries whose biased testimony frequently produces erroneous and inconsistent determinations. If these claims go unanswered, or are not dealt with, confidence in the Judiciary will be undermined as the public becomes convinced that the Courts as now constituted are incapable of correctly resolving some of the more pressing legal issues of our day."

(Manju Menon is a member of Kalpavriksh Environment Action Group)

InfoChange News and Features, October 2005