When the Environment Ministry Copied the EPA’s Rules But Deceptively

The ministry wants to justify its proposal for after-the-fact blessing of a project by deceptively quoting parts of the EPA settlement guidelines completely out of context.

Credit: nevilzaveri/Flickr, CC BY 2.0 (re environment ministry article)

Credit: nevilzaveri/Flickr, CC BY 2.0

Since 1994, India has adopted and inconsistently applied regulations to avoid or minimise the often severe environmental effects that industrial and resource development projects can have on affected lands, resources and peoples. Availability of clean water, productivity of the soil, abundance and quality of crops, health of domestic or wild animals – and of humans – all can suffer as the result of poorly considered development choices. Decline or demise of local peoples and even regional cultures can follow, as India has repeatedly learned to great sorrow where project approval and development failed to provide adequate assessment of resulting risks. Reminders should not be necessary, but there are a few of deeply troubling examples.

In Bhopal, the disastrous Union Carbide project was allowed to go forward despite severe product and siting risks, and the need for warning devices was disregarded; in Singrauli, Peraj East, and many other coal mining areas, where disregard of the risks has resulted in often uncompensated dispossession of residents from their homes and villages by mine operations, accumulated mining waste and encompassing coal dust with resulting severe health and cropland damage. In Uttarakhand, immense destruction from heavy rainfall and severe flooding in 2013 was intensified by earlier inadequate assessment of dam sites, dumping of construction overburden and expanded occupancy of vulnerable areas.

Many of these and other major disasters could have been avoided or minimised if development planning had first ensured adequate evaluation of the consequences of resource extraction; or of the severity and probable risk of population exposure to resource processing; or of the risks posed by the conditions, modifications and uses of a project site. Repeatedly, in these and many other cases, the demand to prioritise expeditious development over health and safety has cut short the required assessment of consequences, with serious risk and damage to communities and public safety.

Of course, since 1994 (and earlier under less rigorous regulations), the full assessment of risks and potential impacts has been required as a matter of law. Regulations to carry out the requirements and policies of the India’s Environment Protection Act have sought to protect her environment and peoples. Under that Act, no steps to commence construction or development of most kinds of major projects are to be taken until a thorough ‘environmental impact assessment’ (EIA) is completed. That assessment must provide detailed information about the proposed site and all knowable significant environmental consequences of the resources and methods to be used or developed by the project. Clearance for the project may be approved only after the EIA is published, with opportunity for public comment, and with full consideration by an assigned expert committee and final review and approval by India’s Ministry of Environment, Forests and Climate Change.

Unfortunately, in their eagerness to accelerate development, both the prior and current Indian governments have imposed severe obstacles to fulfilment of these assessment obligations. While many of those obstacles have been addressed through conscientious remedies by the country’s National Green Tribunal, some troubling government initiatives may evade that judicial remedy.

Most troubling is the recent proposal by the current government, which would effectively erase a key precautionary purpose of the process. Contrary to the existing requirements that ensure consideration of site-based concerns, the environment ministry would allow a project sponsor to utterly control the selection of a site.  

Regardless of the suitability or sensitivity of the site, or the risks posed by a project location, the sponsor can simply begin and continue construction of its project without any prior assessment. Any of the bypassed concerns will be considered only in developing terms or conditions for an after-the-fact ‘settlement’, reflecting little more than an almost hypothetical violation.

As a US environmental lawyer, I find it grossly deceptive that the environment ministry pretends to justify its plan by claiming that this arrangement adopts the practices of the US Environmental Protection Agency (EPA). Obviously, India is utterly free to follow whatever policies it can credibly justify to its citizens. But the only thing that the ministry’s plan has in common with USEPA’s ‘Supplemental Environmental Projects Policy’ is its characterisation of the plan as ‘supplemental’. That deception is nothing more than the wrapping in which the misrepresentations of this destructive initiative are being sold in India.

To begin with, any good-faith inquiry into the USEPA program would show that its settlement process is used only for resolution of matters in which actual enforcement is being sought, beginning with a requirement of legal compliance. But the terms of the proposed environment ministry’s “settlement” plan might easily be understood as an effort to set the rules by which conspirators divide their spoils.

More to the point, USEPA views the information developed for impact assessment as crucial to enforcement of many environmental protection goals. And for that reason: (1) The USEPA settlement policy is never applied to settle failure to comply with environmental impact assessment requirements; and (2) any settlement by USEPA initially requires full compliance with the regulatory requirements whose violation required enforcement action.

So even if USEPA used “settlements” to resolve failure to conduct environmental assessments of site selection, the first requirement would have to be full compliance with those environmental assessment requirements before taking any action on the ground. In short, the USEPA settlement policy simply cannot be applied, as the current ministry has proposed for India, by granting “forgiveness” of the violation while disregarding the basic purposes of the violated requirements.

Yet disregard of those basic purposes is exactly the effect of the the environment ministry’s plan. It will allow a violator to go forward with a project on a site which has never been assessed for its environmental vulnerability, or the risks that may arise at that site from the project’s activities.

That is precisely why both India’s and US’s regulations require careful assessment of the proposed action, including the choice of a site and feasible alternatives to the proponent’s selected site.  Only such assessments can ensure evaluation and careful minimisation of the impacts that may result from the choice of the sites. Furthermore, under both the Indian and USEPA and requirements, one of the alternatives that must be evaluated is “no action” at all – a requirement designed to ensure that the project proposal is evaluated by comparison to other already prevailing values of the site, and possibly better suitability of other sites. That will be impossible under the environment ministry’s plan because it effectively guarantees that there will be no testing of the project proponent’s choice of a site – at least until the impacts are already beginning to occur, and well after the investments made could feasibly be withdrawn.

Finally, it is clear that the ministry has sought to justify its proposal for after-the-fact blessing of a project by deceptively quoting portions of the USEPA settlement guidelines completely out of context. But what it cannot so easily misrepresent are the consequences likely to be suffered by the victims of its disregard.

William J. Lockhart is Emeritus Professor of Law at the University of Utah S.J. Quinney College of Law, Salt Lake City, Utah.