India’s National Environment Appellate Authority, which hears cases challenging the rulings of the Ministry of Environment and Forests on the environmental sustainability of projects, is a skeleton without body and flesh. It has only one of its required five members in place for over a year now. The lone functioning member is its chairman, who himself is in office on extension and even that extended term ends next month! The consequences are not too far to seek. As in the case of civil or criminal courts, the number of pending cases with the Authority has been piling up. There are about 40 pending cases with the Authority, 15 of which pertain to environmental clearances for steel plants, thermal power projects, hydroelectric power plants and mining leases. Ten more pending cases pertain to construction of retail malls, five-star hotels and high-rise buildings. Industry’s fervent hope, therefore, is that the current chairman gets more active in the remaining days of his tenure and clears as many of the pending cases as he can.
The harsh reality is that the chances of the appellate body filling up the vacancies are slim. For some months now, the government has been waiting for parliamentary approval to a new law that will facilitate the setting up of the National Green Tribunal, which will take over the functions of the existing National Environment Appellate Authority. The government, therefore, is paying little attention to keep the Authority fully functional. This is an unfortunate rerun of what happened to the Monopolies and Restrictive Trade Practices Commission (MRTPC). It took years for the government to complete the legislative formalities for setting up the Competition Commission of India, which was to have taken over the functions of the MRTPC in addition to assuming other responsibilities. During this long period of legislative stasis, the functioning of the MRTPC languished for want of adequate staff and members to hear cases of unfair and restrictive trade practices. The National Environment Appellate Authority suffers from a similar handicap.
What has complicated the Authority’s problems and given industry a fresh headache is the government’s failure to prevent such regulatory and appellate bodies from being monopolised by senior bureaucrats. There is no reason to believe that only a retired official of the environment and forest ministry can be a member of the appellate body to decide on cases pertaining to environmental clearances. There is enough talent available outside the bureaucracy that the government can induct into such appellate bodies. Indeed, this can go a long way in ensuring their independent functioning, where the chairman or the member of an appellate body will not suffer from any legacy handicap. Such a move may also pave the way for a more fundamental reform in the functioning of the environment and forest ministry. There is no reason why the government should set up environment assessment committees to evaluate projects for environment clearances. Such tasks can be performed better by an independent regulator that has sufficient autonomy from the ministry that lays down the broad policy.
