The Ministry of Magic Tricks

BY- WILLIAM J. LOCKHART

The government’s decision to seriously dilute environmental norms for project approval seems to indicate a belief that problems can vanish magically

Looking for occult solutions to real-world problems may seem incompatible with the hard-headed industrial and financial magnates who support the present Bharatiya Janata Party government, but there seems to be few better explanations for the government’s recent orders that will severely weaken or abandon important aspects of the legal framework intended to protect the environment against harm caused by development projects. The suggested modifications seem to leave mystical intervention as the only remaining protection of the environment.

The existing notification requires that projects be given clearances only after compliance with an informed process for assessment of environmental impact. This is the primary and globally used tool to ensure that development projects are sited, designed and executed with responsibility and concern for avoiding or minimising environmental harm. The notification recognises that the causes of environmental harm are often complex and difficult to predict, and so it investigates all significant environmental risks.

Like many scientific inquiries, it is obvious that potentially harmful conditions and interactions do not readily volunteer for disclosure. Often, risks can be identified only by persistent investigation that goes deeper than the initial or superficial data. This is why the notification as it exists calls for a careful preliminary analysis of the “scope” of information needed and further studies required to identify all significant project impacts.

Strange recommendations

The High-Level Committee to review environmental laws made two recommendations, which are now under implementation by the government.

First, the Committee proposed to speed up the process of identifying (“scoping”) the range of project activities, and the factual, scientific and analytical inquiries around the project. Although the whole process provides the very basis for predicting the environmental and social consequences of the proposed project, the Committee requires all proposals for impact inquiries to be completed within 10 days of the first filing of the applicant’s request. Failing that impossible schedule, the Committee proposes to leave the determining of impact entirely to the gentle mercies of the project proponent.

The second Committee recommendation the government has decided to follow is to issue an order that requires all impact investigation to be limited to that early initial stage, which was meant to determine merely the scope of the inquiry. In other words, regardless of any evidence showing the need for further impact investigation at this stage, no further inquiries are to be authorised.

Other restrictive requirements seem to be issuing regularly from the designated environment authority, but these two illustrations are typical.

Seemingly, the purpose is to ensure that important concerns about any proposed project’s environmental impact are based largely on ignorance. Meanwhile, other recommendations and actions to further limit the effectiveness of environmental impact studies seem to issue forth every day. Here are some recent ones: first, the Committee proposes to abolish any requirement for public hearings on projects where settlements are located “away from the project site”, ignoring the obvious fact that projects can cause serious harm even far from the project site. The same injustice will result from the Committee’s proposal to limit public participation to “only genuine” local participants, thus excluding, for example, many whose downstream water sources may be poisoned by project activities far upstream.

Second, the Committee’s apparently minimal concern about transmitting serious environmental harms is also reflected in the recent authorisation for fast-track approval of so-called “linear projects”. As above, the basic assumption of this exemption is obviously faulty. The immediate site of a project may be “linear” in the sense that the physical facilities occupy a narrow elongated space, but the environmental consequences will often be much more extensive.

Roads, canals, and transmission lines, for example, may severely intensify motor traffic, or cause unintended routes for drainage, or expand the probable expansion of pollution sites, or seriously limit wildlife migration routes, feeding habits, or reproduction patterns.

It would seem obvious that such limitations on environmental protection could not have been endorsed by the Committee if it had fulfilled its mandate to study India’s “experience” in applying — or failing to apply — the existing environmental laws. Indeed, even without conducting its own studies, extremely troubling indications were available from other important sources. But the Committee apparently gave no consideration to the facts and judgements reflected in other authoritative and extended studies.

For example, the High-Powered Committee on Management of Hazardous Wastes, established by a Supreme Court order, said in its 2001 report ‘Taking Hazardous Waste Seriously: A Future Agenda’: “Pollution of air, water and land by the noxious gases, toxic chemical effluents, infectious biomedical wastes and other hazardous substances poses a grave threat to the health of large sections of the population and to the workers in the workplace who, in addition, are exposed, often unprotected, to hazardous substances.

“Indiscriminate contamination of rivers and of groundwater has led to a deterioration of the quality of water resources and to an acute shortage of safe drinking water for millions of people in several parts of the country.”

The World Bank in 2007 stated in a report titled ‘Country Environmental Analysis’: “Rapid economic growth and the resulting changes in consumption patterns are drastically changing the nature and scale of impact on the country’s environment and natural resources, thus testing the carrying capacity of the natural ecosystems upon which much of the country’s economic growth depends… The result is a visibly deteriorating environmental quality in many industrial townships… highlighting the importance of stepping up efforts to manage the externalities of accelerated growth.”

While these studies are less current than the Committee report, nothing offered by the Committee suggests that the environmental threats have diminished. Instead, the admittedly high rate of project approvals strongly suggests further expansion of these threats. Such apparently irrational conduct from officials responsible for protecting a nation’s people from serious harm demands that we seek an explanation. This is all the more necessary when the unexplained conduct comes from hard-nosed industrialists who would surely refuse to invest even a paisa in any industrial or technical development that received such poor reviews.

Belief in magic

Puzzled by this behaviour, we are forced to conclude that the members of the High Level Committee, the government officials who are beating this hasty retreat from environmental protection, and the industrialists who support these changes share a common delusion. They all believe in magic — in one or more of the following forms.  

First, they apparently believe that any project that may generate profits will also automatically avoid any significant environmental harm.

Second, they apparently believe that any need for detailed investigation of a project’s potential for significant environmental harm can be avoided by simply ensuring that government officials and members of the public stay ignorant of the causes of harm and the environmental consequences of the projects.

Third, where any industrialist or official has carelessly sought scientific or technical studies regarding possible harm, the risk can be magically avoided by simply terminating the studies and ensuring that all scientific questions raised by the studies are totally disregarded.

Fourth, any risk of serious environmental harm can be avoided by simply discouraging or prohibiting members of the public, who may understand the risks of environmental harm, from offering any information or participating in any impact assessment or clearance procedures.

(William J. Lockhart is Emeritus Professor of Law, University of Utah S.J. Quinney College of Law, Salt Lake City. E-mail: lockhartb@law.utah.edu )

The High Level Committee apparently gave no consideration to the facts and judgements reflected in other authoritative studies