The MoEFCC’s decision to rate SEIAAs performance on the basis of how quickly they grant environmental clearances, in order to facilitate business ease, highlights its misplaced priorities.GAURI ANAND.
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THE Impact Assessment Division [IAD]of the Union Ministry of Environment, Forest and Climate Change [MOEFCC]Issued January 17, 2005 Office memorandum [OM]These are the criteria that will be used to rate State Environment Impact Assessment Authorities [SEIAAs]. The new criteria, as the OM makes clear, are intended to streamline the environmental clearance process [EC]This will reduce the time required to grant clearances and speed up the process. More than 90% of the applications for ECs are infrastructure, development, and industrial projects.
The OM notes the Ministry’s satisfaction that the average time it takes to grant an EC has decreased to 75 days, as opposed to the timeline of 105, as required in the OM.EIA [Environment Impact Assessment] Notification, 2006. However, the Union Cabinet Secretary suggested that states be ranked based on how long it takes to grant clearances. This was to promote Ease of Doing Business. [EDB]. There are many reasons why the criteria used to rate states is controversial.
Criteria for rating SEIAAs
The first criterion is the average time taken to grant an EC. If it takes 80 days, two marks are given to the authority, one mark for 105 days and one mark for 105 days. 0.5 marks is awarded if it takes between 105 and 120 days. It will not be awarded any marks if the time it takes exceeds 120 days.
The second criterion is the percentage of disposal of new Terms of Reference/Terms of Reference Amendment proposals that are pending for more then 30 days. A state will get one mark if its disposal rate is higher than 90%. This percentage will be granted 0.5 marks. Anything less than 80 percent will be granted zero marks.
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The third criterion concerns the percentage of fresh EC/EC amending proposals that are pending for over 105 days. The state gets one mark if the percentage is greater than 90%. It receives 0.5 marks if the percentage is between 80-90 percent. Anything less than 80 percent receives zero marks.
The Cabinet Secretary suggested that states be ranked based on how long it takes to grant clearances. This was done to promote Ease of Doing Business (EDB).
The fourth criterion concerns the percentage of cases in which Essential Details are sought. [EDS]were sought by the Secretary to the Member [MS]More than one. A state that has a percentage less than 10 will receive one mark. A percentage of 20 will receive 0.5 marks. Anything above 30% will receive zero marks.
The fifth criterion score is based on the average time taken to accept the Terms of Reference/EC proposals. One mark is given to the state if it takes less that five days. If it takes between five to seven days, it will get 0.5 marks. If it takes more than seven, it will get zero marks.
The SEIAA will redress complaints. This is the sixth criterion. The concerned state will receive one mark if all complaints are resolved; if 50% or more of the complaints are redressed it will get 0.5 marks; and if less than 50% of the complaints are redressed it will get zero marks.
The percentage of cases that have been before a State Expert Appraisal Committee is the last criterion [SEAC]Site visits were conducted by the SEIAA/SEAC for this project. If it is below 10 percent, the state will be awarded one mark. It will be awarded 0.5 marks if it is between 10-20%. If it exceeds 20%, the state will be given zero marks.
A state agency that receives seven or more marks will be given a five-star rating. Four stars will be awarded to agencies that score six to seven marks. Three stars will be awarded to agencies that score five to six marks. SEIAAs that secure four to five marks will receive two stars. One star will be given to those who get three to four marks. No stars will be given to those who achieve less than three marks in the above criteria.
Quick clearances granted for ease of doing business can cause more harm than good.
According to the OM, a SEIAA’s rating will be based on its performance in the last six months. Data for a block lasting six months will be considered. It will include data starting on the first day and ending on the last day. The OM states that this data will be updated at each month’s end. The Ministry claimed in a later order that certain sectors had been asking for unnecessary or irrelevant information in the EDS forms and that this was causing undue delays.
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Concerns about criteria
Rights campaigners have raised concerns about the memorandum, as project clearances can also impact rights of individuals. EDB can cause more harm than good by quick clearances. An expedited process will only make the problem worse, as the existing procedure ignores the rights and interests of minorities. Sustainable development requires site visits and information collection to assess the impact of a project. Businesses must not be the only ones who are interested in it.
Shibani, an environmental lawyer and fellow at The Centre for Policy Research, spoke to The Leaflet. There are many reasons why the office memo is problematic. I will only mention two. It perpetuates the absurd logic that an Environment Ministry should facilitate business at the expense of the environment. Detailed scrutiny of project documents such as EIA reports, Environment Management Plans, minutes of public hearings and other assessments, seeking additional information about the project’s likely impacts, and undertaking inspections to get a clearer picture undoubtedly take time. These processes improve the quality of the assessment and can help the SEIAAs/SEACs achieve better results. Incentives to take actions that are directly against the statutory objectives of protecting the environment by directing the SEIAAs or SEACs to speed up the whole process for higher star ratings include:
Second, it is unclear what this incentivisation will mean for the SEIAAs and SEACs – apart from being given stars! The Environment Ministry and state governments need to institutionally reinforce SEIAAs in the country. They must have the resources and personnel necessary to effectively discharge their mandate. They should also be able to follow transparent, consultative, and technically sound processes. However, they should also be able to make environmentally and socially responsible decisions. This is not what the office memorandum will do. It will weaken these institutions by allowing them to bypass procedural safeguards and avoid substantive scrutiny of their projects. This will lead to poor final decisions..
Clearance is not a formality that should be handled as a formality. Encourage SEIAAs not to perform their duties in order to earn higher rating points for the Ministry’s misplaced priorities.
Monday’s Ministry statement stressed that the criteria were not intended to weaken any regulatory safeguards and that no SEIAA would be penalised for taking longer to grant permission. You should note that more EDS will not be sought if project proponents submit insufficient information. It is not logical to allocate lower scores for seeking additional information under the EDS. Site visits are also necessary to assess the ground realities, even if there is insufficient information online to make a rational decision. If a state agency conducts more site visits or if it causes delay in the final decision making, it will be given a low rank.
Clearance is not a formality that should be handled as a formality.
The Ministry was unable to dispel the misperceptions that states would rather seek speedy clearance rates than a thorough appraisal in their quest for more stars. The Ministry claims that the new criteria are designed to prevent files being returned for every question and ensure that all objections are addressed promptly. Red-tapism is not good for anyone, but it should be noted that state committees are often governed by civil servants and have few independent experts.
Ritwick Dutta, an environmental lawyer and founder, of the Legal Initiative for Forest and Environment (LIFE), is also an activist. SubmittedHindustan TimesThe ranking system is not to be used in the application ofPrecautionary principleThese processes can take time. The ministry is undermining its safeguards and weakening authority of the SEIAAs. They are also imposing time limits on their operation. This rating system is equivalent to judging teachers on their ability to cheat in an exam or judging policemen on the efficiency with which they allow criminal activity continue, because it is profitable for business.He said so. Dutta is critical about the new criteria, as they allow regulatory agencies to make decisions in a way that encourages them into violating their own responsibilities. Dutta claims that the new rating system is in violation of both theEnvironment (Protection) Act, 1986, and the Constitutional responsibility of a union government to preserve the environment. Dutta urged immediate withdrawal of the OM.
Kanchi Kohli, another well known expert and Senior Researcher in the Centre for Policy Research has beenreportedlyShe was concerned that the rating system only demonizes the regulatory process, when it is the overall economy that has hindered the growth and development of business. Kohli stated that the new criteria won’t allow projects to suddenly take off.
Gauri Anand, an environmental lawyer, is part of The Leaflet’s research and editorial team.