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Environment Ministry’s rules for polluters in India, copied word for word from the US


Jay Mazoomdar reports: Three-quarters of the Environment Ministry’s Environment Supplement Plan — 2,900 words of the 3,850-word draft — is directly lifted from a similar US government document. The draft notification proposes to allow those who go ahead with project work without prior environmental clearance. Under existing laws, these are criminal offences punishable with imprisonment.

The Ministry notified and put up the draft on its website on May 10, inviting public feedback over a two-month window.

Jay Mazoomdaar, The Indian Express

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More than three quarters of the Environment Ministry’s Environment Supplement Plan (ESP) — around 2,900 words of the 3,850-word draft — is a direct lift from the Supplemental Environmental Projects Policy (SEP) document adopted by the United States in March 2015.

The draft notification proposes to allow those who go ahead with project work without prior environmental clearance under Environment Impact Assessment Notification (EIA), 2006 to “remediate the damage caused” and compensate by implementing the ESP. Under existing laws, these are criminal offences punishable with imprisonment.

The Ministry notified and put up the draft on its website on May 10, inviting public feedback over a two-month window.

Consider these substantive samples of the cut-paste that became the notification:

— US (Introduction A): Supplemental Environmental Project (SEP) is an environmentally beneficial project or activity that is not required by law, but that a defendant agrees to undertake as part of the settlement of an enforcement action.

India (Clause 1): An Environmental Supplemental Plan (ESP) is an environmentally beneficial project or activity that is not required by law, but that an alleged violator of Environmental Impact Assessment Notification, 2006 agrees to undertake as part of the process of environmental clearance.

— US (II D): SEPs provide defendants with an opportunity to develop and demonstrate new technologies that may prove more protective of human health and the environment than existing processes and procedures.

India (4 iii): Innovative Technology: Environmental Supplemental Plan will provide the proponent and the Expert Group with an opportunity to develop and demonstrate new technologies that may prove more protective of human health and the environment than existing processes and procedures.

— US (IV A III): The project must demonstrate that it is designed to reduce:

  1. The likelihood that similar violations will occur in the future;
  2. The adverse impact to public health and/or the environment to which the violation at issue contributes; or,
  3. The overall risk to public health and/or the environment potentially affected by the violation at issue.

India (5): The project must demonstrate that it is designed to remediate the ecological damage caused due to violations and it will reduce,

  1. The likelihood that similar violations will occur in the future;
  2. The adverse impact to public health and the environment to which the violation at issue contributes;
  3. The overall risk to public health and the environment potentially affected by the violation at issue.

— US (X B): With regard to the SEP, Defendant certifies the truth and accuracy of each of the following:

  1. That all cost information provided to the EPA in connection with the EPA’s approval of the SEP is complete and accurate and that Defendant in good faith estimates that the cost to implement the SEP[, exclusive of _____ costs,] is $_____;

India (12): With regard to the Environmental Supplemental Plan, the project proponent shall certify the truth and accuracy of each of the following:

  1. That all cost information provided to the Expert Group in connection with the Environmental Supplemental Plan is complete and accurate and that the proponent in good faith estimates that the cost to implement the Environmental Supplemental Plan is Rs. —————;

Joint Secretary Manoj Kumar Singh, who issued the draft notification on May 10, denied having copied the content from the SEP document of the United States. “We borrowed the idea (of ESP) from the US. Most Western countries follow this practice. But the language of our draft is different. Nothing was copied,” Singh told The Indian Express.

When comments were sought from Anil Madhav Dave, who took charge as Environment Minister on Wednesday, he sought details over email. He is yet to respond.

Seeking to make violators comply by paying compensation, one of the contentious lifts from the US document in the draft notification even accommodates the possibility of future violations. Clause (5) of the draft notification says the violator “must demonstrate that it is designed to remediate the ecological damage caused due to violations and it will reduce. the likelihood that similar violations will occur in the future.”

The Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 provide for a minimum period of one-and-half years of imprisonment for commencing activities without a valid consent to establish or operate.

By proposing monetary penalties for such violations, the government, say experts, is misusing its delegated executive power to frame rules that amount to dilution of laws passed by the legislature.

“Environmental violations form civil charges in the US. In India, these are criminal offences under the law. So while settlements such as SEP may not be out of place in the US, the idea of proposed ESP violates the heart and soul of EIA which is the need for prior approval. That is the law as it exists. It cannot be undermined by borrowed executive wisdom,” said environment lawyer Ritwick Dutta of Delhi-based EIA Resources and Response Centre.

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How The Minstry of Environment, Forest and Climate Change Copied From The US Law in Order to Provide an Escape Route for Violators
EIA Reource and Response Centre
The U.S. Environmental Protection Agency passed the Supplemental Environmental Policy (SEP), 2015 Update in order to make certain changes to the environmental regime in the US and to bring “defendants” back to compliance by entering into a settlement with the US Government. The EPA has described the same as “not required by law”, but as something which the defendant agrees to undertake as part of a settlement. Therefore, essentially, the SEP is a settlement that is an escape route for violators of environmental laws to come back to compliance. The end result is that there will be irreversible environmental damage as violators will be allowed to go scot free by merely implementing an SEP. EIA Resource and Response Centre (ERC India) did a comparative analysis of the US law and the new draft Notification and the table below is self explanatory. It reveals how the MOEF&CC in order to circumvent the Judgment of the National Green Tribunal, copied the provisions of the US law and made only cosmetic changes and if notified, will allow violators to get environmental clearance.

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