Environment Ministry’s ranking of state authorities: why the emphasis on speed of clearances should cause concern

The MoEFCC's decision to rate SEIAAs' performance based on how quickly they grant environmental clearances in order to facilitate ease of doing business, highlights its misplaced priorities, writes GAURI ANAND.

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THE Impact Assessment Division [IAD] of the Union Ministry of Environment, Forest and Climate Change [MOEFCC], on January 17, issued an office memorandum [OM] outlining the criteria for a rating system for State Environment Impact Assessment Authorities [SEIAAs]. The new criteria, the OM makes it clear, is aimed at streamlining the environmental clearance [EC] process and reducing the time taken for grant of clearances. Of the infrastructure, developmental and industrial projects that apply, more than 90 per cent are granted ECs once they satisfy the SEIAAs that they have a little environmental impact.

The OM records the Ministry's satisfaction that the average time taken to grant an EC has already reduced considerably, to approximately 75 days as against the timeline of 105 days, as prescribed in the EIA [Environment Impact Assessment] Notification, 2006. Yet, the decision to rank states based on the time taken in granting clearances, has been made in pursuance of a suggestion by the Union Cabinet Secretary, meant to promote "Ease of Doing Business [EDB]". The criteria established to rate the states is controversial for a variety of reasons.

Criteria for rating SEIAAs

The first criterion relates to the average number of days taken to grant an EC. An authority is granted two marks if it takes 80 days, one mark if it takes 105 days, and 0.5 marks if it takes 105 to 120 days. If the time taken exceeds 120 days, it will get zero marks.

The second criterion relates to the percentage of disposal of fresh Terms of Reference/Terms of Reference amendment proposals pending for more than 30 days. If the percentage of disposal is more than 90 per cent, the state will be granted one mark. If this percentage is between 80 to 90 per cent, it will get 0.5 mark. Anything less than 80 per cent is granted zero marks.

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The third criterion relates to the percentage of disposal of fresh EC/EC amendment proposals pending for more than 105 days. If the percentage is more than 90 per cent, the state receives one mark. If the percentage is between 80 and 90 per cent, it receives 0.5 marks, and anything less than 80 per cent receives zero marks.

The fourth criterion deals with the percentage of cases wherein Essential Details Sought [EDS] were sought by the Member Secretary [MS] more than once. If the percentage is less than 10, the state will get one mark, while a percentage of 20 will be granted 0.5 marks. Anything more than 30 per cent will get zero marks.

The fifth criterion scores states on the basis of the average number of days taken to accept the proposals for Terms of Reference/EC. If it is less than five days, the state is rewarded with one mark. If the duration is between five and seven days, it will receive 0.5 mark, and if it takes more than seven days, it will get zero marks.

The sixth criterion concerns complaints redressed by the SEIAA. If all complaints are redressed, the concerned state will get one mark; if 50 per cent or more are redressed, it will get 0.5 mark; and if the number of complaints redressed is less than 50 per cent, it will get zero marks.

The last criterion is with regard to the percentage of cases before a State Expert Appraisal Committee [SEAC], for which site visits were carried out by the SEIAA/SEAC. If it is less than 10 per cent, the state will get one mark. If this number is between 10 and 20 per cent, it will get 0.5 marks. If it is more than 20 per cent, the state is granted zero marks.

If a state agency gets seven marks or more, it receives a five star rating. Agencies securing six to seven marks will get four stars, and those getting five to six marks, will get three stars. SEIAAs securing four to five marks will get two stars, with one star assigned to those getting three to four marks. Those securing less than three marks under the above criteria will get no stars.

The rating of an SEIAA, the OM says, will be a dynamic process based on its performance during the last six months. Data for a block of six months, starting from the first day till the last day of the block period will be considered. This will be updated at the end of every month, the OM says. In a later order, the Ministry has claimed that some sectors have been seeking unnecessary or irrelevant details in the EDS forms, and that this has been causing undue delay.

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Concerns with criteria

The memorandum has raised concerns among rights campaigners as project clearances also impact the rights of people. Quick clearances granted in the name of EDB have the potential to cause more damage than good. Given that the existing procedure already overlooks the rights of stakeholders and minority communities, a quicker process will only magnify this issue. Site visits and information collection for impact assessment are necessary aspects of sustainable development, and the interests of all stakeholders must be factored in, not just that of businesses.

Speaking to The Leaflet, Shibani Ghosh, an environmental lawyer and a fellow at the Centre for Policy Research, said: "The office memorandum is problematic for several reasons. But I will highlight two. First, it perpetuates the absurd logic that the Environment Ministry should facilitate ease of doing business at the cost 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. But these processes make the assessment more robust and assist the SEIAAs and SEACs achieve potentially better outcomes. Directing the SEIAAs and SEACs to expedite the entire process for higher star rating incentivises actions that are in direct conflict with statutory objectives of environmental protection.

Second, it is unclear what this incentivisation will mean for the SEIAAs and SEACs – apart from being given stars! The Environment Ministry, along with state governments, needs to institutionally strengthen SEIAAs and SEACs across the country. They need to have access to appropriate personnel and resources to discharge their mandate effectively, follow processes that are transparent, consultative and technically robust; and at the same time, enjoy autonomy to make decisions that are environmentally and socially sound. The office memorandum does not further any of this. It will make these institutions weaker by pushing them to bypass procedural safeguards, avoid substantive scrutiny of projects and reach poorly assessed final decisions."

The clearance process cannot and should not be treated as a clerical formality. Encouraging SEIAAs to subvert their duties so as to get higher rating points to the Ministry's misplaced priorities.

On Monday, the Ministry stressed that the criteria are not meant to dilute any regulatory safeguards, and that no SEIAA will be penalised for taking more time in granting permission. It must be noted here that more EDS will be sought if the applications from the project proponents furnish inadequate information. Therefore, allocating lower scores for seeking more information under the EDS makes little sense. Similarly, site visits are required to assess the ground reality, if information available online is insufficient to arrive at a reasonable decision. Therefore, if a state agency undertakes more site visits, and if it eventually causes delay in the final decision-making, giving it a low rank defies logic.

The Ministry has not been able to dispel misgivings that the states, in their quest for more stars, would logically vie for speedy clearance rates rather than ensure a thorough appraisal. The Ministry contends that the aim of the new criteria is to ensure that objections are compiled and addressed at one go and to avoid situations where files are sent back for every query. While red-tapism serves no one, it must be noted that the state committees have few independent experts, and their decisions are often left to civil servants.

Environmental lawyer and founder of the Legal Initiative for Forest and Environment, Ritwick Dutta, told Hindustan Times that the ranking system has no place in the application of the precautionary principle, and that such processes take time. "The ministry is undermining its own safeguards and weakening the authority of the SEIAAs by imposing time limits on their functioning. This rating system is the equivalent of judging teachers for how well their students are able to cheat in an examination, or judging policemen on how efficiently they allow criminal activity to continue because it is good for business," he has said. Dutta is critical of the new criteria because they enable the judgement of regulatory agencies in a manner that encourages them to subvert their own responsibilities. According to him, the new rating system violates both the Environment (Protection) Act, 1986, and the Constitutional responsibility of the union government to protect the environment. Dutta has urged the immediate withdrawal of the OM.

Kanchi Kohli, another well-known expert and Senior Researcher at the Centre for Policy Research, has reportedly expressed her concern that the rating system only demonises the regulatory process, whereas it is the state of the economy at large that has arrested the growth of business. The new criteria will not suddenly allow projects to start taking off, Kohli has said.

(Gauri Anand is an environmental lawyer and part of the research and editorial team at The Leaflet.)