Scrutinising India’s Environmental Regulations: Dilution, Developmentalism, and the Crisis of Environmental Governance

India has many existing environment-related statutes, institutions, and judicial security. Despite this, activities damaging the environment continue at levels that tend to point to the opposite, namely, that of regulatory failure. Urbanisation-driven encroachments such as those witnessed in Bengaluru’s lakes, large-scale infrastructure projects in fragile Himalayan regions, extractive activities like coal mining in Hasdeo Arand, forest diversion in Central India, and persistent industrial pollution in hubs such as Ankleshwar collectively point to a deeper crisis of regulatory enforcement rather than regulatory absence.

Illustration by The Geostrata

However, this paradox has become more acute over the past few years. Instead, environmental regulations are increasingly viewed as a procedural hurdle, rather than a necessary instrument of state control. Procedures for obtaining approvals are simplified for ease of doing business, requirements for consulting with affected stakeholders are curtailed, and environmental authorities lack adequate manpower and autonomy to implement regulations effectively. In a manner of speaking, there is no deregulation; it is a weakening of regulations.

THE ARCHITECTURE OF ENVIRONMENTAL REGULATION IN INDIA

Although the Indian environment regulatory framework is primarily grounded in the Environment Protection Act of 1986, enacted post the Bhopal Gas Tragedy, this broad act gave statutory authority to the government to deal with pollution, establish environment standards, and conduct environment impact assessments. In addition, other legislations include the Water Act, the Air Act, aspects of forest conservation, wildlife, and coastal regulation.

The format for environmental impact assessments, which began in earnest in the 1990s, is another important tool of preventive regulation. Its aim is “to evaluate potential environmental impacts before decisions and project approvals” and to make public participation part of the decision-making process. In theory, this ensured that India conformed to international environmental governance norms.

However, such a design has always functioned in relation to the capacity and willingness of the institutions and respective political regimes. The pollution control boards, according to the Report of Central Pollution Control Board (CPCB), whether it is the central or the state itself, continue to be inadequately staffed and, at times, lack the capacity to be enforcement agencies.

For instance, Bihar has the highest vacancy rate at 84%, with 209 out of 249 posts unoccupied, and Jharkhand follows with 73% of its posts vacant. The situation is similarly dire in other states, with vacancies ranging between 58% and 84% in places like Andhra Pradesh, Gujarat, Haryana, Karnataka, Madhya Pradesh, Manipur, Odisha, Rajasthan, Uttarakhand, Dadra & Nagar Haveli and Daman & Diu, and Ladakh, according to an article on Understaffed and overburdened: The state of pollution control boards in India by  BarandBench. The Environmental Clearance Committees operate as a subordinate of the execution ministry and hence lack any real autonomy. 

THE POLITICS OF DILUTION AND EXECUTIVE DISCRETION

The distinguishing factor for environmental laws and policies in India during recent years has been incremental dilution rather than complete repeal. This is because the environmental legal framework has been modified beyond recognition because of modifications in clearance norms, exemptions for strategic projects, and retrospective approvals.

This is best described as the trend reflected in the shift in the regime of Environmental Impact Assessment. There are more limitations on the scope of public hearings, more areas where projects are exempted from prior approval, and the increasing use of post-notification approvals that weaken the preventive focus of environmental regulation. Regulation has less of a gate-keeping role and more of a formality.

Draft EIA 2020  undermines public hearings. The draft notification exempts multiple categories of projects (including B2 projects and expansions up to 50%) from mandatory public hearings, reducing transparency and limiting community participation.

This is in keeping with the ideology of the developers that pushes the agenda of rapid and vast developments. Here, the protection of the environment is portrayed as an obstacle to the progress of the nation, especially regarding the sectors of mining, roads, power production, and national security. Although the role of the government in development is valid, the notion that the environment can be neglected is an indicator of the existence of a governance issue.

Thus, discretion by the executive has supplanted rule-based governance. Matters requiring governance through known and discernible criteria are relegated to the realm of administrative interpretation, which is devoid of predictability and accountability. The lack of predictability and accountability is not only evident in ecosystems but also in local communities that rely on predictable environments.

For example, in the village of Navghar, Maharashtra, the illegal cutting of mangroves led to unpredictable crab and fish catches, threatening the community’s livelihoods. Through efforts led by the UNDP-Green Climate Fund and the Government of India, Navghar became an ecosystem restoration model. Mangrove regeneration, led by the local Mangrove Co-Management Committee, has turned the tide. Today, the region's mangroves stand tall as natural shields against floods, provide carbon storage, and support thriving fisheries that sustain local livelihoods.

ENFORCEMENT DEFICITS AND INSTITUTIONAL WEAKNESS

Even in situations where regulations on the environment have remained in place, enforcing them has been an area of concern. The standards for environmental pollution are regularly violated, with little being done, and there is a large reliance on voluntary reporting of compliance.

Failures in the executive branch have been made up for by the judiciary through such cases as environmental public interest litigation. However, the judiciary cannot always fill this gap in the regulatory framework. It is feared that overemphasizing the judiciary's role in this manner could make overall environmental governance ad hoc, as opposed to systematic, on a case-by-case basis.

FEDERALISM AND ENVIRONMENTAL GOVERNANCE

India's environmental regulation extends within a more complex federal system of governance. Although standards are set nationally by governments, regulation remains a state domain for most of its applications. Such regulation tends to pose a coordination problem where competing states are involved.

Disparities are often created in the enforcement of environmental federalism. Depending on priorities, certain states might choose development over enforcing environmental standards on a large scale. In some instances, the intervention of the central government could widen this disparity, which could further lead to the easing of standards on projects of great significance to the country.

Such an environment undermines cooperation in federalism and promotes the phenomenon of regulatory arbitrage. Investment projects are also situated in areas that have lower levels of enforcement, which otherwise transfers environmental costs adversely affecting susceptible environments. An effective ecological regulation framework also demands equal accountability among all levels of government.

ENVIRONMENTAL REGULATION AND CLIMATE COMMITMENTS

Environmental policies of India must also be considered in the backdrop of commitments taken by India on the issues of climate change. As a party to the Paris Agreement, India has committed to a reduction in the emissions intensity of the GDP, increased renewable energy, and improved resilience to climate change. Diluted policies on the environment may be counterproductive to these commitments.

Poor climate impact assessments fail to factor in the cumulative effects of climate change. The effects of forest clearances and coastal zone relaxations contribute to reduced carbon sinks and increased climate change-induced disasters. Environmental regulation remains unharmonized with climate strategy; sometimes, it runs concurrently and even at odds with climate strategy.

This indicates a governance gap, whereby climate policy remains an international responsibility, while the regulation of the environment is considered a domestic issue. These two need to be linked.

RETHINKING ENVIRONMENTAL REGULATION AS DEVELOPMENTAL INFRASTRUCTURE

One of the eagerly debated topics in Indian regulatory discourse has been this false dichotomy between environment and development. It is high time that this misguided notion that environmental control would result in adverse effects on growth is laid to rest once and for all. It performs a developmental function, just like a developmental infrastructure, by preventing irreparable damage to nature, reducing the danger of disasters, and ensuring the continued utilization of resources.

In most cases, nations that are guided by strong environmental regulations are usually more resilient and stronger economic systems in the long run. This is compared to countries that diluted environmental regulations because by then, costs are passed along to future and poor generations as well.

It therefore becomes imperative that the role of environmental regulations be redefined as a catalyst, as opposed to a barrier, to development via political will, institutional change, and a regulatory culture shift. 

POLICY RECOMMENDATIONS

The pollution control boards and the clearance authorities must be made immune to the pressures of politics and other business interests. Strengthening their official independence and capabilities would make them more effective. Environmental impact assessments need to serve more as decision-support tools than mere procedural boxes to be ticked. Public consultations need to be more rigorous, cumulative effects considered, and post-authorisation deemed Approvals should rarely occur.

Climate change risk and mitigation analysis need to be explicitly covered in environmental laws. Environment clearance procedures can be made more coordinated with national climate policies. Centre-state coordination on the regulation of the environment needs a transparent structure.

Having common standards, data, and capacity-building assistance can ease disparities in the implementation of such policies in states. The success of regulation should be measured not just by approvals received or reports submitted, but by ecological results as well. Improvement in monitoring capacity and making punishment proportionate to ecological damage can ensure this accountability.

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BY CENTRE FOR ENVIRONMENT AND CLIMATE ACTION

TEAM GEOSTRATA

info@thegeostrata.com