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Should India’s environment laws give the State so much power?

Mansi Ranka

Can the state really function as a trustee for the protection of the environment without oversight?

By Mansi Ranka

The Union Ministry of Environment, Forest and Climate Change (MOEFCC) rolled out the draft Environmental Impact Assessment (EIA) notification in March 2020 and introduced changes to environmental governance for the country. These changes focus on making environmental clearance a swift and easy process while giving public consultation a backseat.

The draft has led to widespread public concern. About 100 environmental groups and individuals have opposed draft EIA 2020, calling it anti-environment and anti-people. One of the main causes for distress in the new draft is an exemption from prior environmental clearance to about 40 different industries like clay and sand extraction, solar thermal power plants and common effluent treatment plants. This ex post facto environmental clearance puts aside the primary goal of environmental protection to focus on achieving ease of business. In April, the Supreme Court held that such practice would be detrimental to the environment and that development must be approached through an “ecologically rational outlook”.

The other main cause of concern is the dilution of public consultation. The new draft exempts projects from the public hearing, an important opportunity for local communities to learn about the project and demand social obligations from them. This gives the corporations power to officially evade local development needs, which were anyway rarely met. environmentalists have accused the government of using EIA to expand their own political control by favouring corporations by legitimising environmentally degrading projects.

The new EIA draft incorporates systemic weakness into the law, making environmental violations the norm for corporations. The Ministry does not even pretend to see EIA as anything more than a bureaucratic instrument to make environmental clearance (EC) easier. 

Environmentalists have been arguing for the need to strengthen environmental law more than ever, as we are already experiencing climate change in the havoc wreaked by floods nationwide. The letter sent to the MOEFCC also proposes that we go back to the EIA 2006 notification. But in reality, that is not all that better either.

The MOEFCC is currently reviewing the public comments that they have received on the draft. Right now, it is important to think about what it is that will really help strengthen the environmental law in our country. How can the law ensure that big corporate profit does not override people’s welfare and environmental protection?

The state controls the distribution of state-owned natural resources. What is the safeguard against the exploitation of this power? What if the government allocates natural resources in a way that contradicts public welfare?

A similar question was brought up before the Supreme Court, in the 2011 public interest litigation after the 2G scam. The PIL raised questions about the State’s ownership of natural resources and their fair distribution. The judgement clarified the Supreme Court’s position on who distributes natural resources by saying, “Natural resources belong to the people but the State legally owns them on behalf of its people and …  is empowered to distribute natural resources.” So, the State has the power to decide what happens to natural resources. But on what basis does the state decide? The judgement goes on to say, “while distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to the public interest.”

Thus, as long as we trust the Indian State to “act in consonance with the principles of equality and public trust”, we can be certain that it will distribute natural resources for the “common good”. The judgement concludes that the State should be the trustee or guardian of the people in general, and hence be responsible for natural assets.

Trusteeship is a Gandhian socio-economic idea, which holds that wealthy people should be the trustees and ensure the general welfare of the poor people. The theory relies on Gandhi’s conviction that capitalists aren’t beyond redemption and the wealthy could be persuaded to help the poor by becoming more egalitarian.

Now, the Indian State is supposed to act as this trustee and ensure common good. How does the state define this ‘common good’? Historically, the state has not acted in ways that can foster this kind of trust. The state has often wished to ascertain huge profits through corporations by allowing them to monopolise. This is obvious in the draft EIA 2020. The “common” good then becomes economic development by few big players. This is excluding the very people it was supposed to act as trustee for. And yet, the State can claim to handover natural resources for exploitation to a few players in the name of common good and public trust.

Furthermore, the draft EIA is pushing for people to be excluded from participating in this process, making the idea of common good paternalistic. The tilting of the scale to give the trustee unchecked power is possible under this idea of trusteeship. This is because in Gandhi’s theory it heavily relies on subjective goodness in the capitalist, the trustee, to act for general welfare. It is necessary to question this of trusteeship. Can the state function as a true trustee without mechanisms to ensure accountability and transparency?

Mansi is a student of philosophy and environmental studies at Ashoka University. Her other interests include performing arts, politics and octopuses.

We publish all articles under a Creative Commons Attribution-Noderivatives license. This means any news organisation, blog, website, newspaper or newsletter can republish our pieces for free, provided they attribute the original source (OpenAxis). 

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