All legislation and no conservation

It has often been stated that no matter how progressive the provisions of a law are, its success or failure depends almost entirely on its implementation. The situation is not different on the matter of conservation or environment protection laws in the country. Despite their flaws these legislations could have given important platforms for environmental decision-making and biodiversity conservation. But such have not been the intentions of those in the corridors of power.

The two legislations in review for this article include the Environment Impact Assessment (EIA) Notification under the Environment Protection Act (EPA), 1986 and more recently the Biological Diversity Act (BDA), 2002. The spirit behind both these laws has been well intended and towards the environment protection and conservation of biodiversity and traditional knowledge. But, on the one hand the EIA notification has been reduced to one that primarily facilitates clearances to development projects, and on the other, the Biodiversity Act has in the last 5 years seen implementation of provisions that merely facilitate access, rather than those which have the potential for conservation.

The nodal ministry for both: The central government's Ministry of Environment and Forests (MoEF), at Paryavaran Bhavan, New Delhi.

Environment Impact Assessment (EIA) Notification

The EIA notification was issued in 1994 and made it mandatory for 29 categories (later increased to 32) of development/industrial projects and activities to go through a process before they are granted environment clearance. This required carrying out an EIA for the project and also a public hearing. The environment clearance process was meant to be one which had the potential for being an important basis for environmental decision making. If EIA reports were done in a true and authentic manner, if people's reactions at public hearings were an important basis for approvals to be granted, and if appraisals by expert committees within the MoEF were unbiased, the essence of this notification would have been realised.

However the implementation of this simple yet extremely critical notification has ensured its spirit and intent to be totally undermined. Until 2005, the notification was amended 13 times and with each amendment the notification developed more loopholes. For instance, the August 2001 amendment allowed for no public hearings for projects which included critical ones like units in export processing zones, Special Economic Zones, modernisation of irrigation projects, mining of major mineral projects with lease area upto 25 hectares and so on. In December 2000, defence related road construction was exempted from both EIA and public hearing. Also, in July 2002, an amendment increased the investment limit of projects requiring environmental clearance to Rs.100 crores from Rs.50 crores. By this, several units including most small but high impact Sponge Iron plants could go scot-free from scrutiny.

What went alongside was the rapid increase in the number of projects that were granted environment clearance. Based on the data available on the MoEF website in January 2007, the number of projects granted clearance in 2003 were 234 in number, but took a quantum leap to being 897 in the year 2006. These include several controversial projects for which civil society organisations, academicians and local communities have clearly highlighted the inadequacy of impact assessments, procedural lapses, and vehement local protest.

Today the 1994 notification has been re-engineered into its 2006 version amidst stiff protest. With several provisions further diluted, monitoring primarily left to the project proponents themselves, only draft EIAs available before public hearings and so on, the new version will further pave the way for more approvals that actually impact the environment.

At the same time the MoEF has agreed to the registration of consultants, who will execute EIA reports for project proponents. The Quality Council of India (QCI), which claims to be an independent body, will carry out the accreditation and registration of such consultants. Ironically, as clearly stated on the QCI website, it is "an Autonomous body by the Government of India, (Ministry of Commerce & Industry, Department of Industrial Policy & Promotion being the nodal Ministry…. Indian Industry is represented on QCI by three premier industry associations ASSOCHAM, CII and FICCI." Surely the Ministry of Commerce and Industry's the primary motivation would be clearance of projects in tune with the 9% growth rate India has set for itself. The three premier industry associations would welcome it.

Biological Diversity Act

It was in December 2002 when India's first law for biodiversity conservation was passed in both houses of the Indian parliament. Note that the first objective of the legislation is conservation of biodiversity, and this is directly derived from the Convention on Biological Diversity (CBD). Other objectives include sustainable use of biodiversity and equitable sharing of benefits. To achieve these objectives, the Act mandates the setting up of a number of institutions, starting with a National Biodiversity Authority (NBA) at the national level; State Biodiversity Boards (SBBs) in every state; and Biodiversity Management Committee (BMC) to be set up by local bodies in urban and rural areas. These include panchayats, autonomous district councils, ward councils, nagarpalikas and so on. (See: www.nbaindia.org). Though not adequate, the text of the legislation has some strong conservation provisions, for instance provisions for Biodiversity Heritage Sites.

The second aspect of this legislation was to regulate access to biological resources for research, commercial usage and Intellectual Property Rights (IPRs). This was an unregulated domain till the BDA legislation was put into place. The Act has some potentially empowering clauses, which state that the central government (i.e. MoEF) based on the advice from the NBA, shall endeavour to respect and protect the knowledge of local people, and also identify rare, threatened and endemic species. The MoEF needs to prepare strategies and actions towards achieving the objectives of the Act and also where possible integrate biodiversity concerns into cross-sectoral plans. It also has specific provisions for identifying Biodiversity Heritage Sites in areas having wild or cultivated diversity.

But at the same time, the law puts into place a centralised regime to process applications towards accessing biodiversity or transferring related knowledge. If any foreign entity (defined in the Act) wants to access the India’s biodiversity and/or associated traditional knowledge for research and commercial utilisation, they need to apply before the NBA, who will review the application and mandatorily "consult" local BMCs before granting an approval. In case of an Indian entity, they need to only intimate the State Biodiversity Board; the law does not assign a role for the local BMC.

It is important to note that, collaborative research projects (including those involving an Indian and a foreign entity) don't need to seek the approval of the NBA for access to biodiversity or knowledge. Only when there is a question of an Intellectual Property Right (IPR) vis a vis collaborative research projects that this legislation comes into play, with the NBA needing to give approval. The NBA has a set of guidelines for such projects but they are far from being adequate.

If one traces the last few years of implementation of the said Act, one can easily say today that the conservation provisions of the legislation have taken a backseat. As of July 2006 (as per information on the NBA website), the NBA has processed atleast 38 applications for access to biodiversity or for IPRs. Most of them have been approved. Some of these are approvals for access to government departments like Department of Agriculture Research and Education (DARE), or to individual researchers or even to companies like Syngenta Seeds India Pvt. Ltd or MAHYCO. Some of these approvals sound odd, like access for research for hair and blood sample of the Indian wild ass (Equus hemionus khur) from captivity to Research Institute on Human-Equids Relationships, New Delhi. But the data on the NBA website does not give full details on the place or purpose of this access, for anyone to be able to assess this further.

But what is most disturbing is that, the NBA is going ahead with granting approvals for access when BMCs are not in place in most parts of the country. Infact in some states SBBs have also not been set up. Surely a mere consultation with the BMC cannot replace their free prior informed consent, but the current implementation spree has no scope of even that. When there are no BMCs, the NBA does not need to consult them! At the same time, guidelines for declaring heritage sites, or setting up BMCs or a list of threatened species are not ready. Nor has the NBA or MoEF taken other provisions of protection of knowledge of local communities forward. Cross-sectoral integration of biodiversity then seems a distant dream.

Thin linkage between the EIA notification and the Biodiv law

The Biodiversity Act clearly recognises the need for "assessment of environmental impact of that project which is likely to have adverse effect on biological diversity, with a view to avoid or minimise such effects and where appropriate provide for public participation in such assessment." This is an important linkage. One of the mandates of the MoEF is the environment protection and biodiversity conservation, and EIA is being recognised as an important tool to achieve the same. So EIAs don't just have a backing in the parent legislation, the Environment Protection Act, but also in the Biological Diversity Act too.

Yet, this is where the linkage becomes thin. The rules of the BDA don't delve on this further. For e.g., it is not clear whether the national and local level biodiversity bodies have power to intervene/participate formally in an environmental clearance process, when they see the threat of adverse effect on biodiversity.

As of now, since both the Biodiversity Act and EIA notification stem from the same ministry, it is the EIA notification alone that will come into play to check impact on biodiversity arising from a project. Even here, the reality is that in purpose and strength, the EIA has been gradually diluted and impact assessments are being reduced to mere reams of paper to facilitate clearances. Given that, how can the EIA process help move towards conservation of biodiversity?

Conclusion

So, where do we stand today with regards to these legislations?

A conservation legislation like Biodiversity Act is being implemented as an access legislation; that is where the thrust has been. Conservation in itself has not received thrust. The EIA notification which is has great potential for people's involvement in environmental decision making is today a mere clearance formality. Furthermore, and as noted earlier, both these important legislations - where issues of environmental decision making are in question -- are being weakened in text and implementation, instead of being strengthened.

If the government's intent was to be put into words, it would be this: "Clearly, economic priorities and the growth priorities are to be achieved at any cost. So, any hindrance or delay in that cannot be tolerated. Processes or public engagement and response, as well as participatory planning are time consuming. But development cannot wait for BMCs to be set up or public hearing concerns to be met. Clearances and approvals have to be granted."

Then why have these laws in the first place? It's high time the MoEF answers this question for itself, for those who have faith in these laws and most importantly to the people whose lives and livelihoods decisions of the Ministry, severely impact. In the long run, nature will find its own unique way to hold the government accountable. But do we have the time to wait for that?