Guest Article by RITWICK DUTTA
The Union environment ministry issued a new office memorandum on November 18, 2020, that mandates its expert appraisal committee (EAC) to meet “at least” twice every month to “cut down the time” for environmental clearances (ECs).
The EAC is an expert body of the ministry responsible to okay or reject proposed projects – by awarding or withholding ECs – under the environment impact assessment process. Though the EAC is an advisory body, the Union environment ministry in almost all instances goes by its recommendations, since it comprises experts.
And now, more meetings would imply more approvals of ecologically destructive projects – hence the concern.
Prima facie there is nothing wrong in directing the EAC to meet “at least twice every month”. In fact, it is in the environment’s interest for the EAC to meet every working day. The reason is simple: the EAC has a monumental task to perform – stipulating the terms of reference by which environment impact assessment (EIA) reports are prepared; undertaking detailed scrutinies of these EIA reports plus the outcomes of public hearings; and deciding whether a project should be approved.
None of this is easy. This volume of decisions in turn means the committee often struggles to critically examine the likely environmental impacts of different projects.
In 2009, Justice Muralidhar observed in Utkarsh Mandal v. Union of India (2009): “We do not see how more than five applications for EIA clearance can be taken up for consideration at a single meeting of the EAC.” But the Government of India hasn’t taken this observation seriously.
So even now, the most important issue is not how many times the EAC meets in a month. The problem lies with the quality of its members, who qualify as ‘experts’; the nature of deliberation in the EAC; and the quality of the decisions they make.
And to get a truer sense of this problem, the question to ask is whether people on the EAC are really ‘experts’ who can be expected to take objective independent decisions concerning the environment. This is important because of the primacy of the word ‘expert’ in the EAC. The answer in turn requires us to examine the Centre’s reconstituted EAC for river-valley projects.
From ‘expert’ to ‘non-official’
On July 13 2020, the environment ministry reconstituted the EAC for river-valley and hydroelectric projects. The EIA Notification 2006 stipulates that the EAC should consist of “experts” or, if they’re not available, “professionals” with the appropriate expertise. It also mandates that the chairperson should be an “outstanding” and “experienced” environmental policy expert or an expert in management or public administration with “wide experience” in the relevant development sector.
The reconstituted committee consists of nine non-official members and six official members. Note that although the 2006 notification demands “experts”, the order constituting the new EAC does not refer to ‘experts’, but uses the term “non-officials”. ‘Non-official’ is of course an unspecific term that almost anyone not employed with the government can qualify for. With this dilution in mind, let’s consider the ‘non-official’ members.
The chairperson of the EAC for river-valley and hydroelectric projects is K. Gopakumar, a professor in the department of electronic system engineering at the Indian Institute of Science (IISc), Bengaluru. According to the institute’s website, his work is confined to electronic systems, and there is nothing to suggest experience or expert knowledge in the environmental and social impact of hydropower projects. He is also not an expert in nor is he experienced with public administration. Simply being a professor or an administrator doesn’t make people experts on any other topics.
The other ‘non-official’ member is B.K. Panigrahi, a professor in the department of electrical engineering and head of the Centre for Automotive Research and Tribology, both at IIT Delhi. According to publicly available information, his research interests include power-system planning, machine intelligence and evolutionary computing. Again, there is no evidence of experience or expertise vis-à-vis river-valley projects.
The same is true for Uday R.V., who is director of the Malaviya National Institute of Technology, Jaipur. His published work indicates an interest in grid-connected photovoltaic systems and improving infrastructure in thermal power plants. This still does not qualify as sufficient experience or expertise on the topics in question.
The 2006 EIA notification mandates one of the experts to be an expert in environmental economics as well. To this end, the government has appointed Chandrahas Deshpande, a professor of economics at the Welingkar Institute of Management Development and Research, Maharashtra. According to his resumé on the institute’s website, his PhD was on ‘Industrial Pricing – Theory and Practice’. He has six years of teaching experience and worked for 18 years with the Maharashtra Economic Development Council. Taken together, neither experience nor expertise in environmental economics is apparent.
Finally, there’s Balraj Joshi, a former chairman and managing director of NHPC Ltd. He retired in December 2019, and has since been included as a ‘non-official’ member of the EAC. His inclusion raises serious questions about potential conflicts of interest: Joshi spent all his professional life promoting hydropower development, and many proposals before the EAC are likely to be from the NHPC itself.
The practice of appointing people with obvious conflicts of interest is not new. In 2009, the Delhi high court had observed: “… it is surprising that 12-member EAC was chaired by a person who happened to be director of four mining companies. Appointing a person who has a direct interest in the promotion of the mining industry as Chairperson of the EAC (Mines) is in our view an unhealthy practice that will rob the EAC of its credibility since there is an obvious and direct conflict of interest.”
Earlier we had the case of Mr P Abraham, former power secretary of Govt of India, who was then chair of the EAC for River Valley Projects and also on board of several hydropower companies. Similarly questions have been raised about a Director General of National Water Development Agency pushing Inter Linking of Rivers Projects, being Chairman of the River Valley EAC. Similarly questions have been raised about the presence of current and former officials of the Central Water Commission in the EAC for River Valley Projects.
Decisions non est The EACs are both bereft of experts and can’t be considered to be independent, scientific decision-making bodies. Imagine: the environmental and social impacts of hydropower projects are being decided by people who are studying switches, inverters, industrial pricing, automotive research and other unrelated subjects. The River Valley Projects displace human settlements and severely hamper environmental and medical health.
Equally problematic is the fact that there is no system in place to select these members. The selection happens without any open advertisements or interviews, and is based purely on the government’s discretion.
Ultimately, the fate of India’s environment and the lives of countless human and non-human species and ecosystems depends on the fancies of people whose only qualification is that they are ‘non-officials’. And even the courts – high courts, the Supreme Court and the National Green Tribunal – seldom question the wisdom of these ‘non-officials’, functioning on the mistaken notion that they are, after all, experts. And being ‘non-officials’, the two groups of experts are not answerable to the people or to the legislature, nor are they bound by service rules and regulations.
India’s environmental decision-making can’t and shouldn’t be left to such ‘non-officials’; whether they’re from IITs or the IISc shouldn’t matter either. Environmental governance is a serious subject, with serious ecological and social ramifications. It also shouldn’t matter how many times the EACs meet in a month. As long as they are composed of people who are not qualified to perform the responsibilities of the bodies to which they belong and/or harbour consequential conflicts of interest, the EACs in their present forms just should not function.
Here, it’s worth quoting from the Supreme Court’s judgment in DTC v. DTC Mazdoor Congress (1990):
“It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complacent presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it.”
India’s environmental reality clearly does not warrant its destiny resting in the hands of unaccountable ‘non-officials’ chosen in an opaque manner. Therefore, it shouldn’t matter whether they meet once a month or every day of the month. And all of their decisions deserve to be treated non est – nonexistent in the eyes of the law.
Ritwick Dutta (ritwickdutta@gmail.com) is an environmental lawyer.
A longer version of this article was published at: https://science.thewire.in/environment/moefcc-expert-appraisal-committee-unqualified-non-officials-conflicts-of-interest-environmental-governance/
SANDRP 