(De)Regulating the Environment?
An Analysis of Regulatory Changes Introduced during COVID-19 in India
This study is aimed at systematically examining the nature and scope of regulatory instruments (“instruments”) such as orders, office memorandums (“OMs”), circulars, letters, and notifications, issued by the Ministry of Environment, Forest and Climate Change (“MoEFCC”) under the Environment Protection Act, 1986 (“EP Act”) during the COVID-19 pandemic. The duration selected for this study is 11th March 2020 to 22nd March 2022.
In the introductory chapter (Chapter 1), we discuss the background and objective of this study. Chapter 2 elaborates the powers available to the Central Government under the EP Act to regulate activities in the interest of environment. It also introduces the theoretical foundation of the two-pronged test applied in the study to analyse these instruments. First, under the administrative law lens, we assess whether the instrument is likely to violate the doctrine of ultra vires i.e., the instrument runs contrary to the EP Act or is introduced in excess of the power delegated under the Act. Under the same lens, we also assess whether the requirement of public consultation has been dispensed with by the Central Government. Second, under the principles of Environmental Rule of Law (“EROL”), we evaluate whether the instruments are regressive, i.e. they backtrack on environmental safeguards and rights protected under the law. Under EROL, we also examine whether these instruments weaken or affect the integrity of the independent bodies that administer environmental law in the country, and finally, whether this information on regulatory changes in environmental law regime is easily accessible to the public.
In Chapter 3, we have explained our research methodology and the various aspects adopted for this study, which include the sources of the information collected, the rationale for selecting the indicators used for analysing the instruments and limitations of the study. The results of our analysis are provided in Chapter 4. In Chapter 5, we discuss some selected case studies from the data to have a deeper dive on major concerns.
In Chapter 6, which is the concluding chapter, we summarise our findings and conclude that the government weakened the existing legal safeguards for environmental protection on several occasions during the pandemic. We also recommend that the Government of India must constitute an independent committee to review all amendments and office orders brought in the environmental laws during the study period and withdraw all such instruments which are found to be ultra vires and regressive. A summary of the key findings from this study is provided below.
- The analysis is based on 123 instruments containing gazette notifications (74), OMs (42), circulars/ letters/ orders (7), which were published by the MoEFCC during the period of the study. The text of these instruments was sourced from various government and non-government websites.
- One of every three instruments (39 of 123) are found to be amendments made to various Rules and Notifications under the EP Act, with majority of the changes made to the Environment Protection Rules, 1986 (14) and the Environment Impact Assessment Notification, 2006 (13). Nearly three-fourths of all such amendments are aimed at providing relaxations (12) and exemptions (6) to the statutory requirements prescribed under the pre-existing laws.
- 44% (54) of the instruments are related to developmental and industrial activities, followed by 39% (48) instruments affecting the functioning of various institutions and statutory bodies such as the State Level Environmental Impact Assessment Authority (“SEIAA”), Expert Appraisal Committees (“EACs”), etc. Of the remaining instruments, a majority were directly regulating the ecosystem/natural resources such as the coastal areas, regulation of waste management, etc.
- In 16 out of 74 gazette notifications, the government waived off the requirement of public notice for amending the EIA Notification, 2006 by invoking Rule 5(4) of the EP Rules. Therefore, in 41% (16 out of 39) of the amendments, public notice was dispensed with in public interest. The term ‘public interest’ used in Rule 5(4) of the EP Rules cannot be interpreted beyond the scope and mandate of the EP Act, particularly Rule 5 of the EP Rules which empowers the government to impose such prohibitions and restrictions only for the protection of environment in a particular area. Some of the amendments brought to the EIA Notification, 2006, using this exception, downgrade environmental protection measures imposed on polluting industries without assessing the potential environmental impact. This is against the mandate of the EP Act. Such amendments are not only ultra vires the EP Act but are also regressive in nature.
- In 22 of the 42 OMs, the government issued directions to authorities and agencies such as the Expert Appraisal Committee, while 4 offer relaxations to industries. Some of these OMs seek to amend the statutory procedures and create exceptions to the legislative mandates. Collectively, these constitute 21% (26) of the entire dataset (123) and 62% of all the OMs (42) issued during the study period. It is extremely problematic that substantial changes in the statutory provisions are being introduced through OMs as they are meant to be internal documents of the government used for inter and intra departmental communication of decisions. Since they are not mandatorily required to be in the public domain, they should not be used as instruments for issuing important environmental decisions. Instead, any such decision should be widely published as a notification in the official gazette of India.
- Overall, 18% (22) of all the instruments analysed are found to be ultra vires the EP Act, which includes 10 gazette notifications and 12 OMs.
- 30% (37) of all instruments are found to be regressive. This includes 24 gazette notifications and 13 OMs.
- 16% (20) of the instruments (which includes 12 OMs, 7 gazette notifications and a letter), affect the institutional integrity by disregarding statutory obligations, such as the mandate to consult EACs, dispensing the requirement of public consultations, etc.
A consolidated list of all 123 instruments examined in this study is published online as a spreadsheet. It can be freely accessed by visiting https://bit.ly/data-epa