An Open Letter to All State Governments, State Forest and Environment Departments and State Pollution Control Boards to reject Environmental Reforms Proposed by Indian Ministry of Environment, Forests and Climate Change on the basis of recommendations of the TSR Subramanian Committee

Reg.: Request that you reject regressive Environmental Reforms promoted by the Union Ministry of Environment, Forests and Climate Change based on recommendations of the TSR Subramanian Committee Report

Respected Chief Ministers, Environment Ministers, Environment Secretaries and Chairpersons and Member Secretaries of Pollution Control Boards in various States of India:

We write seeking your immediate attention to certain proposals of the Union Ministry of Environment, Forests & Climate Change to reform environmental decision making in India. We consider these “reforms” to be highly regressive and would cause irreversible damage to environment and human rights.

As you are aware the Environment Ministry accepted the recommendations of the highly controversial “Report of High Level Committee to review Acts administered by Ministry of Environment, Forests & Climate Change” (also known as the T S R Subramanian Committee report). The Committee's recommendations are oriented towards promoting unprecedented access to land, water and other natural resources to large corporate bodies and to pave the way for mega infrastructure, industrial and urban projects. Keen on ensuring that all State Governments support the Ministry's “reforms” agenda, the Union Environment Minister Mr. Prakash Javadekar has called for a conclave of State Environment Ministers, Environment Secretaries and Chairpersons of Pollution Control Boards in Delhi, 6-8 April, 2015, which will be addressed by Prime Minister Mr. Narendra Modi.

The Subramanian Committee was one of the first major policy initiatives of the National Democratic Alliance government headed by Prime Minister Modi. The purpose of the Committee was to draft “specific amendments needed in each of these Acts so as to bring them in line with current requirements to meet objectives”. Neither the Government nor the Committee cared to explain or clarify what this phrase meant. While preparing its report, the Committee held secretive consultations with corporate bodies and lobby groups, some state governments (not all), and held public consultations in a few cities which can best be described as tokenistic. The Committee submitted its report to the Prime Minister on 27th November 2014, barely 3 months after it had been constituted.

The Committee proposes sweeping changes to environmental, forest and biodiversity protection laws of India, proposes new laws to manage old laws, and promotes the establishment of a slew of new bureaucracies and the dismantling of decades-old regulatory institutions such as the Pollution Control Boards. The Committee shockingly proposes that industries must be allowed to self-regulate on a self-certification model based on “utmost good faith”, completely ignoring the disastrous experience India has had, most painfully being experienced by the people of Bhopal. The Subramanian Committee recommendations are not supported by any empirical evidence and appear to have been largely an outcome of opinions held by the Committee members and those they met with. And in stark contrast with well established norms for functioning of such High Level Committees, the Subramanian Committee has, admittedly, not kept any documentation of its process, who it met with, or even minuted its proceedings and the costs incurred.

Implications of the Subramanian Committee Report:

If the Subramanian Committee recommendations are accepted by the Centre and the States, prevailing environmental decision making norms and regulations will be grossly diluted, made extremely undemocratic, in-transparent and highly centralised. The very pillars on which India's environmental jurisprudence stands today will be shaken as is evident from Section 3 of the new Environmental Laws Management Act proposed which seeks to make redundant various progressive judgments of the Supreme Court, High Court and National Green Tribunal advancing environmental and social justice.

The Committee also proposes that critical safeguards now available to natural resource dependent and forest dwelling communities and other vulnerable project impacted communities, such as the statutory requirement to involve them and seek their consent in environmental decision making and diversion of forest land, would be sidestepped so that investors could secure “speedy” environmental and forest clearances. In effect, the Committee's focus has been to make environmental and social justice considerations subsidiary to business and investment priorities.

Such “reforms” would result in colossal and irreplaceable loss of biodiversity and associated traditional knowledge, destruction of sensitive ecosystems (with an emphasis on protecting only forests with over 70% canopy cover), increase the rate of species extinction, and threaten, disrupt, dislocate and displace pastoral, farming, coastal and other natural resource dependent communities. Floodgates for reckless exploitation of natural resources would be opened as clearances to projects would be accorded largely based on investment criteria. Extensive violation of human rights are thus likely to become the norm.

Centre-State relationships will also be adversely affected as the Union Environment Minister has accepted the Subramanian Committee proposals to establish National and State Environmental Management Agencies the configuration and management of which will be decided by the Centre. The critical role of Local Governments in environmental management and conservation has been comprehensively ignored, disregarding Constitutional mandates (in particular Articles 243 ZD, ZE and the 11th and 12th Schedules of the Constitution) which require the tier of governance closest to the people must be integrally involved in decisions about environment and natural resources.

While reforms are indeed required for environmental decision making in India, the objective has to be to safeguard public interest and the quality of our environment, and not, as is now proposed, to promote economic growth causing irreversible damage to ecological security of present and future generations. In the forthcoming Conclave, we urge you to impress upon the Government of India that environmental reforms must be an outcome of deeply democratic nation-wide debates and discussions, in which all agencies of Local, State and Central governments can meaningfully participate, and where the voices of peoples from all over the country, especially those who live in environmentally sensitive and stressful areas, and from all sectors, are heard, documented and rationally considered.

With that in mind, we urge you to reject the “reforms” proposed by the Union Government on the basis of the recommendations of the Subramanian Committee.

More detailed reasons why your Government must reject these reform proposals are provided in a comprehensive critique of the Subramanian Committee report by ESG, entitled “A Non-trivial Threat to India's Ecological and Economic Security” accessible at:http://tinyurl.com/pkbfpmw, and an article entitled “A hasty, half-baked report on environment” by former Union Water Resources Secretary Ramaswamy Iyer, accessible at: http://tinyurl.com/mqpx4av.

Thank you for your cooperation and support.

INDIAN GOVERNMENT'S HIGH POWERED COMMITTEE REPORT ON REFORM OF ENVIRONMENTAL LAWS

Release : 8^th January 2015

A Non-trivial Threat to India's Ecological and Economic Security

On 29th August 2014 the Ministry of Environment, Forests & Climate Change of the Government of India (hereinafter referred to as MoEF & CC) set up a High Level Committee headed by former Union Cabinet Secretary Mr. T. S. R. Subramanian, IAS (Retd.). This Committee was given a comprehensive mandate: to review all laws and judgments pertaining to environment, wildlife and forest protection, and also those relating to pollution control, and then produce a report with specific recommendations for reforms in law and governance. This enormous and complex exercise of review of laws and judgments, and governance practices, followed by the formulation and presentation of a report with recommendations for amendments to existing laws, was to be completed within 2 months.

The deadline for completion of the Committee's tasks was extended by a month, and the final report was submitted by the Committee to Shri. Prakash Javadekar, Union Minister of State for Environment, Forests and Climate Change with Independent Charge on 18th November 2014.¹The report was not made public at that time. However, it was leaked, and it soon became available on various websites of media and environmental and social action groups.² Soon after, an embarrassed Ministry also made the report available on its website.³

In our critique of the High Powered Committee Report, we find that the entire exercise has been undertaken in a hurried manner, without sufficient inquiry into the relevant factors, without addressing concerns of a range of communities, especially those which are indigenous and natural resource dependent, and without at all considering the importance of consulting elected representatives from Local Government, Legislatures and the Parliament. This report, thereby, is an outcome of a comprehensively democracy deficit effort, and promotes a schema for environmental reforms, which, if adopted could result in widespread chaos in environmental governance and jurisprudence, and also would result in irreversible damage to the environment, cause widespread loss of natural ecosystems and could further fuel fundamental violation of human rights in a country where discontents over environmental decisions are become increasingly contentious.

There are elements in the Committee's report that are worth taking note of and possibly implementing. But these are few and far between, and a bulk of the Committee's recommendations are based on an extraordinary reliance on the capacity of technical bureaucracy to deliver good environmental governance, on market forces to meet environmental management objectives, on a slew of new regulatory and judicial forums to police the system, without actually making an effort to enquire and justify if such comprehensive makeover in the environmental decision making system is essential at all. Neither does the Committee formulate its tasks clearly, nor does it make any effort to clearly explain the basis of its recommendations. In light of which, what the Committee recommends comes across as a set of confusing proposals which if implemented could confound the environmental governance system quite fundamentally.

With this in view, and in the interest of present and futures generations of the country, and also in securing the extraordinary biodiversity of the region that has evolved over billions of years, we urge the Government of India to comprehensively reject the recommendations of this Committee. In the national interest we urge the Government to repeat the exercise ensuring terms of reference are clear and not caged by catch phrases that confound more than clarify, by involving an inter-disciplinary committee consisting of women and men, experienced and expert members, and drawn from various geographies, supported by a deeply democratic process and with sufficient time and space for public consultations nation-wide, so that the outcome would be recalled as a monumental effort that not only secured national interest, but also that of a world precariously edging towards runaway climate change induced impacts.

A copy of the critique of the High Powered Committee Report, entitled “A Non-trivial Threat to India's Ecological and Economic Security” may be accessed at: www.esgindia.org. Comments and criticisms are welcomed.

High Level Committee of Ministry of Environment and Forests and Climate Change walks out of Public Consultation in Bangalore

The High Level Committee headed by Mr. T. S. R. Subramanian, former Union Cabinet Secretary, constituted by the Union Ministry of Environment and Forests and Climate Change to review environment, pollution control and forest conservation laws, invited the public at large for a consultation between 12 and 1.30 pm today (27^th September) at Vikas Soudha, the high security office complex of the Government of Karnataka. Advertisements to this effect had been issued by the Karnataka Department of Forest, Ecology and Environment in various newspapers on 21^st September 2014, followed up by various press releases inviting the public to interact with the Committee.

When various individuals and representatives of public interest environmental and social action groups turned up for the meeting, the police prevented their entry at the gates. It was only following a spot protest that the police consented to allow them to participate in the consultation. Despite this indignifying experience, all who gathered proceeded to the meeting hall with the intent of engaging with the High Level Committee.

The meeting commenced with introductory remarks by the Chairperson Mr. Subramanian. Broadly, he shared that the intent of the Committee was to hear views from across India on the type and nature of changes that were required in the environmental and forest protection laws. He stated that the Committee had the mandate of the Government to propose necessary changes that would help improve the quality of life and environment. But he said the need to ensure develop was primary, as the country was very poor (over 80% were poor he claimed) and thereby it is found essential to streamline environmental clearance processes that thwarted growth. Mr. Subramanian also shared that it was a matter of concern to the Government that several development projects were getting mired in litigation on environmental grounds, leading to needless delays. Concluding his introductory remarks he shared that the Committee is not in any manner guided by the Ministry and their recommendatory report would be submitted to the Union Government. The Committee's proceeding, he clarified, were not open to the public, unless the committee decided to engage with the public. Responding to a question, Mr. Subramanian said that nothing that was submitted to the Committee would be shared with anybody, and that only the report would be submitted to the Government. Mr. Subramanian also said that the Ministry never proposed a public consultation exercise, but he had suggested this should take place.

Mr. K. N. Bhat, Senior Advocate and a member of the Committee, shared that there were a variety of submissions the Committee had received and each of this would be considered. Heaired that environment and development should go side by side and the objectives of the laws if not found sufficient to address current needs, need for their review exists. The industry in particular, he said, had raised concerns over delays in environmental and forest clearances when the Committee met with them.

On these introductory notes Mr. Subramanian asked the members of the public to suggest changes to the existing environmental law framework. Officials assisting the Committee did not provide any rationale for the Ministry proposing changes to existing laws. The Committee also did not have any procedure, excepting online submissions of opinions on the Ministry's website (limited to 1000 words).

When the turn of the public came, a submission was made by the Karnataka Planters Association about procedural difficulties in securing forest clearance and conforming with pollution control norms, and sought amendments for the benefit of plantations. Thereafter, Mr. A. C. F. Anand, an RTI Activist, suggested that all environmental laws must be translated so that it would be understood by all and thus the compliance rates improved.

Speaking next, Mr. Leo F. Saldanha of Environment Support Group requested the Committee to address the basis for its functioning, and whethere the TOR constituting the Committee was sufficient for such a massive and onerous task that involved fundamentally reviewing all environmental laws that were intricately linked to Right to Life, Clean Environment and Livelihoods. He sought to know what it meant, as is main TOR, “"(t)o recomment specific amendments needed in each of these Acts so as to bring them in line with current requirements to meet objectives". 

Mr. Subramanian responded that neither he nor any other members of the Committee were influenced by the TOR in any manner and that they worked per their own understanding of the mandate given to them by the Government. But when Saldanha pressed to know how a Committee consisting of high ranking former civil servants, a former Judge and a Senior Advocate could at all have agreed to such vague terms, Mr. Subramanian reacted dismissively. He claimed that this was a non-substantive issue and sought to move on to hear others. Saldanha argued that it is disturbing that Mr. Subramanian unilaterally rules a legitimate concern over vague and weak TORs as being of trivial concern, when, in fact, it would have been fit and proper for the Committee to have first explained in the interest of public accountability and transparency how they found the terms rationale and acceptable to them. And in case the terms were acceptable, then the High Level Committee, unshackled as it were by the bureaucratic norms of the Ministry, could have provided a clear note on the nature of the reforms being considered and also explicated on the procedure of consulting and receiving criticisms from various sectors, peoples, regions, geographies, etc.

Mr. Vinay Sreenivasa of Alternative Law Forum submitted that the process by which the Committee was conducting the consultation was rather opaque. The vague TOR and the fact that the Committee was constituted by a Government that sought to belittle the importance of the National Wildlife Board and rush pet projects through the clearance mechanism, seemed to suggest the entire exercise appeared to be merely ritualistic. Ms. Aruna Chandrasekhar of Amnesty International - India sought to know what specific amendments were being proposed or demanded by industry/corporate sectors, and requested the Committee put it all out. But Mr. Subramanian waved away this request too.

Prof. Puttuswamy wanted to know how a High Level Committee sought to improve environmental laws when notifications of Ministry were being issued to dilute the laws. To which Mr. Subramanian responded saying he is not a “Postman” for the Ministry. Ms. Priti Rao, meanwhile, asked for decentralised solid waste management. Mr. Vijayan Menon shared that even though he was not an official, he had walked into the Committee's immediately preceding engagement with Government officials where a clear set of amendments were being proposed. He expressed surprise that this presentation was not being made for the benefit of the general public.

Ms. Bhargavi Rao of Environment Support Group wanted to know how law could be reformed when forest officials are unaware of biodiversity protection laws that had been passed over two decades ago and asserted that this rushed exercise in reviewing environmental laws had all the trappings of making light of people's fundamental rights and concerns. Justice A. K. Srivatsav (Retd. Judge of the Delhi High Court) and a Member of the High Level Committee stated at this juncture that the public must have confidence in a Committee in which a senior retired Judge is a member. By which time Mr. Subramanian had remarked several times that the public was wasting the Committee's time and there was no point continuing with this procedure. Several who had gathered protested such an assessment by the Chairman of the High Level Committee. Mr. Srinivas of Mavallipura sought to speak, saying he represents a community impacted by mal-development and waste dumping in his village, and he too was brushed aside.

At this point, Mr. Subramanian got up and said “We will end the joke here!” and walked out. He was followed by the rest of the Committee.

When Mr. Subramanian walked out, it was 1 pm. Members of the common public who had travelled great distances to engage with the Committee protested Mr. Subramanian taking them for granted and dismissing their views as of trivial concern. They demanded that the Committee return to hear the public and as advertised remained in the Hall till 1.30 pm. Neither did the High Level Committee return, nor did any official of the Ministry of Environment and Forests or Karnataka Environment Department come back to explain to the public why the High Level Committee had behaved in this manner. In fact, throughout the engagement with the public, not one Karnataka Government official was present in the Hall.

The undersigned are deeply disturbed by the manner in which the T. S. R. Subramanian headed High Level Committee has treated this public consultation process. The undersigned demand that the Ministry of Environment and Forests and Climate Change call off this exercise as it has all the markings of being a ritual exercise. In its place the undersigned demand that the Ministry must constitute a Committee that has a clear rationale for reform and Terms of Reference that are democratic, consultative and transparent. In particular, the following demands are made:

1. Environment Ministry must first come out with a White Paper discussing the nature of the reforms that it proposes in environmental, forest conservation and pollution control laws.
2. On the basis of such a Paper, an accessible Committee must be constituted that would hear peoples responses across the biologically, culturally and linguistically diverse country and also from various sectors equally.
3. The membership of the Committee should be so constituted that it would reflect diverse concerns and sectos, and in particular ensure that members conversant with tribal and human rights, environmental management, conservation biologists, biodiversity, risk assessment, planning, etc., and not merely ex-bureaucrats or members of the legal fraternity were included Particularly important is the need to ensure there is adequate representation of women on the High Level Committee, which presently is constituted only of men.
4. The process of the consultation to be followed has to be meaningful and conform with Principle of Prior and Informed Consent, even if this is not a consenting process.
5. The timeline for the Consultation mechanism for such a critical review has to be reasonable as laws sought to amended, or tweaked, fundamentally affect theRight to Life and Livelihoods, and Right to Clean Environment.
6. The entire process has to be transparent, all meetings must be recorded publicly, none of the deliberations must be in camera (as it appears to be the case now), and all proceedings, submissions, minutes and reports must be in the public domain.
7. Adequate facilities must be made to ensure that anyone interested can participated with dignity and without being inhibited by language or geographical location. To ensure this, the process must be devolved by enlisting the support of State and Local Governments.

Signatories:

Mr. Leo Saldanha; Environment Support Group, leo@esgindia.org. Cell: 9448377403

Mr. Vinay Sreenivasa; Alternative Law Forum. Cell: 9880595032

Ms. Bhargavi Rao; Environment Support Group; bhargavi@esgindia.org Cell: 9448377401

Ms. Aarthi Sridhar; Dakshin Foundation, aarthi77@gmail.com. Cell: 9900113216

Mr. Vijayan Menon; menonvij@gmail.com

Mr. Davis Thomas; Environment Support Group; davis@esgindia.org. Cell: 9036180914

Ms. Swapna; sapna.sb@gmail.com

Ms. Priti Rao; priti007@yahoo.com

Ms. Padma Ashok; Save Tiger, padmaashok@gmail.com

Mr. Ashok Hallur; ashokhallur@gmail.com

dinnil@gmail.com

Mr. Rajeev Mankotia; rmanikoth@gmail.com

Mr. Sandesh Udyawar; sandeshudyawar@gmail.com

Ms. Marianne Manuel; Dakshin Foundation, marianne.manuel88@gmail.com

Ms. Shivani Shah; Greenpeace; shivani.shah@greenpeace.org

Mr. Sohan Pavulari; sohan_pavuluri@yahoo.com

Ms. Sangeetha Kadur; sangeetha.kadur@gmail.com

Mr. Bhaskar Bhatt; muggymach3@basejumper.com

Mr. Rohan Kini; rohan.kini@gmail.com

Mr. K.N. Somashekar; cmd_vilinfra@rediffmail.com

Mr. A.C.F. Anand; acfanand@gmail.com

Ms. Shashikala Iyer; Environment Support Group; shashi@esgindia.org

Mr. Leon Louis; Environment Support Group; leon@esgindia.org

Mr. Mallesh K.R; Environment Support Group; mallesh@esgindia.org

Mr. Prashanth; Environment Support Group; prashanth@esgindia.org

Ministry of Environment and Forests withdraws controversial proposal to modify Municipal Solid Waste Management Rules

The Additional Solicitor General Mr. Kalyan Basavaraj representing the Indian Environment and Forest Ministry appeared before the Division Bench of the Karnataka High Court constituted by Justice Mr. N. Kumar and Justice Mrs. B. V. Nagarathna today and submitted that the Ministry has withdrawn its proposal to comprehensively amend the existing Municipal Solid Waste Management Rules, 2000 and replace it with its 2013 version. It may be recalled that Environment Support Group had drawn the attention of Justice Mr. Kumar and Justice Mrs. Nagarathna that the 2013 Draft Rules were highly regressive and worked against progressive initiatives undertaken in Bangalore and Karnataka under the direction of the Karnataka High Court and that the Draft Rules also promoted the highly dangerous municipal solid waste incineration technologies.

In response to these submissions the Court restrained the Ministry from modifying the existing Municipal Solid Waste Management 2000 Rules by its 24^th October order. The Court issued this order as it found that the Ministry's move to comprehensively amend the exist law governing municipal solid waste management and replace them with new Rules promoted the regressive approach of collecting waste without segregation at source and thus leading to a series of problems that not only increased the cost of waste management but also created a variety of environmental and public health impacts. This the Court found “would undo what has been done in the last decade and in particular in Bangalore for the last one year in pursuance of the directions” of the Court, which had strenuously worked to ensure implementation of progressive features of the Municipal Solid Waste Management Rules, 2000.

Justice Mr. Kumar and Justice Mrs. Nagarathna have recorded the submission of the Ministry in their order today.

Copies of the orders of the Karnataka High Court dated 24^th October 2013 and 11^th October 2013, ESG's PIL, ESG's critique of the Draft MSW Rules 2013 and the MoEF's Memo may be accessed at: http://tinyurl.com/l9osbdq

Leo F. Saldanha	Bhargavi S. Rao	Sunil Dutt Yadav
Environment Support Group