People's Democracy

NATIONAL ENVIRONMENT POLICY 2006

Liberalising Environmental Regulation

Dinesh Abrol & Archana Prasad

THE National Environment Policy (NEP) 2006 (so-called revised version) has been released by the Ministry of Environment and Forests (MoEF) after a gap of two years when the draft policy had been circulated for public debate and responses. The policy claims that it has gone through a process of extensive consultations and incorporated the suggestions of concerned individuals and organisations. Reviewing the draft in 2004, the All India People’s Science Network (AIPSN) had demanded that such a consultation was necessary for the policy to reflect the concerns of a majority of the people especially the dalits, adivasis, women and other sections of the working people. But it appears that the concerns expressed by both the AIPSN and other likeminded organisations have not been addressed in this policy. Rather the National Environmental Policy 2006 has gone a step further in laying the basis of deregulation of common property resources and the environment: a policy that has been aggressively pursued by the government of India in the period between the release of the draft policy and its finalisation.  The interim period has seen a push towards the invasion of forested areas by transnational corporations, the liberalisation of environmental and forest clearances, and privatisation of water resources. Thus the development path that even the revised policy pursues is unsustainable and iniquitous in character and has a detrimental impact on the livelihood security of the rural and urban poor.

NO BREAK WITH OLD PARADIGMS

The NEP 2006 derives its legitimacy from the inclusion of objectives such as to provide for intra- and inter-generational equity and integration of environmental concerns in socio-economic development process and from the commitment to be guided in the policy and partnership design by the principles such as internalising the environmental costs into planning process, precautionary principle, fixing strict liability (even in the absence of legislation or standards) and preventive action, all of which are well-intentioned. But the way the NEP identifies the causes of environmental degradation, it does begin to show that it has no intentions to make a clean break with the existing paradigm of development and conservation. For instance, the revised NEP states that “the loss of the environmental resource base can result in certain groups of people being made destitute, even if overall, the economy shows strong growth.” But the measures it advocates fail to offer any succour to the poor to give better access to resources and capabilities. Many of the proposed regulatory reforms will be dependent on market-based instruments and would not provide a solution to those problems of environmental degradation that affect the livelihood security of the poor.

It is significant that the NEP pursues the current path of development rather than making it more ecologically and socially just. Even though the revised draft makes some effort to discuss the problems of tribals, women and urban poor, their access to resources is only discussed in forests and wildlife areas. It fails to address their problems regarding access to land, water and biomass resources. Further, the discourse of rights is replaced by an emphasis on “traditional entitlements” which cannot take care of the problems of the rural and urban poor. The NEP’s vision of structural, institutional and policy interventions is embedded in the ideology of ecology of affluence. It is pertinent to note that though the NEP talks of the unsustainable consumption patterns in the industrialised countries that are having serious adverse impacts on the environment, both local and global, and are accentuating poverty in the developing countries, it is unconcerned how its own policy prescriptions for environmental management feed into the interests and lifestyle of the rich.

COMPROMISING ATTITUDE

The policy makes it clear that the government is not ready to confront the US imperialism as far as the issue of environmental management is concerned. The NEP has deleted the earlier formulation which favoured a clear commitment by the government to make efforts for enforcing sui generi system of rights and providing online access to traditional knowledge digital library (TKDL) when legal protection is in place. The government has chosen to opt for a weaker and compromised formulation. It has qualified the commitment by stating that “These issues are complex and therefore modalities for their implementation need to be carefully worked out. Towards this end, attempt would be made to attain greater congruence between these Trade Related Aspects of Intellectual Property Rights.” It suggests that keeping these conditions in view the government would make efforts to create a system of Prior Informed Consent and Fair and Equitable Benefit sharing in respect of biological material and traditional knowledge of use of such biological material to enable the country and local communities respectively to derive economic benefits from providing access. The fact that the government has very recently entered into an agreement in respect of the access to TKDL when legal protection is yet not in place at the international level for the mechanism relating to prior informed consent and benefit sharing, confirms this compromising attitude. This compromising behaviour is also evident that it has chosen to be a silent spectator in the WTO negotiations as far as the issue of intellectual property rights and access to traditional knowledge (TK) is concerned. The message is clear that it is not willing to confront the developed capitalist world on this matter in an effective way. 

The NEP seeks no change in the strategy of economic growth with the aim to particularly make the patterns of production and consumption ecologically and socially just for the people who have been victimised by the processes of economic development. It fails to put sustainable human development on the national policy agenda in a systematic way. For example, the section on strategies and actions does not call for changes in the industrial and product structure that would facilitate the introduction of and transition to sustainable natural resource use. In fact the NEP completely ignores the issue of elimination of unsustainable practices of production and consumption of non-renewable resources by the corporate sector and affluent classes. It is significant that the revised policy makes no effort to control the penetration of the private corporate world in sectors that are critical to the ecological and livelihood security of a majority of the people. This fact is particularly important in the wake of several conflicts between the government and local people over mining and other contracts in marginalised, resource-rich areas and the recent Draft Notification on Environmental Impact Assessment in 2005. The NEP provides full support to the damaging changes in EIA and CRZ rules to ease the laws for the big business.

It also pushes the question on the vision and path of sustainable development under the carpet by placing the entire blame for environmental degradation on either the population growth or on so called “institutional (read: governmental/state) and market failures.” All references to “the right of people and communities” and “inter-generational equity” are only incidental to these aims and seek to soften their impact. The revised NEP makes a special mention of the controversial National Population Policy 2000 as detailing the right steps for “population stabilisation” and considers the population growth as one of the main causes of environmental degradation. This in itself is an outdated explanation and does not focus on the illegal harnessing and use of resources as one of the main causes of degradation. There has been enough focus by left and other grassroots movements on this issue and this concern has not been taken on board.

It will be pertinent to state here that though the policy document is claiming that “sustainable development concerns in a sense of human well-being are a recurring theme in India’s development philosophy,” the current document is short of people friendly ideas on its own vision for sustainable development. This is particularly true of the list of “incomparable entities” that it enumerates and puts under direct state control for the purpose of enhancement and conservation of environmental resources. Like its draft, the revised NEP neither targets nor provides any definite plan of action for fringe area development which is necessary both for the conservation of ecologically sensitive areas as well as the livelihood security of agricultural labourers and small farmers.

NEO-LIBERAL ORIENTATION

Its key propositions regarding strategies and actions straddle between a conventional conservationist agenda (excluding people’s rights over the use of their local resources) and a strategy that seeks to open up the natural resources sector to market forces. The revised NEP not only talks about the extension of the Protected Area Network, but also seeks to expand the control of wild life conservators in other areas where endangered species exist. At the same time it also chooses to transform the role of the Indian State in the direction of facilitating the market forces to self-regulate their activities for environmental concerns and confining largely its own direct interventions to the application of price and taxation instruments. For example, in order to deal with the problem of ground water pollution the NEP talks of tackling the pollution of groundwater from agricultural chemicals by changing the current pricing policies for chemical pesticides, which do not take the potential environmental impacts into account. It hopes to curb the use of agrochemicals by opting for a mild measure like an optional utilization of fertilizers, pesticides and insecticides to cause an improvement in the water quality. By doing this, the NEP severely dilutes the development and welfare role and responsibility of the Indian state by proposing to rely on the practice of regulation through the codes of environmental management in a big way.

It is pertinent to note that the NEP recognises “when water tables are very deep the capital costs may be relatively high, with no assurance that water would actually be found, and in such a situation, a user who may be a marginal farmer able to borrow the money only at usurious rates of interest, may, in case water is not found, find it impossible to repay his debts.” But it only suggests promotional measures like “a) intensive water and moisture conservation through practices based on traditional and science based knowledge, and relying on traditional infrastructure, b) enhancing and expanding green cover based on local species and c) reviewing the agronomic practices in these areas, and promoting agricultural practices and varieties, which are well adapted to the desert ecosystem”. It consciously chooses to remain silent on what type of institutional forms and rights would be created in order that rights of access and ownership accrue to natural resource dependent people in a sustainable way (area based land use and water management, area planning for sustainable cropping patterns). Needless to say, the role of the state has to be developmental in nature to provide sustainable access to resources to the marginalised sections of the Indian people.

The NEP attempts to bring issues of the settlement of ownership and control under the rubric of “institutional failures” or the failure to settle rights. But it is not successful in doing this because it does not get into the establishment of a policy framework for what would constitute the legitimate framework of “rights of use” on different resources. Like other donor agencies, this policy also stresses the importance of community based natural resource management as the only alternative in the current scenario. But it is totally silent on way in which these activities will be integrated to and relate with the larger mechanisms of conservation. While the policy states that it will follow the Public Trust Doctrine where the state is “not an absolute owner, but merely a trustee of all natural resources, which are by nature meant for public use and enjoyment, subject to reasonable conditions, necessary to protect the interests of a large number of people.” However, this assertion of the state being not an absolute owner may have been welcome but for the fact that it does not limit the state power when it comes to the privatisation of natural resources. If the state is not an absolute owner, can it privatise something it does not own? But the policy is silent on how the state’s power to denotify these areas for commercial or large developmental projects will also be delimited through this review of legislation.

PRIVATISATION VIA DEREGULARISATION

By not specifying how the ownership and right of access shall be established over these resources, the policy in fact states that deregularisation is just another term for privatisation by encouraging environmental investments which will be made by corporate houses since the resource-dependent poor people are not in a position to make such investments. For example, the policy makes claims about the rationalisation of Coastal Regularisation Zone notifications. It specially talks of decentralising “the clearance of specific projects to State Environmental Authorities, exempting activities which do not cause significant environmental impacts....” This formulation is clearly detrimental to the livelihood of fisherfolk and can easily lead to the destruction of the coastal ecology. Yet again it fails to outline the inalienable rights of the fisherfolk or a mechanisms by which these rights can be settled. The impression given is that the market forces will necessitate multi-stakeholder partnerships through which rights will be settled once again, leaving the people to the mercy of corporate shipping and fishing companies. The recent protests by grassroots movements on changes in the CRZ rules and the post-tsunami experience of the coastal areas has shown that the influx of private capital in the development of coastal areas has only destroyed the livelihood of local fishermen and small farmers.

The improvement of people’s access to resources cannot be done only through the grant of “traditional entitlements” and “community based management.” It needs to have co-evolved structures for promotion and regulation to be in a position to protect the knowledge of local people and develop that knowledge in a way that the local communities can get the maximum benefit out of it. This would be possible only if the policy makes explicit affirmative proposals for the development of ‘marginalised people friendly’ mechanisms of project evaluation, benefit sharing and decentralisation of natural resource management. Such types of proposals are missing from the document. For example, the document talks of universalisation of joint forest management (JFM). But it is quite well known that even in those areas where JFM is already in practice the forest dependent people have been gradually marginalised on account of the lack of co-evolved institutional structures for the promotion and regulation of markets in non-timber forest produce trade. The revised policy, too, does not take this into account and ignores the ground reality on the implementation of PESA laws whose spirit has been consistently violated by both central and state governments. Further, even though it attempts to talk of devolution of powers to Van Panchayats and other customary institutions, it ignores the processes by which their authority is being continuously eroded in the wake of economic reforms.

The draft NEP had reiterated the age-old principle of “non-regularisation” of encroachments in the post-1980 period. This has been deleted in the revised policy, especially in the wake of the heated debate over the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Bill 2006. But like the draft NEP, the revised policy also forcefully argues for the rationalising of EIA principles and solving the problems of delays in clearances. The policy document fails to make a clear commitment towards the making EIA statements open and public and subject evaluation and contestation by affected parties and supports the changes brought about by the Draft EIA Rules 2005. The democratisation of decision-making structures and expertise demands that all stakeholders have the equal opportunity to evaluate the impact of the project on their livelihood security and environmental futures. Further, all major development and industrial projects should have the prior informed consent of the affected parties and should make public their benefit sharing plans and agreements. At another level it should also be mandatory to provide information to local committees and bodies, and hold public hearings at periodic intervals.

It is significant that NEP limits itself largely to creation of market friendly regulatory regimes to facilitate the introduction of private players in natural resource management. It does not pay sufficient attention to the creation of knowledge, expertise, technology and infrastructure for the development and diffusion of environment friendly innovations. For example, while outlining the scope of institutional changes needed at the cross-sectoral level in the section on strategies and actions, it fails to acknowledge the need to fill the gaps in respect of the development of critical S&T infrastructure. This infrastructure is required to undertake the generation of scientific expertise for environmental monitoring, enforcement, development and diffusion of technologies needed for the sustainable development.

NO SYSTEMIC APPROACH TO POLICY INTERVENTIONS

The policy interventions outlined in the document are informed by an extremely narrow approach to regulatory reforms. Its propositions are mostly focused on the problems of transaction costs arising out of the state regulation. The remedies it proposes lie essentially in the shift to the use of soft civil law, fiscal instruments and use of economic principles in economic decision-making. The revised policy talks of capacity building for the implementation of environmental management principles, but the marginalised groups are not an explicit target of the efforts to be made by the government. The policy document is completely oblivious of the obvious fact that environmental transformation is not an activity performed in isolation but one which involves a variety of actions within the system, of which the business groups and communities involved in the process of change forms part. Business groups and communities not only need instruments that focus on individual organisations (e g financial instruments), but also instruments that focus on making interventions at the systemic level.

The NEP totally ignores this systemic aspect of the management of environmental change; it fails to recognise that the processes of environmental change ask for (more attention for) system level policy instruments. These instruments are particularly needed to support systemic change management functions relating to the interface management, building and organising of environmental innovation systems. They also need to provide a platform for learning and experimenting; infrastructure for strategic intelligence and stimulating demand articulation; strategy and vision development for the specific processes of appropriate technological and institutional change. Even a cursory look at the strategies and actions with regard to different sectors makes it clear that the policy document does not envisage the use of such system-level instruments. It is beyond our imagination as to how is it even possible for the policymakers to conceive that India would be able to make a transition to ecologically and socially sound path of development without deploying such kinds of system-level instruments.

In case of India, the instruments of interface management are particularly important to bring about the convergence and better management of linkages. Interfaces involving diverse institutions and actors with varying interests (which may be often conflicting in nature) would need suitable coordination and dispute management to ensure that the disadvantaged sections do not suffer at the hands of powerful resource consuming actors. The NEP has little to say about how to evolve a mechanism for solving deadlocks, conflicts and holding of broad-based negotiations. The market cannot fulfil this function and this is an essential role of the state in the larger public interest.

PARLIAMENT MUST SCRUTINISE NEP

The NEP totally ignores the need to provide an infrastructure for strategic intelligence suited to solving the complex environmental needs and problems of a variety of sectors and different segments of people. This means the state should be responsible for the creation of mechanisms of technology assessment, foresight, evaluation and benchmarking and stimulating demand articulation, strategy and vision development for the specific processes of appropriate technological and institutional change.

The NEP fails to emphasise on the need for the building and organising of systems for the development and dissemination of new practices of sustainable resource use for different sectors. The policy should create a flexible framework for providing different types of mechanisms for learning and experimentation by involving interested and affected groups and their associated people’s organisations (e g development of incubation and bridging organisations for sustainable resource use practices). At present, the NEP assumes that contractual obligations under public private partnerships, and multi-stakeholder agreements will take care of this aspect. It puts very little emphasis on the creation of user and bridging organisations amongst the poor to make use of existing state level R&D and technology delivery infrastructure. Even when it talks of promotion of R&D, it does not explicitly identify the problems facing the poor in respect of environmental management as a priority area. Coming to the issue of proposed periodic review for policy updating, in the consultations to be taken up every three years with groups of diverse stakeholders, the NEP is able to think of participation from only researchers and experts, community based organisations, industry associations and voluntary organisations. There is no place for the participation of trade unions and mass organisations in the proposed consultations for the policy review. In fact, their participation should be made a cornerstone of the implementation process at all levels if the government is serious about the implementation of national environmental policy.

The analysis above shows that the revised NEP only furthers the neo-liberal agenda of the Indian government. Therefore we believe that a committee of the Indian parliament should be set up to deliberate on and further revise the NEP 2006 and its members should ensure that the nation does get an environmental policy which facilitates an effective transition towards an ecologically and socially just path of development at all the levels.