I. Overall Comments:

1) The NEP is too wordy and often repetitive. It deals with the same subjects several times (e.g. forests, coastal areas, are repeatedly covered). Some issues are dealt with in general terms, some in detail and this has no reference to whether they are sub-topics or the main topic. (e.g. Land degradation should include soil pollution - the latter is one aspect of land degradation; but the NEP has separate and equal sections for each). One definitely gets the sense that MoEF is aware of the environmental problems facing this country. On the other hand, one does not get a clear sense of the direction or the course of action that MoEF plans to adopt. The language needs to be tightened, the issues need to be consolidated into broad categories with subsections and there should be more clarity in the directions and steps proposed to be taken.

2) The principles that are enunciated in the NEP are not followed to their logical conclusion and therefore the NEP stops short of giving the country's environment, particularly its vital and endangered aspects, the protection that it deserves. Take for e.g., 'entities with incomparable values'. Such entities are bound to be few and must therefore be protected at all costs. The NEP should list these entities or at least list the parameters to decide these entities. Thereafter the NEP must strive to protect these entities without any compromise. Yet the NEP allows even such entities to be sacrificed 'in national interest'. Why must environment always be sacrificed for national interest when protection of environment, especially the assets deemed to have incomparable value, is the national interest. Why must railways, airports, roads, nuclear plants have priority? If the assets are incomparable, it is in the national interest to protect them and the development activities must be relocated elsewhere. MoEF ought not to sacrifice the entities of incomparable values to other govt. departments. This should be the strength of the NEP.

3) The Preamble aspires to noble heights but the rest of the document is not consistent with those aspirations. Instead there is a constant balancing act attempted throughout, as the NEP tries to reconcile industrialisation, development and 'progress' with protection of the environment. The end result is a 'business as usual' policy. Why then go to all this trouble if there is going to be no change for the better for the environment? Call it a development policy instead.

4) The wisdom of past committees set up to examine environmental aspects does not seem to find adequate space in the NEP. MoEF has in the past set up several committees from time to time to study certain issues. These committees comprised experts, environmentalists and scientists who examined the issues at great length and arrived at certain findings. These findings should have been incorporated in the NEP rather than leaving these topics too to the MoEF bureaucrats to be redrafted.

5) The NEP appears to be more concerned with development rather than with the health and well-being of its citizens. The reason for protecting the environment and safeguarding environmental assets is because these have a direct bearing on the health and the well-being of the citizens of this country. Development is secondary. There is in fact no mention of health of the citizens anywhere in the NEP.

II. Preamble:

We consider the following 3 statements made in the preamble, central to the NEP:

1. Our understanding of the centrality of environmental concerns in development has sharpened (para. 2).
2. The NEP is intended to mainstream environmental concerns in all development activities (para. 5)
3. The NEP is intended to be a guide to action ….and to stimulate partnerships (of MoEF) with different stakeholders (para. 6).

These are laudable objectives, we appreciate them and we have examined the rest of the document in the light of these concerns i.e. does the NEP indicate that environmental concerns are central to developmental activities and, will there be a real partnership between the MoEF and one very vital stakeholder i.e. the people living in that area - a stakeholder whose wellbeing is totally dependent on the environment and who has nowhere else to go should that environment become degraded.
However, before we go into this aspect, we would like to make a few comments on the section on Principles.

III. Principles:

ii) The Right to Development: This principle should be deleted. At best it is meaningless because development is a given in any society. The challenge to the NEP is not whether or not there is a right to development, but how is the environment to be protected, given the fact that development makes all sorts of demands upon it (the environment). By emphasising right to development, the NEP gives a wrong impression. Besides, the so-called right to development is also enunciated in the next principle at No.iii.

iii) Environmental Protection is an integral part of the Development process: This principle needs to be taken a little further. It does not say what will have precedence in case of conflict between environment and development. This is the crux of the matter. In M.C. Mehta v/s. Union of India, the Apex Court has stated that "protection of environment has precedence over economic interests". Will the NEP now reject this?

iv) The Precautionary Approach: The principle as spelt out is rather weak. Nobody can object to cost effective measures to prevent environmental degradation. This is saying nothing new. Instead this principle should read as follows: Where there are credible threats of serious or irreversible damage to key environmental resources, every effort shall be made to halt the development plans / programmes for that area and the onus / burden of proof shall be on the developer to show that his actions are environmentally benign.

vi) Entities with Incomparable Values: The principle is well stated and is much appreciated. (It is most unfortunate that this principle, as explained above, is not followed to its logical conclusion).

xiii) Preventive Action: In the sentence 'It is preferable to prevent environmental damage from occurring in the first place' replace the word preferable with 'necessary'.

xiv) Environmental Offsetting: We are unable to follow what is sought to be achieved by this principle. It speaks of threatened or endangered species or natural systems which will be lost if protection to such systems is not given. Then it also talks of cost-effective offsetting measures to restore such species / natural systems which one has allowed to be lost to the public. How does one restore something which is lost? Like dinosaurs of yesterday, if they are gone, they are gone. There is no possibility of offsetting. This is an example of a wordy and unfocussed principle, whose end result is nil.

IV. Strategies & Actions:

We have examined this section carefully to see how it reflects the strong position taken in the preamble, namely, that environmental concerns are central to all development programmes and that the NEP seeks to stimulate partnership of MoEF with vital stakeholders.

First of all this section is very confusing partly because it is repetitive. It needs to be streamlined. We suggest that the strategies that are common to the protection of all environment assets be stated first, in a section titled 'Overall Strategies'. Thereafter, the NEP can cite specific action plans, if any, for specific ecosystems.

The Overall Strategies section could be set out as follows:

5.1 Regulatory reforms: This section to cover laws - new laws / amendments to existing laws
5.2 Process related reforms: This section to include approach, framework for action, methodology, use of economic principles in environment decision making etc.
5.3 Tools for effecting monitoring. This should contain the various practices that will be followed in order to ensure vigilance in monitoring compliance with the environment laws. Once the action plan is spelt out here it will avoid having to repeat it again when dealing with the different ecological assets. This section must give a clear picture of how MoEF intends to use the vast resources at its disposal viz. environment protection agencies, State Government departments, stakeholders who are concerned about protecting the environment, also judicial recourse to monitor compliance with environment laws.
5.4 Pollution abatement: To cover known areas of pollution - air, water, noise, garbage management, plastic waste etc.
5.5 Enhancing environmental assets. This section should paint broad strokes of strategies to strengthen key environment assets and enable their original characteristics to be restored, to the best extent possible. Key areas only need to be addressed.
The second section should deal with the specific areas. Here the NEP should take key aspects - e.g. forests, land degradation, coastal ecology, biodiversity, freshwater resources, mountain ecosystems, climate change etc. - and give a brief note on the main features, the main problems and any specific action plan not already covered in the general strategy.
The concluding section can deal with administrative matters like the review of policy, review of implementation, etc.

Critique:

The following is a critique of some aspects of the present Strategies and Actions section.

1. The NEP concentrates on how to streamline environment clearances and how to avoid delays when applications for permissions are made to the authorities. It says precious little about how it intends to pursue those who simply stay out of the loop and do not bother to seek environment clearance. A good example is the EIA Notification where hundreds of mining companies simply did not apply for environment clearance and the MoEF just did not bother at all.

2. The NEP focuses on the letter of the law rather than the spirit of the law. Many of the public hearings that are conducted are mere formalities and there is no officer who oversees how they are held, whether the reports reflect what actually transpired at the public hearings, and whether vested interests managed to sabotage the spirit of the public hearings.

3. In 'Revisiting the existing legislature framework' add the following:
(a) Amend the existing laws to incorporate the various principles laid down in the NEP.
(b) Add penalties for violation of EPA. For e.g. noise rules have no penalties at all; forest law says nothing about how to punish an individual who mows down a forest. Fines are not adequate punishment as some people have enough money to pay for everything. Deterrent action is required. Blacklisting of violators? Denial of future permissions for some period? It is necessary to be creative.
(c) Add provisions to ensure accountability of MoEF and State environment agency officers. At present MoEF officers are totally unaccountable. They may take action, they may not. There is nothing in the law which compels them to act in cases where environment laws are violated and there is scarcely an officer who is ever hauled up for not doing his job.
(d) Allocate finances for protection of the environment assets. It is meaningless to advocate that wild life protection areas should be enhanced if money is not set aside for protecting these areas. Presently, there is sometimes just an officer or two who has to monitor vast wild life areas and he can scarcely compete with the forces ranged against him.

4. We support the proposition that projects involving large scale diversion of prime agricultural lands need environment clearance.

5. The sections on land degradation and soil pollution should be combined.

6. In the section on forests, the NEP plans to enhance the forest from 23 to 33 percent. If this be the case, then there has to be a ban on any reduction from the present 23 percent quota, which means that no forest clearances should be given for diverting existing forests.

7. Re: Hazardous Wastes - the NEP concentrates on set up of secure landfills only. However both the Supreme Court and the Menon Committee have said that the first priority to eliminate and reduce hazardous wastes and go for land filling of only what is unavoidable.

8. Similarly in Plastics, the word recycle that is used is incorrect. It conveys the impression of renewal. The word to be used is down cycle because at some point one must recognize that one cannot reuse any further and therefore the NEP needs to have a policy to reduce the use of disposable plastics and the generation of plastic wastes, rather than allowing the production to carry on as before and then try to deal with the disposal of the plastic waste. Educate the public instead through the NEP on how the country is unable to cope with constant generation of plastic which is why disposable plastic items are ruinous for the environment. Have a time bound, phase-out programme (as was done for CFCs or CNGs).

9. The section on Noise Pollution needlessly tries to reopen the controversy rather than solve the problem. It is scientifically accepted that noise beyond certain decibels is hazardous to health. Where is the need therefore for opening a dialogue with the representatives of communities etc? Can it change this scientific fact? When the Supreme Court has held that noise standards have to be enforced, MoEF's energy should be spent on devising how to enforce and monitor rather than compromising the health of people. Suggesting a dialogue is meaningless and a step backwards.

10. Clean technology and innovation: The NEP's stand to move from cleaner technology to clean technology is appreciated.

11. The section on partnership and stakeholder involvement is absolutely disastrous for the vital stakeholders who are concerned about the quality of the environment chiefly because they have no where else to go. Industry, private sector projects, public sector programmes etc., all select areas of operation. If refused, they will go elsewhere. But the native public does not choose. They reside there. Hence they are primary stakeholders and must be recognized as such. It is their concerns which are vital and which must take precedence over the others. They must therefore have:

(a) Access to the proposed development plans as a matter of right. This must be stated in the statutes.
(b) Their views on whether approvals should be granted or not should be given due weightage. (It is for the project proponents to convince them of the advantages of having the project in that area).
(c) They must be actively involved in monitoring activity.
(d) NGOs need to be given a more significant role in the NEP rather than reducing them to merely environmental awareness raising. They should be involved in monitoring if they express interest in doing so. Evaluate the NGO's past performance / give new ones an opportunity on trial basis and make sure that they are accountable when they accept a specific job and that their reports are not at the behest of vested interests.
The NEP is sadly lacking in this aspect.

12. Review of Implementation: Lastly, why should a Cabinet Committee on Economic Affairs review the implementation of a National Environment Policy?

Ms. Norma Alvares
Legal Counsel for The Goa Foundation
10.3.2005