In the backdrop of several controversies in the recent past that have surrounded the inordinate delay in environmental clearances which have stalled several projects in India, the Supreme Court’s order on 6th January, 2014, in the case of T.N. Godavarman Thirumulpad Vs. the Union of India & Others came as a ray of hope to several projects awaiting environmental clearance and project proponents who have made immense investments in the same.

A bench of Justice S.S. Nijjar and Justice F.M.I. Kalifulla, while observing that the present mechanism under the EIA Notification dated 14.09.2006, issued by the government with regard to processing, appraisals and approval of the projects for environmental clearance is deficient in many respects, directed the Union of India to appoint a Regulator with its offices in as many states as possible. Furthermore, the Regulator shall be appointed under Section 3(3) of the Environment (Protection) Act, 1986, and can exercise only such powers and functions of the central government under the Environment (Protection) Act as are entrusted to it and obviously cannot exercise the powers of the central government under Section 2 of the Forest (Conservation) Act, 1980.

But while exercising such powers under the Environment (Protection) Act, the apex court stressed on the need of l ensuring that the National Forest Policy, 1988, is duly implemented in accordance with its order dated 06.07.2011 in the case of Lafarge Umiam Mining Private Limited.

Thus, though on the face of it, it seems that the concerns of delay and alleged bias faced by the project proponents shall be resolved by the constitution of the National Regulator at the centre with offices in as many states as possible, however the pertinent question in this regard is as to whether this step shall help achieve the desired results or not.

The concerns that have always surfaced regarding an Environmental Clearance have been wide and many. One of the primary concerns has been the ad-hoc basis on which clearances are granted and the scope of application of discretion that exist. Further, the lack of manpower in the green ministry at both the central and the statelevel have always caused undue delay in the constitution of the State Environment Impact Assessment Authority (hereinafter referred to as “SEIAA”) and the Expert Appraisal Committee (hereinafter referred to as “EAC”) at the state and the central level respectively which are entrusted with the appraisal of the proposals under the Environment Impact Assessment Notification dated 14.9.2006.

Also, the lack of the personnel to verify the facts and the figures as stated by the project proponents in the proposals have caused immense impediments in the grant of the clearances and environmental clearances, if granted on unauthenticated data as provided by project proponents have resulted in damages to ecological balance. Moreover, documents required in the process of EIA clearance like Terms of Clearance, minutes of public hearing, EIA report, self-monitoring reports have not been provided in public domain due to lack of institutional mechanism, thereby leading to ambiguity in the clearances and depriving the role of interested persons and communities in the process of environmental clearances.

Furthermore, there have also been several instances where at the behest of an error on the part of officials of the SEIAA or EAC, a clearance has been challenged. The intent of authorities in providing conditional environment clearances failed to reach its end result due to poor monitoring and enforcement of clearance conditions.

The inordinate delays in the grant of the environmental clearance have hindered the growth and the development of the nation to a considerable extent.

Thus, though the direction of the Supreme Court is aimed at easing out the process by having a National Regulator, in effect, it only substitutes the EAC and the SEIAA and nothing more. The intent of the courts in appointing the National Regulator that may arise out of the said order of the Supreme Court is the overlapping of the various authorities at that state level. It is amply clear from the order of the apexcourt is that the regulator “can exercise only such powers and functions of the Central Government under the Environment (Protection) Act as are entrusted to it.”

Thus, while the Supreme Court has explicitly stated that the Regulator shall exercise the powers of the central government as provided under the EIA Notification and shall have as many offices in different states as possible, it is silent on the powers and the role of the State Environment Impact Assessment Authority (“SEIAA”) shall continue to have pursuant to the same. Under the provisions of the EIA Notification, the SEIAA is entrusted with the responsibility of the appraisal of projects falling within the scope of Schedule ‘B’ of the same.

Thus, if the Regulator has offices at the state level, the scope and powers of the same shall overlap with that of the SEIAA leading to further chaos and confusion. Thus, in spite of the order, it is still unsure as to how the National Regulator shall resolve the existing issues.

The Supreme Court in its interpretation has entrusted the independent Regulator with the power of appraising projects, enforcing compliance of environmental conditions and to impose penalties on polluters, thereby bringing the Central Pollution Control Boards and State Pollution Control Boards under the purview of independent Regulator. But, it has been silent on functioning of the central and state Pollution Control Boards.

Though the independent Regulator has been entrusted with the task of observance of environmental compliances and imposing the penalties for the violation of environmental conditions, the same may come in conflict with the functions of central and state Pollution Control Boards and may result in overlapping of the said functions. Whether the accountability of central and state Pollution Boards may remain with the Ministry of Environmental and Forests or the independent Regulator is still very unclear and the court needs to draw light on the same.

The recommendation to set up an independent Regulator in area of environment and forests may be provided with adequate amount of technical manpower and infrastructure resources, supplemented with e-governance tools to achieve maximum efficiency and transparency in functions as performed by the regulator. Although, the licensing functions of the Ministry will be performed by the Regulator, but the role of the Ministry of Environment and Forests, apart from being a policy making body is unclear and ambiguous. The role and functions of the Regulator acting as an autonomous body may raise questions on its accountability

The Supreme Court has ordered for the formation of an independent Regulator, which may perform the functions of central government as stated under the Environment Protection Act, but in the said order, there is no clarity on the independent Regulator falling under Ministry of Environment and Forests and being accountable to Ministry for every action