Engaging the public to improve environmental compliance

For the people of Sundargarh in Odisha, the New Year had a different ring. They were preparing to participate in an environmental public hearing organised by the government. The public hearing is a legal requirement under the approval procedures for the expansion of an existing coal mine. A small group of people, already affected by the ongoing mine operations, spent months prior to the hearing, doing detailed surveys and collecting visible evidence of non-compliance of safeguards listed in the operational mine’s approval letter. At the hearing on January 10, they presented their findings in the form of a report. It is a carefully assembled dossier of violations that have caused dust pollution, water contamination and fires in the mine’s overburden dumps and have made life for the people around the mine a nightmare. Their presentation makes it clear that not only are these actions harming them, but the mine operations are unlawful.

Taking environmental non-compliance seriously: Compliance has come a long way in the system of environmental regulation. It used to be an issue tucked away at the very end of laws that grant approvals to projects, their use of water, forests and other natural resources. Today, the state of environmental compliance of government-approved high investment projects has gained attention of the public, the judiciary and institutions such as the CAG. Statistics generated by these sources reveal high levels of non-compliance and their staggering implications on communities living around these projects as well as the environment as a whole. Under pressure, successive governments have taken slow and awkward steps towards amending this situation. After all, without compliance to legal provisions, development can be rendered an illegal process. Also, any efforts to intensity development through project expansions or approving new projects could be met with total opposition and endless litigation.

In 2012, the Environment Ministry issued a circular stating that data on compliance be included for appraisal by expert committees who review approval proposals for project expansion. However, this did not have any positive effect on the approvals because the data arrived too late in the process of decision-making.

In September 2017, the ministry made it mandatory for compliance reports to be scrutinised well in advance, that is, prior to the issuing of a Terms of Reference for conducting Environment Impact Assessments (EIA). This process is now meant to act as a filter against violating projects.

Need for meaningful data through monitoring: While the attention to compliance in the approval-granting procedures is a necessary first step, it can hardly achieve good results on its own. A big issue in the compliance enforcement system is the government’s near-total inability to be everywhere these projects are and gather meaningful data on the ongoing performance of projects. When the ministry’s expert committee reviewed a coal mining expansion project in Chhattisgarh in January 2017, the government’s monitoring reports had no data on non-compliance. As in the case of the project in Odisha, it was the evidence collected by affected people and researchers that showed the accurate picture. This relevant information made it possible to stay the expansion till the illegalities are addressed.

Since 2009 several studies have established that environmental regulatory institutions are simply incapable of monitoring the over 15000 centrally-approved projects. The Pollution Control Boards or the Groundwater Authority have been open about their lack of capacity to undertake checks as well as political interference in their work. On the other hand, the fear of the return of the corrupt “inspector raj” looms over project developers. The “third party”, or the affected communities who experience the effects of non-compliance such as loss of livelihoods, poor living conditions and displacement are nowhere in the picture when monitoring is done. This means that though we may have finally designed a new system of compliance-based approvals, we have no creative ways to monitor and gather useful data on the compliance of projects.

Models of engagement: To overcome this massive problem and effectively improve the levels of compliance by operating projects, environmental institutions must adopt the public, especially affected people, as partners in regulation. They can no longer be considered ignorant, prejudiced or an adversary. The field of environmental monitoring and compliance can benefit a lot from models of participation to plan and conduct joint site visits, to acknowledge and use the data generated by affected people through community research projects. We would all benefit from annual public environmental audits of projects, much like the successful social audits of government schemes. These steps will help to generate meaningful data for use by the environmental regulators. They also give affected communities a real chance at shaping developmental outcomes and their neighbourhoods.

The authors are with the CPR-Namati Environment Justice Program