12 May 2004
Good Practices in Environmental
Regulation:
Several regulatory functions
are part of the mandate of the Ministry of Environment and Forests, e.g.
Environmental Clearance, Forestry Clearance, Coastal Zone Regulation, Genetic
Engineering Approval Committee, Animal Experimentation, etc.
While we are currently engaged
in re-engineering these regulatory procedures, some "Good Practices"
in regulatory procedures may be adopted even now, to remedy clearly perceived
problems with the regulatory procedures, as long as they are consistent with
the existing systems, and do not involve any amendments to the relevant
statutes or regulations. Some Good Practices that may be considered are as
follows:
1.
Scheduling
Meetings of the Regulatory/Expert Committees: A major irritant of regulates is the unpredictable
schedule of meetings of the Regulator/Expert Committees. This uncertainty about
when the applications of project risk.
To address this
problem, we may set up a standing time-table of meetings, (say) the 3rd
Wednesday of each month1[1]
at (say) 11.00 a.m. at (say) Rm 402 Paryavaran
Bhawan. At each meeting, all the listed cases would be taken up, if necessary
by continuing the meetings the following day(s). In
case the scheduled date is a public holiday, as a standing arrangement, the
meeting would be held the next working day. If the Chair is unable to
participate for whatever reason, the Vice Chair, or if there is none, a senior
member designated by the Chair, would Chair the meeting and exercise the powers
of the Chair.
The list of
applications to be considered must be available on the MoEFs
website at least 15 days prior to the scheduled meeting.
Minutes of each meeting
must be finalized within 5 working days of the close of the meeting, and
(relevant portions) communicated in writing to the applicants promptly (mailed
next working day). All final decisions of the Regulator/Expert Committee must
be put up on the MoEF website the next working day
after finalization of the minutes.
2.
Scheduling
Initial Consideration of Applications and Seeking Information: Another serious irritant of regulates, which greatly
adds to project risk, is uncertainly about when the applications would be
initially considered by the regulator/Expert Committee. Delays are pervasive,
and the reason usually is that additional information is sought by MoEF staff, usually in a piecemeal and sequential manner,
and till they are satisfied, the application is not put up for the
consideration of the Regulator/Expert Committee. However, when the matter is
eventually considered by the Regulator/Expert Committee, it may seek further
information, again piecemeal and sequentially (occasionally, it may find the
information furnished in response to queries of MoEF
staff deficient or unnecessary). The result is that applications remain under
consideration for years, and are not decided upon till long after all the other
regulatory requirements have been met, and after financial closure in case of
investment projects.
To address this problem,
we may adopt the following practices:
First, all applications
received in MoEF must be scheduled in the next
meeting of the Regulator/Expert Committee for initial consideration provided
that at least 30 days have elapsed from receipt in the MoEF.
Second, that while MoEF staff may review the applications and determine what
additional information may be necessary, the same must
be put up to the Regulator/Expert Committee at the initial consideration of the
application. The Regulator/Expert Committee will, if necessary, add to, delete,
or otherwise modify the suggested list of additional information presented by MoEF staff, and communicate the same to the applicant in
writing (as part of the minutes of the meeting, and if possible orally during
presentation of the proposal at the meeting of the Regulator/Expert Committee).
Third, no information
should be asked of the applicant which is not in the
public domain, except that which is specific to the proposal, and necessarily
available with the applicant. When information is required which is not in the
public domain, it will be the responsibility of the MoEF
to obtain the same within a period of 60 days of the initial consideration,
falling which the Regulator/Expert Committee will proceed to consider the case
without any presumption adverse to the applicant.
Fourth, the
Regulator/Expert Committee, or the MoEF must not at
any subsequent stage seek further information from the applicant. In case the
information furnished by the applicant in response to the request of the
Regulator/Expert Committee at initial consideration is considered
incomplete/incorrect, the Regulator/Expert Committee may take note of the fact
while reaching its conclusions.
Finally, all
applications received must be transmitted to each member of the Committee
promptly on receipt in MoEF, within 3 working days by
e-mail and hard copy. On receipt, the Chair should indicate if the
participation of co-opted members/panel experts is necessary, to the concerned MoEF staff, who should promptly
send these additional participants also a copy of the application by e-mail and
hard copy.
3.
Scheduling
subsequent consideration of the applications: On each occasion that an application is considered,
and some duty is cast on the applicant (including submission of information
communicated after initial consideration), s/he must
be informed of the same (orally during presentation, and in writing as part of
the minutes). Upon the applicant completing this duty,
and reporting the fact to the MoEF, the next
consideration of the application must be on the next meeting scheduled at least
30 days after reporting completion of the duty.
Any comments of MoEF staff on the report of compliance must be submitted
only to the Regulator/Expert Committee, which will decide how the comments may
be addressed.
4.
Acting
as watchdog for other Regulators: The current practice of holding up consideration of applicants till
other regulators have given clearance is potentially a "Catch-22"
situation for applicants. It is unnecessary (and presumptuous) of the MoEF or Regulator/Expert Committee to suppose that other
regulators need their oversight. Accordingly, neither MoEF
staff, nor the Regulator/Expert Committee may hold up consideration of
applicants while other regulators are undertaking their own due diligence. In
case the award of another regulator is materially relevant to the application,
the final decision of the Regulator/Expert Committee may caveat the requirement
of award by the other regulator, before the Regulator/Expert Committee's
decision can be acted upon by the applicant.
5.
Giving
opportunity to the applicant to present the proposal: Currently, it is not routine for the
Regulator/Expert Committee to give an opportunity to the applicant to present
the proposal in person. An important opportunity for seeking clarifications
from the applicant is thus not availed of, leading to protracted correspondence
and delayed disposal. Accordingly, on each occasion that an application is
before the Regulator/Expert Committee, an opportunity may be given to the
applicant to present the proposal and respond to queries. The Regulator/Expert
Committee may, of course, further discuss the application after the applicant
has withdrawn.
6.
Giving
Speaking Orders: Quite often,
while rejecting an application, the Regulator/Expert Committee does not furnish
reasons for the decision. This practice must be eschewed, and in all cases of
rejection, the precise reasons for the same must be given in sufficient detail
to enable the applicant, if s/he so wishes, to
represent meaningfully against the same.
Sometimes applications
are rejected solely on procedural grounds. Unless there are good reasons to
suppose that the application has deliberately not followed the prescribed
procedure in order to realize some unwarranted benefit, which must be recorded
in the grounds for rejection, applications should not be rejected on procedural
grounds alone.
[1] The actual frequency may be worked out in terms of the volume of applications received by the Regulator/Expert Committee.