NEW DELHI: By slapping a Rs 200-crore penalty on the Adani Group for environmental violations, the ministry of environment and forests may be breaking its own laws, say environmental lawyers.
According to Delhi-based environmental lawyer Ritwick Dutta, the two laws that define the penal framework for such violations — the Environment Protection Act (EPA) and the Environment Impact Assessment (EIA) — don't give the ministry the powers to levy a fine. "They empower the ministry to start criminal prosecution in a court and to cancel an environmental clearance," he says. "There is nothing in the laws giving the ministry any power to levy such a penalty."
An email questionnaire sent on September 14 to environment minister Jayanthi Natarajan remained unanswered till the time of going to press. But the idea of replacing criminal action with a fine in environmental governance — an idea that has irked several environmentalists, who feel this promotes a culture of non-compliance — came from a committee set up by the ministry.
This committee, headed by environmentalist Sunita Narain, was set up in September 2012 to investigate persistent complaints of environmental violations by Mundra Ports and SEZ, an Adani group company, in Gujarat. In its report submitted this April, it listed environmental violations and considered both legal proceedings and cancellation of clearances, but finally decided against them as they are "procedural, and would only lead to delay without any gains to the environment and the people".
"The committee is cognizant of the fact that large-scale development has already been undertaken and it is not possible or prudent at this stage to halt or cease its operations," it said in its report.
"Therefore, the committee has decided to recommend a different course of action, which is both intended to be an effective deterrent and also suggests the way for future remedial action to improve the environment."
Dutta is critical of such reading of the law. "If the law has prescribed a particular way to address a situation, then that is what has to be followed," he says, adding that if the ministry wants to try alternative approaches, it has to first amend the law. Adds anti-dam activist Himanshu Thakar: "Other companies can now do the same thing, and get off by paying a fine if they get caught."
The Sunita Narain Committee recommended, among other things, that the company set up an 'environment restoration fund', with a corpus of 1% of the project cost or Rs 200 crore, whichever is higher. On September 3, a ministry official confirmed the Rs 200-crore penalty and added that other action might follow.
However, the ministry is yet to issue a formal notification. "We have not received any communication (from the ministry) on the said subject as of date," Devendra Amin, spokesperson, senior vice-president (corporate communication), Adani Group, replied to an ET questionnaire on the issue.
The report does not explain how this Rs 200-crore figure was arrived at. In response to questions on how this figure was arrived at and why the committee overrode the laws, Narain emailed: "Your main question is about the penalty and that has been explained in the report. I would suggest that you could use the report and the explanations given there in your article." The report says: "...it is practically difficult to assign tangible and intangible costs to non-compliance and violations. However, the inability to quantify these costs should not deter us from setting precedence for the future."
According to Anand Yagnik, a lawyer in the Ahmedabad High Court who is fighting a case on Adani SEZ's lack of environmental clearance, any number has to be backed by a rationale to be credible. "It has to have a logical relationship between the damage and how to undo the damage," he says. "This report is completely bogus as it doesn't indicate a line of its own rationality."
"If the damage is done, remediation is the only sensible option," says Shyam Divan, a Supreme Court lawyer and co-author of 'Environmental Law and Policy in India'. "If the project has moved ahead considerably and if thirdparty rights have been created, then all you can do is hope for a deterrent outcome."
According to the committee's report, the violations were committed over a long period, beginning from the port's construction in the nineties. In 2012-13, Mundra Ports and
SEZ posted a net profit of Rs 1,754 crore — about nine times the fine recommended by the committee and that levied by the ministry.
Yagnik says India needs a credible policy to ensure deterrence instead of leaving it to ad-hoc committees. While the courts and the National Green Tribunal can levy financial penalties, the ministry does not have statutory powers to do so.
The Environment Protection Act (EPA), which sets standards for the quality of the environment, prescribes criminal proceedings and imprisonment up to five years, besides a nominal fine of up to Rs 1 lakh, for people who were "directly in charge of" the company at the time of the violations.
The Environment Impact Assessment (EIA), which lays down the environmental clearance process that companies have to follow, says that "deliberate concealment and/or submission of false or misleading information or data...shall make the application liable for rejection, and cancellation of prior environmental clearance granted on that basis."
Source : economictimes.indiatimes.com