Green tribunal directs environment ministry not to appoint inexperienced persons in expert panels

The appointments by the Union environment ministry to fill up posts in its experts' bodies are under the scanner of the National Green Tribunal (NGT). 

In a judgement delivered last week, the principal bench of NGT, chaired by Justice Swatanter Kumar, issued directions to the union Ministry of Environment and Forests and Climate Change (MoEFCC) regarding appointment of chairperson and members of the ministry's Expert Appraisal Committee (EAC), the central advisory body of the ministry for approving infrastructure development projects.

The tribunal said MoEF should not appoint experts as chairperson or members of EAC or the State Expert Appraisal Committees (SEACs) unless they have expertise and experience in matters relating to the environment.

The tribunal has asked the ministry to provide revised eligibility criteria and specific requirements for persons to be appointed as chairpersons of EAC and SEACs under provisions of the EIA Notification 2006. The ministry is to submit the revised criteria and specifications within a month.

The order came in response to an application by environmental organisations, which include Kalpavriksh and Goa Foundation, and Manoj Mishra, retired chief conservator of forests of Chhattisgarh. The petitioners had raised serious concerns regarding the criteria based on which the members and the chairpersons of EAC and SEACs are appointed.

The petition was transferred to the tribunal from Delhi High Court in April, 2013.

Holistic v managerial approach

According to the applicants, MoEFCC is the nodal agency for protecting the environment and conserving the natural resources of the country and has the mandate to undertake measures for prevention and control of pollution. Therefore, members of EAC should represent various areas of expertise pertaining to the environment and should also have understanding of social impacts of projects, to contribute to a “holistic decision making process”.

However, the ministry has been appointing persons not qualified for the job, say the applicants. The determining criteria followed to make such appointments following provisions of the EIA Notification, 2006, emphasises on managerial merits rather than environmental expertise. The applicants further indicated that such managerial focus as currently practised is actually a significant departure from older EIA notifications, particularly EIA Notification 1992, which outlined a more comprehensive consideration for selection of EAC chairperson (see box).

Such appointments by the ministry will prove extremely problematic given that these experts are the main persons who evaluate various environmental and social impacts of a proposed development activity to determine whether it can be given environmental clearance (EC).

In its order, the tribunal also added a note of caution, saying that “if people who are not strictly qualified and eligible in the field of environment are selected as members of EAC/SEAC, the obvious result would be improper application of mind”. The bench further added that it “would lead to improper consideration and disposal of application for clearance filed by the project proponent”.

Eligibility of chairperson of EAC/ SEAC under EIA notifications
	EIA Notification 1992	EIA Notification 1994	EIA Notification 2006
Eligibility criteria for chairperson	Outstanding and experienced ecologist or environmentalist or technical professional in the relevant development sector having demonstrated interest in environment conservation and sustainable development.	Outstanding and experienced ecologist or environmentalist or technical professional or person with wide managerial experience in the relevant development sector.	Outstanding and experienced environmental policy expert or expert in management or public administration with wide experience in the relevant development sector*.
*The union environment ministry, the respondent in the case, informed that the criteria as specified in the EIA Notification of 2006 has been modified through ministry notification of October, 2007. However it should be noted that the modified provision still retains the clause “public administration or management” expert, for selecting an EAC member

Question of jurisdiction

The Union environment ministry on its part has questioned the jurisdiction of NGT to decide on the matter. One of its central contentions is whether NGT has the jurisdiction to review the selection/appointment criteria for the chairperson and members of the EAC/SEAC as per provisions of the NGT Act, 2010.

As per Section 14(1) of the NGT Act, the tribunal has the jurisdiction over “all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved”, and such question arises from the implementation of the Environment Protection Act (1986), the Air Act (1981), the Water Act (1974), the Forest Conservation Act (1980) and so on.

The question raised was whether selection of expert members can be termed as substantial question relating to the environment.

Section 2(m) of the NGT Act, 2010, says “substantial question related to the environment” shall include an instance where there is a direct violation of a specific statutory environmental obligation by a person by which the community at large, besides an individual, is affected or likely to be affected; there is damage to public health; or the damage to the environment or property is substantial. Also environmental degradation arising from a specific activity or a point source of pollution also makes a matter a substantial question related to the environment.

The bench said that for a matter to be a “substantial question related to the environment”, it can have a direct relation to environment or even be enforcement of any legal right relating to environment. The members of EAC/SEAC play a significant role in effective implementation of environmental laws and regulations, because their understanding and subsequent decision about approval or rejection of a development project has significant bearing on the environment. Therefore, observations on the matter by the tribunal lie within the jurisdiction, the bench clarified.

Appointments on hold

The tribunal order has also put on hold any appointment of chairperson or members of the EAC/SEAC who do not have experience in the field of environment, until MoEFCC proposes the revised appointment criteria.
 

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