Independent Environmental Regulator--The Transformation India Needs in Environmental Governance

If we look back fifty years to the Stockholm Conference on Human Environment, one of the key principles the states agreed on was Principle 17, which states, “appropriate national institutions must be entrusted with the task of planning, managing or controlling the environmental resources of States with a view to enhancing environmental quality.” This principle can be interpreted to require the creation of an independent environmental regulator at the national level for environmental regulations and governance. In 2011, the Honorable Supreme Court in deciding Lafarge Umiam Mining Private Ltd. v. The Union of India directed the Union Government to set up a national regulator to appraise projects, enforce environmental conditions for approvals, and impose penalties on polluters in accordance with section 3(3) of the Environment (Protection) Act, 1986. The court further highlighted the distinction between an environmental court or tribunal and a regulatory body with the latter serving as a proactive institution with the power conferred upon it to frame statutory rules and regulations. Post-judgment, the Environment Ministry agreed to the court’s order to set up an independent regulator. However, eleven years after this judgment, there is no independent environmental regulator in India. In the past couple of years, the country has witnessed several changes to the environmental regulations, particularly regarding clearance mechanisms, with the government advocating for the “ease of doing business.” Several concerns have been raised about these changes, especially on the issues of impact assessment, inadequate public consultation, lack of transparency and credibility in the mechanism, and the non-existence of a proper post-clearance mechanism. These concerns further illustrate the need for an independent environmental regulator. This Essay is an attempt to advocate for the need for an independent environmental regulator in India by making comparisons to other similar institutions globally and outlining its primary functions and responsibilities. The aim of this piece is to improve environmental governance in India.