EXECUTIVE CAPTURE OF ENVIRONMENTAL INSTITUTIONS

This article is written by Vaishnavi Bisht of Gitarattan International Business School, Rohini, an intern under Legal Vidhiya

ABSTRACT

In this article the issue of executive capture will be discussed in the context of environmental governance framework in India and how the independence of the regulation is undermined. Despite having a strong environmental legislations and statutes, the nature and dependence of institutions like MoEFCC and Pollution Control Board on the executive do constitute weaknesses.

Based on the theory of regulatory capture proposed by Stigler, the article examines specific mechanisms of influence such as legislative dilution EIA Notification 2020 and the Forest Conservation (Amendment) Act 2023 long with the control of administrative appointments. It also examines the judiciary’s scope to counter the capture, which would specifically deal with the milestones of 2024-2025 judgments such as M.K. Ranjitsinh and Vanashakti, that widened the scope of Article 21 to cover climate rights by declaring the retrospective clearance unconstitutional.

In conclusion, this article states that although judicial intervention is essential, it is still reactive in nature. A proactive and independent environmental regulator and protection of its technical agencies from political meddling are essential for ensuring that the Public Trust Doctrine in India is not undermined. Otherwise, the policy of protecting the environment will remain just a policy and does not constitutional right.

KEYWORDS

Executive Capture, Environmental Institutions/Governance, Article 21, EIA 2020, Public Trust Doctrine, Ministry of Environment, Forest and Climate Change (MoEFCC), National Green Tribunal

INTRODUCTION

Environmental protection is paramount in modern welfare democratic nations, and it largely depends upon the effective functioning of specialized institutions that are assigned with the responsibility of regulating developmental activities along with safeguarding the ecosystem of their nation.

In India, environmental governance is carried out through a network of statutory bodies, non-supervisory authorities, expert panels and judicial institutions that are expected to operate autonomously, guided by scientific know-how, indigenous authorizations, and principles of sustainable development. These institutions play an important part in balancing profitable growth with environmental preservation, a balance that has become decreasingly fragile due to expeditious industrialization and structural expansion.

In the past few years, the issue of “executive capture” of environmental institutions has been flagged as a concern lately. Executive capture means that the regulatory and supervisory institutions are no longer independent players looking after the environmental concerns but are impacted or even influenced by the executive arm of the government. This might take place through intervention, appointment of authority, procedural changes and watering down of the regulatory framework to align with the importance given by the executive to issues related to either developmental needs or concerns other than principles for sustainability of the environment.

The capture of environmental institutions poses serious implications with regard to rule of law and environmental constitutionalism in India. This affects some of the tenets of environment law, which include the preventative principle, public trust doctrine, and the principle of intergenerational equity.  More importantly, it threatens the fundamental right to a clean and healthy environment, which has been established within the framework of Article 21 of the Indian Constitution by the Indian judiciary.

This article attempts to explore the concept of executive capture within the environmental governance framework in India. It analyses the structure and functioning of crucial environmental institutions and the mechanisms through which administrative influence is exercised and role of judiciary in responding to such developments. By critically evaluating recent trends and judicial precedents, the article tries to bring out the implications of executive capture and suggests thereby the need for institutional safeguards for transparency, accountability, and environmental justice.

CAPTURE THEORY AND EXECUTIVE CONTROL OVER ENVIRONMENTAL INSTITUTION  

The concept of regulatory capture is famously linked to the economic theory of regulation proposed by George J. Stigler. The economic theory of regulation questioned the public interest approach to the governance of regulation. The argument here is that regulation is often ‘acquired’ by the industries that it is meant to regulate, ensuring that the regulation is carried out in the interests of the former and not in the common interest.

Where Stigler’s analysis focused on industry driven capture, its logic extends, particularly in the case of environmental governance, to executive capture. In other words, environmental institutions regulate such sectors as mining, infrastructure, energy and industry all deeply intertwined with executive economic priorities. When the executive systematically influences environmental regulators through appointments, policy directions or procedural restructuring, regulation can be driven remarkably towards development-oriented goals and away from environmental protection, well within Stigler’s framework for capture.

Contemporary scholarship has sought to refine capture theory by offering a more precise definition. Capture might be described as either a process or an outcome wherein regulation, either on paper or in practice, is predictably and regularly diverted from serving the public interest to protecting the interests of the regulated, due to their will and actions.

In the environmental context, executive capture occurs indirectly. As executive becomes a channel through which certain interests influence regulatory policy. This gives a shift away from environmental protection as well as sustainability and health considerations that align with the concept of public interest.

In order to establish capture, three evidentiary elements are needed. Firstly, there must be a defeasible model of environmental public interest based on constitutional mandates, statutory objectives and principles of environmental law such as the principle of sustainable development. The second requires proof of a persuasive policy or enforcement trend against that interest. Third, there must also be proof that environmental public interest has been affected and shaped through intentional and effective government action.

Capture also comes in degrees. It is strong where environmental regulation is compromised to such an extent that it no longer serves its protective function and thus may justify structural transformation. It is weak, when regulation delivers net public benefits but in a watered-down form because of executive influence. This distinction is essential since almost all failures of environmental governance reflect weak rather than total executive capture.

Now, that the theoretical basis for capture has been laid, it is important to examine how this landscape looks in India. The matters relating to environment in India have been governed by a large number of statutory and administrative bodies. However, this system provides a fertile breeding ground for capture by the executive.

Environment protection in India is embedded within a constitutional framework, which goes beyond the limits of statutory law. The 42nd Constitutional Amendment Act, 1976, inserted Articles 48A and 51A (g) into the Constitution, which constitute the Public Trust Doctrine together as a whole. The Public Trust Doctrine holds that the State is not the owner but a trustee for the people over Natural Resources. The capture of executive discretion happens when the trust duty is corrupted and the executive discretion is tilted to favour industrial and political purposes and not the “environmental public interest.”

The Ministry of Environment, Forest and Climate Change (MoEFCC) is the apex authority with wide disposition regarding Environmental Clearances. There are also statutory regulatory authorities such as Central Pollution Control Board (CPCB) and State Pollution Control Boards (SPCBs) established under the Water Act (1974) and Air Act (1981) and have been conferred with the enforcement capability.

These boards are structurally vulnerable despite their statutory powers on account of the fact that the executive branch retains almost complete control over the appointment of Chairpersons who are often career bureaucrats than scientific experts and their dependence on the executive for finance and technical manpower which leads to “planned incompetence.

Specialized agencies such as CAMPA (Compensatory Afforestation Fund Management and Planning Authority), which administers the compensatory fund, as well as the National Biodiversity Authority add to the centralization of control. Although the National Green Tribunal (NGT), serves as a strong judicial check, its effectiveness is in turn weakened because the control exercised by the executive on the infrastructure coupled with the strategic delay of judicial appointments The entire structure proves how executive control can result in weakening the autonomy of institutions that exist for protecting the public interest.

MECHANISMS OF EXECUTIVE CAPTURE IN INDIA

There is a definite set of administrative and legislative mechanisms through which the transition from institutional vulnerability to actual executive capture takes place. Such mechanisms work within a specific legal framework enabling the executive to weaken environmental protection laws while ensuring that the process is within a framework that is technically legal. In most cases, actual capture is achieved through legality and not illegality.

• Legislative Dilution and Procedural Recalibration

One of the key ways through which executive capture has assumed notable proportion has been the watering down of environment standards to align with industrial and infrastructure policies. Draft Environmental Impact Assessment (EIA) Notification, 2020 seeks to provide rules for the grant of post-facto environment clearances. In other words, the violations are legalized ex post. Shortening of the period for public consultation affects the environmental democratic principle of governance. In the same manner, the Forest Conservation (Amendment) Act, 2023 one could see the narrowing down of the definition of the word “forest”, excepting projects into certain categories namely linear infrastructure projects from harsh forest clearance norms.

• Administrative Control through Appointments and Strategic Neglect

The control of appointments by the executive is another vital area. The statutory regulators are slowly being staffed by career bureaucrats rather than hiring of independent technical talent. Such an approach undermines the expertise in the institution and instead maintains administrative harmoniousness with the administrative agenda. At the same time, the approach of control by neglect is encouraged in the context of the National Green Tribunal (NGT) by delaying the appointment of the members, ensuring that the functional capability of the Tribunal is impaired thus undermining its potential function as an active check on executive decision-making.

Together these mechanisms show how the executive capture actually happens through incremental legal or administrative changes. The institutions of the environment are not dismantled instead their performance is altered by the executive to keep it in line with economic agendas.

JUDICIAL RESPONSE TO EXECUTIVE CAPTURE

Although the executive branch of the Indian government has steadily moved towards making the environment an area of centralized governance through the dilution of regulatory powers or through administrative discretion, the courts in the Indian judicial system have proved to be the deciding factor when it comes to checking the capture of environmental institutions in the name of development. This check through judicial review takes the form of judicial intervention under the extension of Article 21.

• Conflict of Priorities: M.K. Ranjitsinh v. Union of India (2024)

This case signifies an vital development in environmental law in India. It concerns the conflict emerging between biodiversity conservation and renewable energy.

The central issue before the honourable supreme court was to find balance between two noble causes: preservation of critically endangered Great Indian Bustard (GIB) species and the encouragement of renewable energy projects required for tackling the problem of climate change.

The intent of the executive was to employ “Climate Change” as a shield to avoid protection of species.

The Supreme Court revisited its previous guidelines in view of the arguments presented by the respondents. The Court noted the importance of protecting the GIB as well as the need for India to comply with its global commitments on the increase in the use of renewable energy. The Court recognized the technical difficulties involved in the undergrounding of all power transmission wires in the identified areas.

Therefore, the court modified its previous decision by making the undergrounding obligation only in the priority areas where it is possible and installed bird diverters in other regions. The decision reinforced the well-balanced approach adopted by the court to accommodate the conservation of the environment and the sustainable development principles.

In the aftermath of the judgment pronounced in 2024, the recognition conferred by the Supreme Court to the right to be free from the adverse effects of climate change as an independent fundamental right has wide implications.

The recognition has opened all avenues for more intense environmental litigation and policy formulation with an emphasis on the duty of the State to alleviate the impact of climate change. The judgment has helped in drafting guidelines on infrastructural projects in such a way that the development processes take into account the aspects of protecting endangered species, such as the GIB.

• Striking Down “Post-Facto” Regularization: Vanashakti v. Union of India

One of the most notable direct judicial encounters with capture in environmental governance is that in Vanashakti v. Union of India. This case questioned the legality of “ex post facto” Environmental Clearances (ECs), that is, permissions given after a project had already started construction and/or operation, failing which it was obligatory to obtain prior clearance.

The modus operandi of retrospective regularization of environmental clearances came into being on the executive level. The Ministry of Environment and Forest and Climate Change (MoEF&CC) had issued a 2017 and a 2021 Office Memorandum that had allowed retrospective environmental clearances for which penalties had to be paid. The trend of violating environmental rules and gaining a retrospective remedy has actually reversed the precautionary approach to environmental regulation which is a fundamental part of Indian environmental jurisprudence.

In its 2025 judgment, the Supreme Court unambiguously struck down these executive instruments. The bench asserted that post-facto ECs are a “gross illegality” and an “anathema to environmental jurisprudence” because they substitute post-damage legitimisation in place of preventive assessment. Highlighting again that environmental clearance is a substantive guarantee, not a procedural requirement, the court prohibited any future notifications of retrospectively approving them.

However, the decision was subsequently overturned on appeal with a majority of 2:1. Justification for the reversal was offered in the light of concerns regarding proportionality, public loss of investment, as well as previous judicial precedents that had earlier allowed for the hindsight clearance in extraordinary situations. Even as the majority granted facilitation on a hindsight basis with harsh fines, the contrary cautioned against the erosion of environmental rule of law owing to non-compliance.

In the light of the idea of capture of executives, the Vanashakti case demonstrates the continued conflict between economic necessity and protective provisions for the environment. The original order was a robust attempt of the judiciary to uproot a systematised evasion by the executives, which was toned down in consonance with the pressures from economic development.

• Reclaiming the Public Trust: M.C. Mehta v. Kamal Nath

The Doctrine of Public Trust, as defined by the Supreme Court in the case of M.C. Mehta v. Kamal Nath, is one of the oldest and most significant judicial reactions to the problem of executive capture in the field of environmental governance in India. The case brought to light how the misuse of executive power might be used for the privatization of ecological commons in the name of administrative discretion.

The central issue of the conflict was the diversion of the forest area and the shifting of the Beas River’s route to enable a commercial venture, ‘Span Motels’, due to the Ministry of Environment and Forests’ permission. It is pertinent to note here that the permission was issued when it was discovered that the Union Minister of Environment had some personal tie with the firm concerned. Such a collaboration of authority and self-interest is the hallmark of executive capture.

The Supreme Court held that the ownership by the government did not vest any right with the executive to lease or manage any natural resource for any commercial purpose. The Supreme Court held that any such act by the government to transfer control over any such resource for purely commercial reasons without any ecological justification violates their constitutional obligation. The Supreme Court based its decision on the public trust doctrine and held that rivers, forests, skies, and land are held for and on behalf of citizens both present and future and the State is trustee and not a proprietor.

The Court struck down the ministerial approvals and lease deed instruments, ordered the restoration of the riverine ecosystem and awarded environment restitution costs following the principle of “Polluter Pays.” In this manner, the judicial system tore apart an example of the overreach of power exercised by any administration in disregarding its trusteeship for nature.

In the light of the theory of executive capture, the importance of the Kamal Nath Case judgment is that it marks a milestone in drawing a line on the extent to which the powers of the executive can be curbed by the judiciary in relation to environmental issues. The decision renders the protection of the environment a constitutional obligation rather than a policy judgment by virtue of Article 21.

In the overall framework of environmental governance, public trust doctrine helps to be a remedy against capture. It ensures that natural resources are not made a commodity by the state and that environmental bodies are made for serving public and long-term interests and not for enabling extractive industries in a state of forced developmental activities.

CONCLUSION AND THE WAY FORWARD

The capture of the environment institutions by the executive presents a challenge to the rule of law established within an environment related context within India’s framework. As it has been established within this article, capture does not simply occur through illegal means. It happens indirectly through other means such as restructuration, weakening, and concentration of power within the executive arm of the government. When institutions such as MoEFCC and Pollution Control Boards find themselves aligned to support industries relative to environmental safeguards, then the constitutional right to a healthy environment, as rooted within Article 21 is undermined.

The Indian judicial system has always provided a strong check on the violation of executive power. This is visible in the case of M.K. Ranjitsinh v. Union of India in 2024, as well as Vanashakti v. Union of India, which demonstrates the readiness of the judicial system in our country to enforce the need to comply with the Indian Constitution which provides strong guidelines on environmental conservation. However, judicial interference is always after the negative harm/effects have been experienced or regulatory failure has become apparent.

Moreover, judicial advances are often offset by government actions through new notifications or amendments to legislation, for instance, through the Forest Conservation (Amendment) Act, 2023. In this manner, to exclusively depend on judicial systems to offset this capture through the judiciary is to burden constitutional adjudication excessively and potentially normalize “governance through litigation.”

Recommendations for Institutional Reform

Dealing with executive capture requires structural changes initiatives geared at independence.

Independent Environmental Regulator: In line with the Supreme Court’s long-held mandate issued through its decision in Lafarge Umiam Mining (P) Ltd. v. Union of India that there is a need for independent regulatory bodies that will oversee India’s environment. This regulatory body will not be controlled by ministers and will require expertise and secure tenures.

Strengthening the National Green Tribunal: The NGT will remain effective only when there is proper timing in appointments. The presence of vacancies in judicial and expert members will make this tribunal ineffective. “A starved NGT will fail in its mandate as a specialized environment watchdog.”

India’s environmental protection policy has progressed from being a discretion policy to a matter of constitutional obligation. The judicial recognition of the “right to be free from the adverse effects of climate change” in 2024 translates to a major extension of the scope of Article 21. Constitutional rights have very little meaning if they are not accompanied by strong institutions. Protection from any form of executive capture is essential in safeguarding both Public Trust Doctrine and upholding environmental policy for public good rather than special interests.

REFERENCES

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