ENVIRONMENTAL GOVERNANCE IN INDIA

Presented by Salik Shafique

ENVIRO LEGAL DEFENCE FIRM, New Delhi

May 2016

WHAT IS ENVIRONMENTAL GOVERNANCE? Environmental Governance is the means by which

society determines and acts on goals and priorities related to the management of natural resources. This includes the rules, both formal and informal, that govern human behaviour in decision-making processes as well as the decisions themselves.

What includes environmental governance? Norms- EIA, carrying capacity, permission, monitoring Institutions- structure & legality Process

What is good environmental governance? Information – data collection, access, voluntary

disclosures Participation- commenting Justice

KEY PRINCIPLES FOR ENVIRONMENTAL GOVERNANCE Sustainable Development Precautionary Principle Polluter pays Principle Integrated natural resource management Decentralized Governance Gender and Equity Policy and Policy Measures as a continuous

Process Respecting traditional community practices

EVOLUTION OF ENVIRONMENT IN GOVERNANCE

3rd Century BC- Ashokan edicts talked about which species of birds to be protected

Elephant Killing in the 1870s could result in severe penalty!

Concept of “aranya” or “abhyaranya” is old Deo bani, kankar bani ( Rajasthan) , sacred groves

( south India) , lyndoh forests ( meghalaya), sarna ( Jharkhand) .....enough examples of traditional environmental governance

Mythology and environmental governance is another common factor in south asia

• Kurma awatar; relationship of knowledge tree

EVOLUTION OF ENVIRONMENT IN GOVERNANCE

Indian Forest Act 1865, 1878, 1927- Use Elephant Preservation Act, 1878- Preservation Wild Birds and Animals Act, 1912- protection Government of India Act, 1935- conservation Wildlife Protection Act, 1972- protection Water Act, 1974- regulating pollution Water Cess Act, 1977- fiscal measures Forest Conservation Act, 1980- conservation Air Act, 1981- prevention of pollution EnvironmentProtectionAct,1986-protection • CRZ,1991,EIA,1994;(regulationsandrestrictions) Public Liability Insurance Act, 1991 ( liability) Provisions of Panchayats ( Extension to Scheduled Areas) Act, 1996

( decentralised governance) Biodiversity Act, 2002 ( conservation and sustainable use and benefit

sharing) Forest Rights Act, 2006- securing rights, undoing historical injustice

REGULATORY REGIME UNDER THE LAW Consent to Establish & Operate Environment Clearance Forest Clearance NBWL Clearance CGWA Permission CRZ/IRZ Clearance NGRBA Permission ESA Regulations i.e TTZ, Aravali etc Authorization under EPA Rules – 14+1

EVOLUTION OF ENVIRONMENT IN GOVERNANCE- JUDICIAL INTERVENTION & PRINCIPLE

Polluter Pay Principle-Indian Council for Enviro-Legal Action v. Union of India (H-Acid Case), (1996) 3 SCC 212.

Precautionary Principle-Vellore Citizen’s Welfare Forum (1996) 5 SCC 647

Public Trust Doctrine- M.C. Mehta v. Kamal Nath and Others (1997) 1 SCC 388

Right to Life under Art 21 includes of enjoyment of pollution-free water and air for full enjoyment of life- Subash Kumar vs. State of Bihar AIR 1991 SC 420

CONTD… Absolute Liability – M.C Mehta versus Union

of India AIR 1987 SC 1086 Sustainable Development – M.C Mehta versus

Union of India & Ors 1988 SCR 279 Financial inability cannot be excuse for

protection of Public Health and Environment – Municipal Corporation Ratlam versus Vardichand & Ors

Administrative and Judcial Structure to Protect

Environment

TYPES OF INSTITUTIONS PROTECTING ENVIRONMENT

Statutory Regulatory Recommendatory Advisory Court initiatedTribunal- NGTParticipatoryCustomaryInternational Institutions Induced

STATUTORY AUTHORITIES; BOARDS, COMMITTEES

PCB- EPA- Regulatory SPCBs- Water Act- Regulatory PCCs- Regulatory Appellate Authority under Air Act Appellate Authority under Water Act Committee of Infrastructure-EIA Notification-EPA-

Decision making-Scientific Body SEIAA-EIA-EPA- Regulatory /Decision Making DEIAA

STATUTORY AUTHORITIES; BOARDS, COMMITTEES

Statutory ( Cont’d) • NBWL-WLPA- Highest Decision making/

Recommending • STANDING COMMMITTEE- Decision making-

regulatory/Recommending • SBWL-WLPA- Recommending • ADVISORY COMMITTEE-WLPA – Advisory • NBA-BD Act- Regulatory/Decision Making • SBB- BD Act- Regulatory • Central Ground Water Authority- Act- Regulatory

STATUTORY AUTHORITIES; BOARDS, COMMITTEES

Statutory ( Cont’d) • NCZMA- Regulatory-EPA backed •

SCZMA- Regulatory-EPA backed • WCCB- WLPA• NTCA- WLPA

• CZA- WLPA • EPA induced Authorities for ESA

ENVIRONMENTAL ARENA COVEREDEntire gamut of environmental laws in India cover the following areas: Environment generally Air pollution Water pollution Forest conservation Wildlife, wildlife habitat; Wildlife crime Tiger and its habitat Ecologically sensitive areas Biodiversity Infrastructure development Coastal and part marine environment Groundwater

ADMINISTRATIVE

 WII  ICFRE  ZSI  BSI  IIFM  FRI  Elephant Task Force  Committee for Scheduling species  Regional Offices- FC and EC monitoring  Consultative Groups/Expert Groups/Expert Committees/Commission of Enquiries

INTERNATIONAL INSTRUMENTS INDUCED

CITES• Regional Authorities • Scientific Authorities

• ITTO focal point• Climate Change Cells including National

Council • Focal Points for International

Instruments such as CBD, UNFF, CMS

COURT INITIATED

Hon’ble Supreme Court of India

Hon’ble High CourtHon’ble National Green Tribunal

- SPV , Committees & Ad hoc bodies created by court

NOTABLE ORDERS OF HON’BLE SUPREME COURT Forest and Protected Areas -T.N Godavernman Thirumulpad v. Union of India

& Ors and CEL-WWF v. Union of India & Ors- The Forest Bench of the Supreme Court- Definition of Forest order dated 12.12.1996 - Constitution of Central Empowered Committee

wef 09.05.2002- Implication of order dated 13.11.2000 &

19.05.2002 in CEL-WWF v. UOI & Ors- Eco Sensitive Zone – 04.12.2006 in Goa

Foundation versus UOI & Ors- Re-Constitution of NBWL- C.B Singh v. UOI & Ors

Mining of Minerals - EC requirement for minor mineral less than 5 hectares

–Deepak Kumar Etc. v. State of Haryana (27.02.2012) Tourism in Protected Areas- Ban in tourism activities in core areas (Ajay Dubey

versus v. & Ors) - Preparation of eco tourism policy Ecologically Fragile Area/ Sensitive Area- Ban of Mining in Aravali Areas- Mining in Western Ghats- Aravali Notification - Taj Eco Sensitive Zone Notification ( Taj Trapezium

Tiger Conservation- The Navin Raheja Case- Approval of Central Zoo Authority- Joint Conservation Plan and Wildlife Strategy

of 2002 Construction of HEP’s-Ban on grant of EC and FC in the State of

Uttrakhand ( 13.08.2013)

Air Pollution- Shifting of Pollution Industries outside Delhi- Shift to CNG- Construction of Bypasses- Environment Cess on Commercial Vehicles- Augmentation of Public transport- Shift from BS IV to BS VI standards. Water Pollution - Dealing with issue of pollution by tanneries

and municipal waste- Constitution of CGWA

National Green Tribunal- Next

ROLE OF JUDICIARY: IS IT HELPING OVERCOME ENVIRONMENT GOVERNANCE CHALLENGES

Perhaps not! A super active judiciary while on one hand seems very

welcome. However, it has its own flip sides in granting

environmental rights because in that over enthusiasm of judicial activism what

we have eroded is the spaces within the executive framework,

spaces which could have been much cheaper, more accessible, simpler and which could have been created in a place which is more accessible has not found its place.

Monitoring of orders of courts

PARTICIPATIVE ( STATUTORY OR OTHERWISE)

BMCs- u/BD Act• JFMCs- Resolutions /Statutes • EDCs- Administrative• PRIs- Constitutional• Con RMC under WLPA• Com RMC under WLPA• Committee under FRA• Watershed Committees• PIM

TIME TO REVISIT OUR ENVIRONMENTAL LAW FRAMEWORK

It needs to be contextual. State specific. More decentralized thus making laws in a district and

area specific manner, because one size fits all framework has not worked, is not working and will never work.

Respect for community rights Respect for community knowledge and the need for

modern knowledge to be integrated with this knowledge.

Its time to revisit our modern instruments in light of the past traditions.

THE CONNECT

THANK YOU SO MUCH FOR THE PATIENCE!salik@eldfindia.com: +91-8527929297