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Environmental Regulations: Policy, Issues and Options Paritosh Tyagi NC2E, University of Pune Pune, 21-22 February 2014
Environmental Regulations: Policy, Issues and Options
Paritosh Tyagi NC2E, University of Pune
Pune, 21-22 February 2014
Ancient Prayer
May the breeze blow sweet and pleasant
May the rivers flow sweet and pleasant
May the dust of earth be sweet and pleasant
May the sun be sweet and pleasant
May the upper regions, our Father, be sweet and pleasant
Rigveda 1.90
Old Prescriptions
• Planting trees
• Keeping rivers clean
• Treating fire as purifier
• Taking cow’s milk but not her meat
• Advocating austerity: conservation of natural resources
• Perceiving the manifestation of God in mountains, rivers, trees and animals
How the change occurred
• Cultivation
• Habitation: hamlet-village-town-city
• Urbanisation culminating in metro
• Mining and industrialisation
• Traffic and automobile exhausts
• Growth of consumerism and wastage
• Improvement in standard of living along with degradation in quality of life
Legal sources
• Constitution of India
• Policies of Central and State Governments
• Acts of Parliament and State Legislature
• Notifications by Central or State Government or competent authorities – Rules
– Regulations
– Bye-laws
• Judgements of the Supreme Court or the High Courts
Too many laws!
• More than 200 laws have reference of environment or its component, e.g. water
• Oldest is perhaps the Indian Penal Code of 1860 prohibiting public nuisance
• Other laws are on rivers, forests, factories, etc.
• Legislation on environment started after the UN Conference on Human Environment in 1972
• Article 48-A (Directive Principles) and 51-A (Fundamental duties) relate to environment
Specific laws relevant to environment
• Factories Act, 1948 • Ancient Monuments & Archaeological Sites and Remains
Act, 1958 • Wildlife (Protection) Act, 1972 • Water (Prevention & Control of Pollution) Act, 1974 • Water ( -ditto- ) Cess Act, 1977 • Forest (Conservation) Act, 1980 • Air (Prevention and Control of Pollution) Act, 1981 • Environment Protection Act, 1986 • Motor Vehicles Act, (amended)1988 • Public Liability Insurance Act, 1991 • Biodiversity Act, 2002
Important Notifications under the Environment (Protection) Act
• Hazardous Wastes (Management & Handling) Rules, 1989
• Manufacture, Storage and Import of Hazardous Chemical Rules, 1989
• Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms Genetically Engineered Organisms or Cells Rules, 1989
• Notification on Coastal Regulation Zones, 1991
• Environmental Statement Notification, 1992
• EIA Notification, 1994 (superceded in 2006)
• Constitution of Water Quality Assessment Authority, 2001
• Environmental Clearance Notification, 2006
Significant Court Orders • Strict liability of the occupier and industry for
discharging toxic and hazardous wastes (Shriram Food and Fertiliser Industries, Delhi), 1986
• Local bodies and industries are equally responsible (Cleaning Ganga of pollution), 1988
• The right to life is possible to be exercised in an environment of quality (industries in residential area in Bangalore, Karnataka), 1992
• Rehabilitation of project-affected persons (thermal power project of NTPC at Mirzapur, U.P.), 1992
Balanced view of the Court
• The needs of environment’s protection should be balanced with the needs of the community. (thermal power station at Thane, Maharashtra)
• Writ jurisdiction is not meant to defeat exercises undertaken by government for public benefit. (Konkan Railway Project, Goa)
• Course of justice is not to be obstructed or polluted by unscrupulous litigants (Coal Washeries near Bokaro river, Bihar)
Weaknesses in environmental regulations
• No summary trial; long period from prosecution to conviction; several levels of appeal
• Direction to close down or disconnection of services is thwarted by stay order
• Burden of litigation is too heavy financially and institutionally on Pollution Control Boards
• Delay in granting consent can result in deemed consent (but every consent can be revoked)
• Several parallel streams for environmental management even within MoEF
• Lack of integration among rules, eg, solid wastes
Hurdles in Enforcement
• Every default is equally severe; pollution potential or environmental damage is not related to penalties
• Proof of offence is hard to establish.
• Court proceedings get unduly delayed.
• Multiplicity of laws, regulating authorities and quasi-judicial bodies is confusing.
• There is no integration in environmental laws.
• Market instruments are inapplicable to criminal law.
• Environmental law does not emphasise preventive aspects of pollution control.
• Political intervention is, at times, obstructive.
Institutions involved
• Central and State Pollution Control Boards • Chief Inspector of Factories • State Transport Department • Coast Guards • District Administration • Central and State Governments • Specific Purpose Committees • Local Bodies (Gram Panchayat to Municipal Corporation) • NGOs / CBOs / Petitioners / Public
Measures taken
• Attempted to create a unified legislation for environmental matters could not succeed.
• Prosecution of local bodies brought no results.
• Functions of a State Pollution Control Board were transferred from the Central Pollution Control Board to Pollution Control Committees in Union Territories: how effective has this been?
• Rules on waste management have been issued in compartments; integration is missing.
Basic flaws
• Environmental regulations lay emphasis on control, not on prevention and abatement.
• Entire regulatory functions are concerned with the project stage, which comes much later after the stages for policy and programmes.
• SPCB finds it difficult to deal with pollution caused by State enterprises and almost helpless before ULBs
• Environmental concerns are addressed at a very late stage in the planning and implementation of a project
• Environmental Clearance procedure virtually ends at clearance.
• Training and research have not received due attention.
New Trends in Environmental Laws
• National Environmental Policy, 2006, admits a role of Civil Law and Tort to some extent
• Role of Panchayat Raj Institutions is being considered • Standards to limit quantity of pollutants • Restraint on development that affects ecology • Life cycle analysis to determine acceptability • Attention on hazardous substances and wastes • Principle of abundant caution • Compensation for environmental damage • Remediation and renovation of soil and groundwater • RTI has helped environmental activism
Options for way forward • Pollution Control Industry • Environmental Audit as a management tool • Life cycle analysis • Development planning to be based on
– ecological footprint – carrying capacity – sustainability
• Internalisation of environmental concerns • Integration of development policies • Green Accounting • Social and Environmental Impact Assessment • Institutional reforms being considered: Environmental
Protection Authority; Regulatory Board; third party appraisal of EIA
