Compliance and Pollution

Prevention ……Sustainability

Dr. Rakesh Kumar

Director

CSIR-NEERI

Issues of Standards and protocols

• Basic Fundamentals

– Health Impacts

– Measurable

– Cost effective

– Monitoring of like parameters

– Enforceable

• Clarity on The Development and Logic

– Why was this made

– Is it still needed

– If its not giving benefit, what else can be done

Since 1981- major events

• Bhopal gas tragedy 1984

• Creation of new ministry for environment 1985

• Environmental (protection) act 1986

• Environmental Impact Assessment

• Environmental Appellate authority

• Public interest litigation; judicial activism

• Air quality in Delhi- crucible of experiments

• Auto fuel policy

• New national environmental policy

• New energy policy

• Has role of science increased in regulation: monitoring and modeling?

Environmental Drivers

• International drivers behind our endeavours

• Stockholm Conference on Human Environment (1972): Renaming CPHERI as NEERI

• Rio: UN Conference on Environment and Development (1987)

• Rio: International Earth Summit (1992), Commission on Sustainable Development

• Johannesburg (2002); Sustainability, Water, Sanitation

• Millennium Development Goals

• Sustainable Development Goals

International treaties under

Constitution • No special provision for it in the Constitution

• Art 246 : this power is in Union List where Parliament has the exclusive right to legislate;

• Art :253 gives powers to Parliament to make laws for the whole or any part of the country for implementing any

treaty, agreement or convention • Art 73 : The executive power of the Centre is in all

matters on which Parliament can legislate.

• The exercise of this power has by and large remained a preserve of the executive, using Art 73.

• On the contrary, the judiciary has wanted the enactment of a separate legislation to govern the conclusion of treaties, because of its political nature

Development of environmental

legislation

• The Water ( Prevention and Control of Pollution) Act (1974)/Rules(1975)

• The Air ( Prevention and Control of Pollution) Act (1981)/Rules(1982)

A comprehensive act for full environmental protection acts and rules came later after Bhopal tragedy (1984):and also creation of Ministry of Environment and Forests(1985)

• The Environment Protection Act(1986)/Rules(1986); Standards based on assimilative capacity of environment.

• Environmental Impact Assessment (EIA) (1994); mandatory for 30 categories of new or expansion of any developmental (industrial and other) projects.

• Environmental Public Hearing (EPH) in Environmental Clearance process(1997).

The National Environment Appellate Authority Act, 1997

EIA 2006, 2011….and many more after that

Low compliance

• Abatement cost too high to be feasible

(laws procedural, punitive action high)

• High marginal abatement cost due to over

ambitious standards, so not compliance

• Poor enforcement ( monitoring , funds), so

no compliance

Enters Judiciary

Rights provisions extended to

exclude pollution

• Right to life is a fundamental right under Article 21 of the constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to quality of life.

• Subhas Chander vs State of Bihar, 1991 1 SCC 598

Polluter pays principle

• Cost of remediation not to be borne by state as it burdens tax payer

• Cost to be borne by polluter,

• This principle was not in the laws, based on Bruntland report, “ Our Common Future”, WCED

• Thus court added new laws

( Indian Council of Enviro-Legal action v Union of India, 1996, 3 SCC 212)

Precautionary principle

• Internationally settled law non contrary to municipal law become part of domestic law – a well settled law under Indian Constitution

• Precautionary principle was taken as internationally settled law

• State must anticipate, prevent and attack the causes of environmental degradation.

• For potential serious and irreversible damage, scientific uncertainty should not a reason for postponing measures to prevent environmental degradation.

(Vellore Citizens Welfare Forum v Union of India

1996 5 SCC 647)

Doctrine of Public trust

• Air, sea, water and forests not private properties

• State to insure that it is for benign purposes, no way against public purposes

• This law did not exit in India, arguing that as Indian law follows English common law, thus this is also part of domestic law of India

(M C Mehta v Kamal Nath, 1997, 1 SCC 388)

Principle of liability

“ an interprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegative duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken”

( H C Mehta v Union of India 1992 2 SCC 256)

Use economic Instruments

• “whether before diversion of forest land for non-forest purposes and consequential loss of benefits accruing from the forests should be required to compensate for the diversion. If so, should not the user Agency be required to make payment of Net Present Value (NPV) of such diverted land so as to utilize the amounts so received for getting back in the long run the benefits which are lost by such diversion? What guidelines should be issued for determination of NPV? Should guidelines apply uniformly to all? How to calculate NPV? Should some projects be exempted from payment of NPV? “

Reference to Institute of economic Growth, New Delhi

September 26, 2005 , Three member bench SCI

Some recent trends in judgments

• Balance between Industry and ecology

• Wishing India a powerful modern industrial

state

• NGT judgements: Punitive, Restoration

costs, Study costs, Health Costs

“ it is to maintain delicate balance

between industrialization and

ecology.” …” while development of

industry is essential for the growth of

economy, at the same time, the

environment and ecosystem are

required to be protected.”

Karnataka industrial area development board v Sri C.

Kenchappa & ors( Civil Appeal No. 7405 of 2000)

2006

“that in the name of environment protection,

scientific and technical progress of the country

should not be obstructed. No doubt environment

has to be protected, but at the same time, we must

never overlook the basic aim of our country, which

is to make India a powerful and modern industrial

State."

"there is no conflict between industrialization and

environment protection."

"industrialization not only creates wealth necessary

for preserving and protecting the environment, but

it also creates the modern mind in which protecting

the environment is instilled in childhood."

Kuznetsev

Chennai High Court , 2004: Setusamudram Ship Canal

Notice the change from earlier judgments

Our judiciary as one of the important basic

pillar of constitution constantly faces the

vacuum in law to deal with new situations and

constantly looking out to intellectuals to

research and comment on such areas either

as a lawyer, private or public employee,

journalist or writer ……in the grey area like

international relations we are exploring new

binding principles to keep the developing

countries interest at par with the developed

countries.

Y K Sabharwal

Chief Justice of India, 2006

Air Quality in Delhi- Executive,

Experts, Judiciary • Vehicular pollution in Delhi: Writ Petition (Civil)No. 13029/1985

(M.C. Mehta v UOI &Ors) –Art 21

• Court Directions( 26.7.1998): Augmentation of buses 1-9-’98,

elimination of leaded petrol by 31-12-’98; replacement of pre-’90

autos and Taxis with clean fuel by 31-3-’00; buses to use CNG or

clean fuel by1-4-’00;…

• Set up a Environment Pollution( Prevention and Control) Authority-

order final and binding to all.

• Reduce use of diesel (PM10 reduction)-order on 5-4-’02. Detailed

instruction for CNG(# buses, gas allocation, fines etc)

• Did not accept Mashelkar expert Committee recommendation for not

specifying fuels, specify emission norms.

Policy lessons

• Policy originated in executive, prodded by

courts

• Implementation forced by courts

• NGO and press – public awareness and

its view

• Executive wanted flexible policy based on

performance, but court did not agree due

to adulteration problem, kerosene subsidy

Policy statements

• 1992: National conservation strategy and

Policy Statement on Environment and

Development

• 2006: National Environmental Policy

Environmental Issues 1992

Causes of environmental are identified:

-Due to process of development

-Conditions of poverty and under-development

Both above impact the nature of natural

resources: over-exploitation by some sections

and degradation of resource by some. Focus is

on conservation of natural resources

National Environmental Policy 2006;

Objectives

• Conservation of critical natural resources

• Intra-generational equity: Livelihood security for poor

• Inter-generational equity

• Integration of environmental concerns with economic and social development

• Efficiency in environmental resource use

• Environmental governance

• Enhancement of resources for environmental conservation

Industrialization word missing!

National Environmental Policy(2006):

Principles

• Human beings are at the centre of sustainable development concerns

• Right of development

• Environmental protection is integral part of the development process

• Precautionary Approach

• Economic efficiency: Polluter pays, cost minimization

• Entities with incomparable values

• Equities

• Legal liability

• Public trust doctrine

• Decentralization

• Integration

• Environmental standard setting

• Preventive action

• Environmental offsetting

National Environmental Polic(2006):

Strategies and Actions

• Regularity reforms

• Enhancing and conserving natural resources

• Environmental standards, management systems, certification and indicators

• Clean technologies and Innovation

• Environmental awareness, education and information

• Partnerships and stakeholder involvement

• Capacity building

• Research and Development

• International cooperation

• Review of policy

• Review of implementation

Integrated Energy Policy

(Aug 2006)

• Environmental taxes and subsidies based on

consistent application of polluter pays principle

or user pays principle

• Alternatively: Setting emission and energy

conservation standards on equipments

• Environmental impact assessment;

environmental conditionalities and ameliorative

actions specified

Environmental laws for

sustainable development (2006)

• Science

• Technology

• Public participation

Sustainability science

• Different magnitudes of scales

(of time, space, and function)

• Multiple balances (dynamics),

• Multiple actors (interests) and

• Multiple failures (systemic faults).

• Integration of different styles of knowledge

creation in science, practice, and politics

Properties of mode-1 and mode-2

science

Mode-1 Science

• Academic

• Mono-disciplinary

• Technocratic

• Certain

• Predictive

Mode-2 Science

• Academic and social

• Trans- & disciplinary

• Participative

• Uncertain

• exploratory

Martens,P, 2006, Sustainability: science or fiction?,

Sustainability: science, Practice, & Policy, v2, no1,1-6

Sustainable technologies

• Decarbonisation

• Dematerialisation

• Green Engineering

Facilitating public participation

• New initiatives have been taken recently

- PIL

- RTI

“Public interest litigation is not in the nature of

adversary litigation but it is a challenge and

an opportunity to the government and its

officers to make basic human rights

meaningful to the deprived and vulnerable

sections of its community and to assure them

social and economic justice, which is the

signature tune of our Constitution,”

Bhagawati J, in Bandhua Mukti Morcha-v-

Union of India Air 1984, S.C.

PIL: Public Interest Litigation

Right to Information Act-2005

“right to information” means the

right to information accessible

under this act which is held by or

under the control of any public

authority

Concluding remarks

• Country is in state of flux

• Economic growth increases no longer sufficient; exponential economic model and logistic carrying capacity model needs to be married; nonlinear behavior of the nature-human system to be recognized and used

• Decision based on risks rather only perception of risks/ public concerns; more science

• Economic instruments should be also used.

• Globalisation of environmental quality: lateral and vertical transport processes in air quality

Thank you for your kind attention