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Institutional Framework for

Environment Protection in India

iCED
Structure
• Definitions
• Historical perspective
• Key laws
• Adequacy of the Framework
Definitions
• Environment: The air we breathe, the water we drink, the land we live on, all
life forms
• Environmental protection: Maintaining or restoring natural environment
Key questions
• Why should environment be protected?
• Does it need protection?
• Are we capable of protecting it?
TSR Report 2014
• “Purity of air, land and water has been inherited (by us) in mortgage for
children of tomorrow; it is implicit.. for each generation to leave the
environment in a better state than they found it”

• “We do not inherit the earth from our ancestors; we borrow it from our
children”
More definitions:
• Institutional Framework: building blocks:
• Commitment: statement of purpose
• Strategy
• Laws that provide:
• Institutions
• Powers to these institutions
• Funds, skilled & adequate staff
Historical Perspective
Evolution of Environment Laws
Pre-british history
• Big concern: natural disasters
• Control of watersheds for irrigation; harvesting: eg: Jaigarh Fort
• Grazing lands/ forests belonged to people
• Community-based decision on use of natural resources
British colonialism
• Forests for timber. Agriculture for cotton, opium, indigo
• Imperial forest deptt in 1864
• Indian Forest Act, 1865 Forest became govt property & needed to be
protected from those who lived off it
• Concept of wastelands: non-revenue generating grasslands, grazing lands
with ecological potential
Independent India
• Land acquired (50 million acres) for industries/ state projects
• New Acts: Factories Act: for safety & environment issues incidental
• River Acts: Orissa/W. Bengal
Constitution: Art 246
• Entry 17/ List II/ Schedule VII: State List:“Water, that is to say, water
supplies, irrigation and canals, drainage and embankments, water storage and
water power subject to the provisions of Entry 56 of List I”
• Entry 56: List I: Union List: “Regulation and Development of inter-state
rivers… under control of the Union”
• Ground water: State subject but since it flows through defined channels
cutting across state boundaries, so Central purview
• 73rs/74th amendments: functional responsibility of ULBs/ PRI
• Multiplicity of agencies: eg: AP: gd water/rural water/irrigation/APSIDC/
Revenue Deptt (for registration of existing gd water str)
Other constitutional provisions

• Powers to legislate for Union under


• Art 252: if 2 or more States consent
• Art 253: to meet international commitments
UNECOSOC: Stockholm Conference 1972

• National Council for Environmental Policy &Planning: D/o S&T


• IVth Plan: “necessary to introduce environmental aspects into planning..”
• 17-A/17-B of List III: Forest/ Protection of Wild Animals
• Wildlife Protection Act, 1972: under Art 252
• 42nd amendment: 1st country to make provision for environment in Constn
• Art 48-A:Directive Principles: “ State to protect environment”
• Art 51-A: fundamental duty of citizen to protect environment
Water (Prevention & Control of Pollution)Act,
1974: 1st Environmental law
• Under Art 252
• Defined pollution as “contamination or alteration of properties of water
(physical/ chemical/ biological) through “discharge of substances” which
could hurt “public health” or “legitimate uses of water” or health of animals
• Creation of pollution control boards to “promote cleanliness of water”
• Boards with 3 roles: Enforcement; Advisory; Research; Public awareness
• SPCB to give consent; collect samples; enter & inspect premises; penalties
Air (Prevention & Control of Pollution) Act,
1981
• Art 253 (invoking Stockholm conference)
• SPCB &CPCB to enforce the Act
• Powers to declare an area as “ air pollution control” & prohibit use of
plants/ chemicals or discharge of effluents
• Direct closure, regulate any particular industry, disconnect electricity
• Eg: Vapi was declared such a zone, no further expansion of pesticide/
chemical factories (re-opened in 2014)
Environment (Protection) Act, 1986
• Bhopal gas tragedy: 1984
• Need for an overarching law that will:
• Cover all the aspects relating to environment comprehensively
• Co-ordinate activities of all existing & future environment regulating authorities, state govts., to the objects of
the Act: “ prevention, control & abatement of environmental pollution”
• Lay down standards for quality of environment & its safety
• Supremacy of provision: over-rides other laws inconsistent with EPA provisions
• To study, plan and implement long-term requirements for environmental safety
• To provide directions to prevent and deal with accidents comprehensively
• To enforce restrictions in designated areas
Environment (Protection) Act, 1986.. contd..
• Defined Environment as “ Water, air and land and the inter-relationship which
exists among and between water, air and land, and human beings, other living
creatures, plants, micro-organism and property”
• i.e., the complex of physical, chemical, and biotic factors (as climate, soil, and living things)
that act upon an organism/ecological community & ultimately determines its form and
survival
• Defined pollutants as “ substances in concentration that is injurious to
environment”
• Under the Act, rules governing hazardous waste, coastal regulation, groundwater
regulation, bio-medical waste, handling of chemicals etc issued
Legal imperatives
• The Courts have fashioned the environmental discourse; laid down
fundamental principles
• MC Mehta- one-man enviro-legal brigade alone: 15 judgments
• Flipside: executive vacuum filled; 1996 Godavarman case- an example
Landmark judgments
• Oleum gas leak : 1986: Leak in M/s Shriram Food & Fertilisers, Delhi
• Principle of absolute liability: an enterprise must conduct with highest standards of
safety and if there is harm, it is its absolute liability to compensate. Not an answer that
it had taken all reasonable care and that the harm occurred without any negligence on
its part;
• also ordered setting up of environment courts
• Bhopal Gas leak case: 1991
• Right to Life under Art 21 to include healthy and pollution free environment: a
fundamental right
Landmark judgments.. Contd..
• Bichhri case, 1996: oleum factories in Udaipur
• “Polluter pays principle”: person carrying out the hazardous activity should pay the cost
for remedying & prevention of the damage to environment and compensate the victims
• Vellore Citizens’ case: 1996:
• “Precautionary principle”: (a) enterprise to set up measures to anticipate, prevent and
attack the causes of environmental damage; (b) Lack of scientific data should not be used to
postpone measures of prevention, © it is for the project proponent to prove that the
activities are environmentally benign
• Set up green benches in HC
Landmark judgments.. Contd..

• Kamal Nath case: 1996: Manali resort/ river Beas


• “Public Trust Doctrine”: public has a right to expect that land & natural areas will
retain their natural characteristics. State is a trustee of natural resources which are
meant for public enjoyment & use
Proof of the pudding…
• 70% of surface water & large % of groundwater polluted
• Only 32% have access to treated water
• 28% of groundwater units: over-exploited to critical
• Per capita availability : 1545 cu.m; <1000 cum: water scarce
• Of 180 cities monitored by CPCB, only 2 meet the criterion of low pollution
• Across G-20, 13 of the 20 most polluted cities are in India
• Cost of pollution: 5.8% of GDP
• Decline in quality of forest cover; no. of wildlife declined
Are the laws to blame?
• A good law should be:
• Preceded by consultation with all stakeholders
• Necessary: purpose behind it
• Clear & : with all items defined;
• Comprehensive: addresses the purpose comprehensively
• Coherent: leaving no ambiguities
• Effective: implementable
• Accessible
Do the environment laws meet them?
• Our laws are considered one of the finest, most comprehensive
• They are clear, coherent and certainly, necessary
• But it proves the point, laws are only as good as the society, the government’s
commitment to uphold them
Public consultation?
• Spurred by international convention: absence of parliamentary debate/
political perspective: a “fashionable” idea
• Water law enacted: 13 states’ consent: but Gujarat, TN, Maharashtra didn’t
pass the enabling laws in the states: TN set SPCB after 10 years
• Central initiative but the issues are primarily state subjects: tussle & little
ownership: MoEF, the big villain!
Comprehensive?
• Nature of the issue: impacted by multiple spheres of activity
• Different levels of integration
• Water Act: Standards set for each project, but cumulative impact not assessed
• In Air Act: ambient air quality, but source standards not set
• Multi-pronged approach: piece-meal doesn’t work: eg: ground water
Cumulative impact: water
• Eg: Hydro-electric projects in Uttarakhand
• 48/2400 MW sanctioned; only 5/ 420 MW commissioned
• Each a run-off-the-river project: turbines not in the river
• Diversion reach: length of the river that will face a reduced water due to the project
• Individual projects: 4-5km; 60 together on Alaknanda: 250 km
• River beds downstream reduced to a trickle; sediments from upstream no longer
reaching the alluvial plains: agriculture
• Reduced sediments: hungry waters eroding river-beds for sediments
• Less fresh water flow: salinity increase in groundwater
• Increase in level of pollution of water
Need for convergence: ground water
• Extensive ground water exploitation: 70 % of irrigation; 90% domestic needs
• Reasons: free/cheap electricity; source within land; poor maintenance of surface
water (40% losses) ; water-intensive crops with MSP support
• Needs multi-pronged approach; integration across departments
• No commitment
• CGWB doesn’t have powers to enforce registration; doesn’t cover existing tubewells
• doesn’t have skills to address “demand side” problems
Effectiveness of laws: pollute & pay option
• Liability on violations low : w.r.t opportunity cost of water: easier to pollute & pay
• Sterlite case: `100 crore liability
• Consent for copper smelting plant from TNPCB in 1995 without public hearing on the basis
of a Rapid Assessment by TCC conducted within less than a month;
• Initial consent for a plant 25 km away from eco-sensitive zone of Gulf of Munnar which
was diluted
• Writ petition in 1996 against the project
• Company started production in 1997 despite the petition
Sterlite case….. Good or bad?
• Tests conducted by NEERI from 1998-2005 & submitted to HC since then,
showed high concentration of Lead, Arsenic, Cadmium, Copper etc., but
production continued
• HC gave its order in 2010- for closure of the plant 14 years after the petition;
for 12 years, pollution continued despite adverse lab reports
• SC set aside the HC closure order: since it employs 3000; contribution to
economy; but put a penalty of ~100 crore
Effectiveness of laws.. Large scale violations

• Govt is the biggest violator: then how can it force industries to compliance?
• Municipal solid waste generated: 1.2 lakh tonnes per day, of which:
• Only 50% collected; only 5% treated
• Only 1/3rd of 35,000 million litre per day of municipal waste water treated
• Govt hospitals with no facilities for BMW
• Railways is one of the biggest polluters: audit report
Effectiveness…. Crippled boards.. SPCB, UP
• Shortage of 40% in technical cadres
• 97% shortage at the level of lab assistants
• Junior Engineers: 39/69 posts vacant
• Result:
• Of 4476 industrial units, SPCB data covers only 234 units
• 42% of drinking water contaminated but SPCB testing restricted to chlorination tests of municipal water;
tubewells in 4 industrial areas
• Corruption: construction work `2382 crore by builders allowed without environmental clearance
• Other issue: conflict of interest: consent fees large chunk of revenue of SPCB; all resources used
for grant of consent & not monitoring of consent
Effectiveness… balance
• Balance of environment & development
• Also of equity:
• Inter-generational equity
• Balance between interests of powerful & the disadvantaged
• Poor most affected: displacement due to projects or poor water/land
• 40 million face being pushed to poverty because of one illness alone: 72% out-of-pocket
• Groundwater: costly submersible pumps: leave little water for poor farmers in critical areas
Accessibility of laws
• Affected parties: can go to Court but need to give 60 days notice to the Board;
Board files case in Metropolitan Magistrate’s Court… chugging
• Courts are also not consistent
• Laws don’t have alternate grievance redressal mechanism: because Courts not the
best option
• But with Executive vacuum, Courts have become the only option
• Environment Courts: idea since 1996; NGT in 2010 but only in 5 cities
• Absence of data: averages (water); not easily available; Metro-centric (for air)
Conclusions
• It is not the law alone. The problem is commitment
• For Auditors:
• Important to integrate into every audit that has envir implications (eg: MNREGA)
• Environment audit not a separate audit but part of a regular audit
• Criteria are the rules or international conventions
• Lack of data is a problem
• Inclusion can substantially alter our conclusions: eg: allocation of mines
Exercise
• Can we list audits that can integrate environment into them?