1.National Environmental Law & Policy

8/7/2019 1.National Environmental Law & Policy

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National EnvironmentalLaw and Policy

Introduction

Dr. K.P.S. Chauhan([email protected])

9 th September, 2007


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Environmental Issues and ProblemsGlobal:

-More than 6 m ha of productive dry land rendered into worthlessdesert - 35 m people at risk in Africa.

-About 11 m ha forests/ annum destroyed and converted into low-gradefarmland eg. Priceless Amazon Basin in South America.

-Acid rains killing forests, lakes, vast tracts of soil beyond repair andarchitectural heritage.

-Burning of fossil fuels ( CO2 and other GHGs) causing global warming-sea level rise and upsetting Oceans food chain, disruption in both

terrestrial and marine ecosystems functioning, change in rain fallpatterns etc.

-Release of Industrial gases (ie. chlorofluorocarbons) resulting intodepletion of the ozone layer.

-Release of toxic substances from industry & agriculture into humanfood chain and underground water tables

Some Examples : Leak in Union Carbide in Bhopal (Dec., 1984) killedmore than 2000 and blinded and injured over 2,00,000 people; theChernobyl nuclear reactor explosion (April, 1986) sent nuclear falloutto Europe; release of toxic wastes by a chemical plant in Basel intoRhine River (1986) killing fish and threatening drinking water in FGR

and Netherland


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Environmental Issues & Problems (Contd.)National:

-Out of the total 304 m ha land, about 175 m ha is wasted.-More than 6000 m tons of top soil per annum is lost for ever dueto water erosion.

-About19 % of forest is left against minimum 33% due to variousmega projects, mining, timber logging etc.

-Important Ecosystems eg. North-east, Western Ghats, Eastern

Ghats, Terai Region of Himalayan foothills, Coastal mangrovesand coral reefs are seriously effected due to unsustainabledevelopmental activities resulting into species and habitats loss.

-Water, Air and Noise Pollution: All 14 major rivers and itscombined basin area are seriously polluted; air quality in allmajor metropolitan cities is highly polluted and Noise pollution

has become a growing menace.-Unplanned human settlements have resulted in unhygienic andvery poor sanitary conditions thus increasing health budget.


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Envi ronm ent a l Po l ic yEarly Goals:

-to stop further degradation of the environment taking into

account human health & pollution control using traditionalcommand & control methods- State agencies as watchdogs

Pre Stockholm Period (before 1972):

-Had more emphasis on development of infrastructure with

no emphasis on environmental concern.

-Issues such as sewage disposal, sanitation, public health etcwere dealt with by different Ministries under IPC & CrPC.

-Environmental protection was confined to planning process

and was part of the forest policy


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Environmental Policy (Contd.)Post Stockholm Period (after 1972):

-A National Committee on Environmental Planning andCoordination was set up in 1972 as an Apex AdvisoryBody in all matters related to the environmental

protection and improvement.Main Activities: Collaboration with Project AppraisalDivision of the Planning Commission in developingguidelines for evaluating costs and benefits of thedevelopment projects that takes into account theenvironmental factors, and formulation and coordination

of R&D projects

-The Department of Environment was created in 1980and was expanded later into the Ministry of Environment& Forests in 1986.

The Water (Prevention & Control of Pollution)Act, 1974, and consequently the State & CentralPollution Control Boards came into existence.


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Policy Statement for Abatement of Pollution

came out in 1992.OBJECTIVES:

-Shift emphasis from defined objectives to actual implementation.

-Maximise the use of mix of instruments such as:

-Legislation & regulation

-Fiscal incentives

-Voluntary agreements

-Educational programmes and Information campaign

-Increased use of regulations and to develop fiscal incentives

-Need for a positive attitude of the society

-Integration of environmental & economic aspects in developmentPlanning

-Preventive aspects of pollution abatement & increased moderntechnological inputs to arrest industrial pollution

-Rely on Public co-operation


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Policy Statement for Abatement of

Pollution, 1992

Pol ic y Pronounc em ent :-Preventing pollution at source

-Encourage, develop and apply besttechnical solutions

-Ensure polluter pays for the pollution &

control arrangement

-Involve public in decision making


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National Conservation Strategy & Policy Statement onEnvironment and Development, 1992

Purpose: to reinforce our traditional ethos & build up aconservation society living in harmony with the Nature andmaking fugal and efficient use of resources using best

available scientific knowledge. Agenda of Action: sustainable and equitable use of

resources; prevention and control of deterioration of land,

water and air; restoration of ecologically degraded areasand the environmental improvement in rural and urbansettlements; conservation of natural & man-made heritage;

minimise adverse environmental consequences of sitting thedevelopment projects; protection of coastal and marineareas; conservation and nurturing biological diversity in allecosystems; and, protection of scenic landscapes, unique

representative biomes & ecosystems.


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National Conservation Strategy & PolicyStatement on Environment and Development,

1992 (Contd.) Instruments for Action:-EIA of all development projects at planning stage.

-Compulsory Prior Environmental Clearance of projects above certain sizein certain ecologically sensitive areas.

-Incorporation of environmental safeguards in all major sectors.

-Enhance R&D and adoption of environmentally compatible technologies

for conservation.-Effective participation of people.

-Education and mass awareness programme for environmentalconsciousness.

-Recycle waste materials, conserve energy and use of natural resources inindustrial products.

-Develop institutional mechanism and man power needed for

environmental management services.-Effective enforcement of environmental laws and regulations


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National Environment Policy, 2006

Main Objectives:1) Conservation of Critical Environmental Resources;

2) Intra-generational Equity: Livelihood Security forthe poor

3) Inter-generational Equity;

5) Integration of Environmental Concern in Economicand Social Development;

4) Efficiency in Environmental Resource Use;5) Environmental Governance;

6) Enhancement of Resources for EnvironmentalConservation;


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PRINCIPLES: Total 131) Human being as the Centre of sustainable dev.;

2) The right to development to equitably meetdevelopment & environmental needs;

3) Environmental protection is an integral part of the

development Process;4) The precautionary approach (including action);

5) Economic efficiency (economic values to

environmental services in alternate course of action):This would involve following principles:

-Polluter Pays; and

- Cost minimization (where economic value toenvironmental services is difficult to compute);

6) Entities with Incomparable values eg. Humanhealth, environmental life support systems for which

compensation can not be paid;


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PRINCIPLES (Contd.)7) Equity:

-Procedure Equity:fair rules for allocation of entitlements &obligations

-End Result Equity:fair outcomes in terms of distribution ofentitlements and obligations;

8) Legal liability: Civil liability for environmental damage;- Fault base liability- party is liable if it breaches the legal duty

-Strict liability:imposes obligation to compensate the victim;

9) Public trust doctrine;10) Decentralization;

11) Integration: inclusion of environmental considerations in sectoralpolicy making and linkages among various levels at the Central, State and

Local Self Govt;

12) Environmental standard setting

12) Preventive action: and

13) Environmental offsetting: Imposing a general obligation toprotect threatened or endangered species and natural systems that are ofspecial importance to sustaining life.


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STRATEGY AND ACTIONS:

1.Regulatory Reforms--Revisiting Policy and Legislation: identifying emerging areas for newlegislation; developing synergies among relevant statutes & regulations;institutionalising techniques for environmental assessment of sectoralpolicies & programmes; and ensuring accountability at the Central, State &

Local government levels.-Process Related Reforms:

(i) Approach: based on Govindrajan Committee Report to avoid delay inenvironmental clearance;

(ii) Framework for Legal Action: Employment of mix of civil & criminalprocesses and sanctions in the legal regime for enforcement.

-Substantive Reforms:

i). Environmental and Forests Clearance: with emphasis on Regional/Cumulative EIAs, due consideration to quality & productivity of lands;clustering of industries and other development projects; restrictions ondiversion of natural forests & high endemism areas; environmentalrestoration after decommissioning of industries (i.e. mining) & formulating

Code of Good Practices;ii). Coastal Areas: Revisit the CRZ Notification and Coastal ZoneManagement Plans so as to make them more comprehensive & effective.


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STRATEGY AND ACTION (contd.)iii) Living Modified Organism (LMOs): Review regulatory

processes for LMOs; biosafety guidelines and manualkeeping conservation of biodiversity & human health &provisions of the Montreal Protocol in view.

iv) Environmentally Sensitive Zones: Give legal statusand formulate development plans with local institutions;

v) Monitoring Compliance: undertake capacitydevelopment initiative to enable Panchayati Raj Systemsand Urban Local Bodies to undertake monitoringcompliance and with public-private partnership;

vi) Use of Economic Principles in Environment Decision

Making: strengthen Natural Resources Accounting in theCSO; develop standardized appraisal practices whereenvironmental risks are taken into account; implementaction plans on the use of economic instruments for

environmental regulation & create a National EnvironmentRestoration Fund;


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STRATEGY AND ACTION (contd.)

2.Enhancing & Conserving EnvironmentalResources:

i) Land Degradation: Adoption of science based,

traditional sustainable land use practices;reclamation of waste lands & degraded forest lands;implementation of thematic action plan for water-

shed management strategies; sustainabledevelopment of shifting cultivation; and encourageagro-forestry and organic farming;

ii) Desert Ecosystem: Intensive water andmoisture conservation; expansion of green coverusing local species; and adoption of most suitable

agronomic and agricultural practices in desertecosystem;


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iii) Forests and Wildlife:-Forests: Legal recognition of the traditional entitlement offorests dependent communities; formulate innovativestrategies to increase forest cover to 33% by 2012;

restoration of environmental value of forests & implementCode of best management Practices; denotify bamboo &other species as Forest Species; and promote plantationof only those species suitable in maintaining thesustainability of the ecosystems.

-Wildlife: Expand PANs; review placing species indifferent Schedules of the Wildlife Protection Act;

conservation of endangered species outside PANs;promote eco-tourism in PAs; multi-stakeholder partnershipfor enhancement of wildlife habitat; and eco-developmentprogramme in the fringe areas of the PAs.


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STRATEGY AND ACTION (contd.)iv) Biodiversity, Traditional Knowledge, and Natural Heritage:

Strengthen the protection of biodiversity hot spots while providinglivelihood & access to resources to local communities; pay attention topotential impacts of development projects on biodiversity resources andnatural heritage; enhance ex-situconservation of genetic resources;Harmonize the Disclosure Clause (Source & geographic origin) of the

Patent Act and the declaration regarding necessary permission from thecompetent authority to use biological material with the provisions of theBiodiversity Act dealing equitable benefit sharing with the localcommunities holding TDK for such use; develop an appropriate system forPrior Informed Consent and Fair and Equitable Benefit Sharing in respect

of use of biological material& its associated TDK.

v) Fresh Water Resources:

-River System: Promote research in glaciology to evaluate the impacts ofclimate change on glaciers and river flows; implement integrated

approaches to manage the river basins; mitigate the adverse impacts on therivers & estuarine, its flora & fauna and the resulting change in the resourcebase for livelihood, on multiple river valley projects, power plants &industries; integrate conservation & wise use of wetlands into river basinmanagement; and afforestation on banks & catchments areas of rivers andreservoirs.


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STRATEGY AND ACTION (contd.)-Ground water: Take account of impacts on ground water tables ofelectricity tariffs & pricing of diesel; promote efficient water usetechniques; ensure availability of ground water potential mapsthrough a designated institution; support rain water harvesting andartificial groundwater recharge; mandate water harvesting andartificial recharge in all new constructions; implement acomprehensive strategy for regulating use of groundwater bylarge industrial & commercial establishments; support R&D forrural drinking water projects free from toxic pollutants; improveproductivity per unit of water through water assessment & audit;identification of suitable sites for dumping hazardous & toxicwastes to prevent contamination of groundwater; and ensureoptimum utilization of fertilizers, pesticides & insecticides improvequality of water.-Wetlands: Set up legal mechanism for conservation of wetlandsalong with conservation & wise use of wetlands with participation

of the local communities; factorization of economic value ofenvironmental services into cost-benefit analyses; consider uniquewetlands as entities with Incomparable values for theirprotection; and integrate wetland conservation into sectoraldevelopment plans for poverty alleviation & livelihood

improvements


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STRATEGY AND ACTION (contd.)vi). Mountain Ecosystems:

-Adopt appropriate land use planning & watershedmanagement practices; Adopt best practice norms forinfrastructure construction; encourage cultivation of traditional

varieties of crops and horticulture; promote sustainable tourismthrough best practice; take measures to regulate tourist inflowas per the carrying capacity; and consider unique mountainscapes as entities with Incomparable Values.

vii) Coastal Resources:-Sustainable management of mangroves & ensure livelihood oflocal communities; disseminate regeneration techniques for

coral reefs; take sea-level rise and climate change into accountin coastal management plans, infrastructure planning &construction norms; adopt comprehensive approach tointegrated Coastal Management by addressing linkages to all

micro-habitats; and strengthen regulations on ship-breakingactivities on human health, and coastal and surrounding marineresources

STRATEGY AND ACTION ( td )


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viii) Pollution Abatement:

-Air Pollution: take integrated approach to energy conservation &adoption of renewable energy technologies ( improved fuel wood stoves,solar cookers suited to local cooking etc); strengthen the monitoring &enforcement of emission standards for both point & non-point sources;

implement action plans to mitigate air pollution in major cities; formulate anational strategy for urban mass transport to reduce vehicular pollution;promote reclamation of waste lands by energy plantations for rural energyrequirements; and strengthen efforts for partial substitution of fossil fuels

by bio-fuels through bio-fuels plantation.-Water Pollution: Develop & implement public-private partnership modelsfor effluent & sewage treatment plants, implement action plans formitigating water pollution of all major cities with effective regulations;prevent pollution of all water bodies; enhance capacities of spatialplanning among State & Local Govts. with adequate legal support;promote R&D for low cost sewage treatment at different scale; and takeexplicit account of groundwater pollution in pricing policies of agriculturalinputs.

S G C O ( )


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STRATEGY AND ACTION (contd.)-Soil pollution: Develop & implement viable models of public-private

partnerships for setting up & operating landfills, incinerators, and for disposalof toxic & hazardous wastes; develop inventory of toxic & hazardous wastedumps along with an online monitoring systems; strengthen the legalarrangements & responses measures for emergencies; strengthen

capacities of local bodies for segregation, recycling & reuse of municipalsolid wastes; legal recognition to informal sector system for collection &recycling of various materials, promote organic farming to reclaim of landexposed to agro-chemicals; enforce regulations & guidelines for

management of e-wastes; and promote beneficial use of non-hazardouswastes i.e. fly ash, bottom ash, red mud & slag etc.

-Noise Pollution: Make appropriate differentiation between differentenvironments in setting different ambient noise standards; distinguish

between noise standards in the context of occupational exposures; formulatenoise emissions norms; include ambient noise as one of the environmentalquality parameters & encourage dialogue between the State/LocalAuthorities and religious/ community representatives on the enforceable

duration, timing & use of loudspeakers & crackers.


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ix) Conservation of Man Made Heritage: While settingup ambient environmental standards, the potential impactson Distinguished Heritage Sites must be taken intoaccount; Heritage sites considered to have incomparable

Value thus would merit stricter standards; Impacts onheritage sites be one of the terms of reference for EIA ofthe projects.

x) Climate Change: Adherence to common butdifferentiated responsibilities in the mitigation of GHGs;Reliance on multilateral approaches; equal per capitaentitlements of global environmental resources to allcountries; overriding priorities of the right to development;identify key vulnerabilities of India to climate change &asses the need to adapt to future climate change;

encourage Indian industry in clean developmentmechanism; and participate in voluntary partnership insustainable development.

S G C O ( )


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3. Environment Standards, Management System,Certification & Indicators:-Environment Standards: Setting up a permanent machinery toreview ambient & emission standards taking into account the new

scientific findings, changing material circumstances & ensuringparticipation of impacted communities & industry associations; andstrengthening testing infrastructure & network for monitoringmandatory ambient environment quality.

-Environment Management, Ecolabeling and Certification:Encourage industry associations to promote ISO 14000; adoption ofEMS through purchase preference for ISO 14000 goods & services forGovernment purchases; formulate Good Practice Guidelines for

ecolabels to enhance their scientific basis & transparency; promotemutual recognition of Indian & foreign ecolabels to enhance theirmarket access at lower costs; and promote Good PracticeGuidelines norms in all relevant sectors to conserve naturalresources & reduce adverse environmental impacts.


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4. Clean Technologies and Innovations: Encouragecapacity building in the financial sector for appraising cleantechnology switchover project proposals; set up mechanism tonetwork technology research institutions for clean technology ;

and use of revenue enhancing fiscal instruments to shift to cleantechnology & promote adoption of clean technology by industry.

5. Environmental Awareness, Education &

Information6. Partnership and Stakeholder Involvement:

Involvement at different levels i.e. Public-Community; Public-

Private; Public-Community & private; Public-VoluntaryOrganisation; Public-Private & Voluntary Organisation is to berealised in terms of good governance, transparency and efficiency.

STRATEGY AND ACTION


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STRATEGY AND ACTION7. Capacity Building: Review the present institutional capacities

at the Central & State levels to enforce environmental laws &regulations; incorporate in all environmental programmes a capacitybuilding component with sufficient funds; and ensure continuous upgradation of knowledge & skills of the scientific & technical personnelinvolved in environment management.

8. Research and development: Periodically identify &prioritize areas for research; establish research programmes inpriority areas within the Govt. & also encourage research in priorityareas outside Govt. with necessary financial & institutional support.

9. International Cooperation: at all levels

10. Review of the Policy: Undertake consultation every 3 yrswith group of diverse stakeholders to update the Policy; in the third ofthe 3yrs reviews, undertake a comprehensive examination of scientific& policy understanding of environmental issues, redefine Objectives &Principles, and recast the Strategic Themes for Action.

11. Review of the Implementation: Cabinet or nominatedcommittee of the cabinet may be requested to review theimplementation of this Policy.


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Critique of the NEP, 20061) The Policy does not challenge the fundamental nature of the current

model of development which is at the heart of environmentaldestruction. What is needed is at least a vision that puts nature andoverall human well-being (cultural, spiritual, material, intellectual) at thecentre of a process of development, and from which would emanate the

core principles and strategies for ecologically sustainable developmentmodels.

2) The policy at various places talks of decentralization, of partnerships,and of specific elements like public access to information. But fails to

give a concrete vision as to how the natural resources will be governed,who at what stage should be taking decisions, how will currentinstitutions of governance change.

3) Policy is fully human-centric in nature.

4) Though strategies and actions enumerated speaks of decentralization,Unfortunately there is not much in the policy so far as a scope for citizensto participate at all levels of decision-making regarding the environment.This weakens its initial principle of decentralization and peoplesparticipation.

C iti f th NEP 2006 (C td )


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Critique of the NEP, 2006 (Contd.)5) Policy recommends that, wasteland and degraded forestland

be reclaimed through partnerships. The Policy does not clearlyspecify that there would be no transfer or leasing of commonlands to industries.

6) Classification of specific ecosystems under the chapterStrategies and Actions has not done scientifically. Moreover,certain categories like grasslands, deserts, and marineecosystems are completely missing.

7) The section on Wildlife does not promote the involvement ofpeople within PANs. The section only speaks about protectionof wildlife within the protected areas while forgetting the factthat however much it may be expanded, the protected areanetwork in India will never cover more than a fraction of theland and water, and will leave out the majority of wildlife.

8) Critical parts of river systems need also to be protected from

destructive development, and should be listed under thecategory of areas with incomparable value.


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Critique of the NEP, 2006

9) Section on Environmental Awareness, Education, andinformation is silent about the locale-specific educationcurricula and awareness programmes.

10) The Policy pays lip service to the livelihood dependenceand rights of adivasis and other ecosystem-dependentcommunities in India.

11) The Policy shows a lack of attention towards key areas likegrazing and fodder management, desertification, forest fires,island and marine eco-systems.

12) Two important issues, women and environment as well

and trade and environment is again untouched by the policy.

13) Highly debated issue of inter-linking of rivers finds nomention at all in the Policy document.


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Ind ian Envi ronm ent a l Regim eConstitutional concerns:--Direc ts State to improve the standard of livingand public hea lth (Art. 47).

-Art. 48-A of the Constitution (42nd Amendment)Act, 1976 in its Direc tive Princ iples dec lares

that the State shall endeavor to protec t &improve the environment as well as

safeguarding forests & wildlife.

-Art. 51- Under Fundamental Duties assigns thec itizen to protec t & improve the environment

inc luding forests, lakes, rivers, wild life etc .


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Ind ian Envi ronm ent a l Regim eConstitutional concerns:-Right to life is fundamental right inc luding rightof enjoyment of pollution free water & a ir for full

enjoyment of life (Art. 21).

-The c itizen can take recourse for removing the

pollution of wa ter or a ir whic h may bedetrimental to the quality of life (Art. 32 ).

-73rd and 74th amendments assigns powers,

authority & responsibilities to both Panc hayatsand Munic ipal Bodies in managing natura l

resourc es suc h as land , water, fisheries, minor

forests produc e, urban forestry etc . (Art 243-A &243W )

Indian Environmental Regime


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Indian Environmental RegimeLegislative Enactments (Common & criminal Laws):

Pollution Control:

-the Water (Prevention & Control of Pollution), Act, 1974.

-the Water Cess Act, 1977.

-the Air (Prevention & Control of Pollution), Act, 1981.

-the Environment Protection Act, 1986.

Forests & Wildlife Protection-Indian Forest Act, 1927.

-the Forest (Conservation) Act, 1980.

-the Wildlife (Protection) Act, 1972.Access to Biological Resources

-the Biological Diversity Act, 2002

followed by enacting several rules and amendments under theabove mentioned laws

Documents

1.National Environmental Law & Policy