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The scope and limits of green laws: a casebook

  • Published
    3rd Dec, 2022
Context

A casebook released recently has drawn attention to the role of our constitutional courts in spurring the evolution of Indian environmental laws and the risks of over-dependence on the judiciary since the 1980s in India.

History of Environmental Governance in India:

  • In the 1950s, the dominant view in the global environmental discourse was that ecological imbalances were caused by the population explosion in developing countries. But later on, the discourse changed a little and became more inclusive by factoring in various other reasons.
  • The National Planning Commission of India was instituted in 1950 with economic development as its primary objective.
  • However, the fourth FYP (1969-1974)made special mention of the need for environmental protection, and it stressed the importance of both environmental and economic concerns.
  • In 1972, the Central Pollution Control Boardwas set up followed by the state boards.
  • The department of environmentcame into existence on November 1, 1980, followed by state departments.
  • In 1996, India became a nation to follow the environmental governance system with a series of further controlling notifications on coastal zone management, hill development, and disposal of wastes (biomedical, plastic, and hazardous). Public Interest Litigation provided justice through the Supreme Court and high courts.

The Environmental Case in India: (The issue with Environment Governance)

  • On paper, India’s environmental regulations are extensive however in practice; they are often ineffective, largely due to patchy enforcement.
  • This condition leaves the citizen to depend on the courts for judicial directions which are mostly ad hoc (when necessary).
  • The result is a regulatory imbalance and uncertainty that helps neither environment nor economic development.
  • Thus, the casebook released has highlighted the lack of governance and adequate laws for Environmental Justice in India.

What are the laws for Environment regulation in India?

  • The Wildlife (Protection) Act of 1972
  • Water (Prevention and Control of Pollution) Act, 1974
  • Forest (Conservation) Act, 1980
  • Air (Prevention and Control of Pollution) Act, 1981
  • Environment Protection Act, 1986
  • Public Liability Insurance Act (PLIA), 1991
  • The National Environment Tribunal Act, 1995
  • The National Environment Appellate Authority population,1997
  •  The Biomedical Waste (Management and Handling) Rules, 1998
    The Environment (Siting for Industrial Projects) Rules, 1999
  • The Ozone Depleting Substances (Regulation and Control) Rules, 2000
  • The Batteries (Management and Handling) Rules, 2001
  • The Biological Diversity Act 2002 and Biological Diversity Rules
  • National Environment Policy of 2006
  • NAPCC: National Action Plan on Climate Change
  • National Green Tribunal Act, 2010
  • The Noise Pollution (Regulation and Control) Amendment Rules, 2010
  • Compensatory Afforestation Fund Act, 2016
  • Plastic Waste Management (Amendment) Rules, 2021

Inadequacy of Environmental Governance:

  • In the aftermath of the Bhopal Gas Tragedy in 1984, environmental activism in India increased drastically. This was a landmark event in the environmental history of India.
  • The inadequacy of the existing governance structure in preventing the disaster and the inadequacy of legal and administrative procedures pertaining to victims stirred people’s awareness of environmental negligence. 
  • This was one of the major factors contributing to the formation of The Environmental Protection Act of 1986in tandem with the formation of a central authority, the Ministry of Environment and Forests (MoEF), now the Ministry of Environment, Forests and Climate Change (MoEFCC).
  • This was followed by numerous legislations and acts to further strengthen environmental policy and law in India. Along with the previous policies, the MoEF also launched the National Environmental Policy (NEP) in 2006.

Key Environmental Issues and Challenges:

  • Lack of Compliance: It is hard to find an answer to a question on the extent of compliance with environmental laws. It is difficult to pass judgment on compliance without proper and reliable information. Measuring environmental compliance requires proper recordkeeping and monitoring system.
  • Inadequacy in Enforcement: There is ample evidence to show that enforcement of environmental laws tends to act weak if the enforcement is not right. The lack of proper enforcement by regulatory agencies further aggravates the problem.

Suggestive measures:

  • R. Subramanian Committee report of 2014 recommended the creation of a new All India Service as the “Indian Environment Service”.
    • It pointed out that there was no effective coordination amongst various Ministries/institutions regarding the integration of environmental concerns.

Policy Principles for Environmental Protection:

  • The Polluter Pays Principle (PPP): The Polluter Pays Principle, as interpreted by the Supreme Court of India, means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also to the cost of restoring environmental degradation. Thus, it includes environmental costs as well as direct costs to people or property.
  • The User Pays Principle—(UPP): It is considered a part of the PPP. The principle states that all resource users should pay for the full long-run marginal cost of the use of a resource and related services, including any associated treatment costs. It is applied when resources are being used and consumed.
  • The Precautionary Principle (PP): The main objective of the precautionary principle is to ensure that a substance or activity posing a threat to the environment is prevented from adversely affecting the environment, even if there is no conclusive scientific proof of linking that particular substance or activity to environmental damage. The words environmental damage. The words ‘substance’ and ‘activity’ are the result of human intervention.

Recent Developments:

  • The National Green Tribunal is a specialized environmental institution constituted about a decade ago and has transformed environmental regulation and governance in India.
    • The past 10 years of the NGT can be largely summed up as a story of procedural success in environmental decision-making tainted by institutional erosion and selective adjudicative decisions. The industrial groups have also been very cautious in the preparation and submission of environmental impact assessment reports.
  • India announced its first Nationally Determined Contribution (NDC) under the Paris Agreement in 2015.
    • The Prime Minister of India, as a part of the national statement delivered at the 26th Conference of the Parties (COP 26) in Glasgow in November 2021, announced ambitious targets to be achieved by 2030 to enable further reduction in emissions.
    • The need to start the one-word movement ‘LIFE’which means Lifestyle for Environment urging mindful and deliberate utilization instead of mindless and destructive consumption was underlined.
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