National Environmental

Law and Policy

Introduction

Dr. K.P.S. Chauhan

(kpschauhan@gmail.com)
9th September, 2007
 Environmental Issues and Problems
Global:
-More than 6 m ha of productive dry land rendered into worthless
desert - 35 m people at risk in Africa.
-About 11 m ha forests/ annum destroyed and converted into low-grade
farmland – eg. Priceless Amazon Basin in South America.
-Acid rains killing forests, lakes, vast tracts of soil beyond repair and
architectural 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 fall
patterns etc.
-Release of Industrial gases (ie. chlorofluorocarbons) resulting into
depletion of the ozone layer.
-Release of toxic substances from industry & agriculture into human
food chain and underground water tables
Some Examples : Leak in Union Carbide in Bhopal (Dec., 1984) killed
more than 2000 and blinded and injured over 2,00,000 people; the
Chernobyl nuclear reactor explosion (April, 1986) sent nuclear fallout
to Europe; release of toxic wastes by a chemical plant in Basel into
Rhine River (1986) killing fish and threatening drinking water in FGR
and Netherland
 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 due
to water erosion.
-About19 % of forest is left against minimum 33% due to various
mega projects, mining, timber logging etc.
-Important Ecosystems eg. North-east, Western Ghats, Eastern
Ghats, Terai Region of Himalayan foothills, Coastal mangroves
and coral reefs are seriously effected due to unsustainable
developmental activities resulting into species and habitats loss.
-Water, Air and Noise Pollution: All 14 major rivers and its
combined basin area are seriously polluted; air quality in all
major metropolitan cities is highly polluted and Noise pollution
has become a growing menace.
-Unplanned human settlements have resulted in unhygienic and
very poor sanitary conditions thus increasing health budget.
 Environmental Policy
Early Goals:
-to stop further degradation of the environment taking into
account human health & pollution control using traditional
command & 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 etc
were dealt with by different Ministries under IPC & CrPC.
-Environmental protection was confined to planning process
and was part of the forest policy
 Environmental Policy (Contd.)
Post Stockholm Period (after 1972):
-A National Committee on Environmental Planning and
Coordination was set up in 1972 as an ‘Apex Advisory
Body’ in all matters related to the environmental
protection and improvement.
Main Activities: Collaboration with Project Appraisal
Division of the Planning Commission in developing
guidelines for evaluating costs and benefits of the
development projects that takes into account the
environmental factors, and formulation and coordination
of R&D projects
-The Department of Environment was created in 1980
and was expanded later into the Ministry of Environment
& Forests in 1986.
The Water (Prevention & Control of Pollution)
Act, 1974, and consequently the State & Central
Pollution Control Boards came into existence.
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 development
Planning
-Preventive aspects of pollution abatement & increased modern
technological inputs to arrest industrial pollution
-Rely on Public co-operation
Policy Statement for Abatement of
Pollution, 1992
Policy Pronouncement:
-Preventing pollution at source
-Encourage, develop and apply best
technical solutions
-Ensure polluter pays for the pollution &
control arrangement
-Involve public in decision making
 National Conservation Strategy & Policy Statement on
Environment and Development, 1992
„ Purpose: to reinforce our traditional ethos & build up a
conservation society living in harmony with the Nature and
making 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 areas
and the environmental improvement in rural and urban
settlements; conservation of natural & man-made heritage;
minimise adverse environmental consequences of sitting the
development projects; protection of coastal and marine
areas; conservation and nurturing biological diversity in all
ecosystems; and, protection of scenic landscapes, unique
representative biomes & ecosystems.
 National Conservation Strategy & Policy
Statement 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 size
in 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 environmental
consciousness.
-Recycle waste materials, conserve energy and use of natural resources in
industrial products.
-Develop institutional mechanism and man power needed for
environmental management services.
-Effective enforcement of environmental laws and regulations
National Environment Policy, 2006
„ Main Objectives:
1) Conservation of Critical Environmental Resources;
2) Intra-generational Equity: Livelihood Security for
the poor
3) Inter-generational Equity;
5) Integration of Environmental Concern in Economic
and Social Development;
4) Efficiency in Environmental Resource Use;
5) Environmental Governance;
6) Enhancement of Resources for Environmental
Conservation;
 PRINCIPLES: Total 13
1) Human being as the ‘Centre’ of sustainable dev.;
2) The right to development to equitably meet
development & 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 to
environmental services is difficult to compute);
6) Entities with “Incomparable” values eg. Human
health, environmental life support systems for which
compensation can not be paid;
 PRINCIPLES (Contd.)
7) Equity:
-Procedure Equity: fair rules for allocation of entitlements &
obligations
-End Result Equity: fair outcomes in terms of distribution of
entitlements 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 sectoral
policy 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 to
protect threatened or endangered species and natural systems that are of
special importance to sustaining life.
 STRATEGY AND ACTIONS:
1.Regulatory Reforms-
-Revisiting Policy and Legislation: identifying emerging areas for new
legislation; developing synergies among relevant statutes & regulations;
institutionalising techniques for environmental assessment of sectoral
policies & programmes; and ensuring accountability at the Central, State &
Local government levels.
-Process Related Reforms:
(i) Approach: based on Govindrajan Committee Report to avoid delay in
environmental clearance;
(ii) Framework for Legal Action: Employment of mix of civil & criminal
processes 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 on
diversion of natural forests & high endemism areas; environmental
restoration after decommissioning of industries (i.e. mining) & formulating
‘Code of Good Practices’;
ii). Coastal Areas: Revisit the ‘CRZ Notification’ and ‘Coastal Zone
Management Plans’ so as to make them more comprehensive & effective.
 STRATEGY AND ACTION (contd.)
iii) Living Modified Organism (LMOs): Review regulatory
processes for LMOs; biosafety guidelines and manual
keeping conservation of biodiversity & human health &
provisions of the ‘Montreal Protocol’ in view.
iv) Environmentally Sensitive Zones: Give legal status
and formulate development plans with local institutions;
v) Monitoring Compliance: undertake capacity
development initiative to enable Panchayati Raj Systems
and Urban Local Bodies to undertake monitoring
compliance and with public-private partnership;
vi) Use of Economic Principles in Environment Decision
Making: strengthen ‘Natural Resources Accounting’ in the
CSO; develop standardized appraisal practices where
environmental risks are taken into account; implement
action plans on the use of economic instruments for
environmental regulation & create a ‘National Environment
Restoration Fund’;
 STRATEGY AND ACTION (contd.)
2.Enhancing & Conserving Environmental
Resources:
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; sustainable
development of shifting cultivation; and encourage
agro-forestry and organic farming;
ii) Desert Ecosystem: Intensive water and
moisture conservation; expansion of green cover
using local species; and adoption of most suitable
agronomic and agricultural practices in desert
ecosystem;
 STRATEGY AND ACTION (contd.)
iii) Forests and Wildlife:
-Forests: Legal recognition of the traditional entitlement of
forests dependent communities; formulate innovative
strategies to increase forest cover to 33% by 2012;
restoration of environmental value of forests & implement
‘Code of best management Practices’; denotify bamboo &
other species as ‘Forest Species’; and promote plantation
of only those species suitable in maintaining the
sustainability of the ecosystems.
-Wildlife: Expand “PANs”; review placing species in
different Schedules of the Wildlife Protection Act;
conservation of endangered species outside PANs;
promote eco-tourism in PAs; multi-stakeholder partnership
for enhancement of wildlife habitat; and eco-development
programme in the fringe areas of the PAs.
 STRATEGY AND ACTION (contd.)
iv) Biodiversity, Traditional Knowledge, and Natural Heritage:
Strengthen the protection of ‘biodiversity hot spots’ while providing
livelihood & access to resources to local communities; pay attention to
potential impacts of development projects on biodiversity resources and
natural heritage; enhance ex-situ conservation of genetic resources;
Harmonize the ‘Disclosure Clause (Source & geographic origin)’ of the
Patent Act and the declaration regarding necessary permission from the
competent authority to use biological material with the provisions of the
Biodiversity Act dealing equitable benefit sharing with the local
communities holding TDK for such use; develop an appropriate system for
‘Prior 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 of
climate change on glaciers and river flows; implement integrated
approaches to manage the river basins; mitigate the adverse impacts on the
rivers & estuarine, its flora & fauna and the resulting change in the resource
base for livelihood, on multiple river valley projects, power plants &
industries; integrate conservation & wise use of wetlands into river basin
management; and afforestation on banks & catchments areas of rivers and
reservoirs.
 STRATEGY AND ACTION (contd.)
-Ground water: Take account of impacts on ground water tables of
electricity tariffs & pricing of diesel; promote efficient water use
techniques; ensure availability of ground water potential maps
through a designated institution; support rain water harvesting and
artificial groundwater recharge; mandate water harvesting and
artificial recharge in all new constructions; implement a
comprehensive strategy for regulating use of groundwater by
large industrial & commercial establishments; support R&D for
rural drinking water projects free from toxic pollutants; improve
productivity per unit of water through water assessment & audit;
identification of suitable sites for dumping hazardous & toxic
wastes to prevent contamination of groundwater; and ensure
optimum utilization of fertilizers, pesticides & insecticides improve
quality of water.
-Wetlands: Set up legal mechanism for conservation of wetlands
along with conservation & wise use of wetlands with participation
of the local communities; factorization of economic value of
environmental services into cost-benefit analyses; consider unique
wetlands as entities with ‘Incomparable values’ for their
protection; and integrate wetland conservation into sectoral
development plans for poverty alleviation & livelihood
improvements
 STRATEGY AND ACTION (contd.)
vi). Mountain Ecosystems:
-Adopt appropriate land use planning & watershed
management practices; Adopt ‘best practice’ norms for
infrastructure construction; encourage cultivation of traditional
varieties of crops and horticulture; promote sustainable tourism
through ‘best practice’; take measures to regulate tourist inflow
as per the carrying capacity; and consider unique mountain
scapes as entities with ‘Incomparable Values’.
vii) Coastal Resources:
-Sustainable management of mangroves & ensure livelihood of
local communities; disseminate regeneration techniques for
coral reefs; take sea-level rise and climate change into account
in coastal management plans, infrastructure planning &
construction norms; adopt comprehensive approach to
integrated Coastal Management by addressing linkages to all
micro-habitats; and strengthen regulations on ship-breaking
activities on human health, and coastal and surrounding marine
resources
 STRATEGY AND ACTION (contd.)
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 a
national strategy for urban mass transport to reduce vehicular pollution;
promote reclamation of waste lands by energy plantations for rural energy
requirements; and strengthen efforts for partial substitution of fossil fuels
by bio-fuels through bio-fuels plantation.
-Water Pollution: Develop & implement public-private partnership models
for effluent & sewage treatment plants, implement action plans for
mitigating water pollution of all major cities with effective regulations;
prevent pollution of all water bodies; enhance capacities of spatial
planning among State & Local Govts. with adequate legal support;
promote R&D for low cost sewage treatment at different scale; and take
explicit account of groundwater pollution in pricing policies of agricultural
inputs.
 STRATEGY AND ACTION (contd.)
-Soil pollution: Develop & implement viable models of public-private
partnerships for setting up & operating landfills, incinerators, and for disposal
of toxic & hazardous wastes; develop inventory of toxic & hazardous waste
dumps along with an online monitoring systems; strengthen the legal
arrangements & responses measures for emergencies; strengthen
capacities of local bodies for segregation, recycling & reuse of municipal
solid wastes; legal recognition to informal sector system for collection &
recycling of various materials, promote organic farming to reclaim of land
exposed to agro-chemicals; enforce regulations & guidelines for
management of e-wastes; and promote beneficial use of non-hazardous
wastes i.e. fly ash, bottom ash, red mud & slag etc.
-Noise Pollution: Make appropriate differentiation between different
environments in setting different ambient noise standards; distinguish
between noise standards in the context of occupational exposures; formulate
noise emissions norms; include ambient noise as one of the environmental
quality parameters & encourage dialogue between the State/Local
Authorities and religious/ community representatives on the enforceable
duration, timing & use of loudspeakers & crackers.
 STRATEGY AND ACTION (contd.)
ix) Conservation of Man Made Heritage: While setting
up ambient environmental standards, the potential impacts
on ‘Distinguished Heritage Sites’ must be taken into
account; Heritage sites considered to have “incomparable
Value” thus would merit stricter standards; Impacts on
heritage sites be one of the terms of reference for EIA of
the projects.
x) Climate Change: Adherence to common but
differentiated responsibilities in the mitigation of GHGs;
Reliance on multilateral approaches; equal per capita
entitlements of global environmental resources to all
countries; 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 development
mechanism’; and participate in voluntary partnership in
sustainable development.
 STRATEGY AND ACTION (contd.)
3. Environment Standards, Management System,
Certification & Indicators:
-Environment Standards: Setting up a permanent machinery to
review ambient & emission standards taking into account the new
scientific findings, changing material circumstances & ensuring
participation of impacted communities & industry associations; and
strengthening testing infrastructure & network for monitoring
mandatory ambient environment quality.
-Environment Management, Ecolabeling and Certification:
Encourage industry associations to promote ISO 14000; adoption of
EMS through purchase preference for ISO 14000 goods & services for
Government purchases; formulate ‘Good Practice Guidelines’ for
ecolabels to enhance their scientific basis & transparency; promote
mutual recognition of Indian & foreign ecolabels to enhance their
market access at lower costs; and promote ‘Good Practice
Guidelines’ norms in all relevant sectors to conserve natural
resources & reduce adverse environmental impacts.
 STRATEGY AND ACTION (contd.)
4. Clean Technologies and Innovations: Encourage
capacity building in the financial sector for appraising clean
technology switchover project proposals; set up mechanism to
network technology research institutions for clean technology ;
and use of revenue enhancing fiscal instruments to shift to clean
technology & promote adoption of clean technology by industry.
5. Environmental Awareness, Education &
Information
6. Partnership and Stakeholder Involvement:
Involvement at different levels i.e. Public-Community; Public-
Private; Public-Community & private; Public-Voluntary
Organisation; Public-Private & Voluntary Organisation is to be
realised in terms of good governance, transparency and efficiency.
 STRATEGY AND ACTION
7. Capacity Building: Review the present institutional capacities
at the Central & State levels to enforce environmental laws &
regulations; incorporate in all environmental programmes a capacity
building component with sufficient funds; and ensure continuous up
gradation of knowledge & skills of the scientific & technical personnel
involved in environment management.
8. Research and development: Periodically identify &
prioritize areas for research; establish research programmes in
priority areas within the Govt. & also encourage research in priority
areas outside Govt. with necessary financial & institutional support.
9. International Cooperation: at all levels
10. Review of the Policy: Undertake consultation every 3 yrs
with group of diverse stakeholders to update the Policy; in the third of
the 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 nominated
committee of the cabinet may be requested to review the
implementation of this Policy.
 Critique of the NEP, 2006
1) The Policy does not challenge the fundamental nature of the current
model of ‘development’ which is at the heart of environmental
destruction. What is needed is at least a vision that puts nature and
overall human well-being (cultural, spiritual, material, intellectual) at the
centre of a process of development, and from which would emanate the
core principles and strategies for ecologically sustainable development
models.
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 current
institutions 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 citizens
to participate at all levels of decision-making regarding the environment.
This weakens its initial principle of decentralization and people’s
participation.
 Critique of the NEP, 2006 (Contd.)
5) Policy recommends that, ‘wasteland and degraded forestland’
be reclaimed through partnerships. The Policy does not clearly
specify that there would be no transfer or leasing of common
lands to industries.
6) Classification of specific ecosystems under the chapter
Strategies and Actions has not done scientifically. Moreover,
certain categories like grasslands, deserts, and marine
ecosystems are completely missing.
7) The section on “Wildlife” does not promote the involvement of
people within ‘PANs’. The section only speaks about protection
of wildlife within the protected areas while forgetting the fact
that however much it may be expanded, the ‘protected area
network’ in India will never cover more than a fraction of the
land 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 the
category of areas with ‘incomparable value’.
 Critique of the NEP, 2006
9) Section on “Environmental Awareness, Education, and
information” is silent about the locale-specific education
curricula and awareness programmes.
10) The Policy pays lip service to the livelihood dependence
and rights of ‘adivasis’ and other ecosystem-dependent
communities in India.
11) The Policy shows a lack of attention towards key areas like
grazing 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 no
mention at all in the Policy document.
 Indian Environmental Regime
Constitutional concerns:
--Directs State to improve the standard of living
and public health (Art. 47).
-Art. 48-A of the Constitution (42nd Amendment)
Act, 1976 in its ‘Directive Principles’ declares
that the State shall endeavor to protect &
improve the environment as well as
safeguarding forests & wildlife.
-Art. 51- Under “Fundamental Duties” assigns the
citizen to protect & improve the environment
including forests, lakes, rivers, wildlife etc.
 Indian Environmental Regime
Constitutional concerns:
-Right to life is fundamental right including right
of enjoyment of pollution free water & air for full
enjoyment of life (Art. 21).
-The citizen can take recourse for removing the
pollution of water or air which may be
detrimental to the quality of life (Art. 32 ).
-73rd and 74th amendments assigns powers,
authority & responsibilities to both Panchayats
and Municipal Bodies in managing natural
resources such as land , water, fisheries, minor
forests produce, urban forestry etc. (Art 243-A &
243W )
 Indian Environmental Regime
Legislative 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 the
above mentioned laws”