Environmental Legislation

Sanjiv Tyagi, IFS

Member Secretary,
Gujarat Pollution Control Board
Gandhinagar
 What is Environment?

 It is inter & intra relationship between

biotic & abiotic systems.
 It includes everything to exclusion of
nothing.
• Biotic – Human & Other Living Beings
• Aboitic – Air, Water, Land/soil, Spectrum
Legal Definition of Environment
 As per the EPA – 1986 environment is
defined as Below:
‘environment’ includes water,
air and land and the inter –
relationship which exists among &
between water, air and land, and
human beings, other living creatures,
plants, micro – organisms & property
 What is Law?
 In general terms it means rules &
regulations.
 John Austin in early 19th Century has
defined Law as “Command of
sovereign”
 Sovereign – King/queen
 Law is Means, Punishment is the end
 What is Law?
 In the Late 19th century John Salmond
has defined Law as “Body of
principles recognized & accepted by
the state in administration of the
justice.”
 As per this definition the purpose of
the law is Justice
 Law is Means, Justice is the End
 What is Law?
 Another Person has defined Law as “ A
tool of socialized engineering”
 The assumption here is that people
understand & obey the law. This leads
to a civilized society.
 Law is Means, Civilized Society is the
End
 This definition is fast gaining
acceptance worldwide.
 Environmental Law : History
 Germany & France have been traditionally
environmentally conscious states.
 Sweden, Norway, Finland are environmentally
conscious states in modern world.
 Germany & France had the laws for soil
protection as back as 19th century.
 Bavaria – A German State had a law for the soil
protection known as “Bavarian Soil Law”
Earliest & the best known law on soil protection
 Environmental Law : History
 Industrial revolution started in United
Kingdom in 20th century lead to
pollution of Air & Water.
 Pollution of rivers like Thames. The
concept of BOD (5 day & 200C) came in
to being.
 London smog incidence occurred in
1952
 Los Angles smog continued to happen
for 5 years from 1962 – 67.
 Environmental Law : History
 London smog was due to industrial pollution
caused by SPM & SO2 Whereas LA smog was due
to Vehicular Pollution caused by PAN (Paroxy
Acetyl Nitrate) & PBN (Paraoxy Benzoyl Nitrate).
 London smog was in the night time, where as LA
smog caused in early morning due to the
photochemical reactions between pollutants.
 This LA smog lead to enactment of the first
“clean air act” in USA somewhere around 1970s.
 Environmental Law: History
 First conference on the environment held on
5th – 14th June 1972
 It was held by United Nations Conference on
Health & Environment at Stockholm.
 There were delegates from the various
country having persons from industry,
Public Health Engineers, Sci. & Tech.
People, Agri. Etc.
 From India Prime Minister Smt. Indira
Gandhi attended the conference.
 Environmental Law: History
 The famous quote of Smt. Indira Gandhi –
“Poverty is the biggest polluter”.
 As a consequence to the conference
Water Act came in to being in India in
1974.
 In early 80s Rowland & Myers studying in
Antarctica found a big hole in the ozone
layer.
 Environmental Law: History
 This ozone depletion was more towards
the pole.
 People were affected by the depletion &
the cases of Skin diseases increased in
polar region.
 This ozone depletion was due to CFCs.
 Environmental Law: History
 As a consequence of the ozone
depletion Montréal Protocol came
into being in 1987.
 It included:
1. Phasing out of CFCs & Other Ozone
Depleting substances.
2. Transfer of technology
3. Multilateral Funding
 Environmental Law: History
 In 1987 world Commission on
Environment & Development headed
by Ms. Gro Hurlem Brountland, Ex.
Prime Minister of Norway, pubilshed
a book having title “Our Common
Future”.
 This book first used the term
“Sustainable Development”.
 Environmental Law: History
 Sustainable Development:
“To meet the felt needs of the
present generation without
compromising with the ability of the
suture generation”.
 It involves the principle of
intergenerational equity.
 Environmental Law: History
 Sustainable development includes:
– Rational & Optimum use of the resources
i.e. it follows the following cycle.
– Development earn profit Invest in
environment regenerate resources
Conserve resources use better/ alternate
technology. Reuse
– S.D. also includes H.R. development and
Human Development Index (HDI).
 Environmental Law: History
 2002 – World summit on Sustainable
development
 Participated by Prime Minister/President of
Various country.
 From 1972 – 1992 Various decisions been
taken like
 Montréal Protocol in 1987
 Our Common future & Sustainable
development concept in 1987
 Environmental Law: History
 United Nations conference on
Human Environment recommended
a common national law on pollution
& law on compensation.
 1992 conference on WCED has
enunciated two principles to the
Environment:
1. Principle 15
2. Principle 16
 Environmental Law: History
 Principle 15 is precautionary Principle:
- Even though one may not have the
scientific knowledge and/or technological
know-how then also one must
act/operate/carry out process/industry /
operation in such a ways so as to cause
minimum or no damage to
environment.
- It is one of the basic principle of
International Environmental management
 Environmental Law: History
 Principle 16 – Polluter Pay’s Principle
- It envisaged ”Internalization of cost of
the pollution prevention in the overall cost
of the project.
- It means that “Environment” is not
external to the project.
- Principle 16 has to be read with principle
15.
- It does not allow one to pollute & then
Pay.
 Environmental Law: History
 Outcome of the WSSD:
1. Attended by PMs/Presidents & talked about
development.
2. It recommended Reengineered EIA Process.
3. It also gave the concept of Corporate
responsibility for Environmental protection
(CREP) – that is voluntary compliance instead of
regulatory compliance.
4. CSR – Corporate Social Responsibility.
 Environmental Law: History
 Bali Convention on Oct. 2007 where
discussions took place on global
warming.
 India is likely to increase CO2 emission
from 170 Million Tones per annum to
250 Million Tons by the end of 2025.
This is being opposed by many
Western Countries.
Environmental Law: Indian Prospective
 Parliament enacted the Water (Prevention
& Control of Pollution) Act, 1974 after
coming back form the UNCHE
 The Air Act came into being on 1981
 After Bhopal gas tragedy Environment
(Protection) Act – 1986 formed to address
the environmental issues which are not
covered under Water & Air.
 It is an Umbrella Act.
 It allows us to address issues related to
Hazardous Waste management, BMHW,
MSWM ozone depleting substances etc.
Environmental Law: Indian Prospective

 India notified EIA/EC procedure in

1994.
 The 1997 Environment Public
Hearing notification incorporated
public participation in grant of EC
 In 2006 India has reengineered its
EIA process as recommended in
WSSD, 2002
 Constitutional Provisions
 Hierarchy of Laws:
Constitution Supreme

Acts Passed by
Parliament/Assembly

Rules Ratified by
Parliament/assembly

Notification Notified in gazette after following

due procedures as provided in
Act/Rule
Govt.
ORDERS OF Govt. must consonance
Order/Resoluti
with all the above
on
 Constitutional Provisions
 A law can not be passed by parliament if it
contradicts the constitution.
 Acts moved as bills follows the following
route form LS RS President Assent
Act
 Money Bills Passed by LS gets assent of
President & becomes Union Budget
 Money comes from consolidated fund of
India and can be appropriated through
budget only..
 Constitutional Provisions
 Rules:
• Rules can be made only if there are
Provision in the act to make rules
• Any rule has to be laid before the
parliament prior to making/after making.
• EPA’86 provided that rules made under
the act must laid before the parliament
within 6 months after making.
• Hazardous Waste rules 1989, MSE, BMW
made under EPA- 86.
 Constitutional Provisions
 Notification:
• 120 days public notice is required in EPA – 86
• The notification must be published in the
gazette within 365 days of the draft
notification.
• Notification is not laid before the parliament.
• Govt. orders are passed by govt. to run its
affairs.
 Constitutional Provisions
 Supreme Court / high court may
declare any act/law as ultravires –
Anti constitutional - & it is null &
void.
 More than 100 amendments have
been made in the constitution.
 But One can’t change “basic
structure” of the constitution.
 Constitutional Provisions
1. Directive Principles of State Policy
2. Fundamental Rights
3. Fundamental Duties
 Here State means any authority in
India
 DPSP should be a guiding principle
for the state for enactment of Law
or decide about a policy.
 Constitutional Provisions
 Article 48 A is added under fundamental
rights of a citizen.
 It says that a state shall protect forest,
wildlife & environment.
 Fundamental duties are added in 1976 by
the 42nd Amendment to the constitution.
 Article 51 A (g) says that an individual
must protect natural land, environment,
river water, wild life & ecosystem & have
compassion to them.
 Constitutional Provisions
 There are many fundamental rights
 The first & fore most is Right to Life
under article 21
 It states “ No person shall be deprived
of his life except in accordance with
procedure established by law.”
 This is not only for the citizen of India
but also for any person that included
foreigner
 Constitutional Provisions
 If a fundamental right is violated one can
approach directly the Supreme Court/High
Court.
 Earlier Supreme court had quoted.
 Right Life ~ Right to Lively hood
 S.C. had held that Right to life includes right
to good environment.
 Any environmental issues can directly be
taken to Supreme Court/ high Court under
Article 21.
 Constitutional Provisions
 Three lists are three in the constitution
distinguishing the powers of Parliament & Assembly
to legislate.
1. State List – Home/Law & Order, Water, Land
2. Central List – Defense, foreign Relation Railways
3. Concurrent list – Forest, wild life, education.
 Only state legislature can make legislations on the
state list
 Similarly parliament can make law/act under the
items covered in their list
 Both can make legislations on items under
concurrent list but in case of contradiction
legislation passed by parliament prevails.
 Constitutional Provisions
 Water is covered under state list but still
the Parliament enacted Water Act – 1974
under Article 252 of the constitution.
 Article 252 “If two or more than two state
legislatures resolve in their assembly &
request the parliament to make a common
law for all such state.” This law/act is to be
followed by the states which has
requested & any other state if its assembly
passes a resolution to accept that law.
 Constitutional Provisions
 Air Act 1981 was enacted as per the provisions
of Article 248 which says that the parliament has
a residuary power to enact a law on the topics
which are not covered in any of the lists.
 Article 253 gives the Exclusive power to
parliament to enact a law/act to impose any
international Agreement/Treaty.
 EPA – 86 is under the provisions of Article 252.
 Earlier there were special acts like air act for air/
Water Act for water but EPA – 86 covers all the
issues that were not covered under any
individual law. So it is called as umbrella act.
 Constitutional Provisions
Constitution

President/Head of the state

Executive Head Legislature Judiciary

PM CM Parliame State
nt Legislature
Chief Justice of
S.C
Cabinet

Other Judges
Government
 Constitutional Provisions
 Article 141 says that “Law declared
by the Supreme Court shall be
binding on all courts in India”.
 Parliament passes the law where S.C
declares the law.
 Environment in Other Laws
 There are legislations other than Env. Laws but
can cover the issues of Env. They are:
1. IPC - 1860
2. PLI - 1991
3. CrPC – 1878 (Amended in 1973)
 Under Section 133 of CrPC Public nuisance is
prohibited and SDM can initiate action against
defaulters.
 British Law also addressed public nuisance.
 Environment in Other Laws
 Earlier there was a principle of
restricted liability:-
 If there is a negligence, willfully
causing harassment.
 It has two exceptions via accidents &
act of God. This was first used in
British Law. & Adopted in the Indian
Law as our laws were mostly adopted
from Britishers.
 Environment in Other Laws
 In 19th Century principle of restricted
liability used to apply.
 After Bhopal Gas Tragedy the case went to
the Supreme court in which the Lawyers of
union Carbide has emphasized on the
principles of Restricted Liability for the
Defense of their client.
 The, then Chief Justice of S.C. Mr. P. N.
Bhagavati changed it to the “Principle of
Strict or Absolute liability”.
 Based on the S.C. Judgement Govt. Of
India Brought PLI - 1991
 Environment in Other Laws
 Principle of Restricted Liability:
 No Negligence + Concentrate only on
ensuring proper process/Operation in
Unit /Industry
 Principle of Absolute / Strict Liability:
 Industry Must Plan for exigencies
/emergencies.
 PLI – 1991 Focuses on the industry to
have off site Emergency Plan.
 Environment in Other Laws
 Section 133 of CrPC: “It empowers the Sub
divisional Magistrate to cause inquiry to his
satisfaction, he can pass an order to
prohibit/regulate the person causing air
pollution/water pollution/obstructs water
flow.
 This order can be Conditional.
 this is mostly used section by the district
authority to control Pollution.
 Order Passed by SDM cannot be challenged
in any civil court.
 Environment in Other Laws
 IPC & CrPC read together give two
sections S-4 & S-40 says there are twp
types of law: Special Law & Local Law.
 If the special laws are in force then all
action be taken according to those
provisions.
 Local law prevails if any state govt.
passes local law.
 Environmental Laws
 There are Three major Acts that deals with
Environment.
1. The Water (Prevention & Control Of
Pollution) Act – 1974
2. The Air (Prevention & Control Of Pollution)
Act – 1981
3. The Environment (Protection) Act – 1986
 Before reading or understanding any law
one must read preamble to have the
insight in to the minds of the law framers/
parliamentarians. It gives the purpose of
the act.
 Do not read any section without reading
the definition.
 Formation/Commencement of Act
 There are three ways in which act can
came into being, from:
1. Date of Assent of President
2. Date of the notification in official gazette.
3. Date of Commencement as mentioned in
notification.
 General Clause Act – 1897 says that if any
act the date of commencement is not
mentioned it shall assume to be applicable
on the date President Signs it.
 Environmental Laws
 One should always read all three acts together
instead of reading individual sections of the
different acts.
 One should also read the definitions as
prescribed in the act to get the best
understanding of the words used in the act.
 In definitions the word “means” clearly specify
the meaning of the same word as prescribed
in the law. Any other meaning is not important
if the word is defined with the use of means in
the act.
 Authorities under various acts
Water Act Air Act EPA Water Cess

CPCB – S3 CPCB Central Assessing

SPCB – S4 SPCB Gov. Authority
State Gov. State Gov. State Gov. Appellate
Central Central Authorities authority
Gov. Gov. under
Appellate Appellate various
section of
Authority Authority
EPA
 Environmental Laws
 The word “include” besides the dictionary
meaning of the words also includes
whatever is stated.
 To get the best understanding of the law
one should always keep the following in
mind.
1. Definitions
2. Do not read any section of law in isolation
but read it in totality.
3. Read provisions of one law with other
relevant provisions of other env. law
 Constitution of the Boards
 CPCB – chairman + Member
Secretary + 5 members of GOI + 5
members of S.B. + 3 non officials
member + 2 persons from PSU.
 SPCB – chairman + MS+ 5 members
of S.G.+ 5 members representing LB
+ 3 Non official members + 2
persons from S.G. PSU
 Disqualification of Members
 Adjudged insolvent
 Moral Turpitude
 Unsound mind, if so declared by Court
 Convicted for any offence under any act
 Carries on any Business related to
environmental pollution control
 Associated with firm having contract with
board or with the govt. constituted board.
 In the public interest to be specified in the
disqualification order by govt.
 Functions of the board
 Prevention, Control & Abatement of Pollution.
 Water Act – Maintaining / restoring the
wholesomeness of water.
 Air Act – Preserving Air Quality
 EPA – Protection & Improvement of Environment.
 Wholesomeness – w.r.t Local situations implies
maintaining “Pristine Form”
 Air Quality varies with the region so one has to
preserve it. If not Preserved must strive to
improve/restore the air quality to its original.
 Who can Issue Directions?
 CB – SB,
 MoEF – CB, SB
 DoEF – SB
 Directions under the law means
order.
 Functions of CB
 Advise Govt , for prevention, control &
Abatement of Pollution
 Resolve disputes between various state on
issues of water & Air Pollution
 Co –ordinate activities between state boards.
 Provide technical assistance by publishing
Annual Report, guidelines, research/studies,
Publication.
 Organize training for SPCBs in house or Abroad
 Awareness through media for P C & A
 Laying down standards
 Functions of SB
 Plan & Execute comprehensive program for P C
&A
 Advise SG for PC&A
 To collect & disseminate information
 Collaborate with CPCB for training
 To inspect sewage & trade effluent plant
 Under AP – to inspect any control equipment or
industrial plant or Manufacturing Process
 To lay down standards
 To evolve economical & reliable methods for
treatment of sewage & trade effluent
 Utilization of sewage in agriculture
 To evolve efficient method for utilization of
sewage & trade effluents on land in absence of
water flow
 Advise SG for location of industry
 Powers of CG
 Power to regulate
 Power to make rules
 To regulate BMW, HW, Plastic
Recycling, MSW, Battery Rules, Noise
Rules, CRZ, EIA/EC notification
Restriction on Industries, Location,
Process or Operation
 Water Act – Restrict application of WA to
certain area – S19 – S.G.
 Decide about limit f sea up to which it
extends – S.G.
 Restrict / prohibit any operation/ process /
industry under S25 - consent of SB
 Air Act –Restrict application of AA - CG
(S19)
 Restrict any ind / oper /process/ ind.plant
 EPA – restrict /prohibit any
operation/ process / industry.
 Restrict location
 Restriction on hazardous materials
• Permissions required from board
 Water Act
 Air Act
 EPA - HW rules, H C Rules, EIA - 06
 Power to Obtain Information
 Water Act – ETP, Details of water &
treatment – S20
 Air Act – Air pollutants – S25,
apprehension of accident – S23
 EPA – Information to pertaining to
any ENV. Discharge – S9
 Power to take samples
Sr. Description WA AA EPA
No.
1 Power of S 23 S 24 S 10
Entry &
Inspection
2 Power to S 21 S 26 S 11
take
samples
3 Power to S22 read S S 12 t0
Analyze with S 28,29,30 14
17 & ,27 & 17
52,53,54
 Power to issue directions
 Water Act – S33 power to restrain from
polluting by moving to court
 Air Act S 31A & Water Act S 33A - power of
Authority to issue directions
 EPA – S5 – power to central Govt
 Direction issued by CG
 In performance of its functions (S 17)
 State board can issue directions to any
person/ officer / authority bound to comply
 Includes power to close/prohibit/regulate
industry/operation/process
 Penalties
Sr. Penalty WA AA EPA
No.
1 Up to 3 months20 (2) 23 Up to 5 yrs
or fine or both or up to rs
1 lac or
both
2 1.5 yrs to 6 yrs 32,33,33 A, 21,22,31 1 - 7 yrs
+ Fine 24 A 5000 Rs
per days
3 2- 6 yrs + fine 25,26
for
continued
4 2 – 7 yrs + 32,33,33 A 21,22,31 violation
Fine A after 1st
conviction
 Penalties
 Env. Laws are not compoundable i.e. no out
of court settlement
 Offence by Govt. Dept. are punishable
under S – 48 (WA), S 41 (AA), S – 17 (EPA)
 Head of dept – unless he proves offence is
w/o his knowledge or he took due care to
prevent it.
 Offences by companies - are punishable
under S – 47 (WA), S 40 (AA), S – 16 (EPA)
 Director / partner / site in charge /
occupier / manager
 Good Faith

 Anything done with due care & without

negligence. Here Care means follow
the procedure established by Law
 Good Faith is Defined in IPC
 Any act done in Good faith no Legal
proceedings will lie in any court.
 S 42 of AA, S 18 of EPA & S 59 of Water
Act have similar provisions
 Bar of Jurisdiction
 S 58 of WA, 41 of AA, 22 of EPA
 No civil court have jurisdiction to
entertain any suit of proceedings.
 Fund of Board:
 Funds by way of Fees, gifts, Grants,
Beneficiary/borrow with permission of
SG
 Budget to be made for expenditure
under S 34 to 37 of WA
 Annual report to be submitted to the
SG.
 Audit report to be submitted to the SG
 Effect of Other Laws
 WA – S 60 Overriding effect
 AA – S 50 Overriding except for
atomic energy act 1967
 EPA allows operation of WA & AA
 Suppression of Boards:
 Persistence default
 Public interest
 A show cause notice to be issued
asking for why it should not be
superseded
 Reply – hearing – superseded – notify
in gazette.
 Hazardous Waste Rules

 Under S 6, 8 & 25 of EPA 86 CG has

laid the rules
 S 6 – CG power to put restriction/
prohibit handling of hazardous
material/substance
 S 8 – Power to impose restriction on
handling of HM by not authorized by
law
 S 25 power to make rules
 Applicability of Rules
 Not to Apply to
1. Wastewater, air emission
2. Municipal waste
3. Radioactive waste
4. Ship waste
5. Hospital waste
6. Lead batteries
 Definitions
 Treatment
 Disposal
 Transport
 Storage
 Recycler
 Waste Oil
 Used Oil
 Rule 20 refining / recycling -
registration from MoEF/CPCB
 Storage of HW 90 days by ind. Unit
 Waste must be labeled such that it is
visible & can withstand weather
 Transport to be done with manifest
 Manifest gives the information about
HW to various players / shifting Legal
responsibility
 TSDF
 TSDF – Treatment Storage Disposal
Facility
 20 in India out of that 7 in Guj
 Procedure for developing TSDF
OOF & SG – two or more probable sites –
EIA – Finalize one of Them – P.H. – to
SPCB for notification to MoEF for EC
Responsibility of Occupier/OOF
 OOF is responsible for
1. M&H
2. Accident
3. Contain Contaminants
4. Safety
5. Provide info to the SPCB / Authority
6. Provide training to staff
 Authorization
 Authorization – rule 5
 Apply – MS of SPCB within 90 days for 5 yrs
 Generator - Type of waste as specified under
schedule 1 & 2 – collect – Store 90 days – OOF
membership of facility
 OOF
 Maintain record of HW generated
 Submit AR
 Reuse /recycle of HW
 Design of TSDF
 Design of TSDF
1. Design as per MoEF / CPCB
guideline
2. Approved by SPCB
3. Monitoring by SPCB
4. Ensure environmentally safe
management, closure & post
closure
 Import/Export
 No import / Export for dumping /
Disposal
 I/E for recycling/recovery/reuse is
restricted as per sch 8
 MoEF permission is necessary