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May 17, 2016

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Evolving Environmental Jurisprudence In India


- Dr. Jayant Dasgupta, Executive Partner [ Lakshmikumaran & Sridharan, Attorneys ]
- Sudeep Deshmukh, Senior Environmental Analyst [ Lakshmikumaran & Sridharan, Attorneys ]

dr-jayantdasgupta & sudeepdeshmukh

Proactively understanding, anticipating and planning for environmental compliance will help industries mitigate potential legal and financial expenses and help them get social mileage as trendsetters in environmental stewardship

Regulatory Framework for Environment Protection in India

The United Nations Conference on the Human Environment (1972) held in Stockholm, marks the first global event that recognised that the environment was endangered and that collective efforts were needed to protect and conserve the global commons. The National Council for Environmental Policy and Planning was set up in India in 1972, which later evolved into the Ministry of Environment and Forests in 1985 and is presently known as the Ministry of Environment, Forests and Climate Change (MoEFCC).

Environmental concerns received due recognition in the Constitution through the 42nd Amendment in 1976, which incorporated these into the Directive Principles of State Policy and Fundamental Rights and Duties.1 Before this, the Wildlife (Protection) Act 1972 and the Water (Prevention and Control of Pollution) Act, 1974, had already been enacted. Environmental legislation in India can be broadly divided into two categories – one dealing with conservation and protection of wild life and natural habitat, including the forests and coastline and the other dealing with operation of industries in a non-polluting and environmentally sustainable manner. MoEFCC, the Central Pollution Control Boards (CPCB), and the State Pollution Control Boards (SPCBs) form the administrative core for the regulation and protection of environment.

The policies, acts, and rules related to environment are framed by the Government of India at the central level through the MoEFCC and by the regional or State Departments of Environment and Forests (SoDEF) in the respective States.

The Environment (Protection) Act, 1986 (EPA), which is the umbrella act for environmental protection, empowers the Central Government to set national standards for ambient environmental quality and for regulating discharges in industrial locations, to prescribe procedures for the management and handling of hazardous substances, to collect and disseminate information regarding environmental pollution, etc. In order to reduce the burden on the existing judicial system as well as to ensure effective and speedy implementation of environmental legislation, the National Green Tribunal (NGT) was established in 2010. It is a specialised body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues.2 NGT has a wide range of powers which cover all environmental issues. The principles of adjudication are based on natural justice, absolute liability principle in case of an accident, precautionary principle, polluter pays principle, and the doctrine of sustainable development. The environment and pollution laws in India are summarised in Chart 1 below.

 
Environment
The Environment (Protection) Act, 1986
 
Air
The Air Act, 1981
 
Water
The Water Act, 1974
Environmental & Pollution Laws
National Green Tribunal
The National Green Tribunal Act, 2010
 
Forest
The Forest (Conservation) Act,1980
 
Wildlife
The Wild Life (Protection) Act, 1972
 
Biodiversity
The Biological Diversity Act, 2002

Chart 1: Environment and Pollution Laws in India

National Environment Policy

The National Environment Policy (NEP) outlines our national commitment to a clean environment, which is mandated in Articles 48 A and 51 A(g) of the Constitution, strengthened by judicial interpretations of Article 21. Maintaining a healthy environment is not the State’s responsibility alone, but also that of every citizen. The NEP has been intended to mainstream environmental concerns in all development activities. The objectives of the NEP are conservation of critical environmental resources, intra-generational equity - livelihood security for the poor, inter-generational equity, integration of environmental concerns in economic and social development, efficiency in environmental resource use, environmental governance and enhancement of resources for environmental conservation. The NEP aims to stimulate partnerships between different stakeholders like public agencies, local communities, academic and scientific institutions, the investor community and international development partners in harnessing their respective resources and strengths for environmental management.3

Ganga Action Plan and the National Mission for Clean Ganga

The Ganga Action Plan (GAP) was launched in 1985 with the prime objective of pollution abatement to improve the water quality of the river Ganga. The objectives of GAP involved interception and diversion of wastewater and its treatment in Sewage Treatment Plants before discharge into the river or on land, preventing pollution of the river from non-point sources, improving aesthetics, treatment of industrial effluent before discharge into river, and promoting public participation. The Government of India gave Ganga the status of a National River and constituted the National Ganga River Basin Authority (NGRBA) on 20 February 2009. The National Mission on Clean Ganga (NMCG), the successor to GAP, is the implementation wing of the NGRBA. Its aims and objectives include ensuring effective abatement of pollution and rejuvenation of the river Ganga by adopting a river basin approach to promote inter-sectoral coordination for comprehensive planning and management and to maintain ecological flows in the river with the aim of ensuring water quality and environmentally sustainable development4.

The CPCB has developed a segmented Action Plan which is based on identifying sources of pollution and assessment of pollution load of each segment of the river Ganga. CPCB has also strengthened the on-line monitoring and vigilance mechanisms for ensuring compliance by industries and it has also given directions for promotion of conservation of water and adoption of Zero Liquid Discharge system.5 The CPCB has also recently issued “show cause notices” (July 2015) under Section 5 of EPA to 764 Grossly Polluting Industries (GPI) operating in the main stem of the River Ganga.6

India’s fresh water reserves are getting depleted at a very rapid pace and there is urgent need to conserve and protect them. The Ministry of Water Resources is currently working on draft legislation in order to regulate the use of fresh water. The prime objective of this legislation is to conserve fresh water, categorise the areas/purposes for which freshwater (surface water, ground water, reserved rain water) can be used and areas/purposes where it cannot be used, to rely more on treated water, and use freshwater only for limited purposes.7

Swachh Bharat Abhiyan

The Swachh Bharat Abhiyan (Swacch Bharat Mission) launched by the Prime Minister on 2 October, 2014 has two sub-missions, namely the Swachh Bharat Mission (Gramin) and the Swachh Bharat Mission (Urban), which aim to achieve Swachh Bharat by 2019.8 The objectives of the Swachh Bharat Abhiyan include elimination of open defecation, construction of individual, cluster and community toilets, to link people with programmes of sanitation and public health in order to generate public awareness, to promote awareness among people of healthy sanitation practices by bringing behavioural changes, to build up the urban local bodies strong in order to design, execute, and operate all systems related to cleanliness, to completely start the scientific processing, disposals reuse and recycling the municipal solid waste, to provide required environment for the participation of the private sector etc. The successful completion of this Mission would indirectly result in the conservation of natural resources, effective management of waste, boost new business investors in India, enhance GDP growth, invite global attention of tourists, open new opportunities for employment, reduce health costs etc. “Swachh Bharat Abhiyan” has been described as ‘a massive mass movement that seeks to create a Clean India’, but this can be achieved only if the government, stakeholders, and all citizens work together.

Modification of Environmental Laws

In exercise of the powers conferred under Sections 6 and 25 of the EPA, the MoEFCC in 2015 published draft revised environmental standards for industrial sectors like sugar, pulp and paper, slaughterhouses, textiles, man-made fibre, fertilizer, paints, cement plant, brick kiln, cement plant with co-processing of wastes and Common Effluent Treatment Plants (CETPs). MoEFCC had also proposed draft revised rules for plastic waste, e-waste,

Major challenges in achieving environmental compliance include identification of environmental risk, lack of compliance culture, financial constraints.

bio-medical waste, hazardous waste and municipal solid waste. In March 2016, the MoEFCC has also proposed draft environmental standards for automobile service stations, fermentation industry, coffee industry and iron & steel industry. Comments and suggestions of stakeholders have been invited on these drafts standards and rules. The draft standards and the draft waste rules specify substantially enhanced standards from before.

On 14 January, 2016, the Central Government notified the revised standards for sugar industries. Further, in March 2016, the Central Government has also notified the Plastic Waste Management Rules, 2016, the E-Waste Management Rules, 2016, the Hazardous Waste Management Rules, 2016 and the Bio-medical Waste Management Rules, 2016. A number of positive changes/additions have been made in the notified standards and the waste management rules for protection and conservation of the environment.

In light of these developments, there is a likelihood that proposed environmental standards for other industrial sectors and waste management rules could also get notified in the near future. The cost of implementation of the proposed standards does not appear to be very high for industries which are already complying with the existing standards. However, the industries which are not complying with the existing regulations will have to bear the cost for implementation of the proposed standards as they will have to install emission and effluent mitigation devices for the first time and also take effective steps to achieve compliance.

Challenges under Environmental Laws

There are a number of environmental regulations in India which have to be complied with by industries. No industry can commence its operations without seeking the consent of relevant authorities under applicable environmental laws. Non-compliance with applicable environmental laws can have serious implications in terms of delay in setting up a business, increase in project cost, tarnishing of public image, threat to business continuity and criminal liability.

The use of a wide range of chemicals and rapid depletion of fresh water reserves has led to growing awareness in India about the criticality of following a path of sustainable industrial development. In the light of various judicial pronouncements, the CPCB and SPCBs have embarked on various initiatives like installation of online continuous environmental monitoring systems, zero liquid discharge etc. The NGT, CPCB, and SPCBs have the power to take actions like revocation of consent to operate, inspection of the facilities, disconnecting water/ electricity supply, initiating action for imposition of fines and/or imprisonment, and even closure of an industry for non-compliance with environmental regulations. The major challenges in achieving environmental compliance include identification and assessment of the associated environmental risks, lack of compliance culture, lack of resources, lack of awareness, inadequate pollution inventories and financial constraints.

Identification of and compliance with the applicable environmental regulations is very critical for an industry to achieve business continuity. As many industries, both domestic and foreign, are looking to invest in India, a successful business strategy would have to proactively understand, anticipate and plan for environmental compliance. This will help the industries to not only mitigate potential legal and financial expenses, but also help them derive effective social mileage as trendsetters in environmental stewardship. While the environmental regulations may seem challenging, the right planning and strategy can turn potential losses into pleasant economic gains.

1. http://www.moef.nic.in/sites/default/files/wssd/doc2/ch2;
2. http://www.greentribunal.gov.in/
3. Government of India, Ministry of Environment and Forest (2006) National Environmental Policy;
4. http://nmcg.nic.in/aims_obj.aspx;
5. CPCB (2015) A Plan on Conservation of Water Quality of River Ganga-A Segmental Approach;
6. CPCB (2015) A Plan on Conservation of Water Quality of River Ganga-A Segmental Approach;
7. http://indianexpress.com/article/india/india-news-india/centre-working-on-water-law-to-restrict-use-says-uma-bharti/;
8. Ministry of Drinking Water and Sanitation Government of India (2014) Guidelines for SWACHH BHARAT MISSION (Gramin)

Disclaimer - The views expressed in this article are the personal views of the author and are purely informative in nature.

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