Vandana Shroff and Ashish Jejurkar

The enforcement of environmental regulations in India has been a major bone of contention for the legislature. The concern was highlighted in as many words by the Chief Justice of India, Justice S.H. Kapadia. In a recent speech, Kapadia suggested amending various environmental laws so as to give them “more teeth” and also provide requisite machinery to implement them properly [Outlook (Nov 9, 2011)]. In light of the current political climate vis-a-vis corruption, at the forefront of public attention are many projects and factories that are alleged to having been undertaken or proposed by large corporations in contravention of environmental law or being damaging to the environment. Many of these controversies have involved civil society and native or tribal population protests, alleging that these projects have been given the approval by the Ministry of Environment and Forests (“MoEF”) and the state pollution control boards (“PCBs”), without a proper assessment of its impact on the environment and the local populace and their livelihood. Therefore, the issue at the heart of the debate regarding environmental protection has been striking a balance between environmental protection and economic development of India.

India has seen a failure of the administrative machinery in adequately protecting the environment. The Government of India had made an out of court settlement on behalf of the victims of the Bhopal gas tragedy, for an amount that was widely criticised as being inadequate. The decades subsequent to the infamous Bhopal gas tragedy saw the Supreme Court of India as the sole champion of the cause of environmental protection, with public interest litigation cases (“PILs”) being entertained from any individual citizen. Thus, it appears that it is the lack of an adequate legislative, regulatory and administrative framework that has propelled the judiciary into the role of India’s environmental protector at large.

The present article deals with issues plaguing the cause of environmental protection in India and the role played by the executive, legislature, and the judiciary. It seeks to identify and comment upon the key challenges in enforcement of the current environmental law regime, while making a proposal for a more sustainable development mechanism.

Environmental Law in India – Legal Framework & Jurisprudence
(i) Regulatory and Policy Structure
With over two hundred legislations in force, India has an exhaustive regulatory framework for environmental protection. The Forty-Second Amendment to the Constitution of India in 1976 introduced Articles 48A, which provides as a directive principle of state policy that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Additionally, Article 51A (g) was also introduced, which imposes a fundamental duty upon all citizens of India to “protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.” Additionally, Article 253 of the Constitution of India requires the state to honor its international obligations by enacting appropriate domestic legislative measures. India is a signatory to a number of international conventions that mandate protection of the environment including the famous Rio Declaration of 1992 which was signed by India and a large number of other nations at the United Nations Conference on Environment & Development held at Rio de Janeiro in 1992.

Apart from the Constitutional provisions that provide a general mandate on protection of environment, there are a plethora of other legislations dealing with specific environmental aspects. Important among these are:

• The Water (Prevention and Control of Pollution) Act, 1974 (“Water Act”) enacted to regulate the discharge of effluents into water beyond certain permissible limits.
• The Air (Prevention and Control of Pollution) Act, 1981(“Air Act”) enacted to regulate and prohibit air pollution.
• The Forest (Conservation) Act, 1980 provides for procedure for use of forestland for non-forest purposes.
• The Wildlife (Protection) Act, 1972 (“WPA”) provides for protection to certain endangered species plants and animals. The WPA also contains provisions for declaring a particular area in India as a wildlife sanctuary, national park or closed area for preservation of the ecological environment of such an area.
• The Environment (Protection) Act, 1986 (“EPA”) is an overarching legislation providing for the central government to take measures for controlling pollution by setting standards for emissions and discharges, regulating hazardous wastes and protection of public health. The EPA also provides for co-ordination between central and state PCBs established under the Water Act and Air Act.
• Hazardous Wastes (Management and Handling) Rules, 1989 are rules framed under the EPA to provide for a regulatory framework for regulating the handling, treatment, transport and disposal of waste in a manner which is not detrimental to the environment.
• The Public Liability Insurance Act, 1991 authorizes the central government to establish an Environmental Relief Fund to provide relief to victims of accidents occurring due to handling of any hazardous substances.

Further, a number of national policies such as the National Environmental Policy, 2006, National Policy on Pollution Abatement, 1992 and the National Conservation Strategy and Policy Statement on Environment and Development, 1992, serve as directives for the central and state governments to follow.

The Environmental Impact Assessment Notification, (S. O. 1533) issued by the MoEF on September 14, 2006 (“EIA Notification”) under Rule 5 (3) (d) of the Environment (Protection) Rules, 1986 (“EPR”) provides that prior environmental clearance is required for the construction of certain categories of projects, which are listed in the schedule to the said notification.

Paragraph 4 of the EIA Notification provides that all projects and activities are broadly categorized within two categories – Category A and Category B. All projects or activities included as Category ‘A’, shall require prior environmental clearance from the Ministry of Environment and Forests on the recommendations of an Expert Appraisal Committee, and projects falling within Category ‘B’ shall require prior environmental clearance from the State/Union territory Environment Impact Assessment Authority (“SEIAA”), whose decision will be based on the recommendations of a state or union territory level Expert Appraisal Committee. The EIA Notification bifurcates projects into Category A or Category B projects. The categorization is done on the basis of certain specified criteria or thresholds such as capacity for power plants or other manufacturing facilities or built up area for real estate development projects.

(ii) Judicial Contribution and Evolution of Environmental Jurisprudence in India
Indian Courts have played a pivotal role in enforcing the nation’s environmental standards by evolving various judicial principles from time to time. Even though Indian legislations on environmental protection date back from the 1970s, the watershed moment for environmental law in India occurred in 1984 after the tragic leak of Methyl Isocyanate gas at the Union Carbide Corporation (“UCC”) pesticide plant at Bhopal. The absence of an effective legal framework in India through which to impose adequate liability and a significant monetary penalty on UCC resulted in a global outrage. The response and handling of the disaster by the Indian government has been heavily criticized, as the government settled the issue out of the courts with UCC for a paltry sum. The disaster also signified the lack of an adequate safety framework for environmental and human damage from industrial pollution.

The last three decades have seen the Supreme Court and various High Courts stepping in to provide for enforcement of environmental laws through PILs by expanding the interpretation ofthe “right to life” granted under Article 21 of the Constitution of India, the right to a healthy environment. The court drew its inspiration from a directive principle of state policy enshrined in Article 48-A of the Indian Constitution, which imposes upon the state the duty to protect the environment as well as the fundamental duty under Article 51-A (g) of the Constitution of India. The apex court has since passed a number of environmental decisions ordering actions for protecting the environment – such as cleaning up the Ganges river, banning tanneries and prohibiting smoking in public places.

The following are some of the landmark decisions of the Supreme Court in the space of environmental protection:

• In M.C. Mehta v. Kamal Nath & Others [2000 (6) SCC 213] (“Kamal Nath Case”), the public trust doctrine, which provided that certain natural resources like air, sea, water etc. constitute a gift of nature and as such cannot be a subject of private ownership. In this case, a company having links to Kamal Nath, the then Minister of Environment and Forests, was given approval to construct a resort on forest land and on the banks of the River Beas. The Court did not permit construction to divert the course of River Beas which had engulfed the resort. As the area was ecologically fragile and full of scenic beauty, it should not have been permitted to be converted into private ownership for commercial gains.
• In Vellore Citizen’s Welfare Forum v. Union of India [AIR 1996 SC 2715], the “precautionary principle” and “polluter pays principle” were held to be a part of the environmental law of the country to ban the operation of tanneries until necessary effluent treatment devices have been set up. The apex court also directed all the High Courts to establish “Green Benches” to deal with environmental cases.
• In the Taj Trapezium Case (M.C. Mehta v. Union of India [AIR 1997 SC 734]), the principle of “Sustainable Development” was applied and it was held that industries causing harm to Taj Mahal through emissions should either change to natural gas or relocate outside the Taj Trapezium.
• In Rural Litigation & Entitlement Kendra v. State of UP [AIR 1985 SC 652], the apex court sidelined the economic interests of the State and ordered the closing of a limestone quarry for preservation of the ecological balance.
• In the Oleum Gas Leak Case (M.C. Mehta v. Union of India [AIR 1987 SC 1086]), the principle of “absolute liability” was adopted to provide compensation to victims of accident caused by an industry dealing with hazardous substances.

Key Challenges in Enforcement

The Indian Supreme Court through Justice B.P. Jeevan Reddy in the Indian Council of Enviro-Legal Action vs. Union of India [AIR 1996 SC 1446], rightly stated that if the mere enactment of laws could ensure a clean environment, India would be pollution-free. The problem in enforcement however, is more deep seated and requires taking actions at multiple levels, some of which are as follows:

(i) Problems with Implementing Agencies (PCBs)
Presently, most industries and projects require the prior consent of the requisite state PCB to establish or operate a facility. The PCBs (both central and states) are vested with absolute authority and function as autonomous entities, with no central authority to regulate their functioning. Therefore, the dual chain of command, the lack of a proper co-ordination mechanism between central PCBs and state PCBs and with the MoEF as well as human, technological and financial capacity constraints, are the major reasons for their lack of efficient administration of the environmental law regime in India [OECD (2006)].

The Water Act contains a “deemed consent” provision which provides that if a state PCB doesn’t pass an order as to approve or reject an application made by an industry within a period of four months from the date of making the application, then consent shall be deemed to have been granted. Due to the absence of an effective mechanism for granting consents, state PCBs have inculcated a practice of turning a blind eye to such applications. As such, many industries have been allowed to operate on the basis of this “deemed consent” privilege. Additionally, PCBs seem to suffer from a variety of other challenges, including dearth of technical capacity, manpower and funding support, which pose as challenges to the effective enforcement of environmental law.

(ii)Political Conflicts, Interference and Inconsistency
While the problem of corruption is undoubtedly systemic in the Indian political and administrative setup, it has been found to be particularly rampant in environmental cases either by the Supreme Court or various inquiry committees appointed for the purpose of examining such cases.

A recent example is the proposed iron ore extraction project of POSCO, a South Korean company, in the state of Odisha in India (formerly known as Orissa). The state government had signed a memorandum of understanding in 2005 with POSCO permitting the company to extract up to 600 million tonnes of iron ore over the next 30 years in Odisha. However, the local residents of the villages at and surrounding the proposed project site claimed that the construction would result in a loss of livelihood of the local populace. This project has now being cleared by the MoEF. However, civil society has raised significant questions on the government’s commitment to protect the environment and conserve the country’s natural resources. According to them, the POSCO project will result in significant environmental pollution and such approvals appear to be a prime example of administrative and enforcement agencies buckling to political pressures from the Government. The central and state governments are inclined to grant clearances and approvals for projects which involve large investments by large Indian corporate houses and especially multi-national companies due to the financial benefits at the cost of environment. There also appears to be exercise of large amount of discretion without any parameters involved. For example, the Odisha government had earlier not permitted a separate proposal by the Tatas, an Indian corporate house, for an iron ore extraction of a much lower tonnage of iron ore. The Meena Gupta Inquiry Committee which was appointed to review the POSCO project reported instances of interference by the Ministry of Finance into the functioning of MoEF in granting environmental clearances for Posco’s deal [Meena Gupta Committee Report (2010)].

The continued conflict between central and state governments on the power to grant clearances to development projects further substantiates the problem, especially in the case of large projects which have to be cleared by the central level authorities. Mr. Jairam Ramesh’s, the former Minister of Environment and Forests correctly stated that “beyond a point the bona fides of a democratically elected state government cannot always be questioned by the Centre” [Open Magazine (Jun. 27, 2011)]

(iii) Economic Growth v. Environment Protection

India being a developing country, economic development is always an important consideration. However, Mr. Jairam Ramesh’s tenure as the Environment Minister witnessed scrapping or delayed clearance of hundreds of development projects, which has reignited the debate on striking the balance between economic growth and environmental protection. For instance, in last August the MoEF rejected the proposal for mining in Orissa by Vedanta on grounds that the project would contravene various environmental laws and raised concerns on the livelihood related aspects of Dongria Kondh – a local tribe. This was followed by stalling construction of the ambitious Lavasa Housing Project at a hill station near Mumbai, on similar reasons of not securing the requisite environmental clearances.

Therefore it appears that there is a tradeoff between environment and growth. Environmental concerns should not be sidelined for economic growth and similarly the effective implementation of environmental protection should not be hindered in the name of economic development. A balance can be struck by following a number of principles developed in international environmental jurisprudence, such as the ‘sustainable development’, ‘precautionary principle’ and ‘polluter pays principle’.

(iv)Lack of enforcement of the international environmental law principle of “Polluter Pays”

As mentioned earlier, the Supreme Court has held the “polluter pays” principle to be part of the law of the land. Based on the absolute liability principle, the “polluter pays” principle imposes responsibility on a party engaged in any hazardous or inherently dangerous activity to make good the loss he caused to another through such activity, irrespective of whether he exercised reasonable care or not.

For instance in the Kamal Nath Case, the Supreme Court applied the principle and imposed punitive damages on one of the parties to serve as a deterrent for other establishments causing pollution. However, there are only a few other cases in which damages were imposed. Hence, for effective implementation the government should enact guidelines and lay down criteria for determining compensation and damages payable by industries causing environmental damage.

The Silver Lining

There have been some healthy developments and proposals which may assist in enhancing the enforcement capabilities in relation to environmental law.

Recently, the tough stance which has been taken by the Ministry of Environment and Forests of the Government, in strictly scrutinizing projects prior to granting of clearances, is a step in the right direction . Other noteworthy efforts include the coming into force of the National Green Tribunal Act, 2010 and a recent proposal by the Prime Minister for an independent environmental regulator.

(i)The Green Tribunal Act
The 186th Law Commission of India had recommended the establishment of specialized environmental tribunals with exclusive jurisdiction with regard to environmental cases. In terms of the said recommendation, such tribunals were to be vested with same powers as a civil court exercising original jurisdiction with appeals lying with a national environmental tribunal.. On October 18, 2010, the National Green Tribunal Act, 2010 (“Green Tribunal Act”) was enacted. This Green Tribunal Act places India in a select group of countries having specialized tribunals for environmental protection (“Green Tribunal”). This Green Tribunal Act replaced the National Environmental Tribunal Act of 1995 and National Environmental Appellate Authority Act, 1997. The enactment of the Green Tribunal Act is a beneficial step for environmental governance in India, for the following reasons:
(a) Green Tribunals help ease the burden of the courts from the existing docket explosion of environmental cases; and
(b) The Green Tribunal Act seeks to do away with the lacunae in the existing adjudicatory mechanism contained under various environmental legislations. [Gill (2010)]
The Green Tribunal has a broad-based jurisdiction with power to adjudicate upon not only violations of environmental laws, but also issue clarifications involving substantial questions of law and review compliances and clearances under different environmental statutes. India has successfully implemented specialized tribunals for a number of classes of disputes for speedier dispute resolution – such as the Securities Appellate Tribunal, Central & State Administrative Tribunals, Intellectual Property Appellate Tribunals, etc. Therefore, this approach appears to be a good way to ease the burden and backlog of disputes on the various High Courts and the Supreme Court. On the other hand, orders issued by these tribunals are still appealed by aggrieved parties before the High Courts and the Supreme Court invoking their writ jurisdiction, which defeats the purpose of creation of specialized tribunals.

(ii)Single Window Clearance

One significant development in relation to the administration of environmental approvals for industrial projects establishment has been the enactment of single window clearance legislations by many states beginning with Andhra Pradesh, wherein projects within a particular project cost threshold can apply for approvals through a single window clearance mechanism. [Rangarajan (2009)]. A leading criticism of India has been its administrative setup for obtaining any approvals, licenses or registrations. Therefore, a single window system of obtaining clearances would greatly incentivize industrialization at the same time as encouraging industries for approaching the authorities for clearances without fearing bureaucratic red tape.

(iii)Proposal for an Independent Environment Regulator

The current Prime Minister of the Indian central government, Dr. Manmohan Singh, has recently proposed the establishment of an independent environment regulator called the National Environmental Appraisal and Monitoring Committee (“Environmental Committee”), tasked with granting clearances to industrial projects. According to the Prime Minister, the Environmental Committee would effect a complete change in the process for granting environmental clearances by introducing better evolved and objective standards of scrutiny. The Environmental Committee is to be established with the vision of reducing litigation in development projects due to environmental issues, without going back to the “license permit raj”.[Business Standard (Jul. 25, 2011); The Hindu (Jul. 24 2011)].

The establishment of a unified central regulator has the potential to be an excellent approach to solve the multiplicity of problems plaguing the enforcement of environmental law today. However, it remains to be seen what the bifurcation of the roles of the MoEF, PCBs and the Environmental Committee shall be. Certain independent regulators such as the Securities and Exchange Board of India have considered to be fairly efficient as a regulator. In other cases such as in the telecom space, in relation to the establishment of the Telecom Regulatory Authority India, the introduction of another independent regulatory body has only increased the confusion resulting from conflicts in jurisdiction of the regulators. Hopefully the government will take their past experiences in the failure of multiple regulatory bodies and streamline an effective administrative machinery for enforcement of environmental laws.

Notes:

1. Outlook (Nov 9, 2011): Chief Justice of India Seeks Teeth for Green Laws, OUTLOOK INDIA, November 9, 20112. OECD (2006)].: OECD, REPORT ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT IN INDIA 14, 15 (2006); Rajesh Rangarajan, A Review of Implementation Gaps in the Enforcement of Environmental Regulations in India (Institution of Financial Management and Research, Centre for Development Finance, Environmental Policy: Citizens, Institutions and Implementation Working Paper, July 2009)
2. Meena Gupta Committee Report (2010): Meena Gupta Committee Report; Report of the Committee Constituted to Investigate into the proposal submitted by POSCO India Pvt. Limited for establishment of an Integrated Steel Plant and Captive Port in Jagatsinghpur District, Orissa, Ministry of Environment & Forests, October 18, 2010.
3. Open Magazine (Jun. 27, 2011): Jay Mazoomdaar, The Great Iron Ore Heist, OPEN MAGAZINE, Jun. 27, 2011
4. Gill (2010): Gitanjali Nain Gill, A Green Tribunal for India, 22(3) JOURNAL OF ENVIRONMENTAL LAW 461–474 (2010).]
5. Rangarajan (2009): Rajesh Rangarajan, A Review of Implementation Gaps in the Enforcement of Environmental Regulations in India (Institution of Financial Management and Research, Centre for Development Finance, Environmental Policy: Citizens, Institutions and Implementation Working Paper, July 2009)
6. Business Standard (Jul. 25, 2011): Independent environment regulator soon, says PM, BUSINESS STANDARD, Jul. 25, 2011;
7. The Hindu (Jul. 24 2011): J. Balaji, Independent environmental clearances soon, THE HINDU, Jul. 24 2011

Vandana Shroff is a Senior Partner and Ashish Jejurkar is a Partner at Amarchand & Mangaldas & Suresh A. Shroff & Co. They can be contacted at vandana.shroff@amarchand.com and ashish.jejurkar@amarchand.com.