26 November 2015

Environment Laws (Amendment) Bill, 2015: A Sisyphean Challenge

The Draft Environment Laws (Amendment) Bill, 2015 was published by the Ministry of Environment, Forest and Climate Change (MoEFCC) on October 7, 2015. The objectives of the Draft Bill are to provide for “effective deterrent penal provisions” and to introduce “the concept of monetary penalty for violations and contraventions.”

Among the many amendments to the existing Environmental Protection Act (1986), two sections that deserve special attention are discussed below.

Categorization of Environmental Damages

The Draft Bill has classified environmental damages into three categories:

  • Minor Violation
    • A violation is considered minor if damage caused is not a substantial damage or a non-substantial damage.
  • Non-substantial damage
    • A damage is non-substantial if it is neither a minor violation nor a substantial damage
  • Substantial damage
    • Substantial damages are damages to environment due to direct violation, negligence, or any project, activity or process which affect it adversely.

Establishment of Adjudicating Authority

The Bill envisages  creation of a two member Adjudicating Authority to adjudicate and impose penalty on any matter relating to environmental violation. The members of this authority will possess degree in law and either have to be presently or in the past a District Judge or, qualified to be one. Otherwise the members will have to be at least at or equivalent to the Director level in the Central Government or at Joint Secretary equivalent level under the State Government.

One Step Forward

The strongest aspect of this amendment is that the Government has good intentions and is serious about addressing environmental issues. The publication of the Draft Bill establishes the fact that the current environmental regulations require revision and that the Government acknowledges the need of the hour.

Two Steps Back

The Draft Bill has more of the same lackadaisical approach to understanding environmental issues at hand. Firstly, it lacks the scientific foundation that international environmental laws are based on. This is reflected in the arbitrary categorization of environmental damage.  Without a scientific basis for distinction, the three categories of environmental damage are a confounding Boolean puzzle of AND, OR and NOT. Also, a damage that is deemed minor in one region may be a substantial damage in another region adding to further confusion and uncertainty in the implementation of the Act.

Secondly, by establishing a separate adjudicating authority for decisions on environmental violations, the Bill only adds another layer of the red tape bureaucracy. It is unclear whether the adjudicating authority would be part of the NGT or a separate body and if it is a separate body, whether the two function independently or separately?

These questions will only create confusion and increase the complexity of legal procedures between the NGT and District Courts. While the appellants wait for the court decisions, the issues of the environment will still not be addressed.  Moreover, this proposal comes at a time when the Government is reportedly looking at streamlining the various quasi-judicial tribunals and reducing the total number of tribunals to less than 10.

In essence, the Bill is backward looking in that it focuses on damages and correction after the event rather than preventing future damage. Excoriating polluters after the damage does not redress the environmental violation and neither does it prevent pollution. Instead it has the opposite effect of transforming polluter pays principle to pay and pollute principle with an extra layer of red coating.

Moving Forward

What would be more beneficial for the MoEFCC and ultimately for the environment is better capacity and resources to implement intelligent and achievable policies. Understanding the scientific basis of environmental issues is indispensable for meaningful environment protection. The goals and objectives of MoEFCC will be better served if instead of adding another layer of government authority, the MoEFCC looks to expanding its capacity in technical and judicial competence as well as a viable implementation infrastructure.

Currently, the MoEFCC appears to taken a myopic view of environmental issues. It needs to embrace a more panoramic ideology in which environment, economy and society reinforce each other instead of clashing and impeding the other. Economic development at the cost of environment cannot be a sustainable growth and consequently adversely affects the society. Similarly, environmental damage control at the cost of economic development cannot sustain an aspirational society.

Understanding the underlying socioeconomic issues in policy design will not only strengthen MoEFCC’s efforts but will also create a more stable economy that will invite future investments and be harmonious with the Government’s Make in India initiative.

[The author is a Director, Corporate Practice (Environmental Law), Lakshmikumaran & Sridharan, Delhi]

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