Economic Dimensions in Judicial Decisions on Environment

Sharing with the readers my presentation at the JGU-CUTS International National Virtual Conference on ‘Economic Dimensions in Judicial Decisions’ – 27-28 April 2021

Look forward to your comments.

My presentation was prefaced by 4 general comments:

Preface Comment 1

•In the Anthropocene era – environment implications need to be factored in into all economic decisions by the State – business as usual cannot be tolerated •

•Economic Impact of Judicial/Executive/Legislative Decisions or Choices should necessarily include the long term environmental consequences of such decisions  •

•Not all environmental destruction is restitutive •

•Environmental conservation makes eminent economic sense – it is also good for long-term economic growth and development. Economic production depends on the stock of natural resources and on environmental quality (“natural capital”). Green growth strategies can increase natural capital by preventing environmental degradation •

Preface Comment 2

•Are judges economic actors? •

Yes, because of two reasons: –in many cases (legislation/policy) is unclear and therefore allows discretion to whoever is interpreting it to make choices which have economic consequences. –Historical reasons – where judicial activism – created a space for Courts to engage with policy  – •

BACKGROUND CONDITION –In the context of separation of powers – judiciary is at the most the second best actor to make a direct economic policy decision – because as an institution it is not designed to make policy! – but to adjudicate disputes – –

THEREFORE IN BEST CASE SCENARIO THERE SHOULD ALWAYS BE JUDICIAL DEFERENCE TO EXECUTIVE AND LEGISLATURE  (even more true for NGT than the SC and HC) •Hold  executive responsible for statutory / constitutional violations without supplanting the role of the executive –Because when it has done so – like in the Godavarman case – created over centralization – CAMPA has legitimated environmental; destruction – due to lack of monitoring and enforcement OR CNG case – environmental benefits in the short term clearly undermined by other executive (in)actions

Preface Comment 3

•WHAT ARE THE CERTAIN BACKGROUND CONDITIONS THAT ARE NECESSARY TO BE ESABLISHED BEFORE  COURT’S INTERVENE – JUSTIFIABILITY STANDARD •

EGREGIOUS VIOLATIONS Massive and sustained statutory and of Court’s judgement and orders (Mopa Airport case (Hanuman Arsokar (Mopa 1)+ Deepak Kumar) judicial choices were good economic choices) •

Urgent intervention is required to stall environmental/health disaster •

Suo moto cognizance should be carefully considered and eschewed in the first instance  –  (DO NOT) OCCUPY THE FIELD  +  RIGHT TO BE HEARD  (DEFINITION OF AFFECTED PARTIES) – INTRAGENERATIONAL AND INTERGENERATIONAL EQUITY

Preface Comment 4

•If background conditions are fulfilled necessitating Court’s intervention  – what  standard of review should be undertaken by the Court? •

•Standard of review –Procedural aspect – ensuring fidelity to the EIA procedure – fine toothcomb review (thorough search or scrutiny) •Authenticity of the EIA report •Was all aspects considered by the EAC/SEAC – carrying capacity of the local environment, scientific evidence taken cognizance •Reasons given for decisions •Public hearing procedure

–Substantive Aspect –  International best practices approach  (LEARNING FROM OTHER JURISDICTIONS) •IN VIEW OF THE ANTHROPOCENE – MISTAKE TO IMPOSE A STANDARD OF LEAST ECONOMIC RESTRICTIVE MEASURE – BUT INSTEAD THE CORRRECT STANDARD OF RESPONSE – WHAT WOULD BE THE LEAST ENVIRONMENTAL DESTRUCTIVE MEASURE TO IMPOSE ? •If restitution is possible then restitute (impose damages + restrain further action (BAN MAY BE NECSSARY STEP – BEYOND THE CARRYING CAPACITY OF THE LOCAL ENVIRONMENT ) •If restitution not possible – then compensation (should be at a level that would serve as a deterrence) •Equity (principle of sustainable development as distributive justice) – Sudiep Srivastava case (Equitable access to natural resources  + Public participation in environment decision-making)

Then I answered 6 questions which were posed by the moderator

Question 1

•The environmental damage from any project tends to have more long-term adverse effects, whereas the economic impact of judicial decisions against such projects are more short-term and immediate. Given this kind of a trade-off involved in keeping a short-term view or a long-term view of the impact of such cases, what kind of approach can the judiciary/NGT adopt to make more sustainable decisions, without being too myopic at the same time? •

•Fidelity to Procedure already established – deepening the EIA –Already avenues are there to carefully consider such trade-offs within the executive domain – environmental impact assessment – EAC/SEAC – judiciary should supervise adoption of best practices (international case law / from other jurisdictions) to make the institutional structure and the processes more robust –Merit review can be done by the NGT – because it is institutionally in a position to do so

Question 2

•Judicial orders of blanket ban on sand mining in specific regions may hamper the growth of the housing and construction sector not only in those regions, but across the country. The growth of these sectors is particularly vital for a developing country like India. How can the judiciary define sustainable levels of sand mining, considering the growth needs of the country? •

•It is clearly a case of egregious violations – both the SC (Deepak Kumar case 2012)and the NGT has shown deference – pushing the executive (MOEF adopted Sustainable sand mining guidelines 2016) – district level to define sustainability according to carrying capacity of local ecosystems – this is a best practice – executive unable to implement – continuing violations – resulting in ban in specific regions • •Ban essentially represents – logic of “go and no-go areas” – where restitution cannot be pursued at the local level and sand mining is beyond the carrying capacity of the local region • NGT has directed the MOEF to calculate – Net Present Value of ecological services forgone because of illegal or unscientific mining.  (this is example of best practices in other jurisdiction – relates to putting an economic cost to environmental damage to make transparent economic policy)

Question 3

•Currently, in India, any new industrial or development project has to prepare an Environment Impact Assessment (EIA) report as well as Social Impact Assessment (SIA) report. On these lines, shouldn’t there also be a focussed and separate Economic Impact Assessment report for such projects? Can the judiciary, then, make certain guiding principles for their decisions, based on these reports? •

•Economic impact assessment of project reports is considered – in judicial decisions – through arguments of States and project proponent (de facto position) •

•If you consider Economic assessment – would it be prepared by the project proponent – would that then be in the nature of an affidavit? – economic benefits spelled out – maybe a good idea because it would bring more transparency to executive review/judicial review – rather than vague statements.  • •

Question 4

•How effectively can the courts in India use the economics of ‘polluter pay principle’ in their decisions? What are the possible difficulties that the judiciary may face in undertaking such an assessment, identifying the polluter as well as defining absolute liability? •

•PPP – almost always comes with atleast a finding of interim fault – absolute liability has never been applied ex ante – only triggered statutory recognition through the PLIA – NGT has been using the CPCB formula in 2019 to determine environmental compensation •

•The outstanding question is whether it serves as a deterrence – cost of compliance is more than the cost of non-compliance (given that M and E is weak) • •(The Environmental Compensation shall be based on the following formula:EC = PI x N x R x S x LF Where, EC is Environmental Compensation in ₹PI = Pollution Index of industrial sector N = Number of days of violation took place R = A factor in Rupees (₹) for ECS = Factor for scale of operation LF = Location factor)

Question 5

•Given constrained state finances amidst the ongoing COVID-crisis, can the judiciary direct a proportion of the under-utilised Compensatory Afforestation Fund towards COVID-related expenditures? What could be possible legal implications of such an action? •

•Why should the judiciary direct it ? • •

CAMPA funds needs to be used to strengthen forest conservation – which creates and protects local livelihoods – protect existing green cover – like in the western ghats  – one should be imaginative – •

•Direct COVID related expenses (definition is important – used for what – vaccines no) – outside the remit of CAMPA – already some states have used CAMPA funds for litigation for instance – creates a bad precedent • •“The FSI collected data on total money allocated by the central government to the state government and forest cover in India between 2009-10 and 2016-17 (Source: Ministry of Environment, Forest and Climate Change). Its analysis showed that funding by the central government increased at a rate of 84.67 per cent in the period, but the forest cover increased by only 2.42 per cent. So, increase in CAMPA funding by the central government has clearly not resulted in significant increase in forest cover” – DTE, 2019.

Question 6

•Last year, the National Green Tribunal completed 10 years and has been maintaining the environmental jurisprudence. What steps can be taken to improve the efficacy of environmental justice through tribunals? •

•Greater scaffolding from executive absolutely necessary – because it undertakes merit review – where State is an interested party •

•Relationship between HCs and NGT jurisdictions •

•NGT should consider lesser suo moto applications – affected party representations • •Merits review is extremely robust – and should be expanded – jurisprudence can become more efficacious – precedent should be followed

Expeditious but not Effective: Exercise of NGT’s suo moto powers in industrial accidents cases

Sharing an opinion piece written with Haaris Moosa (Advocate, Kerala High Court) which was also published in Livelaw.

The orders and judgments of the National Green Tribunal in cases relating to two recent industrial accidents, the first one involving LG Polymers near Visakhapatnam, Andhra Pradesh and the second involving the Neyveli Lignite Corporation in Cuddalore, Tamil Nadu, deserve analysis for shared peculiarities.  These are not the first instances of exercise of suo moto jurisdiction by the NGT. Indeed, despite there being no statutory legal basis and opposition by the Ministry of Environment and Forests, the NGT has taken suo moto cognizancein various instances since 2013. However, what is unique in these two cases, is the exercise of suo moto cognizance even when there were petitions filed by victims. In both these cases large corporations were arraigned as defendants for determining liability for environmental accidents. Both these cases fell within the jurisdiction of the NGT Southern Bench in Chennai. Despite the victims filing petitions before the NGT Southern Bench, it renounced its jurisdiction and the NGT Principal Bench in Delhi took suo-moto action in both instances. Further no amici curiae were appointed after taking cognizance.  The similarities enumerated have serious implications on public participation in environmental adjudication before the flagship environmental Tribunal in the country.  Public Participation in environmental decision making is accepted as a fundamental tenet of environmental law. The Rio Declaration in 1992 gave it material form through Principle 10.

Arguably the NGT violated this cardinal principle for the simple reason that suo-moto cognizance results in the non-representation of victims in the Supreme Court. For instance, in the LG Polymers case the orders of the NGT were challenged by the company before the Supreme Court. However, the list of respondents who were served notices by the Supreme Court in this appeal never included any of the petitioners in the original case before the NGT. The respondents who were served notices were four government agencies. This essentially meant that the victims remained mute spectators in the adjudication of their rights. This could have been remedied to a certain extent had the NGT appointed an amicus curiae. Further suo moto cognizanceprovides the NGT extraordinary powers in defining the scope of the litigation which may result in further undermining the rights of the victims to define and pursue legal remedies.

It would have been ideal had NGT not arrogated to itself the role of the de facto first petitioner from Mr. E.A.S. Sarma who had moved the tribunal first in the LG case. The de facto primus inter pares status of the first petitioner in Public Interest Litigation made sure that neither Mr EAS Sarma nor the Centre for Wildlife and Environmental Litigation Foundation (the second and the third petitioners) were served notices or represented in the Supreme Court. The suo-moto action invests in the Tribunal the role of a legal representative. This role becomes crucial when appeals are moved in the Supreme Court in such matters. It can be said that the NGT forfeited its responsibilities as a legal representative in the LG Polymers case.

Relationship between the Principal and the Regional Benches of the NGT are that of co-equals, whose jurisdiction is territorially defined. The Southern Bench  renouncing its  jurisdiction in favour of the NGT Principal Bench in Delhi in both these cases illustrates the move towards centralization of administrative powers. Regional benches of the NGT were instituted with a view to provide greater access to justice, which now stands undermined.

We are witnessing a general trend in environmental policymaking and adjudication to exclude public participation. Controversy surrounding the Draft EIA notification that seeks to exclude a slew of projects from the EIA process and government’s wariness in allowing for adequate time for public comments, provides further evidence of this trend.

India has had a particularly tragic history in providing legal redress in cases of large scale industrial accidents. Bhopal gas tragedy was one of the largest industrial accidents which underlined the weakness of parens patriae doctrine which allowed the executive to represent the legal case of the victims. In the present cases, we see the NGT following a similar path in representing the victims in exercising suo moto cognizance. It is a dangerous trend because it perpetuates the myth of the passive victim without voice or access to legal remedy. This is far from reality. Victims are capable of representing themselves and indeed interested in participating within the litigation process. Denying them representation by exercising irregular administrative force through the exercise of suo moto cognizanceinaugurates a culture of adjudicative impunity which must be resisted.

 

Environment Impact Assessment in India- Ideas for Reform

Vidhi Centre for Legal Policy organized a Roundtable Discussion on Environmental Regulation in India on 20 Sept 2017 at IIC

I am sharing the discussion points which I had submitted to the Roundtable – specifically with reference to reforming the EIA process in India:

• Session I Present Practices in Granting Clearances under the EIA Notification

1. Following from NGT statement of the principle that international best practices standards should be followed in the conduct of EIA (Muruganandam and Ors v Union of India and Ors 2014 NGT) – cumulative environmental impact assessment (CEIA) of all projects within a 100/200/500 square kilometer range should be undertaken. Even in policy cumulative impact assessment – was given implicit recognition when the MOEF undertook to list critically polluted areas thereby putting a moratorium on grant of environmental clearances on the recognition of the carrying capacity (in terms of environmental damaged that can be sustained) in such areas. Thus CEIA should be adopted as a basic/framework principles/best practice to be applied in the Indian scenario. As a first step SPCBs – should be able to identify such areas within their jurisdiction.

2. Conduct of Public Hearings :
a. Presence of neutral observers required as a procedural guarantee towards fairness. It should be accepted that in a growing number of cases of environmental clearance, the state executive is also an interested party in the environmental clearances. Therefore it is imperative that impartiality of public hearings need to be secured through the presence of such observers (NGOs/ elected MPs/elected Local Body members/eminent environmentalists/Rajya Sabha members).
b. All instances of excepting public hearings from the environmental clearance process either through express subordinate legislation (see for instance SO 246E dated 25 Jan’2016) or through the irregular determinations by SPCB that public hearings cannot be held (Sec 7(i) of the EIA notification 2006) and therefore the regulatory authority (MOEF/State Environment Department) decision that public consultation need not include public hearing – goes against the spirit of the EIA process and is against international best practices. Therefore the regulatory authority should carry the burden of proof to explain what other measures (for instance inviting written depositions from local affected persons by inviting through advertisement in the local panchayats) they have undertaken to ensure adequate public consultation in lieu of public hearing (expansion of other parts/provisions of the public consultation). Further this trend towards largely excepting public hearing as a mandatory requirement under the public consultation (STAGE III) through subordinate legislation needs to be documented, explained and publicized – there is now only limited number of projects that in fact require public hearing. Thus the public hearing mechanism which is not only imperative for ensuring the scientific validity of the EIA process but also the democratic legitimacy of the project is now is being undermined.
c. Social impact assessment should be made part of EIA. NGT has tried to push the envelope to a certain extent by stating that R&R (rehabilitation and resettlement) should be an issue to be considered by the EAC while reviewing applications for environmental clearance (M P Patil v Union of India (2014)). Drawing an analogy from LARR 2013, SIA should again be adopted again as a good practice as a form of due diligence obligation on the part of the applicant. And a due diligence obligation on the EAC and the regulatory authority (MOEF/State Environment Department) to review applications and provide reasoned decisions to show that these considerations were duly deliberated and addressed in a fair manner.
d. There is also considerable merit in revisiting the issue of designating go and no-go (, national parks, sanctuaries, eco-sensitive zones, wildlife corridors/etc) areas. And categorizing go-areas in terms of hierarchy (where FRA is applicable fifth and sixth schedule areas), where the applicant, EAC and regulatory authority will have greater due diligence obligations and under no circumstances can public hearing be circumvented.
e. Locally affected persons and others that have a plausible stake in environmental impacts of the project or activity do not carry the burden of proof of providing scientific basis for the apprehensions/statements. They have the right to ask questions and demand answers from the applicant/EAC and the regulatory authority. Following from this the applicant has to answer the questions forwarded during the public hearing in terms of the revised EIA report. Further the EAC would also have to clearly undertake due diligence in terms of reviewing the revised EIA in order to assess whether the revised EIA adequately addresses the questions raised during the public hearing. It also advisable that international best practice demands that before the EAC recommendation for grant of environmental clearance is considered by the regulatory authority it is again circulated for public comments.

• Session II Post-clearance Monitoring and Compliance-Issues & Challenges

1. Most of the projects for which environmental clearances is required also involve funding by public sector and private sector banks, institutional investors (regulated by RBI, SEBI, Ministry of Corporate Affairs). It would be advisable that these institutional investors/lenders be also involved in the process so as to spread regulatory responsibility and necessity for due diligence. They can also be involved in environmental compliance and monitoring.
2. In urban areas, RWAs and in rural areas, Gram Panchayats should be involved in monitoring and compliance.
3. Institutions like the NHRC/SHRC/Women’s Commissions (given that there is enough data to prove that environmental degradation impacts women more than men) should also widen their ambit of functioning in terms of regular involvement in conducting audits of M&E of environmental clearances granted.
4. Also such environmental audit institutions should be able to recommend financial penalty (scale of NGT fines) for non-compliance, also restitution of environment (in case of gross violation of EC conditions) should lead to cancellation of clearance and also prohibition on re-application by the applicant for a certain period, presumed grounds for accepting claims for reparations of damages (for instance like in the Loss of Ecology Forum cases emerging from Vellore case).

• Session IV Civil Liability in Environmental Violations

1. Financial penalties given under the NGT Act is quite high but it is only applicable in post trial scenarios. Given the grave nature of environmental offences and the large number of potential affected parties, it is imperative that liability for environmental violations should not only be borne by the person undertaking the activity but also be the personal liability of regulatory authority/EAC members/SPCBs (akin to the RTI act – where the information provider is held personable accountable for violations).
2. Financial penalty should be levied based on operating profits earned by the polluter.

 

Vidhi has also published a briefing book on Rule of Law reforms – which focus on a series of sectors including the environment – this can be accessed here

Such kinds of events and publications are critical in allowing for greater reflection on current policy and regulatory practices and review of legislation through comparative study of other jurisdictions and policy failures in India.

 

 

Draft National Forest Policy 2018 – Comments by Study Group

My apologies to the readers for being silent for over year. I promise to be more regular with the updates.

 

Copying in full the comments of the Study Group established at CSLG, JNU – on the Draft National Forest Policy 2018 – this was submitted to Shri Noyal Thomas, Dy. Inspector General of Forest (Forest Policy) on April 14, 2018.

 

Study Group Members: (Anju Helen Bara, P Puneeth, Thongkholal Haokip, Amita Singh, Pankaj Kumar, Gaurika Chugh, Thangmang Doungel and Nupur Chowdhury).

 

 

 

1. Introduction

 

The draft NFP 2018 seeks to replace the National Forest Policy 1988 (1988 NFP). The Study Group (SG) studied both the policies in detail to understand departures and continuities. The SG also referred to the existing legal framework governing forests including the Indian Forest Act 1927, Wildlife Protection Act 1972, Forest Conservation Act 1980, Panchayats (Extension to Scheduled Areas) Act 1996 (PESA), Biological Diversity Act 2002 (BDA), Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (FRA) and the Compensatory Afforestation Fund Act 2016 (CAFA). The SG also referenced the case law on regulation of forests (pre-eminently the Supreme Court orders in the Godavarman case).

The comments are structured in three sections. We provide some general comments, followed by remarks with reference to specific paragraphs of the Draft National Forest Policy 2018 and some concluding comments.

 

2. General Comments

 

1. Definition of ‘Forest’: It is important to clearly define the term ‘forest’ as this will allow for clearer and more precise understanding and application of the national forest policy. India does not have a statutory definition of the term ‘forest’. The Supreme Court in the Godavarman case had provided a definition of ‘forest land’ which primarily relied on the dictionary meaning of the term, irrespective of ownership. The definition should capture not only the physical description of the forest in terms of tree cover, but also the critical role played by the forest in the local eco-system and in ensuring life support for forest dependent human and non-human communities including tribal cultures and resources.

 

2002. Definition of ‘Sustainable Use’ or ‘Sustainable Forest Management’: Sustainability as an idea applies to forest eco-systems and is widely referenced within the 2018 Draft National Forest Policy in different contexts. We would like to suggest a definition which would help in identifying indicators of sustainability which may act as a mirror to the context in which the term is being used. The term has been statutorily defined under the Biological Diversity Act, 2002. The definition of ‘sustainable use’ under the Biological Diversity Act 2002, means the “use of components of biological diversity in such a manner and at such rate that does not lead to the long-term decline of  the biological diversity thereby maintaining its potential to meet the needs and aspirations of present and future generations.” This is a good definition and should be adopted explicitly and included in the Draft National Forest Policy.

 

1. Indigenous species in Forest: Protection of natural forests comprising of indigenous species should be prioritized. Indigenous species do not only provide higher ecological security but also are critical to ensuring food security and sustenance of forest dependent communities including tribals. They are also a huge gene bank which once lost may never be recovered. It is in this context that tribals should be further supported so that they do not lose out on this indigenous science. Afforestation efforts should be managed to ensure that these rich herbal areas within the forest are not destroyed and the government formulates plans so that the farming of indigenous species are prioritized.

 

1. Recognition of intrinsic value of forests: Forests should not only be looked as a resource (as timber) that requires to be monetized through a revenue model. This recognition of intrinsic value was reflected in three aspects of the 1988 National Forest Policy. First, tribals and forests are interwoven in a participatory forest management approach; Second, environmental sustainability and maintenance of ecological balance should remain the principal aim of economic activities within the forest. Third, was the principle that the diversion of forest for non-forest purpose would be subject to a careful examination of both social and environmental costs and benefits and should be used as a last resort (this is also reflected in the Draft 2016 NFP). All the three aspects are important principles of forest governance which in fact has led to the success of the 1988 NFP – indeed this is accepted in Point 1.4 of the Preamble of Draft NFP 2018 – and should therefore be adequately and explicitly included in the proposed policy as well.

 

 

3. Comments on Specific Paragraphs

 

1. Para 1.4. (Preamble) lauds “the success of the 1988 policy in terms of the increase on forest and tree cover and in the reduction of the diversion of forest land for other land uses despite compelling demands from increasing population, industrialization and rapid economic growth.” It then mentions that there are other problems like “low quality and productivity of our natural forests, impacts of climate change….” This marks a substantial change in both the goals and strategy. Instead it is important to understand that the 1988 NFP had adopted a relatively ecocentric approach which was a success and therefore its principles, goals and objectives needs to be reiterated and strengthened further.

 

2. Para 2. (Goals and Objectives) lays down that the national goal is to have a minimum of one-third under forest and tree cover and to maintain two-third forest and tree cover in hills and mountainous region. This is in continuity with the earlier NFP 1988. We appreciate this goal; however, this goal is not connected to the strategies for forest use. The dense natural forests should never be touched by any policy strategy as it immediately leads to serious disasters which undo the economic gains altogether. In this context we highlight that the expansions of tree cover in urban areas is not a substitute for natural forests which support an entire eco-system including wildlife and humans. Therefore the percentage of natural forests in this goal needs to be expanded and a clear commitment should be made to that effect by explicitly stating in the policy that out of the one–third or, as the case may be, two-third of the intended forest and tree cover, the percentage of natural forest that the proposed policy seeks to achieve. The term ‘livelihood security’ is an expansive term and may even include timber felling. The dependence on forests should be circumscribed to meet only sustenance needs of forest dependent communities. Specific eco-systems like Coastal Mangroves, Western Ghats, Sundarbans are fragile eco-systems wherein diversion of forest for non-forest purposes should be prohibited.

 

4. 4.1.1. (d) refers to public private participation models in degraded forest areas and forest areas available with Forest Development Corporations. These forest areas are usually the reserved forests which are regulated by the Forest Department. Tribals and forest dependent communities have historically accessed such forests to meet their sustenance needs and such access and usufruct rights have been indeed recognized under the FRA, BDA and PESA which recognize and empower such communities through their Gram Sabhas in regulating the use of such forests where such rights have been exercised. Without due recognition of this reality, private public participation models can lead to erosion and deprivation of such rights of access and would be inimical to both ecological security and sustenance security of such communities. Therefore the PPP model should be limited for agro-forestry in non-natural forests.

 

4. Para 4.1.1. In continuation of the same para and in appreciation of the present government’s commitment to disaster management, it would be appropriate to highlight that Para.4.1.1 which writes about activities in degraded forest areas. It is important to note that these are the areas which have always been the worst victims of disasters in every form i.e. landslides, drought and desertification. The inhabitants are vulnerable to starvation, disease and large scale migration. The role of District Disaster Management Authorities and an appropriate area based policy structure for the regeneration of such areas should reflect in the current Forest Policy. All preparedness and regenerative measures can be sustained only if local institutions at the grassroots are coordinated appropriately for the cause and do not stand in competition of funds and leadership.

 

2. 2.14; 4.1.1. (a); (b); (h); 4.2.5.; 4.6; 4.7; 4.10.1.; 4.10.2.; 4.11; all refer to “community” in different contexts. However the term ‘community’ is too broad. The rights and responsibilities of historically settled forest dwelling Scheduled Tribes and other traditional forest dwellers have received legislative sanction and therefore it is these two communities whose needs have to be prioritized with reference to the regulation and governance of forests. Unlike the 1988 NFP, the 2018 Draft NFP has only one references to the role of ‘tribals’ (Para.3.6) in the context of sustainable management of Non-Timber Forest Produce. However this is inadequate. Tribals have a symbiotic relationship with forests, which has allowed for the preservation, conservation and sustainable use of forests. Their role should be acknowledged. This can be possible only if they are granted distinct priviledge of first right to fulfill sustenance needs, and also ensure equal decision-making in access and benefit sharing regimes for both NTFPs and forests. This would reflect the statutory position under both the PESA 1996 and the FRA 2006. The underlying principles of these legislations, which aim at safeguarding the interests of such dependent communities, shall be reinforced by incorporating them into the proposed Policy. There shall be no scope for any apprehension that these laws may be amended and rights guaranteed there under diluted to bring them in conformity.

 

2. 2.12 and 4.2.5.(e) refers to the promotion of wood based technology and products. Wood products need to be substituted through bamboo and other kinds of materials. The expansion of agro-forestry should not come at the cost of either tillable agricultural land (critical for food security) or natural forests which form the bed rock of sustainable eco-systems which ensure the sustenance needs through NTFPs and water security.

 

4. 4.2.5 refers to the role of forests as carbon sinks in the context of REDD+. This is a laudable goal, however here again the role of natural forests has to be prioritized. Natural forests not only act, simply as carbon sinks which grant carbon credits, but it also provides a host of ecosystem services (water, streams, food, livelihood, usufruct, disaster contro,l etc) and is also of great cultural value. Such services cannot be expressed only through a monetary value. Therefore while we appreciate efforts to formulate economic valuation of forests (Para. 4.2.2.) the current valuation models both in terms of Net Present Value and under the CAFA are inadequate.

 

4. 4.2.3. – refers to the value of forests in ensuring water security. This can be possibly obtained only if ‘forests are for forests’ sake. Ethically, no one owns it and state as a public trustee is obliged to preserve it. This is an important recognition and should be linked to other paragraphs which seem to look at forests only as a revenue in terms of wood or as carbon sinks in the context of climate change. Both these perspectives hinge on ascribing a reductive value of forests and fail to capture its critical role in sustenance of ecological security.

 

4. 4.1.1.(f) refers to biodiversity conservation. The BDA provides for Biodiversity Management Committees in the documentation, preservation and regulation of access to biological diversity. The Draft NFP is completely silent on the role of BMCs. This needs to be corrected and the role of BMCs need to be recognized and prioritized in the protection of forest habitats and specifically in the documentation, preservation and sustainable usage of biodiversity and also in rewarding their role through appropriate access and benefit sharing mechanisms which are provided under the BDA.

 

4. 4.1.1. (h) refers to participatory forest management. We agree that there is a need to strengthen participatory approaches to forest governance. However this should not be a top down exercise alone but has an enormous horizontal coordination, collaboration and sharing to achieve contemporary requirements of an increasingly vulnerable lives of the forests and forest communities. The National Community Forest Management Mission should link with the Panchayats and the Gram Sabhas and adapt to the larger planning of DDMAs and SDMAs in strengthening life support system through sustainable participatory forest management.

 

 

4. 4.8. refers to legal and institutional frameworks. While we laud the creation of a National Board of Forestry and State Board of Forestry, we suggest that the Board should be a representative body which involves all stakeholders. This should include not only representatives from other concerned ministries like Ministry of Tribal Affairs, Ministry of Panchayati Raj, Ministry of Ayush, but also representatives of regulatory bodies – Forest Advisory Committee, National Board for Wildlife, National and State Biodiversity Authorities, Ministry of Water Resources, DONER, National and State Disaster Management Authorities and also independent researchers, scientists, academicians and civil society groups. A representative body is necessary since forests are not a government owned resource, but a precious national asset which should be regulated as a public trust.

 

 

4. Conclusion

In conclusion we would like to reiterate that as has been acknowledged in the draft NFP 2018, the earlier NFP 1988 was a success in achieving its goal of expanding forest cover. The foundational principles of NFP 1988 included a clear commitment towards the conservation of forests, given the role of forests (specifically natural forests comprising of indigenous species) in ensuring ecological security so vital for human, animal and plant life and health. This ethic of conservation is based on the idea of “Forests for Forests” and is a distinct departure from the idea of forests as resource for revenue model; the sustenance needs of tribals and forest dependent communities have to be prioritized over other uses such as timber; diversion of forest for non-forest purposes should be prohibited in ecologically fragile areas and should be avoided for natural forests elsewhere. When such diversion is undertaken as a last resort, adequate access and benefit sharing regimes for the forest dependent communities should be worked out prior to permission for such diversion. Therefore cumulative social and environmental costs of such diversion need to be accounted for. Indigenous species should be promoted in agro-forestry. Finally decision-making and forest governance needs to be decentralized and involve the participation of all affected parties including multiple ministries both at the state and national levels, regulatory authorities (like Forest Advisory Committee, National Biodiversity Authority, etc); independent researchers and civil society organizations. Forests are a precious national asset. They also constitute our last frontier against disasters. The whole economic progress which is planned against forest areas may be set at naught in a second if we do not wake up now, and if we do not start looking at progress in totality rather than in insulated chambers of forests, projects, livelihood and people.

 

Videh Upadhyay – An Obituary

This obituary has been published in the latest issue of the Protected Area Update.

 

Videh Upadhyay, Environmental lawyer. (15 August 1971-27 October 2016)

It was as an intern at the Enviro Legal Defence Firm (ELDF), one of India’s first environmental law firms, that I first met Videh sometime in 2005. He began by asking us young law students about the difference between law and justice. Thinking back, this question defined both Videh’s life and work.

Videh was trained as a lawyer and was in pursuit of justice. At a time when environmental law was largely under developed an area of practice, he took the risk and the challenge of co-founding the ELDF in 1999. The firm played a critical role in the development of environmental law practice in the country through litigation on environmental issues, policy advocacy and also providing legal inputs to the government, judiciary and civil society organizations. Videh worked on various issues on wildlife protection, natural resource governance, panchayati raj institutions and public interest litigation. It is difficult to provide an indepth review of his work given its substantive expanse. I will restrict myself to focusing on two particular aspects of his work. First was his work on ‘water and the law’ and second, on governance institutions – be it panchayati raj or the pollution control boards.

What should be the legal framework for water in India so as to ensure the twin objectives of conservation and access to communities? Given that the Constitutional vision on rivers is restricted to disputes and development, he emphasized on the need for the legal frameworkto be as inclusive as possible. Through his writings, he highlighted the deficiencies in the customary rights regime in access to water (Customary Rights over Tanks, EPW, September 2004), the fallouts of privatization of access to water (River Inc. Is Industry hijacking the Community’s right to water? Down to Earth, November 2002), judicial decisions on big dams (Relocating Narmada Judgement, EPW, September 2001), proposal for inter-linking of rivers (Judicial Control of Policymaking and Implementation: Interlinking Rivers, EPW, March 2012 and River Links and Judicial Chinks, Indian Express, July 2003) and challenges of water management at the state level (The Water Question in Jharkhand, EPW, Oct 2005 and Water Management and Village Groups, EPW December 2002).

A river is invariably a report card of the basin and he therefore believed in developing a holistic approach through Integrated River Basin Management. He drafted the National Water Framework Law that was adopted by the Ministry of Water Resources and was also a member of the drafting team on the National River Basin Law. He provided critical inputs as a member of the Sub-Group on Water Governance, Working Group of the Planning Commission on Irrigation and Command Area Development for the 12^th Five Year Plan (2012-2017). He worked closely with the state governments of Bihar and Orissa in reviewing the legal and institutional framework for Integrated Flood Management. He also represented the state of Goa in the ongoing dispute with the states of Maharashtra and Karnataka over the sharing of river water of the Mandovi River in the Mahadayi Water Disputes Tribunal.

Videh undertook a detailed survey of the relationship between Water User Associations (WUAs) and Panchayati Raj Institutions to understand how political institutions interact with resource based user groups and the implications of this distribution of responsibilities on water conservation and sustainable usage. A detailed ground level survey in Rajasthan, Madhya Pradesh, Maharashtra and Andhra Pradesh on Participatory Irrigation Management, Rural Water Supply, and Watershed Development was published as a CSLG (Centre for the Study of Law and Governance, JNU) Working Paper (Beyond the Buzz: Panchayats, Water User Groups and Law in India). It highlighted the tensions on the ground between such resource user groups and Panchayats and that the continued policy fascination with the former has in fact undermining and diluting that ability of Panchayats to sustainably manage water resources. Similar arguments have also been made in the context of Joint Forest Management (JFM) wherein the forest department had focused on creating user groups outside the panchayati raj framework and in the process weakened these representative institutions. His work on Panchayat Extension to Schedule Areas Act (PESAA) specifically highlighted how such representative institutions could help greatly in ensuring that tribals have greater voice in governing their own land and resources..

As government counsel, Videh represented the Delhi Pollution Control Committee (DPCC), Government of Delhi in the High Court of Delhi between 2008-2012. His reflections on his work led him to write on the institutional deficiencies of the State Pollution Control Boards and suggestions on improving their role and functioning (Some Suggestions and Recommendations Towards A Model State Pollution Control Board in India, co-authored with Armin Rosencranz, Environmental Law and Practice Review 2011). Similarly his work as arbitration and legal counsel with large-scale infrastructure projects (e.g. Koldam Hydro Project) shaped his writing of the India Infrastructure Report (OUP, 2009, 2010 and 2011). He was commissioned by OUP to write a book on the “Regulation For Environmentally and Socially Responsible Infrastructure Projects”, which has been unfortunately left unfinished with his demise.

Videh was a good lawyer but more importantly a great humanist. His life and work is an inspiration for generations of lawyers and activists who struggle in delivering the promise of justice to those systematically underprivileged and socially deprived. He will be remembered and missed greatly.

Regulator’s responsibility for public consultation in India – SC supports the adoption of a de minimus standard

An important public policy question that confronts all democratic societies is the question of public consultation with reference to regulation. Although seldom a government will completely eschew public consultations, there is diversity in its nature and contours across jurisdictions and also intra jurisdiction (across regulatory sectors). We explore developments in the Indian context.

VARIETIES OF PUBLIC CONSULTATION

Before proceeding any further it is important to draw a distinction between public consultation as part of rule making and public right to regulatory information. Both contribute to transparency but should not be conflated. Public consultations secures for public a mandatory right to participate in the rule making exercise and corresponding duty on the regulator to invite public review of draft rules and diligently respond to the comments received as part of that exercise. Right to information requires the regulator to disclose rule making information but does not necessarily provide for a right to the public to provide feedback. The former is therefore a substantively wider and deeper right. Of course both can be diluted or enriched through administrative or regulatory practice.

The Supreme Court of India in a recent case (Cellular Operators Association of India v. Telecom Regulatory Authority of India ((2016) 7 SCC 703) explored the contours of the regulator’s responsibility for public consultation.

The Court first established the following legal propositions

• Public consultation is a species of the rules on natural justice.
• Ordinarily legislative functions do not require that natural justice is followed, except when the statute so provides.
• There are several instances of the legislature requiring the subordinate legislative authority to give public notice and public hearing especially in the case of municipal bye laws.
• Principle of natural justice including right to hearing cannot be invoked in making of law either by Parliament or the State legislature.

It then relied on rules of statutory interpretation by quoting two kinds of authorities – national statutes and its own jurisprudence, practice in other foreign jurisdictions.

Relying on the Right to Information Act, 2005 and on Constitutional provisions, the Court also explored a residuary public obligation to adopt policies aimed at transparency and openness in governance. It quoted an earlier judgment in Global Energy Ltd. V. Central Electricity Regulatory Commission ((2009) 15 SCC 570)

“All law-making, be it in the context of delegated legislation or primary legislation, has to conform to the fundamental tenets of transparency and openness on one hand and responsiveness and accountability on the other. These are fundamental tenets flowing from due process requirement under Article 21, equal protection clause embodied in Article 14 and fundamental freedoms clause ingrained under Article 19. A modern deliberative democracy cannot function without these attributes.”

It found the structure of the US Administrative Procedure Act, 1946, that establishes a procedure for public consultation across administrative agencies in the US, particularly useful as a template, since it lays down a detailed procedure for public to participate in rule making and the concomitant duty of regulators to explain their actions.

Finally it exhorted the executive to adopt this American template, in legislating on this issue,

“ (with certain well defined exceptions) by which all subordinate legislation is subject to a transparent process by which due consultations with all stakeholders are held, and the rule or regulation making power is exercised after due consideration of all stakeholders submission, together with an explanatory memorandum which broadly takes into account what they have said and the reasons for agreeing or disagreeing with them.” (Para 92)

 

LEGISLATION AND DELEGATED LEGISLATION AND REGULATORY RULE MAKING

It is evident that the Court appreciates the material differences between legislation and subordinate legislation. Principles of natural justice do not apply to legislating acts of the Union or State legislature unless the statute expressly provides. However in the case of the latter, there is obviously a philosophical imperative to adopt public consultation as a default process.

Court expects that adoption of this default position would lead to both openness, reduce arbitrariness in decision-making and would probably minimize legal challenges against regulators.

SECTORAL DIVERSITY – PUBLIC HEALTH AND ENVIRONMENT

Legislative will on this matter has been divided. In specific service sectors such as telecom and airports, that have witnessed deregulation since economic liberalization in the early nineties, regulators established via statutes have to conform to statutory standards of stakeholder consultation and transparency. Pressure from industry organizations have ensured that regulators are held to sufficiently high standards of accountability especially in the sphere of rule making. In other sectors, such as environment and public health (specifically drug safety and quality) that has high public visibility but lacks organized pressure groups, regulators are yet to adopt such standards of transparency.

In fact, both these sectors are yet to have independent regulators and continue to witness inordinate political interference that have also attracted judicial censure and legislative criticism.

For instance, In Lafarge Umiam Mining Private Limited v. Union of India & Ors. ((2011)7 SCC 338) the Court had ordered the government to establish an independent environmental regulator. In the face of executive apathy, the SC again reiterated again in T.N. Goadavarman v.Union of India ((2014) 4 SCC 61)

“present mechanism under the EIA Notification dated 14.09.2006, issued by the Government with regard to processing, appraisals and approval of the projects for environmental clearance is deficient in many respects and what is required in a Regulator at the national level having its offices in all the States which can carry out an independent, objective and transparent appraisal and approval of the projects for environmental clearances and which can also monitor the implementation of the conditions laid down in the Environmental Clearances.” (Para 11).

 

The 59^th Report of the Parliamentary Committee to Review the Functioning of the CDSCO (Central Drugs Standards Control Organization), had stated

“The Committee also observes that the strengthening of drugs regulatory mechanisms cannot be achieved by manpower augmentation alone. A host of issues involving capacity-building of CDSCO like upgradation of existing offices, setting up of new offices, creation of new central drugs testing laboratories and equipping them with the state-of-the-art technology to enable them to carry out sophisticated analysis of drugs, upgradation of the existing 6 Central Drugs Testing Laboratories, skill development of the regulatory officials, implementation of an effective result-oriented pharmacovigilance programme drawing on global experience, increased transparency in decision-making of CDSCO etc. will have to be addressed before the desired objectives are realized.” (para 2.22)

In this context, the present judgement of the Court is welcome in pushing for a de minimus standard of public accountability for regulators and pushing for an end to intra-jurisdicition diversity across regulatory sectors.

NGT censures Madhya Pradesh and Rajasthan State Govts for non-compliance of SC’s mining ruling in Deepak Kumar

The Supreme Court in Deepak Kumar v. State of Haryana (2014) 4 SCC 629 mandated that all mine owners, even if carrying on mining operations below five hectares, would be liable to seek environmental clearance from the competent authority. Crucially this decision to obtain an EC was given retrospective effect and those with mining licenses and operating mines were also required to take an EC. The objective was to allow for post fact modification of operations so as to minimize environmental impacts of such mining operations.

Of course this would seem to a bit surprising that EC is an ex ante process – however the more important question that arises is whether at this stage an EC can be denied to an ongoing mining operation?

One would imagine that retrospective effect would be limited to directing modification of such ongoing mining operations so as to minimize the impact.

Perhaps this lack of clarity resulted in various States to come out with a raft of subordinate legislations (circulars and office orders) that have been found to be flagrantly violating this ruling.

This was considered in detail by the NGT in Himmat Singh Shekhawat v. State of Rajasthan (dated 13th January, 2015 in Original Application No. 123 of 2014) – wherein existing mining lease holders were provided three months’ time to make apply for EC, which were then to be disposed off within 6 months.

Thereafter several review applications were filed in NGT for extension of time, etc (Ramakant Gautam & Ors V. State of Madhya Pradesh & Ors; National Green Tribunal Bar Association v. MoEF & Ors. and) and the NGT set an outer limit of 31 December 2015 for disposal of such applications.

However due to pendency of the review applications in the case of M.P. State Mining Corporation Vs. Ministry of Environment & Forest & Ors. In Himmat Singh Shekhawat Vs. State of Rajasthan & Ors. That have continued to operate indefinitely even till date – the State Govts as well as applicants have been willfully misused this technical window.

The Madhya Pradesh Govt. on 14th December, 2015 issued a circular to all its collectors in relation to order dated 10th December, 2015 stating that applicants who have already moved an application for EC prior to 31st December, 2015, their applications would be considered immediately and till decisions the mine owners can operate their mines if their application is errorless.

The NGT has passed several orders in this regard. Its latest judgement in Naresh Zargar Vs. State of M.P. & Ors. (decided on 4 May 2016) the NGT used strong words to censure the action of the Madhya Pradesh Govt and quash a circular:

In fact, this circular is primarily intended to overreach the laws in force and is contrary to the Judgment of the Supreme Court and of the Tribunal. There was no ambiguity in the Judgment of the Tribunal dated 13th January, 2015 that no mining activity including that of the existing units would be permitted to go on without taking the ECs. The circular is a clear attempt to overreach the Judgment and in fact act prejudicially to the environment and ecology in the State of Madhya Pradesh. The inbuilt infirmity in this Circular would be that on the one hand SIEAA and other Governmental authorities would not decide the applications pending before them for a long period, while on the other hand, the mining operators would continue mining under the protection of this Circular. The obvious consequence would be that unregulated, unscientific and unauthorized mining would continue rampantly.

 

The NGT would have liked to apply the Polluter Pays Principle – but could not have done so – because the extent of damage was not calculated. It did make a case for the application of Precautionary Principle to prevent further damage to the environment.

Central Government (vide its Notification dated 15th January, 2016) amended its earlier Notification dated 14th September, 2006 and constituted District Level Environment Impact Assessment Authority (for short ‘DEIAA’) and District Level Environment Appraisal Committee (for short ‘DEAC’) for matters falling under B2 category for mining of minor minerals

All the district level authorities, DEIAA and DEAC, are directed to dispose of all the applications pending with them by 31st May, 2016 positively. We will not grant any extension of time for this purpose hereafter.

Applicants who had submitted applications which were found to be deficient were given one week to put in complete applications. Further the State Authorities are directed to upload on their respective websites, details of the applications pending before them as on 31st March, 2016. They will also separately classify the applications which are deficient in any respect whatsoever.

 

This is a significant ruling – as post S P Muthuraman – this is yet another instance in which an executive notification has been quashed. Admittedly there were valid and tenable grounds for quashing it – however this is yet another critical instance of the NGT’s growing assurance (despite its birth infirmities as a tribunal) to exercise its powers of judicial review. Each such instance will only contribute to incrementally cementing the NGT’s powers and take it ever closer to becoming a full court.

Loss of Ecology Authority Wound Up – Two Decades Later – An end to the Vellore Journey?

 

On April 7, 2016, the Madras HC ordered the winding down of the Loss of Ecology Authority (LOEA) two decades after the Supreme Court had ordered its establishment – for addressing claims for award of compensation for damage.

At the time of winding down – there were around 28000 claims pending with the LOEA.

The Madras High Court considered 3 petitions together:

• Writ Petition 23291 of 2006 constituting the LOEA as a permanent body
• WPMP No 11 of 2015  + WP No 39722 of 2005 prayers of Union of India for winding down of the LOEA and transfer of pending matters to NGT
• WP 13433 of 1996 – transfer of Vellore Case for supervision to Madras High Court

 

Just to remind ourselves of the Vellore Case – following is the operative part of the judgement delivered by the Supreme Court in

 

Vellore Citizens Welfare Court v UOI ((1996) 5 SCC 647)

……………………………………………………………………………………………

Central Government shall constitute an authority under Section 3(3) of the Environment (Protection) Act, 1986 and shall confer on the said authority all the powers necessary to deal with the situation created by the tanneries and other polluting industries in the State of Tamil Nadu. The Authority shall be headed by a retired judge of the High Court and it may have other members- preferably with expertise in the field of pollution control and environment protection- to be appointed by the Central Government. The Central Government shall confer on the said authority the powers to issue directions under Section 5 of the Environment Act and for taking measures with respect to the matters referred to in Clause (v), (vi) (vii) (viii)

(ix) (x) and (xii) of Sub-Section (2) of Section 3. The Central Government shall consitute the authority before September 30, 1996.

2. The authority so constituted by the Central Government shall implement the “precautionary principle” and the “polluter pays” principle. The authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology\environment in the affected areas and shall also identify the individuals/families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. The authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. The authority shall lay down just and fair procedure for completing the exercise.
3. The authority shall compute the compensation under two heads namely, for reversing the ecology and for payment to individuals. A statement showing the total amount to be recovered, the names of the polluters from who the amount is to be recovered, the amount to be recovered from each polluter, the persons to who the compensation is to be paid and the amount payable to each of them shall be forwarded to the Collector\District Magistrates of the area concerned. The Collector\District magistrate shall recover the amount from the polluters, if necessary, as arrears of land revenue. He shall disburse the compensation awarded by the authority to be affected persons/families.
4. The authority shall direct the closure of the industry owned/managed by a polluter in case he evades or refuses to pay the compensation awarded against him. This shall be in addition to the recovery from his as arrears of land revenue.
5. An industry may have set up the necessary pollution control device at present but it shall be liable to pay for the past pollution generated by the said industry which has resulted in the environmental degradation and suffering to the residents of the area.
6. We impose pollution fine of Rs. 10,000/- each on all the tanneries in the districts of North Arcot Ambedkar, Erode Periyar, Dindigul Anna, Trichi and Chengai M.G.R. The fine shall be paid before October 31, 1996 in the office of the Collector/District Magistrate concerned. We direct the Collectors/District Magistrates of these districts to recover the fines from the tanneries. The money shall be deposited, alongwith the compensation amount recovered from the polluters, under a separate head called “Environment protection Fund” and shall be utilised for compensating the affected persons as identified by the authorities and also for restoring the damaged environment. The pollution fine is liable to the recovered as arrears of land revenue. The tanneries which fail to deposit the amount by October 31, 1996 shall be closed forthwith and shall also be liable under theContempt of Courts Act.
7. The authority, in consultation with expert bodies like NEERI, Central Board, Board shall frame scheme/schemes for reversing the damage caused to the ecology and environment by pollution in the State of Tamil Nadu. The scheme/schemes so framed shall be executed by the State Government under the supervision of the Central Government. The expenditure shall be met from the “Environment protection fund” and from other sources provided by the state Government and the Central Government.
8. We suspend the closure orders in respect of all the tanneries in the five districts of North Arcot Ambedkar, Erode Periyar, Dindigul Anna, Trichi and Chengai M.G.R. We direct all the tanneries in the above five districts to set up CETPs or Individual Pollution control Devices on or before November 30, 1996. Those connected with CETPs shall have to install in addition the primary devices in the tanerries. All the tanneries in the above five districts shall obtain the consent of the Board to function and operate with effect from December 15, 1996. The tanneries who are refused consent or who fail to obtain the consent of the Board by December 15, 1996 shall be closed forthwith.
9. We direct the Superintendent of Police and the Collector/district Magistrate/Deputy Commissioner of the district concerned to close all those tanneries with immediate effect who fail to obtain the consent from the Board by the said date. Such tanneries shall not be reopened unless the authority permits them to do so. It would be open to the authority to close such tanneries permanently or to direct their relocation.
10. The Government Order No. 213 dated March 30, 1989 shall be enforced forthwith. No. new industry listed in Annexure-I to the Notification shall be permitted to be set up within the prohibited area. The authority shall review the case of all the industries which are already operating in the prohibited area and it would be open to authority to direct the relocation of any of such industries.
11. The standards stipuated by the Board regarding total dissolved solids (TDS) and approved by the NEERI shall be operative. All the tanneries and other industries in the State of Tamil Nadu shall comply with the said standards. The quality of ambient waters has to be maintained through the standards stipulated by the Board.

We have issued comprehensive directions for achieving the end result in this case. It is not necesary for this Court to monitor these matters any further. we are of the view that the Madras High Court would be in a better position to monitor these matters hereinafter. We, therefore, request the Chief Justice of the Madras High Court to constitute a special Bench “Green bench” to deal with this case and other environmental matters. We make it clear that it would be open to the Bench to pass any appropriate order/orders keeping in view the directions issued by us. We may mention that “Green Benches” are already functioning in Calcutta, Madhya Pradesh and some other High Courts. We Direct the Registry of this Court to send the records to the registry of the Madras High matter as a petition under Article 226 of the Constitution of India and deal with it in accordance with law and also in terms of the directions issued by us. We give liberty to the parties to approach the High Court as and when necessary.

……………………………………………………………………………………………………………….

Following this the MOEF issued a notification S.O. 671 (E) dated 30.9.1996 constituting the Loss of Ecology (Prevention and Payments of Compensation) Authority – for the State of Tamil Nadu for a period of 2 years (the term has been routinely extended in successive court judgements)!

Perusal of provisions of the notification – makes it evident that – the LOEA was a quasi judicial body that functioned under the overall supervision of the MOEF, as it had to send regular progress reports and the ministry had the power of appointment of chairpersons to LOEA.

 

Union of India Contentions:

NGT should take over from the LOEA as it was statutorily constituted and had more powers

Post the KK Subramaniam case where the Madras HC had ordered the LOEA to consider claims individually – the sheer scale of claims – volume too huge for LOEA to address – will consider establishing an NGT bench in Chennai.

Petitioners Contention

LOEA had more powers than NGT – specifically the following aspects were highlighted:

• LOEA had suo moto powers to take cognizance of any environmental degradation in Tamil Nadu
• Powers of investigation/inspection and promulgating standards – e.g. collection of water samples / factory premises and water standards
• LOEA did not have a limitation period

The NGT Act does not expressly repeal the LOEA notification – However the Court held that since the LOEA was created via an MOEF notification – a statutory provision is not required to repeal it – therefore it was immaterial that sec 38 of the NGT makes no mention of it. 

Suo moto Powers of NGT

The Madras HC made an interesting argument in response to the lack of suo moto powers – it highlighted section 18(2) of the NGT Act – which allows an expansive locus standi – and “it (locus standi) has been diluted to such an extent that the lack of sum moto powers is more than compensated”

But of course as you know the NGT has taken suo moto cognizance of many matters – quarrying in the mussoorie hills and the facelift of qutub golf course!

However it is not surprising that the Madras High Court refuses to acknowledge the suo moto powers of the NGT – given that in the past (2014) restrained the NGT (southern bench) from initiating such suo moto action – as it was not provided for in the NGT Act.

 

Limitation

The Madras HC directed the Central Govt to give an undertaking that for all LOEA cases transferred to NGT – the limitation provision will not apply.

Powers of NGT

Artcile 19 (1)of the NGT Act allows it to formulate sui generis procedures that may not be disciplined by the CPC. These are enormous powers of determining procedures!

Based on these arguments the Court ordered the winding down of the LOEA and the transfer of the pending cases to the NGT – additional bench in Chennai.

Conclusion – Some Aspects to Ponder

• Notional expansion of NGT’s jurisdiction – takeover from the LOEA – gaining another bench in Chennai
• Dilution of Locus Standi compensating for no suo moto powers (which is in any case being exercised by the NGT)
• LOEA despite its two decades existence unable to settle claims – also highlights the lack of executive support in terms of resources 

 

 

 

 

 

 

Who bears the Cost of Impunity? Health impact of Environmental Pollution

India has an impressive array of laws and policies addressing environmental protection. It also has an activist Supreme Court that has recognized and reiterated the constitutional right to clean environment. Recently the National Green Tribunal, completed half of decade of existence. Despite these legal and institutional safeguards, environmental indicators have consistently portrayed a dismal picture. How do we explain this failure?
The answer perhaps lies in the judicial and political failure to grasp the idea of irreversible environmental damage. Environmental damage is seen as reversible and open to restitution. The application of the Polluter Pays Principle (PPP) is therefore seen as an effective remedy to address environmental damage and degradation resulting from human intervention. The PPP allows the polluter to escape punitive action by paying for environmental damage resulting from his action. The presumption here is the monies collected will then be used for restitution of the environment.
Similar conceptualizations have continued to frame the use of the Sustainable development in policymaking and by the judiciary. Sustainable development has emerged as a convenient moniker to be used for explaining and justifying environmental damage for the purposes of “development.” Calls for balancing economic development with that of environmental protection has effectively meant that environmental damage has become acceptable if it is in the pursuit of economic development and therefore in the larger national interest.
Poverty reduction is seen as a more urgent national goal to be pursued even at great environmental cost. This false binary and the consequential trade off has found ready acceptance by the Court. The intrinsic idea of sustainable development of an environmentally sustainable economic development has been largely abandoned. Interestingly this is despite many legal challenges mounted by rural and tribal communities that have challenged the development pathway that has put at risk their livelihood and subsistence dependence on their natural environment.
Precautionary Principle has sought to be operationalized through Environmental Impact Assessment (EIA) regulation since 1994 and it underwent fundamental changes in 2006. Although the changes have led to some improvement, however there are several critical challenges relating to the independence of the regulator, improving the quality of public participation, quality assurance of the EIA consultants. In fact EIAs have further fragmented the discourse by reviewing a series of micro projects and thereby undermining their cumulative impact.
The repeated negotiation of environmental norms and their violation justified in terms of economic development has meant that we are at a stage where compliance with environmental norms is an exceptional act. Environmental violations are widespread and endemic. In a recent case involving major environmental violations, the National Green Tribunal found that all regulatory bodies culpable in abetting these violations but expressed its inability to take decisive action. This is presented as a case study in the next section to highlight the scale of the problem that confronts us.

 

Case Study

Recently the World Culture Festival organized by the Art of Living International Foundation faced an environmental challenge in the National Green Tribunal. The event was being organized on more than 50 hectares of land that constituted the floodplains of the river, Yamuna. As preparation for the event ramps, roads, compaction of earth, pontoon bridges and other semi-permanent or temporary structures were constructed. The Principal Committee established by the Tribunal to do a ground survey, found evidence that the “..flood plains have been drastically tampered with while destroying the natural flow of the river, reeds, grasses, natural vegetation on the river bed. It has further destroyed the aquatic life of the river and destroyed water bodies and wetlands on the floodplains, which were existence…” The damage was spread across 50-60 hectares of the floodplains.

The river Yamuna is the largest tributary of the River Ganga and is one of the primary sources of domestic water supplies for Delhi, Mathura, Agra and Allahabad. Rapidly rising population has meant that there are plans at various locations to withdrawn more water from the river. Irrigation is another important use. An estimated 92% of the river water is distributed for irrigation. Approximately 49% of 12.3 million hectares of the land in the entire Yamuna basin is irrigated exclusively from surface water. Yamuna is also a highly polluted river, with Delhi contributing to 79% of the total domestic pollution load. 85% of the total pollution in the river is from domestic sources.
The 580km stretch of the river between Wazirabad barrage and the Chambal river confluence is critically polluted. According to the Central Pollution Control Board “this stretch is characterized by high organic contents, high nutrients, significant depletion or increase in dissolved oxygen, severe odours etc. It has also rated the 22km long Delhi as severely polluted. Alarming levels of pollution and deterioration of quality of water in the river had in fact led to the launching of the Yamuna Action Plan (YAP) way back in 1993. Since, then two more phases have been inaugurated with the third being launched in 2013. However responding to a parliamentary question on the failure of the YAP, the Minister for Water Resources, River Development and Ganga Rejuvenation (MWR) admitted that the water quality has shown little improvement due to the gap between sewage generation and capacity for sewage treatment and the lack of adequate fresh water in the river.
In this context that the failures of the several regulatory agencies who allowed this event to go ahead needs to be highlighted. The Delhi Development Authority (DDA) who is in charge of the flood plain granted permission for the event on June 30, 2015. The Foundation had also applied for permission from the Delhi Pollution Control Committee (DPCC) which is the statutory body charged with prevention and control of water pollution. The DPCC had denied that they had a role since the structures were temporary and therefore did not require their prior consent. By undermining their authority the Court found that the DPCC had failed to discharge its statutory obligation. Shockingly other public agencies echoed this denial of regulatory responsibility. The Ministry of Environment, Forests and Climate Change which oversees the Environmental Impact Assessment process was pulled up for wrongly submitting that environmental clearance was not required. Similarly the Tribunal found that the Police Department, Fire Department and the MWR (which was chiefly responsible for the conservation and control of water pollution of River Yamuna) had failed to exercise due diligence in fulfillment of their public duties.
The application submitted by the foundation for obtaining permission was vague and did not provide proper data that would provide a full and detailed picture of the construction activities undertaken. In the face of such obvious misrepresentation of facts and clear evidence of regulatory collusion resulting in grave environmental damage to the Yamuna which is highly environmentally vulnerable, the Tribunal allowed the event to proceed but imposed an interim environmental compensation of Rs. 5 crores to be adjusted against computation of final damage. Relying on the delay of the applicant in approaching the Tribunal, since the construction was already nearly complete and yet again that the environmental damage was capable of restoration and restitution, it found itself unable to prohibit further construction and mandate restoration of the area. The World Cultural Festival has therefore in effect been given judicial approval.
This inability of the Tribunal to take a strong position against grave environmental damage in terms of prohibition of activities is unsurprising and a direct consequence of the historical compromises made by the judiciary in framing environmental violations as a necessary consequence of development and also in having blind faith in the idea that environmental damage can largely be restored and restituted.
This inability and the incapacity of the judiciary has given rise to a culture of impunity wherein, environmental regulations are routinely ignored, undermined and violated in complete disregard of judicial and regulatory orders and in full public view. Confronted with repeated environmental violations the judiciary in such cases has routinely imposed financial penalty and in effect regularized such constructions, on the ground that substantial third party interests have been created or that huge monies have been spent and it is meant to serve a public purpose and therefore is in the public interest.

 

WHO Report 

The 2016 WHO Report on “Preventing Disease Through Healthy Environments” found that diarrhoea,  lower respiratory infections and malaria are the dseases with the largest absolute burden attributable to modifiable environmental factors. India is among worst performing developing countries in the Environmental Health Index .
Conclusion
It is the public that bears the environmental cost of this culture of impunity (undermining of the rule of law) that has been created by the repeated inaction of the judiciary. India accounts for more than one fourth of all infant mortality primarily due to effects of diarrhea and pneumonia resulting from water and air pollution. The unseasonal floods in the Kashmir valley and Chennai resulted from widespread regulatory failures to contain growing levels of environmental violations leading to acute degradation of natural environment and the many ecosystems therein.
The false trade-off between development and environmental protection and the blind faith in environmental restitution needs to be abandoned. The idea that environmental damage can also be irreversible and therefore should be prevented at all costs needs to be appreciated and pursued vigorously by the regulators and the judiciary. The polluter pays principle should be abandoned and the precautionary principle should be applied more widely for such violations especially keeping in mind their cumulative impact on the macro environment.

 

Draft Environmental Laws (Amendment) Bill, 2015 – Differentiated Scale of Violations

The MOEF & CC has circulated the Draft Environmental Laws Amendment Bill 2015 for eliciting comments from the public.

This is an important legislative proposal for several reasons:

1. It introduces a scales of violations – minor, non-substantial and major violations – and imposes a differential rates of financial penalty (greatly enhanced).
2. It establishes an adjudicating authority for investigation and imposition of these fines
3. It provides for a qualification (deposit of 75% of the penalty) before NGT can consider appeals from decisions of adjudicating authority

Following are my comments and suggestions which have been submitted to the MOEF&CC:

Definition of “non-substantial damage” needs to be incorporated into the Bill itself:
This could be similar in structure to the definition of “substantial damage” wherein there are some indications as to what constitutes substantial damage while providing enough flexibility to the adjudicating authority to make a case-by-case determination. Without a definition (however loose) there is no way of capturing what constitutes “minor violation” – which is essentially a residuary category. By leaving critical definitions to be evolved through rules – it may create challenges for legal certainty – since rules are ever evolving and amendable. Certain basic criteria should be laid down in the Act to provide guidance so as to ensure that rule making does not lead to greater complication. In any case the adjudicating authority will undertake the case-by-case application of the rules. Thus application of rules will organically clarify categories of violations.

Section 14D(6): “Any person……shall be entitled to make application before adjudicating authority for imposition of penalties before the Act”:
This is a very good provision – since it allows common persons to access statutory environmental remedies. Such a provision should also be included in the Water (Prevention and Control of Pollution) Act 1974 and the Air (Prevention and Control of Pollution) Act 1981 by way of amending both these legislations (Section 49 of Water Act and Section 43 of the Air Act).

Sections 20A.(1), 20B and 20C – Delete “rendering of any service”:
Statutorily mandated regulatory functions should not be categorized as “services”. The use of the word “service” has a different connotation. Critical regulatory functions like certification, testing, inspection, authorization and approval should not be dependant for resources on regulatees. This compromises independence of regulators. Regulation is a public service function and needs to be financed through public finances.
Suggest separation of regulatory functions from other functions related to provision of information and access to resources – viz. Use of national database on environment – fees can be stipulated for the provision of such services.

Section 14E – Factors to be considered by adjudicating authority.
Subsection (c) “repetitive nature of damage” – the meaning is unclear – is similar to the idea of “continuing nuisance” -in which it is not the action but the effect of the action that is continuing. Suggest redrafting to clarify that it refers to continuing nature of damage.
Past record of (non)compliance of the person should also be a factor in adjudicating quantum of penalty in case of a violation.