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

October 20, 2015 by Nupur Chowdhury Leave a comment

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.