National Environmental Law and Policy

Introduction
Dr. K.P.S. Chauhan (kpschauhan@gmail.com)
9th September, 2007

Environmental Issues and Problems
Global:
-More than 6 m ha of productive dry land rendered into worthless desert - 35 m people at risk in Africa. -About 11 m ha forests/ annum destroyed and converted into low-grade farmland – eg. Priceless Amazon Basin in South America. -Acid rains killing forests, lakes, vast tracts of soil beyond repair and architectural heritage. -Burning of fossil fuels ( CO2 and other GHGs) causing global warmingsea level rise and upsetting Oceans’ food chain, disruption in both terrestrial and marine ecosystems functioning, change in rain fall patterns etc. -Release of Industrial gases (ie. chlorofluorocarbons) resulting into depletion of the ozone layer. -Release of toxic substances from industry & agriculture into human food chain and underground water tables Some Examples : Leak in Union Carbide in Bhopal (Dec., 1984) killed more than 2000 and blinded and injured over 2,00,000 people; the Chernobyl nuclear reactor explosion (April, 1986) sent nuclear fallout to Europe; release of toxic wastes by a chemical plant in Basel into Rhine River (1986) killing fish and threatening drinking water in FGR and Netherland

Environmental Issues & Problems (Contd.)
National:
-Out of the total 304 m ha land, about 175 m ha is wasted. -More than 6000 m tons of top soil per annum is lost for ever due to water erosion. -About19 % of forest is left against minimum 33% due to various mega projects, mining, timber logging etc. -Important Ecosystems eg. North-east, Western Ghats, Eastern Ghats, Terai Region of Himalayan foothills, Coastal mangroves and coral reefs are seriously effected due to unsustainable developmental activities resulting into species and habitats loss. -Water, Air and Noise Pollution: All 14 major rivers and its combined basin area are seriously polluted; air quality in all major metropolitan cities is highly polluted and Noise pollution has become a growing menace. -Unplanned human settlements have resulted in unhygienic and very poor sanitary conditions thus increasing health budget.

State agencies as watchdogs Pre Stockholm Period (before 1972): -Had more emphasis on development of infrastructure with no emphasis on environmental concern. -Issues such as sewage disposal. -Environmental protection was confined to planning process and was part of the forest policy . public health etc were dealt with by different Ministries under IPC & CrPC.Environmental Policy Early Goals: -to stop further degradation of the environment taking into account human health & pollution control using traditional command & control methods. sanitation.

and formulation and coordination of R&D projects -The Department of Environment was created in 1980 and was expanded later into the Ministry of Environment & Forests in 1986. Main Activities: Collaboration with Project Appraisal Division of the Planning Commission in developing guidelines for evaluating costs and benefits of the development projects that takes into account the environmental factors.Environmental Policy (Contd. 1974. . and consequently the State & Central Pollution Control Boards came into existence.) Post Stockholm Period (after 1972): -A National Committee on Environmental Planning and Coordination was set up in 1972 as an ‘Apex Advisory Body’ in all matters related to the environmental protection and improvement. The Water (Prevention & Control of Pollution) Act.

OBJECTIVES: -Shift emphasis from defined objectives to actual implementation.Policy Statement for Abatement of Pollution came out in 1992. -Maximise the use of mix of instruments such as: -Legislation & regulation -Fiscal incentives -Voluntary agreements -Educational programmes and Information campaign -Increased use of regulations and to develop fiscal incentives -Need for a positive attitude of the society -Integration of environmental & economic aspects in development Planning -Preventive aspects of pollution abatement & increased modern technological inputs to arrest industrial pollution -Rely on Public co-operation .

Policy Statement for Abatement of Pollution. 1992 Policy Pronouncement: -Preventing pollution at source -Encourage. develop and apply best technical solutions -Ensure polluter pays for the pollution & control arrangement -Involve public in decision making .

protection of scenic landscapes. minimise adverse environmental consequences of sitting the development projects. restoration of ecologically degraded areas and the environmental improvement in rural and urban settlements. conservation and nurturing biological diversity in all ecosystems. .National Conservation Strategy & Policy Statement on Environment and Development. and. conservation of natural & man-made heritage. protection of coastal and marine areas. unique representative biomes & ecosystems. Agenda of Action: sustainable and equitable use of resources. water and air. 1992 Purpose: to reinforce our traditional ethos & build up a conservation society living in harmony with the Nature and making fugal and efficient use of resources using best available scientific knowledge. prevention and control of deterioration of land.

-Effective participation of people. -Effective enforcement of environmental laws and regulations . -Enhance R&D and adoption of environmentally compatible technologies for conservation. -Education and mass awareness programme for environmental consciousness. 1992 (Contd. -Develop institutional mechanism and man power needed for environmental management services. conserve energy and use of natural resources in industrial products. -Compulsory ‘Prior Environmental Clearance’ of projects above certain size in certain ecologically sensitive areas. -Recycle waste materials.National Conservation Strategy & Policy Statement on Environment and Development.) Instruments for Action: -EIA of all development projects at planning stage. -Incorporation of environmental safeguards in all major sectors.

2) Intra-generational Equity: Livelihood Security for the poor 3) Inter-generational Equity. 2006 Main Objectives: 1) Conservation of Critical Environmental Resources. 6) Enhancement of Resources for Environmental Conservation. .National Environment Policy. 4) Efficiency in Environmental Resource Use. 5) Environmental Governance. 5) Integration of Environmental Concern in Economic and Social Development.

Human health. and .Cost minimization (where economic value to environmental services is difficult to compute).PRINCIPLES: Total 13 1) Human being as the ‘Centre’ of sustainable dev. 4) The precautionary approach (including action).. environmental life support systems for which compensation can not be paid. 3) Environmental protection is an integral part of the development Process. 5) Economic efficiency (economic values to environmental services in alternate course of action): This would involve following principles: -Polluter Pays. 6) Entities with “Incomparable” values eg. . 2) The right to development to equitably meet development & environmental needs.

9) Public trust doctrine. . 8) Legal liability: Civil liability for environmental damage. 12) Environmental standard setting 12) Preventive action: and 13) Environmental offsetting: Imposing a general obligation to protect threatened or endangered species and natural systems that are of special importance to sustaining life. 11) Integration: inclusion of environmental considerations in sectoral policy making and linkages among various levels at the Central.7) Equity: PRINCIPLES (Contd.Fault base liability.) -Procedure Equity: fair rules for allocation of entitlements & obligations -End Result Equity: fair outcomes in terms of distribution of entitlements and obligations. 10) Decentralization.party is liable if it breaches the legal duty -Strict liability: imposes obligation to compensate the victim. State and Local Self Govt. .

clustering of industries and other development projects. -Process Related Reforms: (i) Approach: based on Govindrajan Committee Report to avoid delay in environmental clearance. Coastal Areas: Revisit the ‘CRZ Notification’ and ‘Coastal Zone Management Plans’ so as to make them more comprehensive & effective. restrictions on diversion of natural forests & high endemism areas.Regulatory Reforms-Revisiting Policy and Legislation: identifying emerging areas for new legislation. (ii) Framework for Legal Action: Employment of mix of civil & criminal processes and sanctions in the legal regime for enforcement. due consideration to quality & productivity of lands. and ensuring accountability at the Central. . mining) & formulating ‘Code of Good Practices’. State & Local government levels. developing synergies among relevant statutes & regulations.e. Environmental and Forests Clearance: with emphasis on Regional/ Cumulative EIAs. ii).STRATEGY AND ACTIONS: 1. institutionalising techniques for environmental assessment of sectoral policies & programmes. -Substantive Reforms: i). environmental restoration after decommissioning of industries (i.

develop standardized appraisal practices where environmental risks are taken into account. iv) Environmentally Sensitive Zones: Give legal status and formulate development plans with local institutions.STRATEGY AND ACTION (contd. implement action plans on the use of economic instruments for environmental regulation & create a ‘National Environment Restoration Fund’. vi) Use of Economic Principles in Environment Decision Making: strengthen ‘Natural Resources Accounting’ in the CSO.) iii) Living Modified Organism (LMOs): Review regulatory processes for LMOs. v) Monitoring Compliance: undertake capacity development initiative to enable Panchayati Raj Systems and Urban Local Bodies to undertake monitoring compliance and with public-private partnership. biosafety guidelines and manual keeping conservation of biodiversity & human health & provisions of the ‘Montreal Protocol’ in view. .

and adoption of most suitable agronomic and agricultural practices in desert ecosystem. reclamation of waste lands & degraded forest lands. and encourage agro-forestry and organic farming. traditional sustainable land use practices. expansion of green cover using local species. implementation of thematic action plan for watershed management strategies.) 2.Enhancing & Conserving Environmental Resources: i) Land Degradation: Adoption of science based. ii) Desert Ecosystem: Intensive water and moisture conservation. . sustainable development of shifting cultivation.STRATEGY AND ACTION (contd.

-Wildlife: Expand “PANs”. multi-stakeholder partnership for enhancement of wildlife habitat. promote eco-tourism in PAs. conservation of endangered species outside PANs. restoration of environmental value of forests & implement ‘Code of best management Practices’.) iii) Forests and Wildlife: -Forests: Legal recognition of the traditional entitlement of forests dependent communities. formulate innovative strategies to increase forest cover to 33% by 2012. and eco-development programme in the fringe areas of the PAs. . denotify bamboo & other species as ‘Forest Species’.STRATEGY AND ACTION (contd. and promote plantation of only those species suitable in maintaining the sustainability of the ecosystems. review placing species in different Schedules of the Wildlife Protection Act.

and Natural Heritage: Strengthen the protection of ‘biodiversity hot spots’ while providing livelihood & access to resources to local communities. and afforestation on banks & catchments areas of rivers and reservoirs. integrate conservation & wise use of wetlands into river basin management.STRATEGY AND ACTION (contd. v) Fresh Water Resources: -River System: Promote research in glaciology to evaluate the impacts of climate change on glaciers and river flows. develop an appropriate system for ‘Prior Informed Consent’ and ‘Fair and Equitable Benefit Sharing’ in respect of use of biological material& its associated TDK. on multiple river valley projects. enhance ex-situ conservation of genetic resources. mitigate the adverse impacts on the rivers & estuarine. .) iv) Biodiversity. its flora & fauna and the resulting change in the resource base for livelihood. power plants & industries. pay attention to potential impacts of development projects on biodiversity resources and natural heritage. Harmonize the ‘Disclosure Clause (Source & geographic origin)’ of the Patent Act and the declaration regarding necessary permission from the competent authority to use biological material with the provisions of the Biodiversity Act dealing equitable benefit sharing with the local communities holding TDK for such use. implement integrated approaches to manage the river basins. Traditional Knowledge.

-Wetlands: Set up legal mechanism for conservation of wetlands along with conservation & wise use of wetlands with participation of the local communities. support rain water harvesting and artificial groundwater recharge. ensure availability of ground water potential maps through a designated institution. mandate water harvesting and artificial recharge in all new constructions. consider unique wetlands as entities with ‘Incomparable values’ for their protection. identification of suitable sites for dumping hazardous & toxic wastes to prevent contamination of groundwater. promote efficient water use techniques. and integrate wetland conservation into sectoral development plans for poverty alleviation & livelihood improvements .STRATEGY AND ACTION (contd. improve productivity per unit of water through water assessment & audit. support R&D for rural drinking water projects free from toxic pollutants.) -Ground water: Take account of impacts on ground water tables of electricity tariffs & pricing of diesel. factorization of economic value of environmental services into cost-benefit analyses. implement a comprehensive strategy for regulating use of groundwater by large industrial & commercial establishments. and ensure optimum utilization of fertilizers. pesticides & insecticides improve quality of water.

vii) Coastal Resources: -Sustainable management of mangroves & ensure livelihood of local communities. take sea-level rise and climate change into account in coastal management plans. infrastructure planning & construction norms. Mountain Ecosystems: -Adopt appropriate land use planning & watershed management practices.) vi). and coastal and surrounding marine resources . and consider unique mountain scapes as entities with ‘Incomparable Values’. and strengthen regulations on ship-breaking activities on human health. encourage cultivation of traditional varieties of crops and horticulture. Adopt ‘best practice’ norms for infrastructure construction.STRATEGY AND ACTION (contd. adopt comprehensive approach to integrated Coastal Management by addressing linkages to all micro-habitats. disseminate regeneration techniques for coral reefs. promote sustainable tourism through ‘best practice’. take measures to regulate tourist inflow as per the carrying capacity.

) viii) Pollution Abatement: -Air Pollution: take integrated approach to energy conservation & adoption of renewable energy technologies ( improved fuel wood stoves. enhance capacities of spatial planning among State & Local Govts. and take explicit account of groundwater pollution in pricing policies of agricultural inputs. promote reclamation of waste lands by energy plantations for rural energy requirements. implement action plans for mitigating water pollution of all major cities with effective regulations. -Water Pollution: Develop & implement public-private partnership models for effluent & sewage treatment plants. promote R&D for low cost sewage treatment at different scale. prevent pollution of all water bodies. formulate a national strategy for urban mass transport to reduce vehicular pollution. . strengthen the monitoring & enforcement of emission standards for both point & non-point sources. implement action plans to mitigate air pollution in major cities. solar cookers suited to local cooking etc). with adequate legal support. and strengthen efforts for partial substitution of fossil fuels by bio-fuels through bio-fuels plantation.STRATEGY AND ACTION (contd.

e. strengthen the legal arrangements & responses measures for emergencies. and for disposal of toxic & hazardous wastes. promote organic farming to reclaim of land exposed to agro-chemicals. develop inventory of toxic & hazardous waste dumps along with an online monitoring systems. bottom ash. incinerators. -Noise Pollution: Make appropriate differentiation between different environments in setting different ambient noise standards. timing & use of loudspeakers & crackers.) -Soil pollution: Develop & implement viable models of public-private partnerships for setting up & operating landfills. red mud & slag etc. enforce regulations & guidelines for management of e-wastes. and promote beneficial use of non-hazardous wastes i. include ambient noise as one of the environmental quality parameters & encourage dialogue between the State/Local Authorities and religious/ community representatives on the enforceable duration. distinguish between noise standards in the context of occupational exposures. recycling & reuse of municipal solid wastes. . formulate noise emissions norms. strengthen capacities of local bodies for segregation. fly ash. legal recognition to informal sector system for collection & recycling of various materials.STRATEGY AND ACTION (contd.

the potential impacts on ‘Distinguished Heritage Sites’ must be taken into account. and participate in voluntary partnership in sustainable development. overriding priorities of the right to development. Reliance on multilateral approaches. equal per capita entitlements of global environmental resources to all countries. Impacts on heritage sites be one of the terms of reference for EIA of the projects. encourage Indian industry in ‘clean development mechanism’.STRATEGY AND ACTION (contd.) ix) Conservation of Man Made Heritage: While setting up ambient environmental standards. Heritage sites considered to have “incomparable Value” thus would merit stricter standards. identify key vulnerabilities of India to climate change & asses the need to adapt to future climate change. x) Climate Change: Adherence to common but differentiated responsibilities in the mitigation of GHGs. .

formulate ‘Good Practice Guidelines’ for ecolabels to enhance their scientific basis & transparency. and strengthening testing infrastructure & network for monitoring mandatory ambient environment quality.) 3. -Environment Management. promote mutual recognition of Indian & foreign ecolabels to enhance their market access at lower costs. adoption of EMS through purchase preference for ISO 14000 goods & services for Government purchases. Certification & Indicators: -Environment Standards: Setting up a permanent machinery to review ambient & emission standards taking into account the new scientific findings. Environment Standards. . Ecolabeling and Certification: Encourage industry associations to promote ISO 14000. Management System. changing material circumstances & ensuring participation of impacted communities & industry associations. and promote ‘Good Practice Guidelines’ norms in all relevant sectors to conserve natural resources & reduce adverse environmental impacts.STRATEGY AND ACTION (contd.

) 4. Public-Voluntary Organisation. 5. Environmental Awareness. set up mechanism to network technology research institutions for clean technology . and use of revenue enhancing fiscal instruments to shift to clean technology & promote adoption of clean technology by industry. transparency and efficiency. Public-Community & private. Partnership and Stakeholder Involvement: Involvement at different levels i.e. Public-Community. Clean Technologies and Innovations: Encourage capacity building in the financial sector for appraising clean technology switchover project proposals. .STRATEGY AND ACTION (contd. Education & Information 6. PublicPrivate. Public-Private & Voluntary Organisation is to be realised in terms of good governance.

& also encourage research in priority areas outside Govt. establish research programmes in priority areas within the Govt. redefine ‘Objectives & Principles’. and ensure continuous up gradation of knowledge & skills of the scientific & technical personnel involved in environment management. with necessary financial & institutional support. 9. 8. Capacity Building: Review the present institutional capacities at the Central & State levels to enforce environmental laws & regulations. in the third of the 3yrs reviews. and recast the ‘Strategic Themes for Action’. International Cooperation: at all levels 10. 11. incorporate in all environmental programmes a capacity building component with sufficient funds. Review of the Policy: Undertake consultation every 3 yrs with group of diverse stakeholders to update the Policy. Review of the Implementation: Cabinet or nominated committee of the cabinet may be requested to review the implementation of this Policy. Research and development: Periodically identify & prioritize areas for research.STRATEGY AND ACTION 7. undertake a comprehensive examination of scientific & policy understanding of environmental issues. .

material. What is needed is at least a vision that puts nature and overall human well-being (cultural. and of specific elements like public access to information. Unfortunately there is not much in the policy so far as a scope for citizens to participate at all levels of decision-making regarding the environment. spiritual.Critique of the NEP. who at what stage should be taking decisions. This weakens its initial principle of decentralization and people’s participation. 2) The policy at various places talks of decentralization. But fails to give a concrete vision as to how the natural resources will be governed. intellectual) at the centre of a process of development. . 3) Policy is fully human-centric in nature. how will current institutions of governance change. 4) Though strategies and actions enumerated speaks of decentralization. and from which would emanate the core principles and strategies for ecologically sustainable development models. 2006 1) The Policy does not challenge the fundamental nature of the current model of ‘development’ which is at the heart of environmental destruction. of “partnerships”.

and should be listed under the category of areas with ‘incomparable value’. and marine ecosystems are completely missing. . certain categories like grasslands. and will leave out the majority of wildlife. the ‘protected area network’ in India will never cover more than a fraction of the land and water. 8) Critical parts of river systems need also to be protected from destructive development. 7) The section on “Wildlife” does not promote the involvement of people within ‘PANs’. 6) Classification of specific ecosystems under the chapter Strategies and Actions has not done scientifically. The Policy does not clearly specify that there would be no transfer or leasing of common lands to industries. The section only speaks about protection of wildlife within the protected areas while forgetting the fact that however much it may be expanded. ‘wasteland and degraded forestland’ be reclaimed through partnerships. Moreover.) 5) Policy recommends that.Critique of the NEP. 2006 (Contd. deserts.

desertification. forest fires. 11) The Policy shows a lack of attention towards key areas like grazing and fodder management. 10) The Policy pays lip service to the livelihood dependence and rights of ‘adivasis’ and other ecosystem-dependent communities in India. 12) Two important issues. women and environment as well and trade and environment is again untouched by the policy. island and marine eco-systems. 2006 9) Section on “Environmental Awareness. 13) Highly debated issue of inter-linking of rivers finds no mention at all in the Policy document. Education. and information” is silent about the locale-specific education curricula and awareness programmes. .Critique of the NEP.

-Art.Under “Fundamental Duties” assigns the citizen to protect & improve the environment including forests. 48-A of the Constitution (42nd Amendment) Act. 51. -Art. lakes. wildlife etc. rivers.Indian Environmental Regime Constitutional concerns: - -Directs State to improve the standard of living and public health (Art. 47). . 1976 in its ‘Directive Principles’ declares that the State shall endeavor to protect & improve the environment as well as safeguarding forests & wildlife.

32 ). -73rd and 74th amendments assigns powers. urban forestry etc. -The citizen can take recourse for removing the pollution of water or air which may be detrimental to the quality of life (Art. (Art 243-A & 243W ) . minor forests produce.Indian Environmental Regime Constitutional concerns: -Right to life is fundamental right including right of enjoyment of pollution free water & air for full enjoyment of life (Art. authority & responsibilities to both Panchayats and Municipal Bodies in managing natural resources such as land . water. 21). fisheries.

Act. -the Environment Protection Act. -the Air (Prevention & Control of Pollution). 2002 “followed by enacting several rules and amendments under the above mentioned laws” . -the Water Cess Act. 1974. Forests & Wildlife Protection -Indian Forest Act.Indian Environmental Regime Legislative Enactments (Common & criminal Laws): Pollution Control: -the Water (Prevention & Control of Pollution). 1972. -the Forest (Conservation) Act. Access to Biological Resources -the Biological Diversity Act. -the Wildlife (Protection) Act. 1977. 1980. 1986. 1927. 1981. Act.

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