KHULNA UNIVERSITY OF ENGINEERING &

TECHNOLOGY, KHULNA.
Course No.: Hum_2105 Course Title: Industrial Environment

Topic: Successes and Failures of the Environment Conservation Act

1995 in the Environmental Protection of Bangladesh.

SUBMITTED TO: SUBMITTED BY:

Biplob Rahman Sir, Md. Shamim ahammed,
Associate Professor, Roll No: 1805087
Education Govt. Teacher’s Training Department of Mechanical
College Khulna -9203, Bangladesh. Engineering,
KUET, Khulna.
Submission Date: 10/12/2020
 Successes and failures of environmental
conservation act 1995 in the environmental
protection of bangladsh

Introduction of environment conservation act: Environmental Laws are for the

conservation and protection of the environment and ecology. These laws lay down the rights and
duties of citizens and public agencies in consonance with the global call for a healthy
environment. Environmental conservation act 1995 is a set of some Acts which was passed in
1995 to provide for conservation of the Environment, improvement of environmental standards
and control and mitigation of environmental pollution.

The environment pollutant and punishments: Any person affected or is likely to be

affected with pollution or degradation of environment, where the unrestraint of any
environmental pollutant occurs in excess of the prescribed limit laid down by the Bangladesh
Environment Conservation Rules, 1997 due to any accident or other unanticipated act or even the
person will responsible and the person in charge of the place of incident will take measures to
mitigate the environmental pollution. Under this section, the Director General may implement
remedial measures to control and mitigate the environmental pollution by giving public hearing.
The ECA 1995 also defines certain environmental offences and prescribes for their punishments.
Moreover, to supplement and fulfill the objectives of the Act, the Bangladesh Environment
Conservation Rules (ECR), 1997 was adopted in accordance with section 20 of the ECA, 1995.
Furthermore, ECA 1995 and ECR 1997 are not free from loopholes. These Acts followed the
“Prevention is better than cure” maxim. That means it is very much cure oriented and only deals
with post-harm situations. The provision for punishment makes the implementation of this Act
rather difficult, as that requires exercise of magisterial power.

The act has both successes and failures. They are described below:

Successes: Though the act was established in the year of 1995, Bangladesh has not seen
much improvement environmentally. In the year of 2011, the capital city of Bangladesh
– Dhaka – had been ranked as the world's 2nd least liveable city in the world only
beating Harare in Zimbabwe with an overall ranking difference of 1.2%.[6] Though the scenario
changed in 2012, when Dhaka was ranked 140 – the last among the liveable countries in the
world. Though the overall ranking of livability did not change (was constant at 38.7%), but it did
not improve like the other cities like Harare did, which was announced the 4th least liveable city
unlike the previous year.[6] The humidity/temperature level of Dhaka was rated as 'uncomfortable'
and so was the quality of water. Overall it achieved a rating of 43% in terms of culture and
environment (100% being ideal) and a 27% in infrastructure (100% being ideal).[6] This proves
the inefficiency of the establishment of the environment law.

Being the least livable country in the world and the capital of the country, Dhaka obviously is on
the top of their list. But it is easier said than to be done. One of the laws in the act includes,
"Restriction regarding vehicles emitting smoke injurious to health".[4] This law is nearly
impossible to establish since Dhaka alone is the home to 7 million people given the fact that the
area of the city is only 1463.60 km2.[7] Not to mention most of the people living here are in the
working class of the society. Most of them cannot even feed their family properly let alone buy a
car for themselves, thus mostly rely on public transportation. Due to huge amount of debt to
foreign countries, the Governmentcan can only afford to give a little attention towards the
public transportation system, which resulted in decades old buses emitting thick black smoke
which results in further degradation of the environment.

Failures: the Bangladesh Environment Conservation Act 1995 was enacted for fulfilling

three major objectives namely: conservation of environment, improvement of environmental
standards and the control and mitigation of environmental pollution. The Act was formulated on
the basis of the policy framework provided by the Environment Policy of 1992 and the National
Environment Management Action Plan (NEMAP) of 1995.

The BECA also defines certain environmental offences and prescribes for their punishments.
Moreover, to supplement and fulfill the objectives of the Act, the Bangladesh Environment
Conservation Rules (BECR), 1997 was adopted in accordance with section 20 of the BECA,
1995.
However, the Bangladesh Environment Conservation Act, 1995 and Rules, 1997 are not free
from a number of loopholes or shortcomings. There is a maxim that ‘prevention is better than
cure’, but the BECA of 1995 by the terms ‘improvement of environmental standards’ and
‘mitigation of environmental pollution’ in its preamble indicates that it is cure-oriented and it
only copes with the curative measures rather than the preventive measures. The BECA, 1995,in
true sense, deals with the post-harm situations.

The Act does not entail any obligation on the state to conserve the environment despite the fact
that the extended meaning of the term ‘right to life’ includes the ‘right to safe and healthy
environment’. It is notable here that in the latest Bangladeshi statute  Wildlife (Conservation and
Safety) Act, 2012, there is a clear statement as to state’s obligation under Article 18A of the
Constitution about conservation and safety of wildlife of Bangladesh. However, the Articles
31 and 32 of the Constitution safeguard ‘right to life’ as the fundamental right. The High Court
Division (HCD) in the legendary case Dr. Mohiuddin Farooque vs Bangladesh and others (48
DLR, p. 438) declared that “right to life” includes right to fresh air and water and a situation
beyond animal existence in which one can expect normal longevity of life. Though the ‘right to
safe environment’ is proved to be a fundamental right by the legal and judicial activism of the
higher judiciary of our country, the BECA is altogether silent about the state’s obligation to
conserve the environment.

In section 3, the term ‘Government’ is a vague one. It creates the question in our minds – who is
the Government under the BECA, 1995? There is no reference to any specific criteria for
determining the ‘Government’ who would set up the Department of Environment (DoE) headed
by the Director General (DG).

Section 3(2) of the BECA, 1995 speaks about the appointment of the Director General (DG) in
the Department of Environment, but it does not state any definite qualifications upon which the
DG will be appointed. The appointment process is totally dependent upon the satisfaction of the
Government.

Section 4 of the Act gives unfettered and unlimited powers to the Director General (DG) of the
Department of Environment (DoE). The wording ‘may’ in section 4 denotes that the DG is not
bound to take necessary measures in order to conserve the environment and the DG can do
anything at his sweet will. It is noteworthy that under section 4 the DG is empowered to take
immediate action against any industry and to close the industry without giving any “prior notice”
to the industry, if he ‘considers’ that the industry is likely to endanger public life. Taking any
action against any person or any industry or corporation without giving any prior notice
absolutely goes against the principles of natural justice. Also, such a closure of the industries is
totally dependent on the DG’s satisfaction. This most often creates rooms for DG to resort to
corruption.

Section 5 of the Act requires the Government to declare the ‘ecologically critical areas‘. It is
palpable that the environment experts can play a vital role in declaring the ecologically critical
areas. Section 5 has no reference to the matter.

According to section 6B, the hill or hillock may be cut for ‘inevitable national interest’. The term
‘inevitable national interest’ is a vague one. There are no specific objective criteria to determine
‘inevitable national interest’. In the prominent case Dr. Mohiuddin Farooque vs Bangladesh [49
DLR (AD) 1997, p.1] the question of national interest was a central issue. In that famous case,
the legality of an experimental structural project of the ‘Flood Action Plan (FAP 20)’ at Tangail,
Bangladesh was questioned on this very point of national interest. For so called inevitable
national interest, restrictions on the wetlands may be relaxed under the section 6E of the BECA,
1995.

Though the section 6C speaks about production, import, stock, transportation of hazardous

waste, it does not speak about reuse, recycling and reduction of waste.

Section 12 of the Act speaks about ‘Environment Clearance Certificate’. It is yet unclear what
will happen if the Department of Environment (DoE) is unable to meet the timetable to grant the
Environment Clearance Certificate (ECC). Section 12 is silent about the standards and
parameters upon which the ECC should be obtained.  Section 12 also speaks about the
formulation of Environment Impact Assessment (EIA) report, but it does not prescribe the role of
environment experts in preparing the EIA report. However, it provides for EIA report only of the
industrial projects not of the non-industrial projects. As per Rule 7 of the Bangladesh
Environment Conservation Rules (BECR), 1997, the industries belonging to highly polluting
Red categories must obtain ‘No Objection Certificate (NOC’ of the local government authority.
But the Conservation Act or Rules does not provide any procedures to be followed by the local
government authority in issuing such a ‘No Objection Certificate (NOC)’. However, India and
some other countries prescribe ‘public hearing’ which means that before establishing any
industry, the people of the locality will be convened by the concerned government local authority
in order to know whether they have any objection to the erection of the industry and what are the
harms and risks which they think, will occur to the environment. On the other hand, Principle 10
of the Reo Declaration, 1992 provides for the participation of all concerned citizens in
environmental issues as well as an opportunity for all concerned citizens to participate in
decision making processes. Unfortunately, any single provision concerning such a public hearing
and public participation have not yet been incorporated in BECA, 1995 and BECR, 1997.

Section 14 of the Act ousts the court’s jurisdiction in terms of entertaining appeal from an order
or direction issued under the Act. Only the Appellate Authority constituted by the Government
has the jurisdiction to entertain appeal under the Act. The decision of such Appellate Authority
shall be final. No review and revision against the orders of such an Appellate Authority will be
allowed.

The Act under section 15 prescribes no strict penalty measure against the multi-national
companies. The natural persons and the juristic persons are treated alike under this Act. Section
15 of the Environment Conservation Act, 1995 substantiates that the court can impose the
maximum penalty of 10 lac taka both for natural and juristic persons irrespective of the gravity
of offence or torts. It is worth citing here that the National Green Tribunal Act (NGTA), 2010 of
India provides for maximum penalty of 10 crore and 25 crore rupees for a natural person and
legal person respectively.

The insertion of the ‘Good Faith Clause’ in section 18 is an inevitable stumble. The DG can do
anything he wishes under the veneer of good faith. In compliance with section 20 of the BECA,
1995, the Government has made rules under the Environment Conservation Rules, 1997 for the
purpose of determining the standards of air, water, sound, soil and other components of the
environment. Regarding management of toxic and hazardous substances, the Rules have broadly
defined guidelines for disposal of waste from different categories of industries. But unlike the
Environment Protection Rules (EPR) of India, the ECR, 1997 have not specified the permissible
extent of emissions or the obligations of corrective actions.
The parallel environmental conservation rulings of many countries such as the Environment
Conservation Act, 1989 of South Africa reaffirm the spirit of the international conventions,
treaties, agreement etc. relating to the environment which have been ratified by them. But the
BECA, 1995 makes no reference to the international instruments relating to environment to
which Bangladesh is a party.

The Canadian Environment Protection Act (CEPA), 1999 lays emphasis on the ‘public

participation’ in environment conservation regime. The CEPA, 1999 also puts stress on
conducting research and studies relating to pollution prevention, nature, effects, control of
pollution. Besides, it provides for publishing information respecting pollution prevention and a
periodic report on the state of Canadian environment. The CEPA under sections 166 and 175
speaks about the determination of “international air pollution” and of “international water
pollution” respectively. But the BECA, 1995 does not refer to these important aspects.

The Environment Protection Act (EPA), 1990 of the UK depicts both the hazardous and non-
hazardous waste. The EPA, 1990 also portrays the powers and functions of the waste disposal
authorities and of the waste collection authorities. The BECA, 1995 only speaks about the
hazardous waste. It does not refer to the municipal waste which is not deemed to be hazardous.
Municipal waste generally includes that waste generated by households, shops, offices and also
includes paper, glass, plastic, metals. It is completely silent about the waste disposal authorities
and the waste collection authorities let alone their powers and functions.

Noise is a major environmental factor. Noise emitted from vehicles, machineries on highways,
roads, footways etc. may grimly affect the environment. Several countries included this
environmental factor within the ambit of their environmental legislations. Section 79 of the
Environment Protection Act (EPA), 1990 of the UK  and sections 326 and 327 of the Resource
Management Act, 1991 of New Zealand can be mentioned here as the appropriate examples. But
this important point remained out of touch in the BECA, 1995. In this age of
digitalization, radiation from mobile phones or towers may cause a bigger health hazard for
citizens. Both the BECA, 1995 and the BECR, 1997 do not speak about this important point.
Sight pollution is a common problem in Bangladesh. Sight pollution means any unwanted sight
that mentally or physically affects the community or creates any health hazard. For example,  at
midday, you are riding a motorcycle to your home hungry for your lunch. While approaching
your home, you see an ugly scene of huge mountains of waste on the roadside, including wasted
food, used banana leaves, putrifying fruits, etc.After seeing that, can you enjoy your lunch at
home? Also, Excessive advertisements, singnboards or billboards etc. in the public places are the
common forms of sight pollution. In our modern life, especially in cities, the hazards of sight
pollution are many. The BECA, 1995 does not point out such an environmental phenomenon.

In our modern life, light pollution has now become a dangerous problem. The inappropriate or
excessive use of artificial light – known as light pollution – can have serious environmental
consequences for humans, wildlife, and our climate. The BECA, 1995 does not deal with such an
environmental factor .

The BECA, 1995 and the BECR, 1997 are not exhaustive and the both are incompatible with the
demands of time. They should be amended as per the demands of time. The BECA, 1995 should
encompass all the environmental issues which are still out of the touch. All the ambiguities and
lacunas in the both should be removed. People’s participation in environmental decision making
must be ensured and protected by law.

References:

1. https://bdlawdigest.org/bangladesh-environment-conservation-act-
1995.htm
2. https://wikipedia.com
3. http://extwprlegs1.fao.org/