Session Report
Samprikta Banerjee
LPPYF Law and Public Policy Youth Fellowship is an Online National Summer School Program, a Two-Month Online Immersive Legal Awareness & Action Research Certificate Training Course and Internship Program, from June-August 2023 by IMPRI Impact and Policy Research Institute. An informative and interactive panel discussion on “Environment, Laws and Public Policy” was held on day 13 by Mr. Debadityo Sinha, Lead, Climate and Ecosystems, Vidhi Centre for Legal Policy, New Delhi.
He commenced the session with a presentation through which he spoke about the nuances of Environmental Law highlighting its differences from other prevailing laws, its intersection with the legal policy systems, its evolution in India, its challenges and other intricate details.
Environmental Law
He specified how Environmental Law is not a single law but a vast umbrella of more than hundreds of laws. There are numerous Acts contained under this said umbrella, making this law a transdisciplinary law, as in they are not purely environmental acts and end up affecting other dimensions of the Nation like the Corporate Law, etc. and having components of varied aspects. Therefore, Environmental Law is a cluster of various laws, and its nature has been affected by other laws.
This law is eco-centric, anthropocentric and has a temporal dimension and is mostly precautionary, unlike conventional laws in India. Although there have been pieces of evidence of the presence of Environment Protection measures in ancient religious texts, modern Environment Law dates back to the 1970s and its jurisprudence was greatly affected by social movements, international commitments and intervention of higher judiciary in India.
He stated that the Environmental Laws were previously a part of the State List, but they were later brought under the Concurrent List and there are certain Guiding Principles that serve as the foundation for Environmental Regulations which include:
- Mitigation hierarchy
- Precautionary Principle
- Principle of Sustainable Development
- Public Trust Doctrine
- Polluter Pays and Principle of Absolute Liability
- Principle of Non-Regression
He explicitly recommends reading the First Global Report on Environmental Rule of Law published by UNEP to know more about such Environment-related laws and how a country should go about framing such intricate, delicate and intersectional laws for the collective benefit of the ecology.
He went through how the Environment Acts and Laws developed around the world in detail starting from the Stockholm Summit of 1972 on the Human Environment thereby triggering the need for any such laws to be enacted.
This Summit was the much-needed first step towards Environment Conservation which brought about a declaration regarding various environment-specific principles that must be followed by all countries followed by the World Commission on Environment and Development (Brundtland Commission) in 1983, which first coined the term “Principle of Sustainable Development’ in the book “Our Common Future” published in 1987 stating that development should not take a backseat for developing and young countries but it should be done carefully and resources should not be overused beyond a sustainable amount.
Next, came up the Rio Conference in 1992 on Environment and Development wherein, 27 principles of Environment Governance were declared, and Agenda 21(An Action Plan for the next 10 years) was set up. This Conference contained two major international agreements namely United Nations Framework Convention on Climate Change and Convention on Biological Diversity which were legally binding.
Several Conventions followed the Rio Conference:
- Commission on Sustainable Development (1992)
- Kyoto Protocol (1997)
- Cartagena Protocol on Biosafety (1997)
- Formation of Global Environment Facility Trust Fund (1990)
Further, the 2002 World Summit on Sustainable Development (Earth Summit) happened which promulgated a clear commitment towards “Green” Economic Growth followed by the Rio+20 meeting in 2012. Further, in 2015, the UN Sustainable Development Summit took place in New York giving the world the 17 SDGs.
Then came the modern-day Paris Agreements, which were legally binding and were the first of its kinds to specify agendas. The COP 21 held in 2015 made it a goal to limit global warming to below 2℃ compared to pre-industrial levels and decided on a 5-Year Cycle replacing the Kyoto Protocol. Next, COP 26 held in 2021, focused on climate finance, ratchet mechanism to revise NDCs every 5 years and cutting down on fossil fuel emissions.
However, he stated that global climate change is still a threat proving that these meetings did not achieve the required outcome.
Environment Laws in India
There are 3 major laws in India namely – the Common Law, the Civil Law and the Criminal Law. Here, he brings forward the differences in the schools of thought wherein, some believe that Environmental Law should be criminalized but others do not find a binding reason to do so. However, he thinks it should be a mix of both and the jurisdiction should be kept open according to the action undertaken and recently there have been talks regarding the de-criminalization of Environmental Law.
He then draws a smooth trajectory of how Environmental Laws entered India’s jurisdiction starting with the National Council for Environment Policy and Planning set up within the Department of Science and Technology in 1972, later evolving into the Ministry of Environment and Forests (MoEF) in 1985 followed by 42nd Amendment Act of 1976 focusing on Duty of State and Citizens for protection of environment and wildlife.
Further, steps were taken in the 73rd and 74th Amendment Acts to decentralize natural resource management between Municipalities and Panchayati Raj (1992). However, he also mentions that there has not been much work to enhance the capacities of these local bodies and capacity constraints prove to be a major bottleneck for them.
Further, India made its first Environmental Policy, The Policy Statement for Abatement of Pollution and the National Conservation Strategy and Policy Statement on Environment and Development by MoEF in 1992 and the Environment Action Programme was formulated in 1993 to improve environmental services and integrate environmental considerations into development programmes.
What was the Role of the Supreme Court in this trajectory?
He explicitly mentioned that the Supreme Court’s contribution to framing India’s Environmental law is manifold. The Principle of Absolute Liability triggered by the Oleum Gas Leak and Bhopal Gas Tragedy was an important step towards Environment Protection and began to be followed in all cases of environmental damage. Then, he explained about the Forest Law which like the Environmental Law, is an umbrella of various Forest Acts aimed towards the conservation and protection of forests. These acts achieved better outcomes after the SC set up the Centrally Empowered Committee to monitor the implementation of this act. Moreover, most of the Pollution Control Policies are driven by the SC.
The SC has been instrumental in the formation of the causing judicial body, The National Green Tribunal whose appeals go to the SC, and it has its roots in the international agreements and the formation of Eco sensitive Zones and wildlife corridors around National Parks and Wildlife Sanctuaries.
He also explained the various Environment Laws enacted by India in brief like the Wildlife (Protection Act), 1972, the Water (Prevention and Control of Pollution) Act, 1974, the Forest (Conservation) Act, 1980, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986, the Public Liability Insurance Act, 1991, the Biological Diversity Act, 2002, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the National Green Tribunal Act, 2010 and many State Legislations.
Some Acts in Detail:
He took up the Water Act, the Air Act, the Environment Protection Act
- The Water (Prevention and Control) Act, 1974: He took up the Water Act for a discussion as it was the first environmental legislation in Independent India and the major reason for the Act was the visible water pollution of River Ganga and other rivers resulting in the prevalence of water-borne diseases. Its importance lies in the establishment of Central Pollution Control Boards and State Pollution Control Boards as the firsts of their kind and this act, for the first time brought in the concept of consent required to establish and run a new industry for discharge.
- The Air (Prevention and Control) Act, 1981: The Air Act follows the same structure as the Water Act except it’s noteworthy because of its provisions and powers to declare an area as an air pollution control area and have separate emission norms for that area.
- The Environment (Protection) Act, 1986: Its importance lies in the fact that it is treated as an overarching or enabling or umbrella or framework law in the sense that it was formed to address the larger environmental question as a whole. Not only is the act open to additions and recommendations but also notifications can be added as and when the necessity arises. This Act can specify special economic zones and control areas.
He also specified in detail the green clearances for development activities, a unique component of the EPA.
He wrapped up the session with a detailed description of the National Green Tribunal, with its three Sections namely – Section 14 (Wide Jurisdiction), Section 15 (Special Jurisdiction) and Section 16 (Appellate Jurisdiction), and the major challenges the Environmental Law faces as in its nature of being less proactive, poor redressal system, increased reliance on courts for enforcement and punitive actions and implementation problem.
He states that the Act, despite its ambitious measures has failed in making the citizens follow the mitigation hierarchy and deterring polluters. The act was seen as a roadblock to infrastructural development and was sensitive to political regimes and industrial pressures. The session ended with addressing QnA questions by the speaker and effective doubt clearance.
Samprikta is a research intern at IMPRI.
Youtube Video of Inaugural session for Law and Public Policy Youth Fellowship Programme: https://youtu.be/fT0XLKGJ6LY
Read more session reports for Law and Public Policy Youth Fellowship:
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