Environmental Legislation : Environmental Legislation What is Environment? : What is Environment? It is inter & intra relationship between biotic & abiotic systems.
It includes everything to exclusion of nothing.
Biotic – Human & Other Living Beings
Aboitic – Air, Water, Land/soil, Spectrum Legal Definition of Environment : Legal Definition of Environment As per the EPA – 1986 environment is defined as Below:
‘environment’ includes water, air and land and the inter – relationship which exists among & between water, air and land, and human beings, other living creatures, plants, micro – organisms & property What is Law? : What is Law? In general terms it means rules & regulations.
John Austin in early 19th Century has defined Law as “Command of sovereign”
Sovereign – King/queen
Law is Means, Punishment is the end What is Law? : What is Law? In the Late 19th century John Salmond has defined Law as “Body of principles recognized & accepted by the state in administration of the justice.”
As per this definition the purpose of the law is Justice
Law is Means, Justice is the End What is Law? : What is Law? Another Person has defined Law as “ A tool of socialized engineering”
The assumption here is that people understand & obey the law. This leads to a civilized society.
Law is Means, Civilized Society is the End
This definition is fast gaining acceptance worldwide. Environmental Law : History : Environmental Law : History Germany & France have been traditionally environmentally conscious states.
Sweden, Norway, Finland are environmentally conscious states in modern world.
Germany & France had the laws for soil protection as back as 19th century.
Bavaria – A German State had a law for the soil protection known as “Bavarian Soil Law” Earliest & the best known law on soil protection Environmental Law : History : Environmental Law : History Industrial revolution started in United Kingdom in 20th century lead to pollution of Air & Water.
Pollution of rivers like Thames. The concept of BOD (5 day & 200C) came in to being.
London smog incidence occurred in 1952
Los Angles smog continued to happen for 5 years from 1962 – 67. Environmental Law : History : Environmental Law : History London smog was due to industrial pollution caused by SPM & SO2 Whereas LA smog was due to Vehicular Pollution caused by PAN (Paroxy Acetyl Nitrate) & PBN (Paraoxy Benzoyl Nitrate).
London smog was in the night time, where as LA smog caused in early morning due to the photochemical reactions between pollutants.
This LA smog lead to enactment of the first “clean air act” in USA somewhere around 1970s. Environmental Law: History : Environmental Law: History First conference on the environment held on 5th – 14th June 1972
It was held by United Nations Conference on Health & Environment at Stockholm.
There were delegates from the various country having persons from industry, Public Health Engineers, Sci. & Tech. People, Agri. Etc.
From India Prime Minister Smt. Indira Gandhi attended the conference. Environmental Law: History : Environmental Law: History The famous quote of Smt. Indira Gandhi – “Poverty is the biggest polluter”.
As a consequence to the conference Water Act came in to being in India in 1974.
In early 80s Rowland & Myers studying in Antarctica found a big hole in the ozone layer. Environmental Law: History : Environmental Law: History This ozone depletion was more towards the pole.
People were affected by the depletion & the cases of Skin diseases increased in polar region.
This ozone depletion was due to CFCs. Environmental Law: History : Environmental Law: History As a consequence of the ozone depletion Montréal Protocol came into being in 1987.
Phasing out of CFCs & Other Ozone Depleting substances.
Transfer of technology
Multilateral Funding Environmental Law: History : Environmental Law: History In 1987 world Commission on Environment & Development headed by Ms. Gro Hurlem Brountland, Ex. Prime Minister of Norway, pubilshed a book having title “Our Common Future”.
This book first used the term “Sustainable Development”. Environmental Law: History : Environmental Law: History Sustainable Development:
“To meet the felt needs of the present generation without compromising with the ability of the suture generation”.
It involves the principle of intergenerational equity. Environmental Law: History : Environmental Law: History Sustainable development includes:
Rational & Optimum use of the resources i.e. it follows the following cycle.
Development earn profit Invest in environment regenerate resources Conserve resources use better/ alternate technology. Reuse
S.D. also includes H.R. development and Human Development Index (HDI). Environmental Law: History : Environmental Law: History 2002 – World summit on Sustainable development
Participated by Prime Minister/President of Various country.
From 1972 – 1992 Various decisions been taken like
Montréal Protocol in 1987
Our Common future & Sustainable development concept in 1987 Environmental Law: History : Environmental Law: History United Nations conference on Human Environment recommended a common national law on pollution & law on compensation.
1992 conference on WCED has enunciated two principles to the Environment:
Principle 16 Environmental Law: History : Environmental Law: History Principle 15 is precautionary Principle:
- Even though one may not have the scientific knowledge and/or technological know-how then also one must act/operate/carry out process/industry / operation in such a ways so as to cause minimum or no damage to environment.
- It is one of the basic principle of International Environmental management Environmental Law: History : Environmental Law: History Principle 16 – Polluter Pay’s Principle
- It envisaged ”Internalization of cost of the pollution prevention in the overall cost of the project.
- It means that “Environment” is not external to the project.
- Principle 16 has to be read with principle 15.
- It does not allow one to pollute & then Pay. Environmental Law: History : Environmental Law: History Outcome of the WSSD:
Attended by PMs/Presidents & talked about development.
It recommended Reengineered EIA Process.
It also gave the concept of Corporate responsibility for Environmental protection (CREP) – that is voluntary compliance instead of regulatory compliance.
CSR – Corporate Social Responsibility. Environmental Law: History : Environmental Law: History Bali Convention on Oct. 2007 where discussions took place on global warming.
India is likely to increase CO2 emission from 170 Million Tones per annum to 250 Million Tons by the end of 2025. This is being opposed by many Western Countries. Environmental Law: Indian Prospective : Environmental Law: Indian Prospective Parliament enacted the Water (Prevention & Control of Pollution) Act, 1974 after coming back form the UNCHE
The Air Act came into being on 1981
After Bhopal gas tragedy Environment (Protection) Act – 1986 formed to address the environmental issues which are not covered under Water & Air.
It is an Umbrella Act.
It allows us to address issues related to Hazardous Waste management, BMHW, MSWM ozone depleting substances etc. Environmental Law: Indian Prospective : Environmental Law: Indian Prospective India notified EIA/EC procedure in 1994.
The 1997 Environment Public Hearing notification incorporated public participation in grant of EC
In 2006 India has reengineered its EIA process as recommended in WSSD, 2002 Constitutional Provisions : Constitutional Provisions Hierarchy of Laws: Constitution Acts Rules Notification Govt. Order/Resolution Supreme Passed by Parliament/Assembly Ratified by Parliament/assembly Notified in gazette after following due procedures as provided in Act/Rule ORDERS OF Govt. must consonance with all the above Constitutional Provisions : Constitutional Provisions A law can not be passed by parliament if it contradicts the constitution.
Acts moved as bills follows the following route form LS RS President Assent Act
Money Bills Passed by LS gets assent of President & becomes Union Budget
Money comes from consolidated fund of India and can be appropriated through budget only.. Constitutional Provisions : Constitutional Provisions Rules:
Rules can be made only if there are Provision in the act to make rules
Any rule has to be laid before the parliament prior to making/after making.
EPA’86 provided that rules made under the act must laid before the parliament within 6 months after making.
Hazardous Waste rules 1989, MSE, BMW made under EPA- 86. Constitutional Provisions : Constitutional Provisions Notification:
120 days public notice is required in EPA – 86
The notification must be published in the gazette within 365 days of the draft notification.
Notification is not laid before the parliament.
Govt. orders are passed by govt. to run its affairs. Constitutional Provisions : Constitutional Provisions Supreme Court / high court may declare any act/law as ultravires – Anti constitutional - & it is null & void.
More than 100 amendments have been made in the constitution.
But One can’t change “basic structure” of the constitution. Constitutional Provisions : Constitutional Provisions Directive Principles of State Policy
Here State means any authority in India
DPSP should be a guiding principle for the state for enactment of Law or decide about a policy. Constitutional Provisions : Constitutional Provisions Article 48 A is added under fundamental rights of a citizen.
It says that a state shall protect forest, wildlife & environment.
Fundamental duties are added in 1976 by the 42nd Amendment to the constitution.
Article 51 A (g) says that an individual must protect natural land, environment, river water, wild life & ecosystem & have compassion to them. Constitutional Provisions : Constitutional Provisions There are many fundamental rights
The first & fore most is Right to Life under article 21
It states “ No person shall be deprived of his life except in accordance with procedure established by law.”
This is not only for the citizen of India but also for any person that included foreigner Constitutional Provisions : Constitutional Provisions If a fundamental right is violated one can approach directly the Supreme Court/High Court.
Right Life ~ Right to Lively hood
S.C. had held that Right to life includes right to good environment.
Any environmental issues can directly be taken to Supreme Court/ high Court under Article 21. Constitutional Provisions : Constitutional Provisions Three lists are there in the constitution distinguishing the powers of Parliament & Assembly to legislate.
State List – Home/Law & Order, Water, Land
Central List – Defense, foreign Relation Railways
Concurrent list – Forest, wild life, education.
Only state legislature can make legislations on the state list
Similarly parliament can make law/act under the items covered in their list
Both can make legislations on items under concurrent list but in case of contradiction legislation passed by parliament prevails. Constitutional Provisions : Constitutional Provisions Water is covered under state list but still the Parliament enacted Water Act – 1974 under Article 252 of the constitution.
Article 252 “If two or more than two state legislatures resolve in their assembly & request the parliament to make a common law for all such state.” This law/act is to be followed by the states which has requested & any other state if its assembly passes a resolution to accept that law. Constitutional Provisions : Constitutional Provisions Air Act 1981 was enacted as per the provisions of Article 248 which says that the parliament has a residuary power to enact a law on the topics which are not covered in any of the lists.
Article 253 gives the Exclusive power to parliament to enact a law/act to impose any international Agreement/Treaty.
EPA – 86 is under the provisions of Article 252.
Earlier there were special acts like air act for air/ Water Act for water but EPA – 86 covers all the issues that were not covered under any individual law. So it is called as umbrella act. Constitutional Provisions : Constitutional Provisions Constitutional Provisions : Constitutional Provisions Article 141 says that “Law declared by the Supreme Court shall be binding on all courts in India”.
Parliament passes the law where S.C declares the law. Environmental Laws : Environmental Laws There are Three major Acts that deals with Environment.
The Water (Prevention & Control Of Pollution) Act – 1974
The Air (Prevention & Control Of Pollution) Act – 1981
The Environment (Protection) Act – 1986
Before reading or understanding any law one must read preamble to have the insight in to the minds of the law framers/ parliamentarians. It gives the purpose of the act.
Do not read any section without reading the definition. Formation/Commencement of Act : Formation/Commencement of Act There are three ways in which act can came into being, from:
Date of Assent of President
Date of the notification in official gazette.
Date of Commencement as mentioned in notification.
General Clause Act – 1897 says that if any act the date of commencement is not mentioned it shall assume to be applicable on the date President Signs it. Environmental Laws : Environmental Laws One should always read all three acts together instead of reading individual sections of the different acts.
One should also read the definitions as prescribed in the act to get the best understanding of the words used in the act.
In definitions the word “means” clearly specify the meaning of the same word as prescribed in the law. Any other meaning is not important if the word is defined with the use of means in the act. Authorities under various acts : Authorities under various acts Environmental Laws : Environmental Laws The word “include” besides the dictionary meaning of the words also includes whatever is stated.
To get the best understanding of the law one should always keep the following in mind.
Do not read any section of law in isolation but read it in totality.
Read provisions of one law with other relevant provisions of other env. law Constitution of the Boards : Constitution of the Boards CPCB – chairman + Member Secretary + 5 members of GOI + 5 members of S.B. + 3 non officials member + 2 persons from PSU.
SPCB – chairman + MS+ 5 members of S.G.+ 5 members representing LB + 3 Non official members + 2 persons from S.G. PSU Functions of the board : Functions of the board Prevention, Control & Abatement of Pollution.
Water Act – Maintaining / restoring the wholesomeness of water.
Air Act – Preserving Air Quality
EPA – Protection & Improvement of Environment.
Wholesomeness – w.r.t Local situations implies maintaining “Pristine Form”
Air Quality varies with the region so one has to preserve it. If not Preserved must strive to improve/restore the air quality to its original. Who can Issue Directions? : Who can Issue Directions? CB – SB,
MoEF – CB, SB
DoEF – SB
Directions under the law means order. Functions of CB : Functions of CB Advise Govt , for prevention, control & Abatement of Pollution
Resolve disputes between various state on issues of water & Air Pollution
Co –ordinate activities between state boards.
Provide technical assistance by publishing Annual Report, guidelines, research/studies, Publication.
Organize training for SPCBs in house or Abroad
Awareness through media for P C & A
Laying down standards Functions of SB : Functions of SB Plan & Execute comprehensive program for P C & A
Advise SG for PC&A
To collect & disseminate information
Collaborate with CPCB for training
To inspect sewage & trade effluent plant
Under AP – to inspect any control equipment or industrial plant or Manufacturing Process
To lay down standards
To evolve economical & reliable methods for treatment of sewage & trade effluent
Utilization of sewage in agriculture
To evolve efficient method for utilization of sewage & trade effluents on land in absence of water flow
Advise SG for location of industry Powers of CG : Powers of CG Power to regulate
Power to make rules
To regulate BMW, HW, Plastic Recycling, MSW, Battery Rules, Noise Rules, CRZ, EIA/EC notification Restriction on Industries, Location, Process or Operation : Restriction on Industries, Location, Process or Operation Water Act – Restrict application of WA to certain area – S19 – S.G.
Decide about limit f sea up to which it extends – S.G.
Restrict / prohibit any operation/ process / industry under S25 - consent of SB
Air Act –Restrict application of AA - CG (S19)
Restrict any ind / oper /process/ ind.plant Slide 51: EPA – restrict /prohibit any operation/ process / industry.
Restriction on hazardous materials
Permissions required from board
EPA - HW rules, H C Rules, EIA - 06 Penalties : Penalties Penalties : Penalties Env. Laws are not compoundable i.e. no out of court settlement
Offence by Govt. Dept. are punishable under S – 48 (WA), S 41 (AA), S – 17 (EPA)
Head of dept – unless he proves offence is w/o his knowledge or he took due care to prevent it.
Offences by companies - are punishable under S – 47 (WA), S 40 (AA), S – 16 (EPA)
Director / partner / site in charge / occupier / manager Hazardous Waste Rules : Hazardous Waste Rules Under S 6, 8 & 25 of EPA 86 CG has laid the rules
S 6 – CG power to put restriction/ prohibit handling of hazardous material/substance
S 8 – Power to impose restriction on handling of HM by not authorized by law
S 25 power to make rules Applicability of Rules : Applicability of Rules Not to Apply to
Wastewater, air emission