Introduction
Over
the years, together with a spreading of environmental consciousness, there has
been a change in the traditionally-held perception that there is a trade-off
between environmental quality and economic growth as people have come to
believe that the two are necessarily complementary. The current focus on
environment is not new environmental considerations have been an
integral part of the Indian culture. The need for conservation and sustainable
use of natural resources has been expressed in Indian scriptures, more than
three thousand years old and is reflected in the constitutional, legislative
and policy framework as also in the international commitments of the country.
Even
before Indias independence in 1947, several environmental legislation existed
but the real impetus for bringing about a well-developed framework came only
after the UN Conference on the Human Environment (Stockholm, 1972). Under the
influence of this declaration, the National Council for Environmental Policy
and Planning within the Department of Science and Technology was set up in
1972. This Council later evolved into a full-fledged Ministry of Environment
and Forests (MoEF) in 1985 which today is the apex administrative body in the
country for regulating and ensuring environmental protection. After the
Stockholm Conference, in 1976, constitutional sanction was given to
environmental concerns through the 42nd Amendment, which
incorporated them into the Directive Principles of State Policy and Fundamental
Rights and Duties.
Since
the 1970s an extensive network of environmental legislation has grown in the
country. The MoEF and the pollution control boards (CPCB i.e. Central Pollution
Control Board and SPCBs i.e. State Pollution Control Boards) together form the
regulatory and administrative core of the sector.
A
policy framework has also been developed to complement the legislative
provisions. The Policy Statement for Abatement of Pollution and the National
Conservation Strategy and Policy Statement on Environment and Development were
brought out by the MoEF in 1992, to develop and promote initiatives for the
protection and improvement of the environment. The EAP (Environmental Action
Programme) was formulated in 1993 with the objective of improving environmental
services and integrating environmental considerations in to development programmes.
Legislation for environmental
protection in India
Water:
Water
quality standards especially those for drinking water are set by the Indian
Council of Medical Research. These bear close resemblance to WHO standards. The
discharge of industrial effluents is regulated by the Indian Standard Codes and
recently, water quality standards for coastal water marine outfalls have also
been specified. In addition to the general standards, certain specific
standards have been developed for effluent discharges from industries such as,
iron and steel, aluminum, pulp and paper, oil refineries, petrochemicals and
thermal power plants. Legislation to control water pollution are listed below.
Water (Prevention and Control of Pollution) Act, 1974
This
Act represented India’s first attempts to comprehensively deal with
environmental issues. The Act prohibits the discharge of pollutants into water
bodies beyond a given standard, and lays down penalties for non-compliance. The
Act was amended in 1988 to conform closely to the provisions of the EPA, 1986.
It set up the CPCB (Central Pollution Control Board) which lays down standards
for the prevention and control of water pollution. At the State level, the
SPCBs (State Pollution Control Board) function under the direction of the CPCB
and the state government.
Water (Prevention and Control of Pollution) Cess Act, 1977
This
Act provides for a levy and collection of a cess on water consumed by
industries and local authorities. It aims at augmenting the resources of the
central and state boards for prevention and control of water pollution. Following
this Act, The Water (Prevention and Control of Pollution) Cess Rules
were formulated in 1978 for defining standards and indications for the kind of
and location of meters that every consumer of water is required to install.
Air
Air (Prevention and Control of Pollution) Act, 1981
To
counter the problems associated with air pollution, ambient air quality
standards were established, under the 1981 Act. The Act provides means for the
control and abatement of air pollution. The Act seeks to combat air pollution
by prohibiting the use of polluting fuels and substances, as well as by
regulating appliances that give rise to air pollution. Under the Act
establishing or operating of any industrial plant in the pollution control area
requires consent from state boards. The boards are also expected to test the
air in air pollution control areas, inspect pollution control equipment, and
manufacturing processes.
National Ambient Air Quality Standards (NAAQS) for major pollutants were notified by the CPCB
in April 1994. These are deemed to be levels of air quality necessary with an
adequate margin of safety, to protect public health, vegetation and property
(CPCB 1995 cited in Gupta, 1999). The NAAQS prescribe specific standards for
industrial, residential, rural and other sensitive areas. Industry-specific
emission standards have also been developed for iron and steel plants, cement
plants, fertilizer plants, oil refineries and the aluminium industry. The
ambient quality standards prescribed in India are similar to those prevailing
in many developed and developing countries.
Air (Prevention and Control of Pollution) Amendment Act, 1987
To
empower the central and state pollution boards to meet grave emergencies, the
Air (Prevention and Control of Pollution) Amendment Act, 1987, was enacted.
The boards were authorized to take immediate measures to tackle such
emergencies and recover the expenses incurred from the offenders. The power to
cancel consent for non-fulfilment of the conditions prescribed has also been
emphasized in the Air Act Amendment.
The Air (Prevention and Control of
Pollution) Rules
Formulated
in 1982 defined the procedures for conducting meetings of the boards, the
powers of the presiding officers, decision-making, the quorum; manner in which
the records of the meeting were to be set etc. They also prescribed the manner
and the purpose of seeking assistance from specialists and the fee to be paid
to them.
Atomic Energy Act of 1982
Complementing
the above Acts is the Atomic Energy Act of 1982, which was introduced to
deal with radioactive waste. In 1988, the Motor Vehicles Act, was
enacted to regulate vehicular traffic, besides ensuring proper packaging,
labelling and transportation of the hazardous wastes. Various aspects of
vehicular pollution have also been notified under the EPA of 1986. Mass
emission standards were notified in 1990, which were made more stringent in
1996. In 2000 these standards were revised yet again and for the first time
separate obligations for vehicle owners, manufacturers and enforcing agencies
were stipulated. In addition, fairly stringent Euro I and II emission norms
were notified by the Supreme Court on April 29, 1999 for the city of Delhi. The
notification made it mandatory for car manufacturers to conform to the Euro I
and Euro II norms by May 1999 and April 2000, respectively, for new
non-commercial vehicle sold in Delhi.
Forests
and wildlife
The Wildlife (Protection) Act, 1972, Amendment 1991
The
WPA (Wildlife Protection Act), 1972, provides for protection to listed species
of flora and fauna and establishes a network of ecologically-important
protected areas. The WPA empowers the central and state governments to declare
any area a wildlife sanctuary, national park or closed area. There is a blanket
ban on carrying out any industrial activity inside these protected areas. It
provides for authorities to administer and implement the Act; regulate the
hunting of wild animals; protect specified plants, sanctuaries, national parks
and closed areas; restrict trade or commerce in wild animals or animal
articles; and miscellaneous matters. The Act prohibits hunting of animals
except with permission of authorized officer when an animal has become dangerous
to human life or property or so disabled or diseased as to be beyond recovery
(WWF-India, 1999). The near-total prohibition on hunting was made more
effective by the Amendment Act of 1991.
The Forest (Conservation) Act, 1980
This
Act was adopted to protect and conserve forests. The Act restricts the powers
of the state in respect of de-reservation of forests and use of forestland for
non-forest purposes (the term non-forest purpose includes clearing any
forestland for cultivation of cash crops, plantation crops, horticulture or any
purpose other than re-afforestation).
General
Environment (Protection) Act, 1986 (EPA)
This
Act is an umbrella legislation designed to provide a framework for the
co-ordination of central and state authorities established under the Water
(Prevention and Control) Act, 1974 and Air (Prevention and Control) Act, 1981.
Under this Act, the central government is empowered to take measures necessary
to protect and improve the quality of the environment by setting standards for
emissions and discharges; regulating the location of industries; management of
hazardous wastes, and protection of public health and welfare.
From
time to time the central government issues notifications under the EPA for the
protection of ecologically-sensitive areas or issues guidelines for matters
under the EPA.
Some
notifications issued under this Act are:
- Doon Valley Notification (1989), which prohibits the setting up of
an industry in which the daily consumption of coal/fuel is more than 24 MT
(million tonnes) per day in the Doon Valley.
- Coastal Regulation Zone Notification (1991),
which regulates activities along coastal stretches. As per this
notification, dumping ash or any other waste in the CRZ is prohibited. The
thermal power plants (only foreshore facilities for transport of raw
materials, facilities for intake of cooling water and outfall for
discharge of treated waste water/cooling water) require clearance from the
MoEF.
- Dhanu Taluka Notification (1991), under which the district of Dhanu
Taluka has been declared an ecologically fragile region and setting up
power plants in its vicinity is prohibited.
- Revdanda Creek Notification (1989), which prohibits setting up industries in
the belt around the Revdanda Creek as per the rules laid down in the
notification.
- The Environmental Impact Assessment of
Development Projects Notification,
(1994 and as amended in 1997). As per this notification:
- All projects listed under Schedule I
require environmental clearance from the MoEF.
- Projects under the delicenced category of
the New Industrial Policy also require clearance from the MoEF.
- All developmental projects whether or not
under the Schedule I, if located in fragile regions must obtain MoEF
clearance.
- Industrial projects with investments above
Rs 500 million must obtain MoEF clearance and are further required to
obtain a LOI (Letter Of Intent) from the Ministry of Industry, and an NOC
(No Objection Certificate) from the SPCB and the State Forest Department
if the location involves forestland. Once the NOC is obtained, the LOI is
converted into an industrial licence by the state authority.
- The notification also stipulated
procedural requirements for the establishment and operation of new power
plants. As per this notification, two-stage clearance for site-specific
projects such as pithead thermal power plants and valley projects is required.
Site clearance is given in the first stage and final environmental
clearance in the second. A public hearing has been made mandatory for
projects covered by this notification. This is an important step in
providing transparency and a greater role to local communities.
- Ash Content Notification (1997), required the use of beneficiated
coal with ash content not exceeding 34% with effect from June 2001, (the
date later was extended to June 2002). This applies to all thermal plants
located beyond one thousand kilometres from the pithead and any thermal
plant located in an urban area or, sensitive area irrespective of the
distance from the pithead except any pithead power plant.
- Taj Trapezium Notification (1998), provided that no power plant
could be set up within the geographical limit of the Taj Trapezium
assigned by the Taj Trapezium Zone Pollution (Prevention and Control)
Authority.
- Disposal of Fly Ash Notification (1999) the main objective of which is to
conserve the topsoil, protect the environment and prevent the dumping and
disposal of fly ash discharged from lignite-based power plants. The
salient feature of this notification is that no person within a radius of
50 km from a coal-or lignite-based power plant shall manufacture clay
bricks or tiles without mixing at least 25% of ash with soil on a
weight-to-weight basis. For the thermal power plants the utilisation of
the flyash would be as follows:
- Every coal-or lignite-based power plant
shall make available ash for at least ten years from the date of
publication of the above notification without any payment or any other
consideration, for the purpose of manufacturing ash-based products such as
cement, concrete blocks, bricks, panels or any other material or for
construction of roads, embankments, dams, dykes or for any other
construction activity.
- Every coal or lignite based thermal power
plant commissioned subject to environmental clearance conditions
stipulating the submission of an action plan for full utilisation of fly
ash shall, within a period of nine years from the publication of this
notification, phase out the dumping and disposal of fly ash on land in
accordance with the plan.[1]
Rules for the Manufacture, Use, Import, Export and
Storage of Hazardous Micro-organisms/Genetically Engineered Organisms or Cell
Introduced
in 1989 with the view to protect the environment, nature and health in
connection with gene technology and micro-organisms, under the Environmental
Protection Act, 1986. The government in 1991, further decided to institute a
national label scheme for environmentally-friendly products called the ECOMARK.
The scheme attempts to provide incentives to manufactures and importers to
reduce adverse environmental impacts, reward genuine initiatives by companies,
and improve the quality of the environment and sustainability of available
resources. Besides the above attempts, notifications pertaining to Recycled
Plastics Manufacture and Usage Rules, 1999 were also incorporated under the
Environment (Protection) Act of 1986.
The Environment (Protection) Rules, 1986
These
rules lay down the procedures for setting standards of emission or discharge of
environmental pollutants. The Rules prescribe the parameters for the Central
Government, under which it can issue orders of prohibition and restrictions on
the location and operation of industries in different areas. The Rules lay down
the procedure for taking samples, serving notice, submitting samples for
analysis and laboratory reports. The functions of the laboratories are also
described under the Rules along with the qualifications of the concerned
analysts.
The National Environment Appellate Authority Act, 1997
This
Act provided for the establishment of a National Environment Appellate
Authority to hear appeals with respect to restriction of areas in which any
industry operation or process or class of industries, operations or processes
could not carry out or would be allowed to carry out subject to certain
safeguards under the Environment (Protection) Act, 1986.
In
addition to these, various Acts specific to the coal sector have been enacted.
The first attempts in this direction can be traced back to the Mines Act,
1952, which promoted health and safety standards in coal mines. Later the Coal
Mines (Conservation and Development) Act (1974) came up for conservation of
coal during mining operations. For conservation and development of oil and
natural gas resources a similar legislation was enacted in 1959.
Hazardous
wastes
There
are several legislation that directly or indirectly deal with hazardous waste.
The relevant legislation are the Factories Act, 1948, the Public Liability
Insurance Act, 1991, the National Environment Tribunal Act, 1995 and some
notifications under the Environmental Protection Act of 1986. A brief
description of each of these is given below.
Under the EPA 1986, the MoEF has issued several
notifications to tackle the problem of hazardous waste management. These
include:
- Hazardous Wastes (Management and Handling)
Rules, 1989, which
brought out a guide for manufacture, storage and import of hazardous
chemicals and for management of hazardous wastes.
- Biomedical Waste (Management and Handling)
Rules, 1998, were
formulated along parallel lines, for proper disposal, segregation,
transport etc. of infectious wastes.
- Municipal Wastes (Management and Handling)
Rules, 2000, whose aim
was to enable municipalities to dispose municipal solid waste in a
scientific manner.
- Hazardous Wastes (Management and Handling)
Amendment Rules, 2000, a
recent notification issued with the view to providing
guidelines for the import and export of hazardous waste in the country.
Factories Act, 1948 and its Amendment in 1987
The
Factories Act, 1948 was a post-independence statute that explicitly showed
concern for the environment. The primary aim of the 1948 Act has been to ensure
the welfare of workers not only in their working conditions in the factories
but also their employment benefits. While ensuring the safety and health of the
workers, the Act contributes to environmental protection. The Act contains a
comprehensive list of 29 categories of industries involving hazardous
processes, which are defined as a process or activity where unless special care
is taken, raw materials used therein or the intermediate or the finished
products, by-products, wastes or effluents would:
- Cause material impairment to health of the
persons engaged
- Result in the pollution of the general
environment
Public Liability Insurance Act (PLIA), 1991
The
Act covers accidents involving hazardous substances and insurance coverage for
these. Where death or injury results from an accident, this Act makes the owner
liable to provide relief as is specified in the Schedule of the Act. The PLIA
was amended in 1992, and the Central Government was authorized to establish the
Environmental Relief Fund, for making relief payments.
National
Environment Tribunal Act, 1995
The
Act provided strict liability for damages arising out of any accident occurring
while handling any hazardous substance and for the establishment of a National
Environment Tribunal for effective and expeditious disposal of cases arising from
such accident, with a view to give relief and compensation for damages to
persons, property and the environment and for the matters connected therewith
or incidental thereto.
INTERNATIONAL AGREEMENTS ON ENVIRONMENTAL
ISSUES
India
is signatory to a number of multilateral environment agreements (MEA) and
conventions. An overview of some of the major MEAs and India’s obligations
under these is presented below. These are discussed at length in the respective
chapters.
Convention on International Trade in Endangered Species of wild
fauna and flora (CITES), 1973
The
aim of CITES is to control or prevent international commercial trade in
endangered species or products derived from them. CITES does not seek to
directly protect endangered species or curtail development practices that
destroy their habitats. Rather, it seeks to reduce the economic incentive to
poach endangered species and destroy their habitat by closing off the
international market. India became a party to the CITES in 1976. International
trade in all wild flora and fauna in general and species covered under CITES is
regulated jointly through the provisions of The Wildlife (Protection) Act 1972,
the Import/Export policy of Government of India and the Customs Act 1962
(Bajaj, 1996).
Montreal Protocol on Substances that deplete the Ozone
Layer (to the Vienna Convention for the Protection of the Ozone Layer), 1987
The
Montreal Protocol to the Vienna Convention on Substances that deplete the Ozone
Layer, came into force in 1989. The protocol set targets for reducing the
consumption and production of a range of ozone depleting substances (ODS). In a
major innovation the Protocol recognized that all nations should not be treated
equally. The agreement acknowledges that certain countries have contributed to
ozone depletion more than others. It also recognizes that a nations obligation
to reduce current emissions should reflect its technological and financial
ability to do so. Because of this, the agreement sets more stringent standards
and accelerated phase-out timetables to countries that have contributed most to
ozone depletion (Divan and Rosencranz, 2001).
India
acceded to the Montreal Protocol along with its London Amendment in September
1992. The MoEF has established an Ozone Cell and a steering committee on the
Montreal Protocol to facilitate implementation of the India Country Program,
for phasing out ODS production by 2010.
To
meet India’s commitments under the Montreal Protocol, the Government of India
has also taken certain policy decisions.
- Goods required to implement ODS phase-out
projects funded by the Multilateral Fund are fully exempt from duties.
This benefit has been also extended to new investments with non-ODS
technologies.
- Commercial banks are prohibited from
financing or refinancing investments with ODS technologies.
Ozone Depleting Substances (Regulation and Control) Rules, 2000
The
Gazette of India on 19 July 2000 notified rules for regulation of ODS phase-out
called the Ozone Depleting Substances (Regulation and Control) Rules, 2000.
They were notified under the Environment (Protection) Act, 1986. These rules
were drafted by the MoEF following consultations with industries and related
government departments.
Basel Convention on Transboundary Movement of Hazardous Wastes, 1989
Basel
Convention, which entered into force in 1992, has three key objectives:
- To reduce transboundary movements of
hazardous wastes;
- To minimize the creation of such wastes;
and
- To prohibit their shipment to countries
lacking the capacity to dispose hazardous wastes in an environmentally
sound manner.
India
ratified the Basel Convention in 1992, shortly after it came into force. The
Indian Hazardous Wastes Management Rules Act 1989, encompasses some of the
Basel provisions related to the notification of import and export of hazardous
waste, illegal traffic, and liability.
UN Framework Convention on Climate Change (UNFCCC), 1992
The
primary goals of the UNFCCC were to stabilize greenhouse gas emissions at
levels that would prevent dangerous anthropogenic interference with the global
climate. The convention embraced the principle of common but differentiated
responsibilities which has guided the adoption of a regulatory structure.
India
signed the agreement in June 1992, which was ratified in November 1993. As per
the convention the reduction/limitation requirements apply only to developed
countries. The only reporting obligation for developing countries relates to
the construction of a GHG inventory. India has initiated the preparation of its
First National Communication (base year 1994) that includes an inventory of GHG
sources and sinks, potential vulnerability to climate change, adaptation
measures and other steps being taken in the country to address climate change.
The further details on UNFCC and the Kyoto Protocol are provided in Atmosphere
and climate chapter.
Convention on Biological Diversity, 1992
The
Convention on Biological Diversity (CBD) is a legally binding, framework treaty
that has been ratified until now by 180 countries. The CBD has three main
thrust areas: conservation of biodiversity, sustainable use of biological
resources and equitable sharing of benefits arising from their sustainable use.
The
Convention on Biological Diversity came into force in 1993. Many biodiversity
issues are addressed in the convention, including habitat preservation,
intellectual property rights, biosafety, and indigenous peoples rights.
India’s
initiatives under the Convention are detailed in the chapter on Biodiversity.
These include the promulgation of the Wildlife (Protection) Act of 1972,
amended in 1991; and participation in several international conventions such as
CITES.
UN Convention on Desertification, 1994
Delegates
to the 1992 UN Conference on Environment and Development (UNCED) recommended
establishment of an intergovernmental negotiating committee for the elaboration
of an international convention to combat desertification in countries
experiencing serious drought and/or desertification. The UN General Assembly
established such a committee in 1992 that later helped formulation of
Convention on Desertification in 1994.
The
convention is distinctive as it endorses and employs a bottom-up approach to
international environmental cooperation. Under the terms of the convention, activities
related to the control and alleviation of desertification and its effects are
to be closely linked to the needs and participation of local land-users and
non-governmental organizations. Seven countries in the South Asian region are
signatories to the Convention, which aims at tackling desertification through
national, regional and sub-regional action programmes. The Regional Action
Programme has six Thematic Programme Networks (TPN's) for the Asian region,
each headed by a country task manager. India hosts the network on agroforestry
and soil conservation. For details refer to the land resource chapter.
International Tropical Timber Agreement and The
International Tropical Timber Organisation (ITTO), 1983, 1994
The
ITTO established by the International Tropical Timber Agreement (ITTA), 1983,
came into force in 1985 and became operational in 1987 [3]. The ITTO
facilitates discussion, consultation and international cooperation
on issues relating to the international trade and utilization of tropical timber
and the sustainable management of its resource base. The successor agreement to
the ITTA (1983) was negotiated in 1994, and came into force on 1 January 1997.
The organization has 57 member countries. India ratified the ITTA in 1996.
AN ASSESSMENT OF THE LEGAL
AND REGULATORY FRAMEWORK FOR ENVIRONMENTAL PROTECTION IN INDIA
The
extent of the environmental legislation network is evident from the above
discussion but the enforcement of the laws has been a matter of concern. One
commonly cited reason is the prevailing command and control nature of the
environmental regime. Coupled with this is the prevalence of the all-or nothing
approach of the law; they do not consider the extent of violation. Fines are
levied on a flat basis and in addition, there are no incentives to lower the
discharges below prescribed levels.
Some
initiatives have addressed these issues in the recent past. The Government of
India came out with a Policy Statement for Abatement of Pollution in 1992,
before the Rio conference, which declared that market-based approaches would be
considered in controlling pollution. It stated that economic instruments will
be investigated to encourage the shift from curative to preventive measures,
internalise the costs of pollution and conserve resources, particularly water.
In 1995, the Ministry of Environment and Forest (MoEF) constituted a task force
to evaluate market-based instruments, which strongly advocated their use for
the abatement of industrial pollution. Various economic incentives have been
used to supplement the command-and-control policies. Depreciation allowances,
exemptions from excise or customs duty payment, and arrangement of soft loans
for the adoption of clean technologies are instances of such incentives.
Another aspect that is evident is the shift in the focus from end-of-pipe
treatment of pollution to treatment at source. The role of remote sensing and
geographical information systems in natural resource management and
environmental protection has also gained importance over time.
