Environmental Legislation

Environmental Legislation Sanjiv Tyagi, IFS Member Secretary, Gujarat Pollution Control Board Gandhinagar

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 

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? 



 

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? 





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? 







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 







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 







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 





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 







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 

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 

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 

 1.

2. 3.

As a consequence of the depletion Montréal Protocol into being in 1987. It included: Phasing out of CFCs & Other Depleting substances. Transfer of technology Multilateral Funding

ozone came

Ozone

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 



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  –

–

–

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 

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 



1. 2.

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 15 Principle 16

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 

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  1.

2. 3.

4.

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 



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 

 

 

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 





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 

Hierarchy of Laws: Constitution

Supreme

Acts

Passed by Parliament/Assembly

Rules

Ratified by Parliament/assembly

Notification

Govt. Order/Resoluti on

Notified in gazette after following due procedures as provided in Act/Rule ORDERS OF Govt. must consonance with all the above

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  •

•

•

•

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  • •

• •

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 





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 1. 2. 3. 



Directive Principles of State Policy Fundamental Rights Fundamental Duties 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 







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  





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 

  



If a fundamental right is violated one can approach directly the Supreme Court/High Court. Earlier Supreme court had quoted. 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 

1. 2. 3. 





Three lists are three 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 



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 



 

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 Constitution

President/Head of the state

Executive Head

Legislature

CM

PM

Cabinet

Government

Parliame nt

Judiciary

State Legislature

Chief Justice of S.C Other Judges

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.

Environment in Other Laws 

1. 2. 3. 



There are legislations other than Env. Laws but can cover the issues of Env. They are: IPC - 1860 PLI - 1991 CrPC – 1878 (Amended in 1973) Under Section 133 of CrPC Public nuisance is prohibited and SDM can initiate action against defaulters. British Law also addressed public nuisance.

Environment in Other Laws 





Earlier there was a principle of restricted liability:If there is a negligence, willfully causing harassment. It has two exceptions via accidents & act of God. This was first used in British Law. & Adopted in the Indian Law as our laws were mostly adopted from Britishers.

Environment in Other Laws  





In 19th Century principle of restricted liability used to apply. After Bhopal Gas Tragedy the case went to the Supreme court in which the Lawyers of union Carbide has emphasized on the principles of Restricted Liability for the Defense of their client. The, then Chief Justice of S.C. Mr. P. N. Bhagavati changed it to the “Principle of Strict or Absolute liability”. Based on the S.C. Judgement Govt. Of India Brought PLI - 1991

Environment in Other Laws  

 



Principle of Restricted Liability: No Negligence + Concentrate only on ensuring proper process/Operation in Unit /Industry Principle of Absolute / Strict Liability: Industry Must Plan for exigencies /emergencies. PLI – 1991 Focuses on the industry to have off site Emergency Plan.

Environment in Other Laws 

 



Section 133 of CrPC: “It empowers the Sub divisional Magistrate to cause inquiry to his satisfaction, he can pass an order to prohibit/regulate the person causing air pollution/water pollution/obstructs water flow. This order can be Conditional. this is mostly used section by the district authority to control Pollution. Order Passed by SDM cannot be challenged in any civil court.

Environment in Other Laws 





IPC & CrPC read together give two sections S-4 & S-40 says there are twp types of law: Special Law & Local Law. If the special laws are in force then all action be taken according to those provisions. Local law prevails if any state govt. passes local law.

Environmental Laws 

1. 2. 3. 



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 

1. 2. 3. 

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 





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 Water Act Air Act

EPA

Water Cess

CPCB – S3 SPCB – S4 State Gov. Central Gov. Appellate Authority

Central Gov. State Gov. Authorities under various section of EPA

Assessing Authority Appellate authority

CPCB SPCB State Gov. Central Gov. Appellate Authority

Environmental Laws 



1. 2.

3.

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. Definitions 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 



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

Disqualification of Members     





Adjudged insolvent Moral Turpitude Unsound mind, if so declared by Court Convicted for any offence under any act Carries on any Business related to environmental pollution control Associated with firm having contract with board or with the govt. constituted board. In the public interest to be specified in the disqualification order by govt.

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?    

CB – SB, MoEF – CB, SB DoEF – SB Directions under the law means order.

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          



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   

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 









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



  •   

EPA – restrict /prohibit any operation/ process / industry. Restrict location Restriction on hazardous materials Permissions required from board Water Act Air Act EPA - HW rules, H C Rules, EIA - 06

Power to Obtain Information 





Water Act – ETP, Details of water & treatment – S20 Air Act – Air pollutants – S25, apprehension of accident – S23 EPA – Information to pertaining to any ENV. Discharge – S9

Power to take samples Sr. No.

Description WA

AA

EPA

1

Power of Entry & Inspection

S 23

S 24

S 10

2

Power to take samples

S 21

S 26

S 11

3

Power to Analyze

S22 read S S 12 t0 with S 28,29,30 14 17 & ,27 & 17 52,53,54

Power to issue directions       

Water Act – S33 power to restrain from polluting by moving to court Air Act S 31A & Water Act S 33A - power of Authority to issue directions EPA – S5 – power to central Govt Direction issued by CG In performance of its functions (S 17) State board can issue directions to any person/ officer / authority bound to comply Includes power to close/prohibit/regulate industry/operation/process

Penalties Sr. No.

Penalty

1

Up to 3 months20 (2) or fine or both

2

1.5 yrs to 6 yrs 32,33,33 A, 21,22,31 1 - 7 yrs + Fine 24 A 5000 Rs per days 2- 6 yrs + fine 25,26 for continued 2 – 7 yrs + 32,33,33 A 21,22,31 violation after 1st Fine A conviction

3 4

WA

AA

EPA

23

Up to 5 yrs or up to rs 1 lac or both

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

Good Faith 

 



Anything done with due care & without negligence. Here Care means follow the procedure established by Law Good Faith is Defined in IPC Any act done in Good faith no Legal proceedings will lie in any court. S 42 of AA, S 18 of EPA & S 59 of Water Act have similar provisions

Bar of Jurisdiction  

S 58 of WA, 41 of AA, 22 of EPA No civil court have jurisdiction to entertain any suit of proceedings.

Fund of Board: 







Funds by way of Fees, gifts, Grants, Beneficiary/borrow with permission of SG Budget to be made for expenditure under S 34 to 37 of WA Annual report to be submitted to the SG. Audit report to be submitted to the SG

Effect of Other Laws  



WA – S 60 Overriding effect AA – S 50 Overriding except for atomic energy act 1967 EPA allows operation of WA & AA

Suppression of Boards:   



Persistence default Public interest A show cause notice to be issued asking for why it should not be superseded Reply – hearing – superseded – notify in gazette.

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  1. 2. 3. 4. 5. 6.

Not to Apply to Wastewater, air emission Municipal waste Radioactive waste Ship waste Hospital waste Lead batteries

Definitions       

Treatment Disposal Transport Storage Recycler Waste Oil Used Oil



 

 

Rule 20 refining / recycling registration from MoEF/CPCB Storage of HW 90 days by ind. Unit Waste must be labeled such that it is visible & can withstand weather Transport to be done with manifest Manifest gives the information about HW to various players / shifting Legal responsibility

TSDF 

 

TSDF – Treatment Storage Disposal Facility 20 in India out of that 7 in Guj Procedure for developing TSDF OOF & SG – two or more probable sites – EIA – Finalize one of Them – P.H. – to SPCB for notification to MoEF for EC

Responsibility of Occupier/OOF  1. 2. 3. 4. 5. 6.

OOF is responsible for M&H Accident Contain Contaminants Safety Provide info to the SPCB / Authority Provide training to staff

Authorization   

   

Authorization – rule 5 Apply – MS of SPCB within 90 days for 5 yrs Generator - Type of waste as specified under schedule 1 & 2 – collect – Store 90 days – OOF membership of facility OOF Maintain record of HW generated Submit AR Reuse /recycle of HW

Design of TSDF  1.

2. 3. 4.

Design of TSDF Design as per MoEF / CPCB guideline Approved by SPCB Monitoring by SPCB Ensure environmentally safe management, closure & post closure

Import/Export 





No import / Export for dumping / Disposal I/E for recycling/recovery/reuse is restricted as per sch 8 MoEF permission is necessary