Future Environmental Law Challenges: A Perspective

This article deals with future environmental law challenges under the perspective that such complications would find an unimpeded way into our daily course of life. The issue of climate change and its repercussions would lead to chaos not just in the environmental stage but also in our civil and social lives, leading to ultimately stricter rules and more disciplined practices.

Introduction: Future Environmental Law Challenges

Words like ‘rapid economic growth’, ‘environmental degradation’ and ‘biodiversity loss’ are not alien to a layman anymore. It is clear from the current pandemic that the environmental situation of our planet is a slap on the face of growing humanity that clearly has become more of a burden to the earth, rather than a set of organisms peacefully co-existing with the others.

In the year 2015, the United Nations General Assembly drafted the 2030 Agenda for Sustainable Development which includes 17 Sustainable Development Goals which are built on the principles of “leaving no one behind” focusing on growth and sustainable development for all.

Labelled as #Envision2030, this venture though was planned to uplift persons with disability, can especially, serve as a paradigm shift in the living conditions and standards for one and all, irrespective of disability or not. A few worth mentioning from this list are ‘Good health & well-being’, ‘Industry Innovation and Infrastructure’, ‘Affordable and clean energy’, ‘Climate action’ and ‘Sustainable cities and communities’.

As it may be clear from the above-mentioned goals from the itinerary that it would require collective support of each individual, irrespective of his social background, to contribute their bit for the environment and in order to understand this, each of us should be aware of basic, fundamental ways required for preserving our fixed resources, thereby being responsible citizens of nature.

The nature of national and foreign affairs has reduced the effectiveness of foreign environmental legislation. Such ineffectiveness has been partly blamed on treaty congestion, that is, the sheer volume of international legal instruments that have emerged since the 1972 Stockholm Conference and more recently following the landmark Earth Summit held in Rio de Janeiro in 1992.[1]

Congestion in the treaties threatens to exhaust scarce government resources to resolve difficult problems and may overwhelm the national-level officials responsible for negotiating and enforcing agreements. Resolving the issue of treaty fragmentation requires further collaboration to link the various organizational efforts together.

Indian perspective on Environmental Laws

Laws to protect the environment in India date back to the British era which saw the coming of Shore Nuisance (Bombay & Kolkata), 1853 and Oriental Gas Company Act, 1857. With the arrival of the Indian Penal Code, 1860, a fine was to be imposed on anyone who fouls water from a public reservoir or spring.

To defend against Air Pollution, the Bengal Smoke Nuisance Act, 1905 and Bombay Smoke Nuisance Act, 1912 were drafted which though were seen as a failure in its execution, hold the source of environmental laws in India. It is these laws that majorly helped in structuring and providing areas of focus to the current statutes which govern us in today’s date.

Even though India has various legal provisions related to the protection of the environment, there still lies various loopholes which narrow down the implication of such rules. There is an evil consequence of urbanization. A large number of environmental problems grow due to industrialization and urbanization.

The expansion of large cities with a thick density of population is one of the utmost hitches which prefixes to the environmental problems faced by India. The long-established agricultural practices contribute collectively to the wrecking of the environmental system.

However, there may be certain areas which need to be developed and taken care of. The role of Environmental jurisprudence is an important factor which deals with environment-related issues. Since India is declared to be a ‘Democratic Republic’, protecting and improving the environment is a Constitutional mandate.

The fundamental aim of the Preamble is Socialism and it is the responsibility of the State to fulfil this by taking stringent measures to make the environment pollution-free. The obligation of the State further extends to not only providing a pollution-free environment but also to dispense a decent standard of living for all the living beings.

Relationship between the Constitution and Environmental Law

Article 14 grants Equality before Law and equal protection of the law. This fundamental right casts a duty upon the State to be fair while taking actions which is extended to matters concerning environmental protection. The judiciary has played a strict role in disallowing arbitrary sanctions since there were cases of exercise of arbitrary powers.

Important Judgements

In the case of Bangalore Medical Trust v. B.S. Muddappa[2], the City Improvement Board of Bangalore proposed an improvement scheme to extend the city. Under the scheme, a low-level park was to be developed, but under the direction of the Chief Minister, the area allotted for the park was converted into a civic amenity site where the hospital was to be constructed.

After commencement of the construction, the residents appealed to the High Court. The petition was allowed by the High Court. Later, the appellant contended to the Supreme Court that the power to allot sites is discretionary in nature and the authority had the right to do so.

Hence, the diverted use of the land law was justified in the eyes of the appellant. The Supreme Court rejected the appeal by elucidating the importance of open spaces and parks in the environment. The Hon’ble Court further stated that protecting the ecology played a vital role in the eyes of public health. Open spaces for the interest of the public is justified and cannot be sold or given on lease to any private person.

Article 51A(g) specifically deals with the fundamental duty which states that not only the State, but the citizens also must ‘protect and improve the natural environment which includes forests, rivers, lakes, wildlife and to have compassion for living creatures.’

Important Judgements

(i). In the case of Sitaram Champaran v. State of Bihar[3], a Public Interest Litigation was filed before the High Court. The petitioners sought the directions of the Court for the closure of a tyre plant which was in the interest of public health.

Since the plant was situated in a residential area, the emission of Carbon Dioxide and other poisonous gases were causing harm to the environment. The court under Article 51-A held that it was a fundamental duty of the residents to file the PIL and the respondents were directed to wind up the plant in the interest of environmental protection.

(ii). In the case of M.C. Mehta v. Union of India (1988)[4], the holy river Ganga was polluted due to certain tanneries that were discharging effluents. Despite constant reminders, no primary treatment plant was being set up. The effluents from the tanneries were ten times more harmful as compared to the ordinary sewage water, hence the Court ordered the shutdown of the tanneries which have failed to take necessary steps for the primary treatment of effluents from the industries.

(iii). In the case of M.C. Mehta v. Union of India(1994)[5], the Supreme Court directed industries to comply and adhere to the prior direction of the Hon’ble Court concerning the installation of the air pollution control system. The Supreme Court in this case laid down its greater emphasis on Article 19(6) of the Indian Constitution.

(iv). In the case of M.C. Mehta v. Kamal Nath (1997)[6], the court delivered a landmark judgement by which Principles of Exemplary Damages was established for the first time in India. In the state of Himachal Pradesh, the Minister of Environment and Forests, Mr Kamal Nath had direct links with a chain of motels called Span Motels Private Limited.

This company had floated a new venture called the Span Club which encroached upon substantial forest land, illegally leased out to Span Motels along the Beas River. This construction of the Club led to the swelling of the river and engulfed the club and some area adjoining it.

In order to reestablish the Club, construction was carried out to turn the course of the river for the second consecutive time. This led to frequent landslides and severe destruction along the river’s course. This judgement gave birth to the famous Public Trust Doctrine and Polluter Pays Principle. The apex court ordered the management of the motel on the forest land be handed over to the Government and to remove all encroachments.

Legal Provisions on Environmental Protection

The key legislation for environment protection are as follows:

I. The Water (Prevention and Control of Pollution) Act, 1974

This Act lays down the standard for the prevention and control of water pollution. Also known as the ‘Water Act’, this act prohibits the discharge of various pollutants into the water bodies beyond a given standard. The duty to carry out the aforesaid purpose lies upon the CPCB. The SPCB works under the direction provided by the CPCB. Penalties are laid down for the non-compliance of the Act.

II. Water (Prevention and Control of Pollution) Cess Act, 1977

This act was ordained for the levy of collection of tax on water consumed to carry out any industrial activity.

III. The Air (Prevention and Control of Pollution) Act, 1981

To counter the problems linked with air pollution, ambient air quality standards was entrenched under this Act. Also known as the ‘Air Act’, this Act combats air pollution by barring the use of fuels, substances and appliances which gives rise to air pollution.

This Act equips the SPCB to declare any area which lies within the State to declare as Air Pollution Control Area. For any industry to set up its plant in such an area, consent is required from the SPCB. The Air (Prevention and Control of Pollution) Amendment Act, 1987 was enacted to meet the grave emergencies.

IV. The Environment Protection Act, 1986

The agenda of this Act is to safeguard the environment and provide protection to it. It establishes a framework for adequate steps such as setting up a standard for the emissions and discharge of various kinds of pollutants, managing hazardous wastes, regulating the location of industries, etc.

It is this umbrella legislation that provides bodywork for the solidarity of the Central and State Authorities under the Water Act and Air Act. Once in a while, for the protection of ecologically-sensitive areas, the Central Government issues guidelines under the Environment Act. Non- compliance or contravention of the Act is liable for punishment which consists of both fine as well as imprisonment.

V. The National Green Tribunal Act, 2010

This act was administered by the Central Government in the year 2010. This Act envisions the establishment of NGT to deal with various kinds of environmental laws which include the Water Act, the Air Act, EPA, the Biodiversity Act, the Forest Conservations Act, etc.

The objective of this establishment was for the expeditious and effective disposal of cases that concerned environmental protection, natural resources, and wildlife. It also includes enforcement of any right which associated with regards to the environment and compensation for damages that occurred due to environmental negligence.

VI. Hazardous Waste Management Regulations, 2016

Hazardous wastes are those wastes that are potentially harmful and dangerous for the environment as well as living beings. Any commercial products, pesticides, the by-product of any manufacturing process, products which are physically or chemically toxic, reactive, inflammable in nature, products that hold the corrosive property, are considered to be hazardous.

Relevant legislations dealing with hazardous waste management are the Public Liability Insurance Act, 1991, the Factories Act, 1948, and the National Environment Tribunal,1995.

For proper storage, manufacture, import and export, disposal, segregation, transfer, disposing of municipal solid waste, etc., various rules were brought into command. Some of the rules include the Municipal Solid Wastes (Managing and Handling) Rules,2000, Hazardous Waste (Management, Handling, and Transboundary) Rules,2008, Biomedical Waste (Management and Handling) Rules,1998.

VII. E-Waste (Management and Handling) Rules, 2011

The principal intent of these rules is to reduce the use of hazardous substances through any electronic or electrical equipment. To achieve an environmentally sound recycling method, these Rules specify the threshold for the use of any hazardous material. These rules majorly apply to those producers who are involved in the manufacturing, processing, and sale of any electrical or electronic equipment.

VIII. The Wildlife Protection Act, 1972

The purpose of this Act is to constructively protect the wildlife and to control smuggling, poaching, and illegal trade. This Act also contains stringent punishment for the above offences. To strengthen the Act, it was amended in the year 2003. This Act also protects the endangered flora and fauna and important ecological areas that need protection.

IX. The Forest Conservation Act, 1980

This Act was enacted for the purpose to conserve the country’s forests. The objective of this Act is to strictly monitor any action which leads to de-reservation of forest land for any non-forest purpose without the prior approval of Central Government.

X. The Biological Diversity Act, 2002

The main agenda of this Act is to conserve the biological resources and state methods to access these resources sustainably.

Environmental challenges faced by India

The greatest threats to environmental development are population growth, urbanization, global warming, waste generation, and the subsequent pollution of soil, air, and water. Mostly, all these threats are directly or indirectly inter-related.

I. Population Growth

Population growth is one of the major causes of ecological degradation. According to the UN, the world population by 2050 will be between 7.9 billion to 10.3 billion. The increase in population increases the rate of deforestation. Deforestation is linked to negative environmental consequences such as the global warming, biodiversity loss, etc. Urbanization poses significant challenges for water resources for the management. Due to this, the rural population faces scarcity for both food as well as water.

II. Urbanisation

Population growth coupled with urbanization poses a very negative impact on the environment. The ambient temperature increase, decreased air quality, alteration in the weather, climate change, food shortage, etc., are faced by every member of the rural as well as urban areas.

III. Global Warming and Waste Management

India is one of the largest producers of Greenhouse gases (GHGs). According to the Kyoto Protocol of 1997 which was signed by 37 industrialized countries, the goal for this project was to reduce GHGs emissions by 5.2%. The greenhouse effect is one of the major human activity responsible for global warming.

Waste management is also an important factor. Waste management is the collection, transport, processing, recycling, or disposal of the waste materials. Various methods are used for waste management. Due to the rising population and lack of infrastructural facilities, solid waste management remains a challenge for India.

The waste is still dumped on the outskirts of cities due to the lack of proper disposal methods. Due to this, the solid waste which is disposed of in the open environment releases carbon dioxide gas heavily. This is also one of the major causes of global warming.

Conclusion

India needs to work strategically to improve the enforcement of environmental laws. The major sectors where a symbiotic relation needs to be maintained are the industrial sector and the private sectors. Any environmental issues should concern the masses at large.

Large companies and industries should try to help the smaller industries to elevate their standards. They should be aware of the serious problems which the country is facing. Therefore, the population of our country should be aware of and educated about current environmental matters. For such cases to run, the government can use its network to reach out to people. Mass media and NGOs can play a crucial role in spreading awareness.

Various alternative methods can be used to conserve the environment. A green/sustainable building design can be successful in achieving, and improving the areas where there is increased discharge of solid as well as liquid waste. The concept of intelligent buildings can be used to achieve an operationally more efficient space for the owners.

The use of solar chimneys can be a very essential step for the control of air pollution. This type of power plant provides an enormous amount of energy without any ecological breakdown. Smarter and a greener methods should be accepted to achieve an eco-friendly and a pollution-free environment.

It is not very difficult to say that in actuality, we are straying further away from the goals set by a noteworthy international organization like the United Nations and the World Health Organization. It is also not a very pretty thought to realize that most of the global population may not necessarily believe in the spirit of preserving and conserving the environment.

Environmental Law is generally drafted to bridge the gap between humanity and nature so that both may flourish while giving each other enough space to operate on their own. Contrarily, environmental law does not focus on long term goals or is rather vague about the bigger picture.

What worsens this situation is the fact that laws are being drafted to tackle the crises posed by the environment which threaten human life and existence first, and addresses the real long-term goals like Diversification of Biodiversity, later. This attitude only takes into account the current ongoing situations, leaving the bigger picture out which has resulted in severe degradation of the environment with the passage of time.

Even after having an express set of laws addressed to the upkeep of the environment, the pollution control forums still face hindrances. The main reason for this is weak enforcement and the dearth of finances and manpower. The major troubles of the surroundings are mainly due to the activities of humans that lack civic awareness and the consequences of the long-time impact of the environmental pollutants.

Many demanding and crucial environment debasing situations concern India’s development and its outlook for the future. The depletion of water assets, increasing air pollution, extinction of different species of animals, lack of indigenous species of vegetation and fauna, the history of poverty and unemployment, India is riding towards rapid environmental destruction.

Furthermore, factors such as geographical extent, population growth, etc., challenge the provision. It is tough to peer the problems with the present legal guidelines since the problems are inadequate and giant and it indirectly questions the Indian assets as well as wealth. To overcome the modern problems faced by the management of environmental regulations, various programs can be established such as setting up a public statistic disclosure program to enforce and prioritize inspection efforts based on the environmental hindrances.

The present generation is facing issues due to the lack of awareness of the current environmental conditions and the non-acceptance of sustainable methods to conserve the environment. Hence, despite various protection laws, the environment is not safeguarded to a great extent.

Authored by: Barkha Shekhar

Amity Law School, Kolkata