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environment:contemporary-developments

Contemporary Developments

As the field of environment is an emerging and evolving area both at the national and international level, it becomes important to keep oneself abreast with the new developments. Establishment of National Green Tribunal (NGT), Regulation of Hazardous Wastes at the National level and Kyoto Protocol and few other international instruments at the International level are some of the key contemporary developments. Apart from Kyoto Protocol there are several other initiatives which have also been undertaken at the International level and which have contributed towards the cause of global environment protection.

Around 1980, the Indian legal system, particularly the field of environmental law, underwent a sea change in terms of discarding its traditional approach and it was marked by not only administrative and legislative activism but also judicial activism. ‘Judicial Activism’ refers to the active role played by the Courts in India by adopting new and innovative interpretations of the constitutional rights expanding their ambit. In determining the scope of the powers and functions of administrative agencies and in striking a balance between the environment and development, the Courts have played a crucial role and will continue to have this role. This activism of Courts have been strengthened by the tool of Public Interest Litigation (PIL), which has enabled the Courts to entertain cases from public spirited individuals and Non-Governmental Organisations active in the area of environmental protection. The Indian Courts, in this regard, have given some landmark judgements which have established the roots of environmental jurisprudence in India. This lesson aims to discuss the activ role played by the Courts in India and the contribution which the Public Interest Litigation has made in this regard. The lesson will highlight all these important issues relating to environmental protection.

National Green Tribunal (Ngt)

A Tribunal has trappings of a Court. Every Court is Tribunal but Tribunals are not Courts. A Tribunal is established for the adjudication of disputes related to some specific areas, whereas courts exist for the adjudication of all kinds of disputes regardless of any specific area. Rules of natural justice ensure fairness in any adjudicatory process. Final judgement of Tribunal is generally called ‘award’.

The National Green Tribunal was established on 18th October, 2010 under the National Green Tribunal Act, 2010 for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues.

The Tribunal is to make efforts for disposal of applications or appeals finally within six months of filing of the same. Initially, the NGT was proposed to be set up at five places of sittings and follow circuit procedure for making itself more accessible. New Delhi is the principal place of sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai are the other four place of sitting of the Tribunal.

Composition of National Green Tribunal (NGT)

NGT comprises of both judicial and expert members as adjudicators. The Chairman of NGT is a judicial member and must be or has been a judge of the Supreme Court of India or Chief Justice of a High Court. The Chairman is appointed by the Central Government in consultation with the Chief Justice of India. Other judicial members of the NGT must be or has been a judge of the High Court. For an expert member a person must have a doctorate degree in life sciences or physical sciences with fifteen years experience in the relevant field including five years practical experience in the field of environment and forest in a reputed national level institution or an administrative experience of fifteen years including experience of five years in dealing with environmental matters in the Central or State Governments or in a reputed National or State level institution. The Judicial and expert members are appointed by the Central Government on the recommendation of a Selection Committee.

Jurisdiction and Powers of NGT

Jurisdiction means authority of any Court or Tribunal to accept a matter for hearing and decision. NGT has the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule I of the National Green Tribunal Act, 2010. Schedule I of the Act lists following legislations:

  1. The Water (Prevention and Control of Pollution) Act, 1974;
  2. The Water (Prevention and Control of Pollution) Cess Act, 1977;
  3. The Forest (Conservation) Act, 1980;
  4. The Air (Prevention and Control of Pollution) Act, 1981;
  5. The Environment (Protection) Act, 1986;
  6. The Public Liability Insurance Act, 1981;
  7. The Biological Diversity Act, 2002.

This explains the importance of NGT, as the above mentioned legislations together stands for what we know as the ‘Environmental Law’. So now on for the enforcement of Environmental Law, be it matters related to Water Pollution, Air Pollution, Forest Conservation, Environment Protection or Biological Diversity, we have NGT.

NGT is empowered to provide by an order:

  • Relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in Schedule I (including accident occurring while handling any hazardous substance) of the Act.
  • For restitution of property damaged.
  • For restitution of the environment for such area or areas.

The above mentioned remedies must be claimed by the persons aggrieved within 5 years from the date when the cause of action arose. Cause of action means the happening of the very reason which enables the person to approach NGT. Though, in exceptional cases the Tribunal may give sixty more days for filing of the application before it, if the Tribunal is satisfied that the applicant was prevented by a sufficient cause to file the application within 5 years.

The Act mandates that in case of accident, the Tribunal shall, apply the principle of ‘no fault’. ‘No fault principle’ stipulates that in case of accident the owner or the employer cannot take the defence of him/her having committed no fault. If accident occurs and as a consequence of it damage is caused to any person or environment, the owner or the employer is liable, only because of the fact that accident occurred in his/her enterprise. Apart from this principle, NGT has to also apply the principles of ‘Sustainable Development’, ‘precautionary principle’ and ‘polluter pays principle’, while giving an order or decision or award.

Procedure

NGT is not bound to follow the procedures laid down in the Code of Civil Procedure, 1908; or the Indian Evidence Act, 1872; rather it has to be guided by the principles of natural justice. It has for the purposes of discharge of its functions all the powers of the Civil Court for trying a suit as given under the Code of Civil Procedure, 1908. Any decision, order or ‘award’ of the Tribunal is executable by the Tribunal as a ‘decree’ of the Civil Court and, therefore, for this purpose the ‘Tribunal’ will have all the powers of a Civil Court. The Tribunal can also if it deems fit transmit its order or award for execution to a Civil Court having local jurisdiction as if it were the ‘decree’ of that Civil Court. Minimum number of members who must together hear and decide a case is two, out of which one must be a judicial member and other an expert member. The decision of Tribunal by majority is binding. In case the opinion of the bench is equally divided then the matter is to be heard and decided by the Chairman of NGT if he/she was not part of the equally divided bench. In cases, where the Chairman himself/herself is part of the equally divided bench then he/she shall refer the matter to other member of the Tribunal not part of that equally divided bench to hear the case and decide.

Penalty

Whoever fails to comply with any order, decision or award of the NGT under the National Green Tribunal Act, 2010, commits a cognizable offence and shall be punishable with an imprisonment for a term which may extend to three years or with fine which may extend to 10 Crore rupees (25 Crore in case of a company) or with both and in case the failure or contravention continues, with additional fine which may extend to 25,000 Crore (1 Lakh Crore in case of a company) for every day during which such failure or contravention continues after conviction for first such failure or contravention.

Where any Department of the Government fails to comply with any order or ‘award’ or decision of the tribunal under this Act, the Head of the Department shall be guilty of such failure and shall be liable to be proceeded against for having committed an offence and punished accordingly. Provided that if such Head of the Department proves that he/she exercised due diligence and that he had no knowledge about the commission of the offence he shall not be punished. Apart from this any other Government officer may also be punished accordingly for such offence if it can be proved that the offence was committed with the consent or connivance of such officer or is attributable to his/her neglect.

Appeal

In an appeal the person who has lost the case can again challenge the decision made by the NGT before the Supreme Court. Any person aggrieved by any decision, order or award of the Tribunal, may file an appeal before the Supreme Court within 90 days from the date of communication of such decision, order or award. Though, the Supreme Court may allow a person to file such appeal even after 90 days if the Court is satisfied that the person appealing was prevented to do so for sufficient cause.

Regulation Of Hazardous Wastes

Disaster occur both due to natural and man-made activities. The adverse impact caused due to the indiscriminate disposal of hazardous wastes comes under the category of environment disasters. For example the release of Methyl Isocyanate (MIC) gas in Bhopal from the Union Carbide factory in the year 1984 caused severe disaster taking thousands of human lives and adversely affecting the health of even the future generations of the people affected it.

Control and regulation of hazardous substances has always been the main concern in the exercise of environment protection. The issue has been specifically addressed under the Environment Protection Act, 1986 by way of delegated legislations. A delegated legislation refers to the legislative function of the executive organ of the government. This takes place under the legislation enacted by the legislatures which authorises the executive to frame rules for the actual implementation of the legislation enacted. The name delegated refers to the delegation of the power to legislate under the legislation by the legislature to the executive after laying down the broad policy objectives in the legislation. The Delegated legislation under the Environment Protection Act, 1986 includes the Hazardous Wastes (Management and Handling) Rules, {HW (M&H) Rules} 1989 made by the Government of India through the Ministry of Environment and Forests (MoEF). In order to encourage the implementation of these rules the MoEF has further brought out guidelines for HW (M&H) Rules in the year 1991. These rules provide for a regulatory framework for the handling of hazardous wastes.

Definition of Hazardous Substance

A ‘hazardous substance’ is defined not only as a substance, but also as a preparation, which by reason of its chemical or physico-chemical properties or handling is liable to cause harm to human beings, other living creatures, plants, micro-organisms, property or the environment.

This definition explains the nature of what may be considered a hazardous substance. These are present in our surroundings which may harm our environment and hence there needs to be some guidelines for dealing with such substances, so as to protect our environment from the potential harm. An example of hazardous waste can be industrial waste, which is waste collected from a factory meant for manufacturing certain goods.

Procedure for the Regulation of Hazardous Wastes under HW (M&H) Rules

  1. Identification of Hazardous Waste Generation - Identification of the hazardous waste generating industries is the first step.
  2. Data Collection - After identifying the ‘hazardous waste’ generating industries, the inventory of data pertaining to hazardous waste generation can be prepared by conducting surveys in each of the identified industries.
  3. Waste Characterisation - The ‘hazardous waste’ that is generated from the study region should be characterized. This can be done in the laboratory. Detailed hazardous waste characterisation pertaining to physical, chemical and general characteristics, and properties pertaining to ignitability, corrosivity, reactivity & toxicity is to be taken.
  4. Identification of site for disposal - After quantifying the ‘hazardous waste’ and assessing the probable area requirements for its treatment, storage and disposal, the sites are to be identified.
  5. Conducting Environmental Impact Assessment (EIA) - The impacts from the project should be identified and public acceptance should be obtained for clearing the site for Treatment, Storage and Disposal facility.
  6. Implementing Treatment, Storage and Disposal Facility - The treatment, storage and disposal facility programme should be implemented at the final designated site. The site should contain adequate provisions for storage, treatment and final disposal. The site should have laboratory facilities to monitor these functions.

The above mentioned steps need to be followed carefully for guarding our environment from the dangers which the existence of hazardous waste may cause to it. Proper treatment, storage and disposal of hazardous wastes are the need of the hour for a pollution free environment.

KYOTO Protocol

Environment protection is not territorial but a global concern and therefore, the effort to protect the environment is going on also at the international level as the environmental policy of any country does not only affects the environment of that country, rather it affects in whatever extent possible, the global environment. ‘Kyoto Protocol’ is the example of a measure undertaken at the international level under the aegis of the United Nations aimed at curbing the emission of Greenhouse gases (Carbon Dioxide, Methane, Nitrous Oxide, Sulphur Hexafluoride and two groups of gases hydro fluorocarbons & per fluorocarbons) by the industrialised countries, which adversely impacts the global environment.

‘Kyoto Protocol’ is the part of the United Nations Framework Convention on Climate Change (UNFCC). UNFCC sets an overall framework for inter-governmental efforts aimed at tackling the challenges of climate change. Climate Change refers to the fact that due to developmental human activities the original climate of the world is changing and the average temperature of world is rising every year and this will result in climate change which may have very serious consequences for present and future generations. The increase in temperature is primarily because of the emission of greenhouse gases, which are emitted mainly from industries. This also adds to the depletion of the ozone layer which prevents the harmful effects of the sun from reaching the Earth. Therefore, this is a movement to protect the world inhabited by us from becoming a world unsuitable for human existence.

The ‘Kyoto Protocol’ sets binding obligations on industrialised countries to reduce emission of Greenhouse gases. The Protocol was adopted on 11 December 1997 in Kyoto, Japan and entered into force on 16 February 2005. More than 190 countries are the members of the Protocol, significantly though the United States of America is not the member of the Protocol. India is also a member of the Protocol.

Some of the principal concepts of the ‘Kyoto Protocol’ are:

  • Under the Protocol 37 industrialised countries and European Union made up of 15 European countries (called Annexure 1 countries) have committed themselves to binding obligations to reduce emission of greenhouse gases.
  • In order to meet the objectives of the Protocol, Annex I, Parties are required to prepare policies and measures for the reduction of greenhouse gases in their respective countries. In addition, they are required to increase the absorption of these gases.
  • Accounting, Reporting and Review in order to ensure the implementation of the Protocol.
  • Establishing a Compliance Committee to enforce compliance with the commitments under the Protocol.

‘Kyoto Protocol’ is a very important milestone as it is an acknowledgement of the fact that in the name of industrial development the environment cannot be harmed to such an extent that we render it unsuitable for a healthy human existence. Industrialised countries by accepting the binding obligation to reduce the emission of the greenhouse gases have accepted their collective responsibility in making the global environment cleaner and healthier and thereby realizing the goal for a sustainable development. This obviously is a work in progress but what is important is its realisation and the exhibition of a global will to address this menace.

Other International Instruments

International Instruments are like legislations and rules drafted by the different countries coming together at the international level to make laws applicable to them. Kyoto Protocol is not the only instrument directed at curbing environmental degradation, in fact there are several such measures that have been undertaken at the international level. These international instruments collectively constitute what is known as International Environmental Law. These laws have affected the growth of environmental law in many countries to a great extent. India’s main environmental legislation the Environment Protection Act, 1986 was also enacted in order to give effect to the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972.

Some of the important International Instruments are -

The Stockholm Declaration, 1972

  • Laid the foundation of the modern global environmental law.
  • Recognizes that different approaches are required to tackle problems of developed and developing countries.
  • Recognizes a healthy environment as an extension to the right of life.
  • Introduces the concept of inter-generational equity.
  • Calls for balancing the needs of the environment with those of development
  • Nations have the sovereign right to exploit their own resources, subject to the responsibility not to cause damage to the environment of other States.

The Vienna Convention for the Protection of the Ozone Layer, 1985

It is a framework treaty within which member states share research and information, develop technologies, etc, for the protection of the Ozone layer.

The Montreal Protocol on Substances that Deplete the Ozone Layer, 1987

  • Protocol requires parties to reduce the consumption of ozone-depleting substances to certain stipulated levels.
  • Developing countries given a grace period of 10 years to comply

The Report of the World Commission on Environment and Development (“The Brundtland Commission”), 1987

  • Milestone in the development of international environmental jurisprudence and policy
  • Established the doctrine of “Sustainable Development”.

The Rio Declaration on Environment & Development, 1992

  • Builds on the principles of sustainable development, inter-generational equity, and sovereign rights in the Stockholm Declaration.
  • Expands the concept of sustainable development.
  • Reaffirms, amongst others, the importance and centrality of certain general principles:
    • The Precautionary Principle,
    • The Polluter Pays Principle, and
    • Environmental Impact Assessment

The U.N. Convention on Biological Diversity (1992)

Three main goals:

  1. The conservation of biological diversity;
  2. The sustainable use of its components; and
  3. The fair and equitable sharing of the benefits from the use of genetic resources.

In 2000, a supplementary agreement - the Cartagena Protocol on Biosafety - sought to protect biological diversity of states against risks from living, modified organisms created by biotechnology. In April 2002, the parties to the Convention committed themselves to achieving the target of “a significant reduction in the current rate of biodiversity loss at the global, regional and national level,” by 2010.

Agenda 21, 1992

Comprehensive road-map of action to be taken at the global, national, and local levels, for the protection of the environment framed at the Rio Summit.

The United Nations Framework Convention on Climate Change (UNFCC), 1992

This sets an overall framework for intergovernmental efforts to tackle the challenge posed by climate change. Under the Convention, governments:

  • gather and share information on greenhouse gas emissions, national policies and best practices
  • launch national strategies for addressing greenhouse gas emissions and adapting to expected impacts, including the provision of financial and technological support to developing countries
  • cooperate in preparing for adaptation to the impacts of climate change.
  • The Convention entered into force on 21 March 1994.

These international instruments clearly reflect the fact that the issue of environment protection has been a matter of grave concern which has attracted international attention. All these instruments also acknowledge the fact that for environmental protection there cannot be a one stop solution; this is a continuous process which must continue incessantly.

Summary

A Tribunal is established for the adjudication of disputes related to some specific areas, whereas courts exist for the adjudication of all kinds of disputes regardless of any specific area. Whenever a Tribunal is created by law the jurisdiction of courts to adjudicate the disputes related to that area for which the Tribunal is created is taken away from it and given to the Tribunals.

The National Green Tribunal was established under the National Green Tribunal Act, 2010 for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto.

National Green Tribunal is empowered to provide by an order:

  • Relief and compensation to the victims of pollution and other environmental damage arising under the enactments specified in Schedule I (including accident occurring while handling any hazardous substance) of the Act.
  • For restitution of property damaged
  • For restitution of the environment for such area or areas.

A ‘hazardous substance’ is defined under the Hazardous Wastes (Management and Handling) Rules, 1989, not only as a substance, but also as a preparation, which by reason of its chemical or physico-chemical properties or handling is liable to cause harm to human beings, other living creatures, plants, micro-organisms, property or the environment.

The ‘Kyoto Protocol’ sets binding obligations on industrialised countries to reduce emission of Greenhouse gases.

International Instruments are like legislations and rules drafted by the different countries coming together at the international level to make laws applicable to them. There are several such International Instruments which collectively constitute what is known as International Environmental Law.


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Created on 2021/01/10 07:51 by Admin • Last modified on 2021/01/10 16:04 by LawPage