From an era when we hardly cared about environmental costs, our country has graduated to a stage where the regulators are making it mandatory for companies to report as to how they fare on environmental, social and governance (“ESG”) parameters. We have streamlined our projects and policies to meet our sustainable development goals (“SDGs”). Our judiciary has ensured that environmental compliance is no longer a matter of choice but a compulsion. It has ensured that the regulators discharge their statutory duties properly and make sure that the industries comply with the environmental regulations in letter and spirit.
As India gained independence and our economy started growing, there was a need to enact legislations which were meant to protect the natural environment and its various components, be it air, water, forests, wildlife, biodiversity etc. More importantly, since India had started becoming a signatory to various international environmental conventions, it was obligatory that we protected our environment back home. The Water (Prevention and Control of Pollution) Act of 1974 (“Water Act”) was the first major step in this direction which most importantly helped constitute the Central Pollution Control Board (“CPCB”) and the state pollution control boards. It was followed by the Air (Prevention and Control of Pollution) Act, 1981 (“Air Act”) and the Environment (Protection) Act, 1986 (“EPA”) which has been an umbrella legislation empowering the Central Government to make laws through various rules, notifications etc. to address specific environmental issues.
The recommendations of the TSR Subramanian Committee had been rejected by the parliamentary standing committee in 2015. While it would be unfair to remark that all of the Committee’s recommendations were not warranted, the concern then was that there should have been a wider consultation by the Committee before it made its recommendations in the report and that the laws should have been reviewed and analyzed in a more holistic manner. It is pertinent to note that from time to time various amendments have been made to the environmental laws in line with the changing societal and business requirements. The environmental laws in India have evolved substantially since they were enacted in the 70s and 80s. However, it is not the provisions or their overlap but their effective and consistent implementation which has left much to be desired.
Last year, the draft Environment Impact Assessment (“EIA”) Notification was circulated for comments. While it was feared that it was an attempt at weakening the law, it was argued that the purpose was to just consolidate all the amendments and streamline the law and process relating to environmental clearances. Similarly, it is now being proposed that the EPA, Air Act and Water Act be consolidated into a single environmental management law to prevent overlaps and conflicts, incorporate provisions relating to environmental compensation and tools like emissions trading scheme, extended producer responsibility etc. Please do note that revising a notification to consolidate all amendments is entirely different from clubbing different statutes enacted for specific purposes into one.
While consolidation and streamlining are important and so is the need to make the laws stricter by incorporating provisions relating to environmental compensation, this should not in any manner be seen as an attempt to weaken our laws or complicate them further. The judiciary over the last few decades has done an excellent job to interpret and provide clarity to the existing environmental laws. Our established principles of statutory interpretation have also guided us in cases where there may be potential conflicts and overlap. We have specific laws to deal with various aspects of environment protection. Therefore overhauling the laws which are fairly settled may not be the best idea. Instead it may be only fair to incorporate through amendments such provisions which help improve our laws and focus on a transparent and efficient implementation of these laws.
We have often explored the idea of setting up a national level environmental protection agency on the lines of the United States Environment Protection Agency. It is indeed a great idea. However, we need to also remember that countries like USA have specific laws to deal with specific aspects of environment protection and conservation of natural resources. It may not be incorrect to say that such specific laws have served USA very well, a country which still has very high standards when it comes to environment protection and polluter’s liability. If the purpose is to fill gaps related to environmental compensation, waste management etc., we can always explore the possibility of having specific laws on the lines of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) or the Resource Conservation and Recovery Act (“RCRA”), as in the US. In fact we have enacted various rules in the past on such lines. We need not necessarily change our entire statutory framework for such purpose. Doing so at this stage when most laws seem fairly well settled and serve very specific purposes, may not be the best idea.
Strengthening our institutions and ensuring strict implementation of our existing environmental laws is the key. Self-certification will definitely help improve accountability and we already have laws where this is being provided for. Change is the only constant though it may not be imminent in so far as our environmental law statutory framework is concerned. The key is not really consolidation but an effective and transparent implementation and interpretation of the existing laws to ensure that they serve the purpose for which they were originally enacted.
This article was originally published in The Times of India on 06 April 20221 Written by: Nawneet Vibhaw, Partner. Click here for original article
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