National Green Tribunal: Jurisdiction and Procedure to file a Complaint

By Nevin Clinton

What is the National Green Tribunal?

The National Green Tribunal (NGT) is a body that was set up through the National Green Tribunal Act, 2010 to deal with cases relating to the environment. The NGT is a specialized body that focuses on effectively and quickly dealing with such cases. The Central Government stated that the tribunal would look into cases on “environment protection, conservation of forests and for seeking compensation for damages caused to people or property due to violation of environmental laws or conditions specified while granting permissions.”

While cases that are filed in the usual forums like courts would take years to settle, filing complaints at the NGT would see a resolution in less than 6 months. This is because the NGT is mandated to dispose of cases within 6 months of filing. 

What is the NGT’s structure?

The NGT has a chairperson, judicial members and expert members who will be appointed for a five-year term (there won’t be reappointment). The Chairperson will be appointed by the government with the consultation of the Chief Justice of India. The other members will be selected by a specialized committee. The NGT has a total of five places of sitting – New Delhi, Chennai, Kolkata, Pune and Bhopal.

Jurisdiction of the NGT

The NGT has jurisdiction over cases where there is a ‘substantial question’ relating to environmental protection or enforcement of environmental rights involved. Cases under statutes like The Water (Prevention and Control of Pollution) Act, 1974, The Forest (Conservation) Act, 1980. The Air (Prevention and Control of Pollution) Act, 1981. The Environment (Protection) Act, 1986, and The Biological Diversity Act, 2002 can be filed. The NGT can also act as an appellate body when an order is issued under the aforesaid acts. It is noteworthy here that cases under the Wildlife (Protection) Act, 1972 and the Indian Forest Act, 1927 can’t be filed at the tribunal.

The NGT can provide remedies like restitution, compensation, penalties like imprisonment and fines etc. The tribunal’s decision can be appealed at the Supreme Court within 90 days of the communication of the order. 

Now, in a recent development, the question as to whether the NGT can take suo moto cognizance of a case without the filing of an application has arisen. The Supreme Court is set to decide on the matter very soon

Filing an offline complaint at the NGT

The process to file an offline complaint at the NGT is fairly simple. One has to just visit a tribunal office and fill in the application form for a complaint. Petitions in the form of written letters are also accepted. If one is filing a case which is not seeking compensation, Rs. 1000 must be paid as a fee. If the case involves compensation, one percent of the same (or a minimum of Rs. 1000) must be paid.

How to file a complaint online at the NGT?

The steps to file a complaint online at the NGT are as follows

  • Go to the online portal of the NGT (https://ngtonline.nic.in/efiling/mainPage.drt).
  • Click on ‘Applicant Corner’.
  • Sign up as an individual/advocate/institution or sign in if you’re already a user.
  • You will require a document as ID Proof that you must upload as a picture or PDF.
  • After signing in is done and you’ve agreed to all terms, go to ‘petition filing’ and fill up your details following which a reference number will be given.
  • Then details on yourself and the respondent will be required.
  • Finally you must fill in details about the complaint and you will be required to submit documents to prove your point.
  • Once you fill them up, you will get a preview of your application which you will have to confirm.
  • Finally, you will be directed to the payment section where payment can be done online.
  • Once the complaint is filed, you will also be able to track your complaint’s status through the ‘Track Complaint’ option.

Conclusion

The NGT is a body that is of paramount importance as it helps in quick disposal of cases in what is a hugely crucial area of law – environmental protection. While there are a few challenges that face the tribunal, the NGT has been instrumental in passing key orders and its role will only continue to become more and more marked as time goes on. Therefore, the general public must be given maximum awareness of the existence of such a body as well as the procedures involved in filing a complaint – both offline and online. 

THE EFFECT OF ENVIRONMENTAL PROTECTION LAWS IN INDIA

Author: Atrayee De, Lawfarm Intern

Introduction

The protection of the environment has assumed an even more prominent position in the recent times with the rapid industrialization resulting not only in the over use of  our limited natural resources but also causing the pollution of such natural resources which include – air, water, flora and fauna. While development is an essential predominant factor to every economy, it is also equally important that no irreparable damage is caused to the natural eco-system. It is therefore the approach of ‘sustainable development’ that is used to balance the exigencies of the industrial growth against the tradeoffs in the environmental concerns.

Concept of Sustainable development

The concept of ‘sustainable development’ was for the first time highlighted at the United Nations Conference on the Human Environment held at Stockholm in June, 1972. Since then, various countries such as Japan, US, France, Germany, etc. besides India, have enacted  several legislative measures for the protection of the environment which includes measures such as  introducing  several strict penal measures for  the damages caused due to the  hazardous substances, etc.

Legal Mechanism for Protection of Environment in India

 Even though the Indian Penal Code, 1860 contains  several penal provisions for corrupting or fouling the water or spring or reservoir so as to make it less fit for the purposes for which it is ordinarily used as well as for vitiating the atmosphere so as to make it quite noxious to the health of any person etc.

There are however a number of other Central and State laws covering the boilers, dangerous drugs, radiation, forests, etc  which were enacted during the middle of the 20th century, however we find that  the legislative and administrative measures directed specifically at protection of the environment were only  introduced in the 1970s and 1980s.

The five-year plans and the various Industrial Policies also devoted attention to the orderly development of industries, the conservation of forests, its resources, the urban and rural water supply and sanitation, health, and environment with considerable stress on the development of industries in  the backward areas  so as to ensure that a balanced regional development is maintained. Though no specific attention was paid to the control of pollution problems.

 However, we find that the Industrial Policy Statement of 1980 has laid emphasis on the pollution control measures, and preservation of ecological balance. The locational policy adopted by the Government also had quite a beneficial impact on the balancing of the regional development and reducing the environment pollution in all the highly industrialized areas.

The Water (Prevention and Control of Pollution) Act was enacted in 1974 and the Air (Prevention and Control of Pollution) Act was passed by the Union of India in 1981, both of which essentially was formulated to give effect to the decisions taken at the International Conference on Human Environment at Stockholm in 1972, where the declaration promulgated man’s fundamental right to live in a pollution-free atmosphere and his responsibility to protect and improve the environment.

 In 1980, a committee was set up for reviewing and recommending the legislative measures and administrative machinery for ensuring that environmental protection could be reduced and on its recommendations, the Department of Environment was set up which immediately became a part of the Ministry of Environment and Forests in January, 1985.

This Ministry was set up mainly to act as the focal point for the planning, promotion and co-ordination of environment and forestry programs for environmental protection. The issues of pollution control and environment protection assumed enormous importance after the ‘Bhopal Gas Tragedy in December, 1984 in which several people lost their lives or even became permanently handicapped following the MIC gas leak in the Union Carbide Plant at Bhopal.

In 1986, the Government has enacted the Environment Protection Act to provide for the protection and improvement of environment and for the prevention of hazards to human beings, the other living creatures, plants and property.

 

The Environmental Protection Act, 1986

The Act come into force on 19.11.1986 and it extends to the whole of India. The Act affixes responsibility on the persons carrying on industrial operations or handling hazardous substances to comply with certain safeguards for the prevention, control and abatement of environmental pollution and also enjoins upon them the responsibility to furnish certain information to the authorities in certain cases.

The Central Government has been granted  several general powers for taking all the  necessary measures for protecting the quality of the environment, for laying down standards for emission or  for the discharge of environmental pollutants, and safeguards for prevention of accidents and in respect of handling of the  hazardous substances, requiring persons to furnish certain information, issuing directions to persons, including  planning nationwide pollution control programs and coordination of the actions of  the various agencies and authorities etc.

Offences by Companies

Section 16 deals with the offences by the companies and also provides that where any offence has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, and the company itself, shall be deemed to be guilty of the offence and shall be liable to be proceeded against.

 When an offence has been committed by a company, and it is proved that the offence was committed with the consent or with the connivance of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officers shall also be deemed to be guilty of that offence and shall be also liable to be proceeded against and punished accordingly. 

Penalties

Section 15 makes it clear that on contravention of any of the provisions of the Act or any rules made or, orders, directions issued thereunder, punishable with imprisonment up to 5 years or with fine up to Rs. 1 lakh or with both. An additional fine of Rs. 5,000 would also be also leviable for every day of continuing default.

Sub-section (2) of Section 15 further provides that where such contravention continues beyond a period of one year from the date of conviction, the offender shall be punishable with imprisonment up to seven years.

 Provision for the Requirement of an  Environmental Audit

Rule 14 of the Environment Protection Rules, 1986 inserted w.e.f. 13.3.1992 provides for the submission of an environmental audit report. Accordingly, every person carrying on an industry, operation or process requiring consent under Section 25 of the Water (Prevention and Control of Pollution) Act or Section 23 of the Air (Prevention and Control of Pollution) Act or both or authorization under the Hazardous Wastes (Management and Handling) Rules, 1989 is  therefore required to submit an environmental audit report in Form V (inserted in the Rules) for the financial year ending on 31st March every year on or before the 15th of May, beginning 1993 to the concerned State Pollution Control Board.

 The Liability for Causing Environmental Pollution

The act promulgates the liability for causing pollution, whether the pollution is caused by individual or by a corporation, such causing may be civil or criminal. Civil liability refers to what is commonly known as tortious liability.

 A tort is a civil wrong for which the ordinary remedy is damages. When the duty breached by the wrong-doer is not one owed to any particular person but owed to all persons in general who are likely to be affected by the particular wrongful conduct. Of the various species of torts, the tort of negligence is the most directly related tort in the field of pollution. Sometimes the tort is also applicable in case of pollution may be that of public nuisance. 

The pollution laws at present, are so predominately stringent that non-conforming factories may be asked to even close down. The laws further provide that where a State Pollution Control Board does not act in a particular case, the Central Pollution Control Board shall take all of such suitable action in the matter as may be prescribed. The enlargement of the powers of the Central as well as the State Board has not been all that welcome to the industrial sector.

Industry circles feel that the liability under the Environment Protection Act is rather quite of an absolute liability in the sense that any person directly in charge of and responsible for conducting the affairs of the company shall be deemed to be guilty and shall be liable to be proceeded against and punished for an environmental offence, thus making a significant departure from the traditional principle of mens rea, and therefore shifting the onus of ‘no-guilt’ on the person concerned.

 

 

Sources:

http://envfor.nic.in/legis/env/env1.html

http://www.scirp.org/journal/jep/

http://www.gazprom.com/nature/environmental-protection/#land

http://www.icao.int/environmental-protection/Pages/default.aspx

 

 

 

 

Environmental Regulations that a Company needs to follow: Part II

ENVIRONMENTAL REGULATIONS CONTD…

 

Public Consultation [Para 7 (i) (III) and Appendix IV of the notification]

It comprises the concerns of locally affected person and others having plausible stake in the environmental impacts of the project. This has to be undertaken by all the projects in the Category ‘A’ and ‘B1’; with the following exceptions:

  1. Modernization of irrigation project.
  2. Expansion of roads and highways not involving acquisition of land.
  3. Projects concerning National Defence etc.

Public consultation mainly comprises of two components:

  1. Public hearing at the site or at its close proximity in manner that has been prescribed in Appendix IV.
  2. Obtain response in writing from other concerned persons having a plausible stake in the environmental impact from the concerned project or activity.

Public hearing

  • To be held at the site of the project or in close proximity of the project.
  • Conducted by the State Pollution Control Board [SPCB]
  • Manner prescribed in the Appendix IV.
  • Forwarded to the regulatory authorities within forty five days.

If SPCB is not able to conduct the public hearing then the regulatory authority will engage some other public agency within a period of 45 days. If the appointed public agency is also not able to hold the public meeting, it will report the facts in detail to the concerned regulatory authority, which may decide that public consultation in that particular case is not required.

For obtaining responses from the concerned persons having a plausible stake, the regulatory authority will be inviting responses from such concerned persons by placing the summary of the EIA report on their website within seven days of the receipt of the request seeking public hearing.

After public consultation is completed, the applicant will address all the environmental concerns and will make appropriate changes in the draft EIA and Environment Management Plans [EMP]. The applicant will finally submit the report prepared to the concerned regulatory authority for appraisal.

 

 

 

Appraisal [Para 7 (i) (IV) and Appendix V of the notification]

In this a detailed scrutiny of the application, final EIA report, outcome of the public hearing is scrutinized by the EAC or SEAC, as the case may be. The procedure related to appraisal has been mentioned in Appendix V of the notification.

In order to apply for appraisal, the applicant needs to apply to the EAC or SEAC, as the case may be, through a simple communication and needs to enclose the following document:

  1. Final EIA Report [20 hard copies & 1 soft copy]
  2. Copy of the video tape or CD of the public hearing proceeding
  3. Final layout proceeding [20 copies]
  4. Project feasibility report [1 copy]

The scrutiny of the documents will be done within 30 days from the receipt of the application. The appraisal shall be made by EAC or SEAC in a meeting whose date will be informed to the applicant 15 days prior to the meeting. The applicant can be present personally or by way of an authorized representative to furnish necessary clarifications. The EAC or SEAC will give categorical recommendation in which it will have to mention the reason for either granting or rejecting and will also have to mention terms and conditions, if any. The process of appraisal needs to be completed within sixty days of the receipt of the final EIA report.

 

Grant or Rejection [Para 8 of the notification]

Once, pre-clearance is over, the EAC or SEAC, as the case may be, will send its recommendation to the concerned regulatory authority who in turn will convey its decision to the applicant within forty five days of the receipt of the recommendations and will grant the pre-clearance if the regulatory authority agrees and accepts the recommendations of the EAC or SEAC.

If it disagrees with the recommendation it will request the EAC or SEAC, whoever concerned, to reconsider the recommendation by stating the reason for the disagreement within 45 days of receiving the recommendation. The information about the same will be conveyed to the applicant. After this, EAC or SEAC, as the case may be, will furnish its view within 60 days. Then the new view and recommendation will be sent to regulatory authority. After receiving it, the regulatory body will decide whether the clearance has to be given or not. The decision of the regulatory body will be final and it will be communicated to the applicant within next 30 days.

In case, the decision is not communicated within the prescribed period, the applicant can proceed as if the clearance sought has been granted or denied in terms of the final recommendations of the EAC or SEAC.

If there is a deliberate concealment or submission of false or misleading information or data by the applicant which is material information, the application will be liable to rejection.

If the fact about deliberate concealment or submission of false or misleading information or data by the applicant material to screening, or scoping, or appraisal, is discovered after the grant of the clearance, the clearance will be liable for rejection decided by the regulatory body after giving the applicant a personal hearing.

 

Validity [Para 9 of the notification]

After the period of validity is over, the grant of pre-clearance will expire and the industry will have to take the clearance again by following the above mentioned procedure. The following table gives the period for which the pre clearance will be valid with respect to the projects:

                                                                

Sl. No.

Project/ Activity

Period

01.

River Valley Project

10 years

02.

Mining Project

30 years

03.

Area Development Projects

05 years

04.

Other Projects

05 years

 

The above mentioned period for the specific project or activity can be increased by the concerned regulatory authority for a maximum period of 5 years provided that the applicant applies for the same by applying within the validity period by way of an application with which he will need to annex the updated Form 1 and Supplementary Form 1A.

 

Other Environmental Regulations

Rule 3 of the Environment Protection Rules, 1986 prescribes certain limits on the emission of certain particulate for the purpose of protecting and improving the quality of the environment and preventing and abating environmental pollution. The standard for the discharge has been mentioned in a tabular form in the Schedule of the EP Rules. Section 8 of the EP Act directs that the person handling any hazardous substance will have to act in accordance with the procedure prescribed under the Rule 13 of the EP Rules.

Penalty

The penalty under the EP Act for contravention of any of the provision of the Act or in the Rules or in the direction issued by the government has been divided into three categories:

  1. Individual
  • Punished with an imprisonment for a term which can extend to 5 years with a fine which may extend to 1 lakh rupees or both.
  • If the contravention continues or extends, an additional fine will be levied on the person which may extend to five thousand rupees for every day.
  • If the contravention continues for a year and in that case the offender shall be punished with imprisonment for a term which may extend to 7 years. [Section 15]
  1. Company
  • Every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be punished accordingly.
  • If the offence that has been committed by the company and with the consent of any director or manager or other officer, then they shall also be deemed guilty and there will be a proceeding against them and they will be punished accordingly. [Section 16]
  1. Government Department
  • The head of the department will be deemed to be guilty and shall be punished accordingly. [Section 17]

 

 

Sources:

  1. The Environment Protection Act, 1986 available at http://envfor.nic.in/legis/env/env1.html last visited on June 30, 2016
  2. Notification dated September 14, 2016 available at http://envfor.nic.in/legis/eia/so1533.pdf last visited on June 30, 2016
  3. The Environment Protection Rules, 1986 available at http://www.moef.nic.in/sites/default/files/fellowships/THE%20ENVIRONMENT.pdf last visited on June 30, 2016
  4. Environmental Regulation available at http://www.archive.india.gov.in/business/starting_business/environment_laws.php last visited on June 30, 2016
  5. National Environment Policy, 2006 available at http://www.moef.gov.in/sites/default/files/introduction-nep2006e.pdf last visited on June 30, 2016.
  6. Pollution Standards available at http://dpcc.delhigovt.nic.in/down/standards.pdf last visited on June 30, 2016.

 

Image Credits: https://www.linkedin.com/pulse/total-cost-eus-new-environmental-regulations-steel-us-roman-kucinskij

Environmental Regulations that a Company needs to follow: Part I

Environmental Regulations that a Company needs to follow

Introduction

“A nation that destroys its soil destroys itself. Forests are the lungs of our land, purifying the air and giving fresh strength to our people”

—Franklin D. Roosevelt

Everything that surrounds us includes the environment in which we live in. As defined in Section 2(a) of the Environment (Protection) Act, 1986 [EP Act]; environment includes water, air and land and the inter-relationship which exists among them and human beings, other living creatures, and property. When there is presence of pollutant in the Environment it causes Environment Pollution and degrades the quality of the environment.

To ensure that the environment of which we are a part is not degraded because of pollution, several laws were enacted after the Stockholm Conference. Before this conference, Indian Constitution under Article 48A directed the State to take steps in order to ensure that the environment is being protected and the condition of the environment is improving. In India, Ministry of Environment and Forest [MoEF] is the apex administrative body for:

  1. Regulating and ensuring environmental protection.
  2. Formulating the environmental policy framework for the country.
  3. Undertaking conservation and survey.
  4. Planning, promotion, co-ordination and overseeing implementation of environmental and forestry programmes.[i]

The Indian legislation has also enacted several legislations in order to ensure that the environment is being protected and the Environment Protection Act, 1986 is the umbrella legislation. The other legislations are pollution specific.

 

Authority

Section 3 of the EP Act gives power to the Central Government to take measures for the purpose of protecting and improving the quality of the environment. Under Section 3(3) it has the power to establish an authority or authorities for the purpose of giving directions and take necessary steps to ensure that the environment is being protected and for that the Central Government has established State Environment Impact Assessment Authority [SEIAA] which is responsible for giving clearance to the project or the activities at the State Level, while at the Central level it will be given by the Ministry of Environment and Forest. [Para 3 of the Notification] For the purpose of giving clearance to any project or activity, the SEIAA as well as the Central Government in the Ministry of Environment and Forest will constitute an Expert Appraisal Committee [EAC] on whose recommendation the clearance to the project will be given. [Para 4 of the Notification]

 

Clearance

In order to start an industry, it is required to take clearance from the concerned authorities established by virtue of this Act. The clearance has to be taken prior to the establishment of the industry. A notification about all the details related to Environment Clearance was published in the Gazette of India on September 14, 2006. This notification gives all the details that are required to be known to an industry in order to follow the environmental regulations.

 

Who Needs Clearance?

Para 2 of the Notification says that the following projects will be required to get clearance from the concerned authority before any construction work or preparation of land on the project or activity:

  1. All new projects listed in Schedule of the notification
  2. Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization
  3. Any change in product – mix in an existing manufacturing unit included in Schedule beyond the specified range.

In the Schedule, the projects are divided into two categories. If the project or the activity falls under Category A of the Schedule, the clearance has to be taken from the Central Government and if the project or the activity falls under the Category B of the Schedule, then the clearance has to be taken from the SEIAA.

 

How to Apply? [Para 6 of the notification]

If the industry or the company falls within the ambit of the Schedule, then it needs to apply for prior environmental clearance to the concerned authorities. For the purpose of applying, the applicant has to write an application in accordance to the prescribed form which has been provided in the notification [Form 1]. If the Supplementary form [Appendix II] is required then it has to be attached along with the application form. Along with the application in the prescribed form, the applicant will also have to furnish

  1. A copy of pre-feasibility project report except in the case of construction projects.
  2. In case of construction project, a copy of the conceptual plan.

 

Stages in pre-clearance [Para 7 of the notification]

There are maximum four stages that are involved in pre clearance and they are:

  1. Screening
  2. Scoping
  3. Public Consultation
  4. Appraisal

The Expert Appraisal Committee at the Central level and the State EAC at the State level will screen, scope and appraise the projects. The composition of the EAC is given in Appendix VI of the notification and they will meet once a month. EAC and SEAC will be re-constituted after every three years. [Para 5 of the notification]

 

Screening [Para 7 (i) (I) of the notification]

The industries that need pre-clearance has been categorised in two categories in the Schedule. Screening is needed only for those projects or activities that are mentioned in the Group B of the schedule. The purpose of screening is to determine whether or not the project or activity for which pre-clearance has been sought requires any further environmental studies for preparation of Environmental Impact Assessment [EIA] prior to the grant of environmental clearance. This scrutiny will depend on the nature and location of the project. In case the project required further environmental studies, it will be termed as category ‘B1’ in the EIA report and the rest will be termed as ‘B2’ and it won’t be requiring an EIA report.

 

Scoping [Para 7 (i) (II) of the notification]

Scoping is the process by which the EAC or SEAC, as the case may be, for category ‘A’ and ‘B1’ respectively determine detailed and comprehensive Terms of Reference [TOR] in which it addresses all the relevant environmental concerns related to that particular project or activity for which the prior environmental clearance has been sought. The terms of reference will be determined on the basis of the information furnished in the prescribed application or if required, a sub-group of EAC can also visit the site concerned.

The Terms of Reference (TOR) has to be conveyed to the applicant within sixty days of the receipt of the application. In case, the terms of reference has not been conveyed by the EAC then the TOR suggested by the applicant will be deemed as the final TOR approved by EIA.

Once approved, the TOR will be displayed on the MoEF website as well as on the concerned SEIAA website. In case, the application is rejected, the news about the same along with the reason of rejection will be sent to the applicant within sixty days of the receipt of the application.

 

The last two stages of pre clearance, validity and penalties has been discussed in the second part of the Blog.

 


End Notes:

[i] http://www.archive.india.gov.in/business/starting_business/environment_laws.php last visited on June 30, 2016.

Sources:

  1. The Environment Protection Act, 1986 available at http://envfor.nic.in/legis/env/env1.html last visited on June 30, 2016
  2. Notification dated September 14, 2016 available at http://envfor.nic.in/legis/eia/so1533.pdf last visited on June 30, 2016
  3. The Environment Protection Rules, 1986 available at http://www.moef.nic.in/sites/default/files/fellowships/THE%20ENVIRONMENT.pdf last visited on June 30, 2016
  4. Environmental Regulation available at http://www.archive.india.gov.in/business/starting_business/environment_laws.php last visited on June 30, 2016
  5. National Environment Policy, 2006 available at http://www.moef.gov.in/sites/default/files/introduction-nep2006e.pdf last visited on June 30, 2016.
  6. Pollution Standards available at http://dpcc.delhigovt.nic.in/down/standards.pdf last visited on June 30, 2016.

 

Image Credits: http://www.southernfriedscience.com/do-environmental-regulations-harm-the-economy/

National Green Tribunal: What is it?

The working of National Green Tribunal

Introduction

In order to ensure that the cases related to environmental protection are being effectively and expeditiously disposed, the National Green Tribunal [NGT] was established under the National Green Tribunal Act, 2010.[i]

 

Composition

As per the Act, the tribunal has a Chairperson and judicial members along with expert members in the range of ten to twenty [Section 4].

 

Jurisdiction

Original

The jurisdiction of the tribunal extends to all the civil cases wherein the substantial question is related to the environment and the question arises out of the implementation of any of the enactments that are mentioned in Schedule I of the Act. The limitation as prescribed in the Act for entertaining an application for adjudication of the dispute is a period of six months. [Section 14]

 

Appellate

The Tribunal also has an appellate jurisdiction in the case where any person is aggrieved by any order or decision of the Tribunal passed under following sections of their respective Acts:

 

Sl. No.

Section

Act

01.

Section 28

Water (Prevention and Control of Pollution) Act, 1974

02.

Section 29

Water (Prevention and Control of Pollution) Act, 1974

03.

Section 33A

Water (Prevention and Control of Pollution) Act, 1974

04.

Section 13

Water (Prevention and Control of Pollution) Act, 1974

05.

Section 02

Forest (Conservation) Act, 1980

06.

Section 31

Air (Prevention and Control of Pollution) Act, 1981

07.

Section 05

Environment (Protection) Act, 1986

Apart from the table given above, the tribunal also has appellate jurisdiction in the matter wherein the grievance is related to the grant or rejection of pre-clearance under Environment (Protection) Act, 1986. [Section 16]

Procedure

Who can Apply?

As per Section 18 of the Act, the application can be made by any of the following:

  1. The person who sustained the injury
  2. The owner of the property to which the damage has been caused.
  3. In case a person has died, the legal representative of the deceased.
  4. Any aggrieved person
  5. Central Government or State Government or SPCB or CPCB or any local authority or any environmental authority established under Environment (Protection) Act, 1986.

 

How to Apply?

Section 18 of the NGT Act, directs that the application for any appeal or for solving any dispute concerning environment will be made in the prescribed procedure and the procedure for the same has been prescribed in National Green Tribunal (Practices and Procedures) Rules, 2011 [NGT Rules].

As per Rule 8 of the NGT Rules, the application to the Tribunal has to be in the manner as prescribed in Form I and will be presented to the Registrar and in case the application has to be filed under Section 15 of the Act, the prescribed form will be Form II.

The application has to be submitted in three copies wherein the copy must have two compilations:

  1. Application or appeal, as the case may be, with impugned order, if any;
  2. All other documents and annexures that are referred in the application. [Rule 8]

In case there is any defect in the application, the Registrar shall notify in Form V on the Notice Board of the Tribunal fixing a time for rectifying the defect. [Rule 10]

Rule 13 of the NGT Rules further gives us the format of the application wherein it has been mentioned that the typed application has to be typed in double space on one side of the paper.

 

Time Limit

The Tribunal has been established with the objective that the dispute will be resolved expeditiously and hence as per the Act, the Tribunal will try to dispose of the application or the appeal as the case may be within six months from the date of filing of the application or appeal. [Section 18 (3)]

 

Power

The Tribunal for the purpose of discharging its function has the same powers as are vested in the civil court under Code of Civil Procedure, 1908. Further, the Tribunal isn’t bound by any procedure of Indian Evidence Act, 1872. [Section 19]

 

Appeal

In case a person is aggrieved by the order of the Tribunal, an appeal can be filed in the Supreme Court within 90 days from the date of communication of the award. [Section 22]

 

Penalties

In case of any dispute regarding the penalty imposed by the pollutions boards, the matter can be referred to NGT and then accordingly the sentence will be passed. As per the Act, NGT has the power to pass any order that provide relief or compensation in accordance with the Act given in the Schedule I of the Act. Apart from that, the Tribunal can ask the offender for restitution of the property damaged or the environment that has been affected. Further, the Tribunal after regarding the damage to the public health, property and environment can ask the offender to provide compensation to the claimants. [Section 15]

In case a person doesn’t comply with the orders of the Tribunal, the offender will be punishable with imprisonment and the term can extend to three years or with  fine which can extend to ten crore rupees or both. In case the contravention continues, additional fine per day will be levied on the offender which may extend to twenty five thousand. In case, the offender is a company, then fine can extend to twenty five crore and in case the contravention continues, additional fine per day will be levied on the offender which can extend to one lakh rupees. [Section 26]

 


[i]http://www.advocatekhoj.com/library/bareacts/nationalgreen/index.php?Title=National%20Green%20Tribunal%20Act,%202010 last visited on June 30, 2016.

 

Picture Credits: http://www.deccanchronicle.com/150522/nation-current-affairs/article/green-tribunal-stops-work-bio-methanation-plant

Turning the Heat Down

From Lima to Paris:

Global warming has been on the rise. Many fear that the implementation of the 2° C limit of temperature rise that was set in the Cancun summit in 2010 might not be realised any time soon if the global participation continues to be minimal and ineffective.

This fear was confirmed when the 20th Conference of Parties (COP 20) to the United Nations Convention on Climate Change (UNFCCC) was held during 1-12 December last year[1]. The COP was held in the Peruvian capital, Lima and was attended by a host of delegates from across the world. The Lima Conference was supposed to roll out a basic architecture for the crucial COP 21 in Paris scheduled to be held in December this year. However, despite the sprawl and the pomp that usually accompanies any international conference, the corpus failed to arrive at a comprehensive binding climate change agreement and fell short of safeguarding in concrete terms any of the goals laid out in its agenda.[2]

The primal aim of the agreement that is sought to be ready by the time COP 21 takes place, is “another protocol”, that is, another legal instrument or an agreed outcome with legal force under the UNFCCC. The purpose of the protocol as expounded by the phraseology used in the decision of COP 17 (2011) in Durban—is to limit carbon emissions from all countries in order to prevent the globe from breaching the guardrail temperature increase of 2° C by the turn of the century, a limit arrived at in the Cancun summit in 2010. An Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP) was created in 2011 in pursuance of this goal.[3] Its mandate involved framing a protocol that would be put to vote in Paris and would enter into force in 2020. If there was any misplaced hope that COP 20 in Lima would take forward this task of creating a formal and satisfactory legal structure to achieve the goal laid out in Durban, it was belied.

The phrase "another protocol" is a reference to the only binding international treaty on cutting down carbon emissions that has hitherto been in place, that is, the Kyoto Protocol. It was framed in 1997 and entered into force in 2005, and its provisions and targets were based on some fundamental tenets of  UNFCCC, which required parties to protect the climate system for present and future generations, by adhering to the principles of CBDR (Common But Differentiated Responsibilities).

CBDR in essence means that all countries share a common responsibility of averting dangerous climate change; yet this responsibility is differentiated by capacity (technologically and financially) of several countries. Hence, developed countries have a greater responsibility to mitigate the effects of climate change, as they are primarily responsible for causing it and they have the capacity (greater than developing countries) to develop clean technology, to focus on cutting down emissions rather than development and helping developing countries to pursue sustainable development.

Accordingly, the Kyoto Protocol was organized such that member states were divided into Annex I (developed) and non-Annex 1[5] (developing) countries. While the former were required to commit to binding emission cuts with respect to their 1990 emission levels, the latter were not. The first commitment period ended in 2012, wherein many countries failed to meet their respective targets except for those in the European Union (E.U.), which in fact over-achieved their targets. The COP 18 Summit in Doha, 2012 recommended a second commitment period which would run up to 2020.[6] It was recommended therein that a second round of binding reduction targets ought to be imposed on 37 countries, based on historical and present-day levels of emissions. This round would act as a precursor to the major 2020 phase commencing in Paris, such that the 2° C goal could be attained in the long run.

The USA, which usually surges to get take leadership on any global issue, has in fact been the cog in the wheel when it comes to the global climate change regime. Despite being the second highest carbon emitter in the world, the USA has consistently rejected any binding commitment on the subject. It repudiated the Kyoto Protocol, which was then followed by many developed countries who also argued on the US lines that they would not accept binding commitments unless major emitters among the developing countries accepted likewise. In essence, developed countries do not wish to accept their historical responsibility of being the major cause of the present global warming and are against this differentiated emission reduction targets mandated by the protocol.

The developing bloc under the leadership of China and India has been arguing for differentiated standards for rich and poor countries, while the developed bloc has been pulling in the exact opposite direction. Therefore, for all practical purposes, the parallel exercise at climate summits to arrive at further commitments for exclusively Annex 1 countries has lost all its meaning. At Lima, too, there was not much headway on this front, and the protocol hangs in limbo today. Hence the principle of common but differentiated responsibility has been severely weathered down, thanks to the USA.

New Phraseology:

A new trend has developed since the developed versus developing bloc showdown in COP 15 (Copenhagen) in 2009. A bottom-up approach of “pledge and review” of mitigation commitments, based on voluntary emission reduction pledges made by countries, has arguably displaced the top-down legally mandated approach a la the Kyoto Protocol. The top-down approach wherein developed countries were mandated to commit to a minimum emission cut of 5% and anything above that voluntarily, was based on the principles of the convention and on what science says about emission pathways that the world needs to adopt to avoid exceeding the 2° C temperature rise limit. The new phrase in the negotiations glossaries that characterises this trend is known as “intended nationally determined contributions (INDCs)”, a term that was adopted in the COP 13 (Warsaw) in 2013.

As a result, the nature of the new protocol that delegates hope to finish drafting by COP 21 in Paris will be largely INDC-centric. It forms the core mitigation element in the draft text for the Paris negotiations and a complete abandonment of the common but differentiated standard.[7] It still remains a question as to how the principles of equity and common but differentiated responsibility will be incorporated in the bottom-up-pledges-driven approach. Further, the Kyoto involved not just mitigation (emission cuts) but also adaptation, capacity-building, technology transfers from developed to developing countries (under the Clean Development Mechanism).[8] In the several COPs of the past, there has been contentious disagreement over the scope of INDCs. Developed countries wanted the scope of INDCs to be restricted to mitigation, while developing countries wanted the INDCs to include the related elements of financial contributions and technology transfer to assist them in their mitigation and adaptation actions in the post-2020 period.

Other controversial issues

Apart from the scope of INDCs, several issues regarding the new protocol remain either completely unaddressed or lacking consensus among member states. For instance, the issue of financing for the post-2020 period,[9] the inclusion of the issue of the “international mechanism for loss and damage” to least developed countries (LDCs) and vulnerable countries due to climate change,[10] which was mandated a COP 19 decision. In a similar vein, some developed countries (mainly among the EU) proposed a system for assessment and review of the INDCs by mid-2015;[11] this was to be done so as to see whether the mitigation commitments would in fact limit the temperature rise to below 2° C. The EU wanted the 2015 agreement to have a mechanism that allowed a revisit of the collective mitigation potential.

But these proposals were rejected by developing countries. They argued that an  assessment regime was beyond the Warsaw Mandate and therefore  did not need to be done under the convention. It was further argued that such an assessment might result in the developing countries being brought under greater pressure to enhance their commitments. As a result, the Lima Conference ended in a botched and hurried compromise agreement with many countries pulling in opposite directions instead of working together.

Commitments made by major emitters leading up to COP 21

The commitment of several countries toward climate change mitigation can be fairly gauged by their INDC targets. Unfortunately, the respective announcements of these two largest carbon emitters of the world, who account for nearly 44 per cent of global carbon emissions (China 27 per cent, the U.S. 17 percent) amount to only marginal improvements over their earlier stated positions. These will barely have any substantive impact on the long-term prognosis of climate change. China recently announced in a bilateral deal with the USA that its carbon emissions would “peak” around 2030 and that it would endeavour to cap emissions even earlier. It also announced that renewable energy would account for a 20% share of all energy produced. The US, on the other hand, declared that it would cut its emissions by 26-28% by 2025 relative to 2005, which is more than what it declared in Copenhagen in 2009 and in Cancun in 2010.

Although the US never embraced the Kyoto Protocol, the US did in fact meet its target in 2012. The US has been pushing for clean technology within its borders, however not with the same kind of vigour that is seen in the EU. Further, China’s declaration of a peak year, to which it had been steadfastly opposed until a few years ago, is new and extremely welcomed. However, a peak year between 2020-25 would have been an even more significant contribution on China’s part in the pursuit of limiting global emissions to 2° C. More pertinently, the rate of increase towards the peak, when the decline would start, and the rate of decline have not been indicated. The Chinese declaration does indicate a possible earlier peaking year; perhaps one has to wait until China announces its INDCs to see whether they are ready to hold themselves to more ambitious targets than indicated in the bilateral deal.

Given its track record, the EU’s declaration of its INDCs is meaningful and reasonable. It has committed a 40% reduction of its 1990 levels by 2030. The indications from other countries such as Japan (whose emissions are likely to significantly increase because of Fukushima), Australia and Canada, whose target is aligned with the 17 per cent reduction target of the US, are, however, hardly encouraging. India, too, has stated that it is working on appropriate INDCs, which it will submit to the UNFCCC sometime this year.[12]

In conclusion, a great deal of doubt and confusion looms large over the Paris Conference later this year. Will delegates engage cooperatively and enter into a deal that will save us from the disastrous effects of climate change? Will the developed and developing blocs reconcile their differences? Will the Paris agreement, (in whatever form it will come through) compromise on the basic tenets of the UNFCC Convention? Many questions need to be answered by the COP 21. One can hope that the Paris Accord is not fraught with lacunae and weaknesses, and that it actually reflects the needs of those who will bear the brunt of climate change to the maximum degree however play no part in its initiation. The turn of this century will bring with it many events, one can only pray that one of them is a deal in Paris that saved the world!

Photo courtesy: http://farrellfile.com/2016/02/poll-91-of-americans-arent-worried-about-global-warming/

………………………………………………………………..

[1] Micheal Jacobs, The Lima Deal Represents a Fundamental Change in the Global Climate Change Regime, The Guardian (December 15, 2014), available at: http://www.theguardian.com/environment/2014/dec/15/lima-deal-represents-a-fundamental-change-in-global-climate-regime

[2] Micheal Jacobs, The Lima Deal Represents a Fundamental Change in the Global Climate Change Regime, The Guardian (December 15, 2014), available at: http://www.theguardian.com/environment/2014/dec/15/lima-deal-represents-a-fundamental-change-in-global-climate-regime

[3] See UNFCCC Bodies, Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP), available at: http://unfccc.int/bodies/body/6645.php.

[4] UNFCCC, Article 3.1.

[5] http://unfccc.int/parties_and_observers/items/2704.php

[6] Famously known as the Doha Amendment. This Amendment has been ratified by only 23 countries (none of which are developed), while the Amendment requires 144 ratifications in order to enter into force.

[7] INDC Submissions of different countries (both developed and developing) building up to the Paris Agreement, available at: http://www.c2es.org/international/2015-agreement/indcs.

[8] INDC Partnerships, available at: http://www.mitigationpartnership.net/intended-nationally-determined-contributions-indcs.

[9] Nordic Council of Ministers, Accounting Framework for the Post-2020 Period, available at: http://climateobserver.org/reports/accounting-framework-for-the-post-2020-period/.

[10] See http://unfccc.int/adaptation/workstreams/loss_and_damage/items/6056.php.

[11] See http://www.cop21makeitwork.com/2014/12/lima-paris-beyond-options-ex-ante-assessment-intended-nationally-determined-contributions-unfccc/.

[12] For a detailed report on the different INDCs and India’s current potential: http://ceew.in/pdf/ceew-india-indcs-re-and-the-pathway-to-p.pdf.

Notice or a Heads up?

a 4th year student of ITMU Law School, Gurgaon

Notice or a Heads up?

 “Water and air, the two essential fluids on which all life depends, have become global garbage cans.” By Jacques-Yves Cousteau

 

As much as the domain of environmental law needs good lawyers to defend it in a court of law it also needs effective statutes. Statutes must serve the ends of justice rather than the purpose of perpetrators.

It is an undeniable fact that mankind is known for its destructive nature, for we are the only animals who hunt, not merely to feed but for greed. Our debauching thirst for development and expansion gave a boom to industrialization. This in turn resulted in production of unfathomable and unmitigated pollutants. We do recognize the fact that these issues are problematic but are unable to perceive their real intensity. Environment legislations serve as sentinels for protection of mankind. However a chain is only as strong as its weakest link. Our sentinels are equipped with loopholes instead of weapons of defense. We definitely need a wakeup call for we sleep a lot.

Who could possibly deny that a forewarned comes forearmed? The saying holds true when we go through the existing provisions of the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974. Current provisions look like handcuffs on the hands of the pollution control authorities. Apparently there is something weird about the existing statutes. It is extremely essential to give a very clear interpretation to the said section to understand the intended purpose and effect of it. Section 21 of the Water (Prevention and Control of Pollution) Act, 1974 focuses on power to take samples of effluents and procedure to be followed in connection therewith. The State Board or any officer empowered by it in this behalf have the power to take, for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well as per the section. The samples so taken are admissible as evidence in a court of law. Sub-section (3) of Section 21 requires the authoritative person to serve a notice before such evidence is to be collected. In simple terms, if the notice is not served the evidence is not admissible. Section 26 of the Air (Prevention and Control of Pollution) Act is more or less the same. Both the provisions happen to be identical in nature.

The crux of the matter is that the authorities are under an obligation to provide a notice in advance to the owner or the person in charge of the industry about such an investigation. So here is what it actually looks like- “Hello Mr. Thief I am a police officer and I am planning to drop by your house in the evening. Please be ready with all the incriminating evidence if any.”

By now you must have started thinking that there must be something reasonable behind the notice, after all the Indian Legislature would not make such a blunder while drafting an environmental legislation. To your surprise, perhaps the only reasoning is that the notice helps the owners/person in charge to facilitate the process. They are in a position to accumulate required documents and arrange for keys to the locks which are otherwise closed. Frankly speaking the rationale behind the serving of the notice is not even close to what we can call adequately reasonable.

The said notice gives enough time to the owners of the premises to make arrangements which ensure that they have complied with the set norms. That is why India is the cleanest country on paper and the most polluted in reality. Effluent treatment is often a costly business which is directly proportional to what one produces. Due to the immense pressure applied by the Supreme Court by virtue of its decisions, industries have been forced to install appropriate effluent treatment instruments/plants. However these plants are not switched on until and unless the pollution control officer is planning to pay a visit. Industry owners find it convenient to discharge their waste untreated as it saves them a few thousands or lakhs of rupees in the form of electricity and raw materials used in effluent treatment. The rest is taken care of by the lawyers of industries who know how to use a poorly drafted statute to their benefit.

We have already seen what happened in the Vellore Citizens Welfare Forum v. Union of India[1] case where untreated effluents were discharged in the Palar river. The river was polluted to the core. Water of more than 300 nearby wells was rendered unfit for drinking. The lands adjoining the Palar were poisoned due to chemicals making them infertile and unfit for any agricultural purpose. Similarly there are hundreds of industries on the banks of the river Yamuna. The appropriate authorities try to keep a constant vigil on these industries. However Yamuna is still being polluted. If you go to the Wazirabad area in Delhi you would be able to see a blend of effluents being discharged into the Yamuna. Despite massive governmental expenditure on cleaning the Yamuna, the status quo prevails.[2] The Yamuna's polluted stretch was about 500 km from Wazirabad in Delhi to Juhika in the downstream reaches of the river near Etawah in Uttar Pradesh, according to CPCB's 2010 data. Central Pollution Control Board (CPCB) revised report says the polluted length of the river has increased from 500 km to 600 km.[3]

The truth is that the Yamuna cannot be restored. The same applies to any other river which has literally been sacrificed in the name of the industries which deal with toxic chemicals. Our laws look more polluter friendly and less environment friendly. The industries near the Yamuna should be re-examined. And this time the authorities can surely use some surprise element. But this is not possible until and unless our legislature thinks about amending the existing regulations.

Section 21 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 26 of Air Act, 1981 are notoriously unreliable and mischievous in nature. These sections offer undue safeguards for the industry owners.  Money minded industry owners use such regulation to the prejudice of the environment and the people at large. The authorities must be empowered to infiltrate the premises of industries at any time they deem fit and proper.

          There is a strong link between the loopholes in the above statutes and continuous polluting of river and air. Had the authorities been empowered to pay surprise visits to industries, several such industries discharging untreated waste would have been caught red handed and prosecuted. But surprisingly they are not empowered with such authority. Their visits to the manufacturing plants are does not bear the desired results.

       The Supreme Court has also expressed its dissatisfaction towards the slow pace of work despite such a big investment in the Yamuna’s case. The Hon’ble bench of Justices Swatanter Kumar and Madan B. Lokur pointed out – “All the agencies have spent crores of rupees. What is the purpose? What work has been done ultimately?” The Bench noted that despite there being as many as 18 sewage treatment plants to treat the effluents; the treated water has “a high rate of pollution”.

          The real question is not whether the Yamuna is being cleaned or not. The million dollar question is whether we will ever stop polluting it. Evidently the water of the Yamuna still contains toxic chemicals. These are fresh chemicals which were not present earlier. Since the city’s sewage and other drainage channels cannot discharge chemicals in the river, suspicion veers towards the industries situated on the banks of the Yamuna. These industries were given a clean chit by the Pollution Control Board. The approvals so granted could have been a result of notices served under Section 21 and Section 26 of the two Acts. If the visits of the officials of the Pollution Control Board were not pursuant to a notice, the result might have been different.

          Despite the strict attitude of the Supreme Court and the Pollution Control Board it turns out that our statutes have severely failed us.  The key to the answer lies in revamping the existing statutes. Our courts have always given importance to public interest over private interest. Private interest in the present case- that of the ‘right to be present while evidence is taken’ must be relaxed against public interest which is ‘right to safe and healthy environment’.  Since the courts have to stick to the letter of the law while deciding cases, it is equally difficult for them to give a beneficial construction to statutes. Let us hope that the wisdom of our authorities revive before the damage caused by hibernated statutes turns our natural resources into garbage cans.

[1]Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715

[2] See http://indiatoday.intoday.in/story/clean-yamuna-mission-fails-panipat-delhi-stretch-most-polluted/1/199976.html; Also see http://www.dailymail.co.uk/indiahome/indianews/article-2156984/Money-river-Rs1-500-crore-spent-cleaning-Yamuna-goes-drain-Panipat-Delhi-stretch-fails-pollution-test.html  as visited on 15/06/2014

[3] Refer Annual Report (2010) of Central Pollution Control Board available at www.cpcb.nic.in

 

Picture Credits: http://www.epd.gov.hk/epd/misc/BusinessGuide/english/section2.html