RECENT DEVELOPMENTS IN ENVIRONMENTAL LAW

1. RECENT DEVELOPMENTS IN ENVIRONMENTAL LAW A FEW REFLECTIONS Dr.M.K.Ramesh Professor of Law NLSIU mkramesh13@gmail.com

2. I.JUDICIARY & ENVIRONMENTAL GOVERNANCE IN INDIA • AT THE CUSP OF TWO MILLENNIA:TRIGGER FOR REFORMING THE LAW, POLICY AND ADMINISTRATION : • Municipal Administration and Waste Mmt.: Ratlam • Harmony and Coordination in the working of different agencies of State: Silent Valley • R & R: Banvasi Seva Ashram • Principle of Absolute Liability: Oleum Gas Leak- PLIA, 1991 • Overarching nature of EPA: CRZ Case • Principles of Precaution, Polluter Pays: Vellore Welfare Forum, M.V.Naidu • Generator’s Liability for safe disposal of Waste: - Enactment of a host of Waste Management Laws • Vehicular Emission Norms- Vehicular Pollution Cases

3. Reforming Forest Governance: Godaverman • Drinking Water and Clean Environment, a derivative of Right to Life:Attakoya Thangal, Subhash Kumar etc. • Levy to restore Ecological integrity: Dahyabhai Solanki • Public Trust- Kamalnath • Obligation to protect Environment, Paramount: Tarun Bharat Sangh • Ecosystem Conservation, Conserving Commons: Nabipur Gram Panchayat, Omprakash Bhatt • Right to Environmental Information, Nature of Public Hearing: Bombay Environment Action Group, Environment Education Case,Centre for Social Justice etc. • Biosafety: Bt Brinjal-Foreshadowed developments of unprecedented kind-public consultations-turf war!

4. II. ENVIRONMENTAL LAW: NEW MILLENNIAL LEGISLATIVE ENGAGEMENTS • A. POLICY FRAME: • National Environment Policy, 2006:- To mainstream Environmental concerns in all development activities- conservation of environmental resources secures livelihood and vice versa • Critique-High on rhetoric and low on actualization – mosaic of ideas- lacks novelty and clear vision – trajectories, vision and direction, confused and muddled • B.ENVIRONMENT & DEVELOPMENT: • EIA Notn.2006: Environmental safeguards to be observed before obtaining clearance for execution of development projects –screening, scoping , public consultation and appraisal- post-environmental clearance monitoring • - Critique:- comparison with 1994 Notn.- changes effected- actual impact

5. C. POLLUTION CONTROL & WASTE MMT.: • Hazardous Wastes and Municipal Wastes- Solid Waste Mmt. Rules- Proposals for Reforming the Pollution Control Law and Admn. –National Environment Protection Agency (NEPA) • D. ECO-SYSTEM CONSERVATION: • Amendments to CRZ Law- CMZ • E. FOREST AND WILDLIFE PROTECTION: • Wildlife Conservation Strategy- Connecting the Dots • The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 - enumeration ofrights and responsibilities- ‘critical wildlife habitats’- Difficulty and problems of implementation

6. F. BIODIVERSITY CONSERVATION , MMT. & BIOSAFETY: • Biodiversity Act, 2002 • Critique: - More of a law to facilitate bio-prospecting and adoption of Contract law principles in sharing benefits derivable from the “green gold”- Bioafety issue handled by GEAC- inadequacy of the arrangement highlighted through Bt. Brinjal Controversy. • G. ENVIRONMENTAL JUSTICE: • National Green Tribunal Act, 2010: -for effective and expeditious disposal of envt.-related cases, enforcement of envt.-related rts. and for providing relief for persons and property for environmental wrongs • Draft Bills and Regulations: Wetlands Conservation, Electronic Wastes etc.

7. III. EMERGING TRENDS • IN LAW-MAKING: • Involvement and virtual take-over by other Ministries and Depts.! : • -Forest Rights Act, 2006 –Tribal Affairs • -Protection of Plant Varieties and Farmers’ Rights Act,2001-Agriculture • -Seeds (Amendment) Bill, 2010- Commerce • -Traditional Knowledge Protection Bill – Human Resource Development • -Biotechnology Regulation Bill, 2010- Sci. & Tech. • IN LAW ENFORCEMENT AND JUSTICE DELIVERY: • Withdrawal of State and Market Take-over!: • Reforms in Water Sector – Independent Regulatory Authorities

8. IV. WAY FORWARD ? ! • Observance of Constitutional Commands: - Environmental Governance, the business of all - State as Public Trustee - Environmental Imperatives to inform, influence and regulate decisions and activities of all institutions of governance - a system of governance that accords paramountcy to conservation, equity and basic human needs and entitlements - Alignment of Brown and Green Laws to conform to the Constitutional Aspirations • Evolving a new legal regime of Commons ?!

9. ROLE OF COURTS IN ENSURING GOOD ENVIRONMENTAL GOVERNANCE ADDRESSING INADEQUACIES & GAPS IN GOVERNANCE FUTURE OF ENVIRONMENTAL PILs

10. A. ADDRESSING INADEQUACIES AND GAPS IN GOVERNANCE AT PRESENT CONFINED TO TIGHTENING AND STRENGTHENING THE INSTITUTIONAL MECHANISM – A CAPACITY-BUILDING EXERCISE , • IN CLARIFYING THE ROLE (- PUBLIC TRUST); • SUPPLYING BETTER TOOLS OF IMPLEMENTATION (- AUTHORIZATION FOR COLLECTION OF CESS FOR ECOLOGICAL RESTORATION ); • ISSUING INSTRUCTIONS AND GIVING DIRECTIONS AND • DEFINING JURISTICTION (-DEFINING FORESTS) ETC. - OF THE ADMINISTRATION

11. THE HIGHER JUDICIARY’S ROLE HITHERTO HAS, INDEED, BEEN REACTIVE – REACTION TO INADEQUACIES , INCOMPETENCY AND GAPS IN ADMINISTRATION . • IT SHOULD BE NOTED THAT ENVIRONMENTAL GOVERNANCE IS NOT CONFINED TO ADMINISTRATION OF THE LAW. IT INCLUDES , CONCEPTUALIZATION AND CRYSTALLIZATION OF IDEA OF GOVERNANCE VISUALIZED AND REFLECTED THROUGH POLICIES AND PROCESSES OF LAW-MAKING, CULMINATING IN LEGISLATIVE ENACTMENTS – MUCH OF THE PROBLEM OF GOVERNANCE MAY BE OWING TO ,

12. “MANUFACTURING DEFECTS” (- POORLY CONCEIVED AND CRAFTED LAWS : SECTORAL LAWS ) • “IRRESPONSIBLE LAW –MAKING” (-“JURISDRICTION-GRABBING EXERCISES”-LAW DRAFTING EXERCISE CARRIED OUT BY MINISTRIES ILL-EQUPPED TO DEAL WITH THE SUBJECT : BIO-TECHNOLOGY REGULATORY AUTHORITY BILL) • “LEGISLATIVE MIOPIA” (- SEEDS AMENDMENT BILL)

13. “LEGISLATIVE INSECURITY” (- JUDGES ACCOUNTABILITY BILL) • “ ABDICATION OF THE CONSTITUTIONAL RESPONSIBILITY OF KEEPING PUBLIC TRUST” (- SPATE OF LEGISLATIONS CREATING REGULATORY AUTHORITIES FOR MANAGING PUBLIC RESOURCES ; ACCESS & BENEFIT SHARING REGIME –”BIO-PIRACY” TO BE MADE “LEGAL” , FOR A “PRICE” !!??) • “LAUDABLE INTENT AND LAMENTABLE PRODUCT”-

14. -“ POOR COORDINATION,NAY, LACK OF ALIGNMENT BETWEEN HEART AND HEAD”-( GREEN TRIBUNAL ACT- Rationale:- Did the Court express inability , in dealing with environmental issues, ever?- Have the Courts talked about their desire of “abdication of” Constitutionally ordained function of rendering justice? Ask for “substitution”, “ replacement”? Wanted a body that would “ pass off “as Courts? - Obviously, none of these- But, we have this new piece of legislation , precisely doing that – Should the Justices , under the circumstances,“react” only when a lis develops?

15. CONFINING ITS CRITIQUE TO AND CORRECTION OF ADMINISTRATIVE FUNCTIONS IS THUS ,TOO NARROW A FOCUS • IMPERATIVE NEED TO BE , • PROACTIVE – GUIDE, DIRECT, EDUCATE AND EQUIP THE LEGISLATOR IN GIVING A BETTER ACCOUNT OF HIMSELF- NOT JUST “ADVISING” THE PRESIDENT • REVIEW POLICIES AND LEGISLATIVE DRAFTS- TO REFINE AND REFORM AND REVITALISE – TO MAINSTREAM GOOD CUSTOMARY AND TRADITIONAL PRACTICES AND COMMUNITY- BASED INITIATIVES FOR ENSURING GOOD GOVERNANCE

16. B. FUTURE OF ENVIRONMENTAL PILs • ENVIRONMENTAL LITIGATIONS SHOULD CEASE FROM BEING ADVERSARIAL • LAW PRACTITIONER TO BE AN AMICUS (- AS ENVISAGED IN THE GODAVERMAN CASE) • SHOULD NOT RESULT IN COURT PERFORMING ADMINISTRATIVE FUNCTIONS (-“ SUPER ADMINISTRATOR” OR “ MICRO-MANAGER OF DAY-TO-DAY ADMINSTRATION” ) OR THE ADMINISTRATOR “ TAKING OVER” JUDICIAL FUNCTIONS (- BOTH OF WHICH HAPPENED IN THE GODAVERMAN CASE)

17. THE BAR , BENCH AND ACADEMIA SHOULD COLLABORATE TO ESTABILSH “ ENVIRONMENTAL LAW CLINICS” , TO PRODUCE “ SKILLED ENVIRONMENTAL LEGAL PROFESSIONALS AND POLICY INTERVENERS” FOR BETTER ENVIRONMENTAL LAW-MAKING & GOVERNANCE (- NLSIU , WOULD BE SETTING UP THE FIRST ENVIRONMENTAL LAW CLINIC IN INDIA DURING THIS ACADEMIC YEAR)