Plastic Waste (Management and Handling) Rules, 2011 notified

The Ministry of Environment and Forests, Government of India has notified [vide Notification No. S.O.249(E), F.No.17-2/2001-HSMD dated 04.02.2011] the "Plastic Waste (Management and Handling) Rules, 2011" to replace the earlier Recycled Plastics Manufacture and Usage Rules, 1999 (amended in 2003). According to the Press Note released by the Ministry along with the Rules, the Salient Features of the New Rules are as under;

Some of the salient features of the new Rules are:-

• Use of plastic materials in sachets for storing, packing or selling gutkha, tobacco and pan masala has been banned.
• Under the new Rules, foodstuffs will not be allowed to be packed in recycled plastics or compostable plastics.
• Recycled carry bags shall conform to specific BIS standards.
• Plastic carry bags shall either be white or only with those pigments and colourants which are in conformity with the bar prescribed by the Bureau of Indian Standards (BIS). This shall apply expressly for pigments and colourants to be used in plastic products which come in contact with foodstuffs, pharmaceuticals and drinking water. 
• Plastic carry bags shall not be less than 40 microns in thickness. Under the earlier Rules, the minimum thickness was 20 microns. Several State Governments in the meanwhile, had stipulated varying minimum thickness. It is now expected that 40 microns norms will become the uniform standard to be followed across the country. 
• The minimum size (of 8x12 inches) for the plastic carry bags prescribed under the earlier Rules has been dispensed with.
• Carry bags can be made from compostable plastics provided they conform to BIS standards. 

It is also critical to note the 'Additional Safeguards' built in these Rules;

• No carry bags shall be made available free of cost to consumers. The municipal authority may determine the minimum price for plastic carry bags.
• The municipal authority may also direct the manufacturers to establish plastic waste collection centres, either collectively or individually, in line with the principle of ‘Extended Producers Responsibility’.
• The new Rules have stipulated provisions for marking or labeling to indicate name, registration number of the manufacturer, thickness and also to indicate whether they are recycled or compostable.

One can only hope that these Rules would be implemented in their full vigour so as to protect the degrading condition of the soil in our country.

Public park cannot be turned into parking: High Court

Required to balance between the growing urge for commercialization, and thus earn revenue, with the rights of the citizen to enjoy the natural environment, in a recently reported decision (R.Chandran v. State of Tamil Nadu AIR 2010 Mad 189) the Madras High Court was called upon to examine the validity of the action undertaken by the Municipal authorities of converting a public park into a commercial parking area. The people of the neighbourhood had challenged the action of the local body alleging that the park in question had provided them access to natural habitat to over five decades and thus a removal of the same from their lives was an action beyond the prerogative of the local body.

The High Court, holding that the law to this effect was settled and that the citizens have a right to live which includes access to nature, declared the action of the local body as illegal and unjust. The High Court, allowing the petition, inter alia observed as under;

8. In the case of M.I.Builders Pvt. Ltd. Vs. Radhey Shyam Sahu reported in AIR 1999 SC 2468 a similar question came up for consideration before the Supreme Court. In that case, the Lucknow Nagar Mahapalika also called Nagar Nigam or Corporation permitted a builder known as M.I.Builders Pvt. Ltd. to construct underground shopping complex in the Jhandewala Park situated at Aminabad Market, Lucknow. The High Court of Lucknow quashed the resolution of the Corporation permitting such construction and also the agreement entered into between the Corporation and the builder. The matter ultimately came to the Supreme Court in appeal filed by the builder. The Supreme Court dismissing the appeal held as under:-  

Para-59: Jhandewala Park, the park in question, has been in existence for a great number of years. It is situated in the heart of Aminabad, a bustling commercial-cum-residential locality in the city of lucknow. The park is of historical importance. Because of the construction of underground shopping complex and parking it may still have the appearance of a park with grass grown and path laid but it has lost the ingredients of a park inasmuch as no plantation now can be grown. Trees cannot be planted and rather while making underground construction many trees have been cut. Now it is more like a terrace park. Qualitatively it may still be a park but it is certainly a park of different nature. By construction of underground shopping complex irreversible changes have been made. It was submitted that the park was acquired by the State Government in the year 1913 and was given to the Mahapalika for its management. This has not been controverted. Under Section 114 of the Act it is the obligatory duty of the Mahapalika to maintain public places, parks and plant trees. By allowing underground construction Mahapalika has deprived itself of its obligatory duties to maintain the park which cannot be permitted. But then one of the obligatory functions of the Mahapalika under Section 114 is also to construct and maintain parking lots. To that extent some area of the park could be used for the purpose of constructing underground parking lot. But that can only be done after proper study has been made of the locality, including density of the population living in the area, the floating population and other certain relevant considerations. This study was never done. Mahapalika is the trustee for the proper management of the park. When true nature of the park, as it existed, is destroyed it would be violative of the doctrine of public trust as expounded by this Court in Span Resort Case (1997) 1 SCC 388. Public Trust doctrine is part of Indian Law. In that case the respondent who had constructed a motel located at the bank of river Beas interfered with the natural flow of the river. This Court said that the issue presented in that case illustrated the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. 

Para-60: In the treatise : 'Environmental Law and Policy: Nature, Law and Society by Plater Abrams Goldfarb (American Casebook series 1992) under the Chapter on Fundamental Environmental Rights, in Section 1 (The Modern Rediscovery of the Public Trust Doctrine) it has been noticed that :long ago there developed in the law of the Roman Empire a legal theory known as the 'Doctrine of the Public Trust' In America Public Trust doctrine was applied to public properties, such as shore-lands and parks. As to how doctrine works it was stated:  

"the scattered evidence, taken together, suggests that the idea of a public trusteeship rests upon three related principles. First, that certain interests ı like the air and the sea ı have such importance to the citizenry as whole that it would be unwise to make them the subject of private ownership. Second, that they partake so much of the bounty of the nature, rather than of individual enterprise, that they should be made freely available to the entire citizenry without regard to economic status. And, finally, that it is a principle purpose of government to promote the interests of the general public rather than to redistribute public goods from broad public uses to restricted private benefit." 

With reference to a decision in Illinois Centralk Railroad Company Vs. Illinois, (1892) 146 US 387, it was stated that ıthe Court articulated in that case the principle that has become the central substantive thought in public trust, litigation. When a state holds a resource which is available for the free use of the general, a Court will look with considerable skepticism upon any governmental conduct which is calculated either to reallocate the resource to more restricted uses or to subject public uses to the self-interest of private partiesı This public trust doctrine in our country, it would appear, has grown from Article 21 of the Constitution.  

71. It is not disputed that there is a Master Plan applicable to city of Lucknow. This Master Plan is prepared under the Development Act. It was submitted by the builder that the park could be exploited for commercial purposes as Aminabad has been shown to be a commercial area. No doubt Aminabad is a commercial area but that does not mean that the park can be utilized for commercial purposes. Rather using the park for commercial purposes would be against the Master Plan. However, in letter dated October 16, 1993 by Vice-Chairman, LDA to the Mahapalika did say: 

"I am to inform you in this regard that the land use of the Jhandawala Park situated in Aminabad is commercial one as per the Master Plan. This department has no objection on the layout plan submitted accordingly" 

9. Their Lordships further observed in paragraph 78 as follows:- 

78. The facts and circumstances when examined point to only one conclusion that the purpose of constructing the underground shopping complex was a mere pretext and the dominant purpose was to favour the M.I.Builders to earn huge profits. In depriving the citizens of Lucknow of their amenity of an old historical park in the congested area on the specious plea of decongesting the area Mahapalika and its officers forgot their duty towards the citizens and acted in a most brazen manner. 

10. In the case of Pt.Chet Ram Vashist Vs. Municipal Corporationof Delhi reported in AIR 1995 SC 430 the question that fell for consideration was as to whether the Municipal Corporation of Delhi in absence of any provision in the Delhi Municipal Corporation Act, 1957 was entitled to sanction the plan for building activities with condition that the open space for parks and schools be transferred to the Corporation free of cost. The Supreme Court held that the Corporation shall have no right to change the user of the land which shall be for beneficial enjoyment of the people. Their Lordships further held that the Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of society, but it has no right to transfer the land. Their Lordshipıs held in paragraph 6 as follows:-  

6. Reserving any site for any street, open space, park, school, etc in a lay-out plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned lay-out plan. But the question is, does it entitled the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred in the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for parks and school was an order for transfer without there being any sanction for the same in law. 

11. In the case of Dr.G.N.Khajuria Vs. Delhi Development Authority reported in AIR 1996 SC 253 Delhi Development Authority permitted a nursery school to be opened in Park No.6 of Pocket 'A' of Sarita Vihar in complete violation of the provisions of Delhi Development Act, 1957. The said decision of the Authority was challenged. In that case the Supreme Court observed:- 

8. We, therefore, hold that the land which was allotted to respondent No.2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of respondent No.2 was misuse of power, for reasons which need not be adverted. It is, therefore, a fit case, according to us, where the allotment in favour of respondent No.2 should be cancelled and we order accordingly. The fact that respondent No.2 has put up some structure stated to be permanent by his counsel is not relevant, as the same has been done on a plot of land allotted to it in contravention of law. As to the submission that dislocation from the present site would cause difficulty to the tiny tots. We would observe that the same has been advanced only to get sympathy from the Court inasmuch as children, for whom the nursery school is meant, would travel to any other nearby place where such a school would be set up either by respondent No.2 or by any other body." 

xxx 

16. As noticed above, the land in question has been used by the public as park and playground for the last more than five decades and this is only the place of enjoyment for the public of that locality. It is well settled that right to life is not only fundamental right but also right to lead a decent life and to enjoy fresh air and water by using parks and greeneries, which is meant for the public at large. 

17. During the course of argument the learned counsel for the second respondent would submit that apart from underground parking facility a commercial complex is also proposed, inter alia providing restaurants and other facilities to cater to the needs of the persons who use the car parking facility. It is further submitted that by establishing a commercial complex it would add to the revenue, as the revenue generated from the car parking alone would not be sizable. Therefore, it is contended that the entire project as conceived is in the interest of the general public. We however fail to see any public interest as projected by the second respondent. In fact this commercial complex proposed was not mentioned originally. Significantly, even in the notice issued for public hearing no such proposal was projected. Thus it appears that the impugned proposal includes commercial venture; which is impermissible in a site which has been reserved for recreational purpose. An attempt was made by the second respondent to  justify their proposal by drawing an analogy to that of the Metro Rail Project, at New Delhi, the Palika Bazaar at New Delhi etc. In our view the submission is misconceived. The sole determinative factor in a case like the present one, shall be classification of the land in question. It is not in dispute that the land in question has been classified as "play ground", notified as such in Annexure III of the Development Control Rules, which lists out the areas included in open space and recreational use zone. As observed by their Lordships of the Supreme Court in the Case Pt. Chet Ram Vashist, (supra) by virtue of the law, if an area is specified as open space the Corporation may at best get a right as a "custodian of public interest" to manage it in the interest of the society in general. Any breach of this custodianship and any attempt to change the 'use' of such land would be impermissible under law and would be against public interest.  

18. After giving our anxious consideration in the matter, and considering the fact that the land used as park and play ground for the last 50 years, the Corporation cannot be allowed to use the said play ground for construction of underground car parking. The decision of the Corporation to that effect is, therefore, declared illegal and unjustified. 

Have a look at the decision.

Access to safe drinking water for all: UN Human Rights Council calls

In a recent resolution passed at the helm of the United Nations' Human Rights Council [A/HRC/15/L.14 dated 24.09.2010] the members of the UN have agreed to ensure "access to safe drinking water and sanitation" for all. The Council referred to its earlier resolutions on the twin issues to emphasis upon the Member States that there was an immediate requirement to address these issues in their fullest perspective. 

The Resolution inter alia provides as under;

6. Reaffirms that States have the primary responsibility to ensure the full realization of all human rights, and that the delegation of the delivery of safe drinking water and/or sanitation services to a third party does not exempt the State from its human rights obligations;

7. Recognizes that States, in accordance with their laws, regulations and public policies, may opt to involve non-State actors in the provision of safe drinking water and sanitation services and, regardless of the form of provision, should ensure transparency, non-discrimination and accountability; 

8. Calls upon States:

(a) To develop appropriate tools and mechanisms, which may encompass legislation, comprehensive plans and strategies for the sector, including financial ones, to achieve progressively the full realization of human rights obligations related to access to safe drinking water and sanitation, including in currently unserved and underserved areas; 

(b) To ensure full transparency of the planning and implementation process in the provision of safe drinking water and sanitation and the active, free and meaningful participation of the concerned local communities and relevant stakeholders therein; 

(c) To pay particular attention to persons belonging to vulnerable and marginalized groups, including by respecting the principles of non-discrimination and gender equality;

(d) To integrate human rights into impact assessments throughout the process of ensuring service provision, as appropriate;

(e) To adopt and implement effective regulatory frameworks for all service providers in line with the human rights obligations of States, and to allow public regulatory institutions of sufficient capacity to monitor and enforce those regulations; 

(f) To ensure effective remedies for human rights violations by putting in place accessible accountability mechanisms at the appropriate level;

9. Recalls that States should ensure that non-State service providers:

(a) Fulfil their human rights responsibilities throughout their work processes, including by engaging proactively with the State and stakeholders to detect potential human rights abuses and find solutions to address them;

(b) Contribute to the provision of a regular supply of safe, acceptable, accessible and affordable drinking water and sanitation services of good quality and sufficient quantity;

(c) Integrate human rights into impact assessments as appropriate, in order to identify and help address human rights challenges; 

(d) Develop effective organizational-level grievance mechanisms for users, and refrain from obstructing access to State-based accountability mechanisms;

Have a look at the Resolution.

Decline in tiger population owed to China among others: Supreme Court

Holding that tigers are pride of India, the Supreme Court in a decision rendered recently in Sansar Chand v. State of Rajasthan has declared that the demand for tiger related products in neighbouring countries (particularly noting China) has been leading to poaching of tigers earlier roaming in Indian habitat. Dealing with the appeal filed by a person challenging the conviction under the Wildlife (Protection) Act, 1972 the Supreme Court in no uncertain terms made it clear that it would not tolerate those who engage in the destruction of wild life.

The unbridled concern of the Supreme Court is clearly evident from the following observations in the decision;

2. Shera was the symbol of the recent Commonwealth Games, but ironically Shera has been almost exterminated in our country. The Sher Khan of Rudyard Kipling’s ‘Jungle Book’, which once abounded in India, is rarely to be seen today.

3. This case reveals how avaricious and rapacious persons have by organized crime destroyed large parts of the wild life of India and brought many animals e.g. tigers, leopards, bison, etc. almost to the brink of extinction, thereby seriously jeopardizing and destroying the ecological chain and ecological balance in our environment.

5. Before dealing with the facts of this case, we would like to comment upon the background. India, at one time, had one of the richest and most varied fauna in the world. However, over the last several decades there has been rapid decline of India’s wild animals and birds which is a cause of grave concern. Some wild animals and birds have already become extinct e.g. the cheetah and others are on the brink of extinction. Areas which were once teeming with wild life have become devoid of it, and many sanctuaries and parks are empty or almost empty of animals & birds. Thus, the Sariska Tiger Reserve in Rajasthan and the Panna Tiger Reserve in Madhya Pradesh today have no tigers. 

6. One of the main causes for this depredation of the wild life is organized poaching which yields enormous profits by exports to China and other countries.

11. Preservation of wild life is important for maintaining the ecological balance in the environment and sustaining the ecological chain. It must be understood that there is inter-linking in nature. To give an example, snakes eat frogs, frogs eat insects and insects eat other insects and vegetation. If we kill all the snakes, the result will be that number of frogs will increase and this will result in the frogs eating more of the insects and when more insects are eaten, then the insects which are the prey of other insects will increase in number to a disproportionate extent, or the vegetation will increase to a disproportionate extent. This will upset the delicate ecological balance in nature. If we kill the frogs the insects will increase and this will require more insecticides. Use of much insecticide may create health problems. To give another example, destruction of dholes (wild dogs) in Bhutan was intended to protect livestock, but this led to greater number of wild boar and to resultant crop devastation causing several cases of abandonment by humans of agricultural fields. Destruction of carnivorous animals will result in increase of herbivorous animals, and this can result in serious loss of agricultural crops and  other vegetation.

12. It must be realized that our scientific understanding of nature, and in particular of the ecological chain and the linkages therein is still very primitive, incomplete and fragmentary. Hence, it is all the more important today that we preserve the ecological balance because disturbing it may cause serious repercussions of which we may have no idea today.

13. As already stated above, the wild life in India has already been considerably destroyed. At one time there were hundreds of thousands of tigers, leopards and other wild animals, but today there are only about 1400 tigers left, according to the Wildlife Institute.

14. Until recently habitat loss was thought to be the largest threat to the future of tigers, leopards etc. However, it has now been established that illegal trade and commerce in skins and other body parts of tigers, leopards etc. has done even much greater decimation. Poaching of tigers for traditional Chinese medicine industry has been going on in India for several decades. Tigers and leopards are poached for their skins, bones and other constituent parts as these fetch high prices in countries such as China, where they are valued as symbols of power (aphrodisiacs) and ingredients of dubious traditional medicines. This illegal trade is organized and widespread and is in the hands of ruthless sophisticated operators, some of whom have top level patronage. The actual poachers are paid only a pittance, while huge profits are made by the leaders of the organized gangs who have international connection in foreign countries. Poaching of wild life is an organized international illegal activity which generates massive amount of money for the criminals. 

15. Interpol says that trade in illegal wild life products is worth  about US$ 20 billion a year, and India is now a major source  market for this trade. Most of the demand for wildlife products comes from outside the country. While at one time there were hundreds of thousands of tigers in India, today according to the survey made by the Wildlife Institute of India (an autonomous body under the Ministry of Environment and Forests), there were only 1411 tigers left in India in 2008. There are no reliable estimates of leopards as no proper census has been carried out, but the rough estimates show that the leopard too is a critically endangered species.

16. There is virtually no market for the skins or bones of tigers and leopards within India. The evidence available points out that tigers and leopards, poached in the Indian wilderness, are then smuggled across the border to meet the demand for their products in neighbouring countries such as China. When dealing with tiger and leopard poachers and traders, it is therefore important to bear in mind that one is dealing with trans-national organized crime. The accused in these cases represents a link in a larger criminal network that stretches across borders. This network starts with a poacher who in most cases is a poor tribal and a skilled hunter. Poachers kill tigers and leopards so as to supply the orders placed by a trader in a larger city centre such as Delhi. These traders are very wealthy and influential men. Once the goods reach the trader, he then arranges for them to be smuggled across the border to his counterpart in another country and so on till it reaches the end consumer. It is impossible for such a network to sustain itself without large profits and intelligent management.

35. Before we part with this case, we would like to request the Central and State Governments and their agencies to make all efforts to preserve the wild life of the country and take stringent actions against those who are violating the provisions of the Wildlife (Protection) Act, as this is necessary for maintaining the ecological balance in our country.

Have a look at the decision.

National Green Tribunal constituted

We had earlier reported about the enactment of the National Green Tribunal Act, 2010 to comment that country's environment gets a pro-active watchdog. The Government of India was granted the authority to notify the Act such that it could begin to function. By a series of three notifications on 18.10.2010 the Ministry of Environment and Forest, Government of India has constituted the National Green Tribunal, has set the ball rolling by bring into effect the provisions of the Act and has appointed a retired judge of the Supreme Court as the Chairman of the Tribunal.

For the benefit of our readers, we are reproducing the text of the Notifications below.

S.O.2569(E) dated 18.10.2010

F.No.17/2/2010-PL

Ministry of Environment and Forests, New Delhi

In exercise of the powers conferred by sub-section (2) of Section 1 of the National Green Tribunal Act, 2010 (19 of 2010), the Central Government hereby appoints the 18th day of October, 2010, as the date on which all the provisions of the said Act shall come into force.

Sd/- (Rajneesh Dube) Jt. Secy.

S.O.2570(E) dated 18.10.2010
F.No.17/2/2010-PL
Ministry of Environment and Forests, New Delhi

In exercise of the powers conferred by Section 3 of the National Green Tribunal Act, 2010 (19 of 2010), the Central Government hereby establishes “The National Green Tribunal” to exercise the jurisdiction, powers and authority conferred on it by or under the said Act.

Sd/- (Rajneesh Dube) Jt. Secy.

S.O.2571(E) dated 18.10.2010

F.No.17/2/2010-PL
Ministry of Environment and Forests, New Delhi

In exercise of the powers conferred by sub-section (1) and (2) of Section 6 and Section 7 of the National Green Tribunal Act, 2010 (19 of 2010), the Central Government hereby appoints Shri Justice L.S. Panta, Former Judge of the Supreme Court as the Chairperson of the National Green Tribunal with effect from the date of publication of this notification in the Official Gazette for a period of five years or till he attains the age of seventy years, whichever is earlier. 

Sd/- (Rajneesh Dube) Jt. Secy.

National Green Tribunal Act, 2010 passed

The Gazette of India has recently carried the The National Green Tribunal Act, 2010 which received the assent of the President of India on June 2, 2010 to covert the bill into law. The Act provides for "the establishment of a National Green Tribunal" meant  towards an "effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal rights relating to environment" wherein it is included within the scope of the Tribunal to give "relief and compensation for damages to persons and property".

The enactment of the law takes into account the (i) United Nations Conference on the Human Environment which took place at Stockholm in June, 1972 and also the (ii) United Nations Conference on Environment and Development which took place at Rio de Janeiro in June 1992, in both of which India was a participant, (iii) the judicial pronouncements in India construing the right to healthy environment as a part and parcel of the right to life guaranteed under Article 21 of the Constitution of India, to constitute the Tribunal conferring the jurisdiction to decide on environmental issues, considering the "involvement of multi-disciplinary issues" relating to environment.

The Act [vide Section 14] provides that "the Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved" besides the questions which arise of "out of the implementation" of the specified enactments. The power to provide for "relief and compensation to the victims of pollution and other environmental damage", "for restitution of property damaged" and "restitution of environment" is also within the purview of the Tribunal in terms of Section 15.

The importance of the enactment and the seriousness with which the Government has constituted the Tribunal can be gauged from the fact that the Act provides for imprisonment upto three years and a fine which may extend to ten crore rupees (in case of individuals whereas it can be upto twenty five crores rupees for a company) as penalty for non-compliance with the orders of the Tribunal whereas there is a separate provision for prosecution of directors of a company in such cases.

To allow flexibility of working to the Tribunal, Section 19 provides that the technicalities of the Code of Civil Procedure shall not restrain the working of the Tribunal which would rather be guided by the principles of natural justice whereas Section 22 provides that an appeal against the decision of the Tribunal would lie straight to the Supreme Court of India. The jurisdiction of civil courts is specifically excluded in matters falling within the domain of the Tribunal. 

The Act, even though published, would come into effect only upon a notification to such effect being made by the Central Government. Once that is so done, the National Environment Tribunal Act of 1995 and the National Environment Appellate Authority Act of 1997 would stand repealed. Once can only hope that this is soon done and the country's environment gets a pro-active watchdog instead of requiring the environmental concerns being raised at their own spirit and cost by public spirited citizen.

Polluter to pay, the trend reaffirmed ...

Environmental law is indeed one of the ticklish areas of law of the judges. Not for the fact that it requires the judges to balance competing interests of different segments of society (for that is what judges always do) but because of the fact that it requires approximation and estimation of how much wrong-doing can be permitted currently so that it is not too much for the future. Plus, all this decision-making amidst the reluctant and non-supportive attitude of the executive or even the legislative machinery, which is more concerned with the existing vote-bank and current scenarios rather than effectively planning for the future. It is only recently that an exclusive 'Environmental Protection Authority' has been proposed for India (of which we wrote recently) otherwise a quick look at the major environmental initiatives in India would reflect that the Courts have done more than the Ministry of Environment itself. Whether it be for the CNG buses in Delhi, the Taj-pollution case of Agra, illegal mining in Aravilis, or for that matter even the aftermath of the Bhopal Gas leak case, all along the courts have been instrumental in ensuring that environment is protected even if it commits a current wrong for it can translate in disaster for the future.

In this process of becoming the 'Green Benches', the Courts have also evolved. Beginning with the calm notion of 'Sustainable Development', the courts were quick to more to a more conservative approach of 'Precautionary Principle' intermittently employing with vigourous zeal the 'Strict Liability' principle for those carrying potentially harmful activities. And then to put environmental protection as a cost to the business, the transition to 'Polluter-Pays Principle' shows the rising concern on the part of the judiciary to translate the euphoria of environmental development from a mere academic debate to a practical-implementable solution.

In a recent decision, relating to the "preservation of ecology and for keeping the Noyyal river in Tamil Nadu free from pollution" from the dyeing and bleaching works at Tirupur area which had been "discharging the industrial effluents into the Noyyal river which created water pollution to the extent, that the water of the river was neither fit for irrigation nor potable", the Supreme Court has reaffirmed the 'Polluter-Pays principle' to direct the polluters to bear the cost of cleaning the area and improving the habitat.

In the first round of litigation, a petition filed before the High Court of Madras, the dyeing and bleaching units were directed to contribute an amount to meet the expenses of cleaning of the area around a dam built on the river. This was met to some extent by the industries. Thereafter a study was conducted by the State Government only to find that there had been no improvement in the quality of water. Thereupon another public interest litigation by filed before the High Court by an NGO seeking directions against the polluting units to contribute for the clear up and the prevention of pollution. On the petition, the High Court directed the units to pay specific amounts proportionate to the discharge made by them in the river and as well as pay for the monitoring committees and experts involved. Against these directions the units approached the Supreme Court expecting relief.

Besides arguing on account of high costs involved in the directions of the High Court (and thus the non-proportionality in terms of costs), the units put forth before the Supreme Court that "the High Court failed to appreciate that there are more than 40 thousand families to earn their livelihood on dyeing and bleaching industry. Several lakh persons are employed in its ancillary industries who directly depend on this business and most of them are basically the erstwhile agriculturists who could not earn their livelihood because of the barren nature of their land and for want of proper rain over several years. A large number of people have indulged in transport activities because of such heavy industries in Tirupur area." Defending the decision of the High Court, the Government sough to argue that the units were "bound to compensate the persons who have suffered the loss because of the activity of its members, as water of the river is neither worth for irrigation purpose nor potable. The members of the appellant association being responsible for the pollution, cannot escape the responsibility of not meeting the expenses of removing the sludge from the river and cleaning the dam and treating the water to make it pollution free."

The Supreme Court, not oblivious to the competing interests, noted the ground-realities as under;

As per the pleadings of the case, Tirupur is the place exporting the finest garments like T-shirts, inner wears to all foreign countries. The competitors are Bangladesh and China. Tirupur is an industrial hub providing employment to  5 lakh persons. The State Government has granted Sales Tax exemption to the units indulged in bleaching and dyeing units, considering the importance of the place and taking into account the nature of the industries. The country earns about 10,000/- crores in foreign exchange annually. The industries have provided the means of livelihood to a large number of persons indulged in transport of passengers and goods in the area to the extent of 80 kilometers radius for the purpose of fetching labourers residing away from the city and to deal with the export business. 

... The High Court constituted an Expert Committee and also the Monitoring Committee to assess the damage caused to the dam and the river and to find out the modalities to remove the effect of pollution. It also got the assessment of the amount required for removing the sludge from the river and for the treatment of the water, making it worth for irrigation and human consumption.

... The Committee had taken note of all previous developments and assessed the loss to ecology and environment in the affected area. It also identified the individuals and families who suffered because of pollution and further determined the amount of compensation to be paid to each affected individual or family. It also fixed the liability for making the payment of compensation.

On these facets and the other facts relating to the high-levels of pollution in the river water, the Supreme Court concluded thus;

Undoubtedly, there has been unabated pollution by the members of the appellant Association. They cannot escape the responsibility to meet out the expenses of reversing the ecology. They are bound to meet the expenses of removing the sludge of the river and also for cleaning the dam. The principles of "polluters-pay" and "precautionary principle" have to be read with the doctrine of "sustainable development". It becomes the responsibility of the members of the appellant Association that they have to carry out their industrial activities without polluting the water. A large number of farmers have suffered because of the pollution caused by them. They could not cultivate any crop in the said land.

Noting as above, the Supreme Court affirmed the order of the High Court in full and directed the units to pay the amounts as directed and pending for cleaning-up and as compensation to the victims of such pollution and other actions required to be undertaken by the units for the clean-up. Have a look at the decision. One can only hope that instead of the courts directing, the units which discharge such stuff in the environment will on their own accord provide for the clean-up as well.

An 'Environmental Protection Authority' for India !!!

The new Minister of Environment and Forest Ministry seems to be a man in hurry but with a purpose. A look at the recent updates on the Ministry's website gives cogent evidence to this effect. But then what concerns this post is the proposal unveiled today to establish a 'National Environmental Protection Authority'.

The proposal "discusses the need for an effective model of environmental governance in India, which includes the establishment of a National Environment Protection Authority", the reason being that the "gaps in the institutional mechanisms and implementation has not kept pace with the legislative and policy evolution". Accepting that the judiciary has done much more in the area of environmental protection than the Government itself, the proposal seems to have been made to tackle "emerging environmental challenges, including river cleaning, management of wastes, hazardous substance and plastics management, dealing with chemical contamination, monitoring compliance with environmental clearances, etc." 

The paper suggest three dimensional changes in the existing policy of environmental law and regulation; the legislation and policy making remaining with the Ministry of Environment and Forests; regulation, monitoring and enforcement action being the responsibility of the proposed National Environmental Protection Authority; and the adjudication of disputes thereto being made by the proposed National Green Tribunal. 

The role of the Protection Authority has been discussed in quiet detail in the paper. Have a look at the proposal and may be even send your opinion to the Ministry.

Carbon Taxes versus Carbon Credits: Assessing the options

The scene for environmental actions seems unclear as far as the choice between policy options are concerned. When the world today is facing the risk of global warning on a scale too high than ever and that nations across the globe are already witnessing the effects of such warning the sense of changed climatic conditions and nature making too vigorous counterstrike more often than not, it seems that while the intent to take action on such cause does exist but then the attempt to translate this intent into hard realities has not found considerable strength as it should have.

While the environmentalists the world over are calling for stringent and immediate action, the governments are still divided over the policy options available with them to address the issues at hand. Nonetheless, the choices it seems, have boiled down to two main ones being; carbon taxes and carbon credits, both having been discussed and addressed in detail by both fronts; the policy makers and the academia. In our attempt to amplify the law to its whys and hows, we bring to post to to explain the underlying idea (with the options available and the manner in which the choice is exercised) as to how law in this field has been enacted, thus offering insights into the law making process.

Why the choice?

So what do we have? Hotter climate, more cyclones in the world, melting ice at the glaciers, ... and what not. How does it care to us? Or in fact even if we care, how is it linked to either taxes or carbon credits? Since when did environment start talking of economic terms? A lots of question, no doubt, but all essential linked. Linked for the entire thing started when like-minded nations were convinced to do something at the international level; an attempt which culminated into the vociferously discussed Kyoto Protocol. The object of this Protocol, as a part of the international (United Nations sponsored) Framework Convention on Climate Change (UNFCCC or simply FCCC), was to reduce emission of green house gases. This Protocol, signed in 1997 (but coming into effect as late as 2005) marked the first step towards an international addressing of the issue of climate change and discussion of ways to deal with the issue, which can in sum and substance be described as 'tackling global warming'. However, the measure conceived in the Protocol are controversial enough to incite governments to hold positions at variance. [click here for a wiki description]

Besides Kyoto, what we have is the Stern Review, the most comprehensive and almost exhaustive research report from Lord Nicholas Stern (who currently heads the India Observatory at LSE), a 700 page document which unravels the relationship between climate change and world economy and nicely dealienates the issues at hand. [click here for more of Stern Review, and here for full text of Stern Review]

Thus (though only morally I would say) the governments across the world came to realize the need for a consorted effort in this area and

What are the choices?

The scheme under the Protocol envisages limits being imposed upon nations and industries situated therein as to how much they can emit. With these limits come sanctions (though not in the formal sense of the term) and thus arise the need to come to terms with these sanctions. So what we have is allowance to trade. This would mean that the industries which emit less than their sanctioned limit could sell of the excess of emission (called as 'carbon credits' as CO2 or carbon dioxide is the major emission and credits because these are the points they earn for not polluting). [Explained in greater detail in the later half of this post]

Besides this option of trading, governments always have the choice to rely back upon their tax systems to impose a levy on non-green practices and simultaneously confer incentives for greener practices, thereby promoting a culture of climate conservation and thus environmental taxes. In fact this area has also received considerable academic attention for the ease of administration and the notions of a compulsory levy (i.e. tax) to preserve the environment sounds too great an opportunity to be missed. Since these taxes would be imposed on emission of green house gases, they are also known as 'carbon taxes'.

So we end up with carbon taxes and emissions trading as the two strategically most viable and significant options available with nations governments (in both of which an international accord is also conceivable) for placing a control on global warming. Let us analyze the two to assess these options.

Explaining carbon taxes?

A carbon tax system presupposes (i) increased taxes on 'bad' activity (i.e. carbon and other polluting activity) and (ii) reduced taxes or even incentives in form of tax concessions on 'good' activity (i.e. employing eco-friendly way), on businesses. This acts not only an inducement for business to go green but also brings to the government revenues which can be spent on building infrastructure and generally working towards reduction of emissions and global warming. To speak in international terms, this would achieve a 'Global Clean Technology Fund', which could be channelized for preserving environment under the aegis of a dedicated international institution.

Inspired by wiki, I decided to make a graph to explain how these taxes would come to terms to establish a eco-sensitive transaction mechanism in the markets and here I seek to demystify how. [click on the photo to enlarge]

In the above graph, the two key elements are the MSC (Marginal Social Cost) and MPC (Marginal Private Cost). To illustrate, for a cigarette manufacturer (let us say) finds that cost of producing one cigarette comes out to be $0.20. In a perfect competition scenario, the manufacturer would sell the cigarette at cost or with an amount of profit that is generally attributable to such product in the industry. Let us say that this comes out to be $0.25. Therefore the purchaser has to bear $0.25 for each cigarette and this price represents the MPC of the parties to the transaction.

However, this is not the end of story for upon the consumption of cigarette the buyer emits smoke and pollutes the environment. It has negative impact upon the health of others as well and let us say the overall cost to society (which would come if these negative impacts were to be valued) comes to $0.75. This would incorporate the cost of cleaning or rather reinstating the society to the original level had that cigarette not been consumed. Thus the cost to the society comes to be higher than that decided between the parties for the transaction. These costs to the society are denoted by MSC curve on the graph.

Given a global scenario and each man for himself philosophy, it is but fair for the parties to the transaction to also bear the social costs they bring in the system. Thus it would be but fair for the government to impose a levy on the cigarette (in our example) to bring the transaction price at the right terms, incorporating the social costs incurred thereon. Therefore the government imposes a tax upon the transaction meant to bring the MPC curve at equivalence with MSC, thus forcing the parties to take into account the social costs of the transactions they undertake.

As seen from the diagram, t (measured as distance between OE) is the amount of tax imposed and because of this tax, the cost of the good increases (therefore the revised MPC curve as MPC+t) and consequently (given the perfect competition assumption), the quantity supplied also falls from Qo to Qs. Also, the government earns revenue (in this case the area covered in OEAB). But what is more important is that the market interacts at a level at which MSC = MPC+t and therefore all social costs are accounted for, thereby making the parties pay for the harm they carry to the environment. Though economists may argue that determination of this 't' at which the social costs are accounted for is something not pragmatic, nonetheless the concept is worthy enough to be emulated.

Once this tax is collected, it is the prerogative of the national government to spend it on climate control on its own or to subscribe to a global climate fund for the matter to be handled globally. Nonetheless, in either case, the major role remains with the government which also can bring in regulation to ensure that these aims are sought after both in text and spirit.

Unraveling emissions trading?

The arena of emissions trading looks similar to the idea of a global stock exchange and really is an offshoot of the Kyoto model of dealing with climate change and global warming. The economics of global warming has been instrumental in ensuring that trading takes place with a optimal price of carbon determined by markets to ensure that environment is in fact benefited by the trading.

The idea behind this essentially starts by allocation of emission limits to industries, the limit being applied across the board depending upon the nature of industry. The idea is to set a bench-mark limit to emulate and reduce the emissions level below this limit. Thus the industries which attain a higher efficiency to reduce the emissions lower than that prescribed are free to trade these credits and to ensure that these are sold at the right price, as have a trading mechanism, which looks essentially as a stock exchange. It is worthwhile here to note that the Multi-Commodity Exchange of India (MCX) has already become Asia's first exchange to allow trading of carbon credit contracts. [click here for full report] With these emission norms aimed to be applied globally, the optimal price determination would require an international trading regime wherein participations offering and bidding for these credits could interact, something which we are yet to witness but we would soon witness one.

Thus the idea is that emissions would be controlled within a predetermined level (based upon which emission limits are determined for industries) as industries would be able to pollute only till the extent of entire quotas being allocated to the industries. To illustrate, let us suppose the amount of Carbon dioxide added to atmosphere per year is 150 tonnes and the global consensus is to reduce it to 100 tonnes. Now 100 tonnes would be the benchmark for allocating emission limits (or 'quotas') to the industry and in a situation wherein there are 10 homogeneous industries, the quota for each would be 10 ton. Now let us say that five industries total emit 35 tonnes. Therefore the remaining five industries can only emit 50 tonnes of their quota plus 15 tonnes of the quota bought from others and nothing beyond. In this scenario the low emitters might gain windfall profits by selling the excess of their quotas but then on a global scenario, the total emission is indeed reduced to 100 tonnes. The global trading platform just ensure that there do not remain unused quotas and that the credits sold are sold at the right price, determined by the market forces of demand and supply, nothing beyond.

The system works with the level of permitted emissions progressively being reduced. Thus say next year instead of 100 tonnes only 90 tonnes are available. Thus the carbon trading regime does come out as an equally worthwhile option for reducing emissions but only subject to the fact that there remains a global consensus on the limits of emissions and the manner in which they are allocated to the industries, something which is yet eluding the policy makers to come to a consensus to. Nonetheless the European Union seems to have stuck with this model of emissions trading and has unveiled Phase - III of the European Trading System (ETS) (scheduled to commence from 2013) wherein the aim is to reduce the emissions level by 21 percent compared to the Phase - II currently in operation.

What next?

One of the major emitters, the United States is yet to take a concrete decision on this regard of dealing with the situation, though the idea of emission trading has indeed found a lot of support internally. Nonetheless the world will have to wait till a new President is elected who decided to commit the country to one approach or the other. The United Kingdom's Green Fiscal Commission and other activities there has seem to come up with the idea of a Climate Change Bill to be introduced, as a part of the regulation based approach to be adopted therein to manage the issue.

The two options have been so deeply discussed that there even have been suggestion of a Hybrid Model which seek to incorporate the best of both these features, thereby ensuing a regulatory-cum-trading regime for climate control. However the future lies essentially in the hands of the developing countries, especially China which is one of the highest green house emitter, which have to come to terms with the developed world to ensure that the ecological balance on this planet does not become a victim of the north-south tussle. The 2009 Conference in Copenhagen as a prelude to the post Kyoto framework is expected to come out with some solid groundwork on the issue but then as of now the future of either options is uncertain.

Further readings;

1. A nice discussion on Europe's adoption of trading regime
2. A series of publication on global warming and the two options
3. Wikipedia on Pigovian Taxes, EcoTax, Social Costs, Emissions Trading
4. Excerpts from Nicholas Stern's Review
5. An LSE professor on Emissions Trading