Environmental Laws in India: Cornerstones of Environmental Jurisprudence and EIA

1. ENVIRONMENTAL LAWS IN INDIA, CORNER STONES OF ENVIRONMENTAL JURISPRUDENCE AND ENVIRONMENT IMPACT ASSESSMENT (EIA) by Er. P. Z. THOMAS, MANAGING DIRECTOR, ENVIRONMENTAL ENGINEERS & CONSULTANTS PVT. LTD., NEW DELHI A NABET, QCI ACCREDITED CONSULTANCY ORGANIZATION APPROVED BY MoEF&CC AT IITM, D-29, INSTITUTIONAL AREA, JANAK PUIR, NEW DELHI ON 12-11-2018

2. PART-AENVIRONMENTAL LAWS IN INDIA

3. THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 • An Act to provide the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on the assigning to such Boards powers and functions relating thereto and for matters connected therewith. • Whereas it is expedient to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution and for conferring on the assigning to such Boards power and functions relating thereto:

4. THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 • An Act to provide for the protection and improvement of Environment and for matters connected therewith: • WHEREAS decisions were taken at the United National Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, to take appropriate steps for the protection and improvement of human environment; • AN WHEREAS it is considered necessary further to implement the decisions aforesaid in so far as they relate to the protection and improvement of environment and the prevention of hazards to human beings, other living creatures, plants and property;

5. THE ENVIRONMENT (PROTECTION) ACT, 1986 • An Act to provide for the protection and improvement of Environment and for matters connected therewith: • WHEREAS decisions were taken at the United National Conference on the Human Environment held at Stockholm in June, 1972, in which India participated, to take appropriate steps for the protection and improvement of human environment; • AND WHEREAS it is considered necessary further to implement the decisions aforesaid in so far as they relate to the protection and improvement of environment and the prevention of hazards to human being, other living creatures, plants and property;

6. THE EP ACT, 1986(Definitions) • “Environment” – Environment includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property; • “Environment Pollutant” – Environment Pollutant means any said liquid or gaseous substance present in such concentration as above or tend to be injurious to environment; • “Environmental Pollution” – Environmental pollution means the presence in the environment of any environmental pollutant; • “Occupier” – Occupier in relation to any factor or premises, means a person who has control over the affairs of the factory or the premises and includes, in relation to any substance, the person in possession of the substance;

7. THE EP ACT, 1986 • Section 3. Power of Central Government to take measures to protect and improve environment. “(1) Subject to the provisions of this Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution”.

8. THE EP ACT, 1986 • Section 5. Power to give directions. “Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may, in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer of any authority and such person, officer or authority shall be bound to comply with such directions”.

9. THE EP ACT, 1986 • Section 6. Rules to regulate environmental pollution. • The Central Government may, by notification in the Official Gazette, makes rules in respect of all or any of the matters referred to in section 3.

10. THE EP ACT, 1986 • Section 15. Penalty for contravention of the provisions of the act and the rules, orders and directions. • Whoever fails to comply with or contravenes any of the provisions of this act, or the rules made or orders of directions issued thereunder, shall in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.

11. THE EP ACT, 1986 • Section 25. Power to make rules • “The Central Government may, by notification in the Official Gazette, make rules for carrying out the purpose of this Act”.

12. THE NOTIFICATIONS ISSUED UNDER EP ACT, 1986 Exercising the powers the powers under Section 3 of EP Act, some of the Notifications issued by Ministry of Environment & Forests, Govt. of India are :-

13. THE RULES ISSUED UNDER EP ACT, 1986 Exercising the powers the powers under Section 6 and Section 25 of EP Act, some of the Rules issued by Ministry of Environment & Forests, Govt. of India are :-

14. PART-BCORNER STONES OF ENVIRONMENTAL JURISPRUDENCE

15. CORNER STONES OF ENVIRONMENTAL JURISPRUDENCE 1. POLLUTER PAY PRINCIPLE 2. PRECAUTIONARY PRINCIPLE 3. SUSTAINABLE DEVELOPMENT 4. INTER GENERATIONAL EQUITY

16. CORNER STONES OF ENVIRONMENTAL JURISPRUDENCE 1. POLLUTER PAY PRINCIPLE • The "Polluter Pay Principle" states that the environmental damages by an occupier may be recovered from the polluter. It includes levy of cost required for carrying out remedial measures. (Judgment of Supreme Court dt. 13.02.1996, Indian Council for Environmental Legal Action Vs. Union of India). 2. PRECAUTIONARY PRINCIPLE • The "Precautionary Principle", the fundamental cannon of environmental jurisprudence as propounded by the Supreme Court. It is one of the cornerstone of environmental jurisprudence in the country. The environmental conditions imposed with an environmental approval which is a prior approval before the commencement of an activity takes care of the precautionary principle. (Judgment of Supreme Court dt. 28.08.1996, Vellore Citizens Welfare Forum Vs. Union of India).

17. CORNER STONES OF ENVIRONMENTAL JURISPRUDENCE 3. SUSTAINABLE DEVELOPMENT • The adherence of sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand right to development is also one. Here the right to ‘sustainable development’ cannot be singled out. Therefore, the concept of ‘sustainable development’ is to be treated and integral part of ‘life’ under Article 21. • Sustainable development is one of the means to achieve the object and purpose of the Act as well as the protection of ‘life’ under Article 21. • N.D. Dayal v. Union of India, (2004) 9 SCC 362, the Supreme Court deliberated upon the ‘Doctrine of Sustainable Development’ and while comparing with the economic growth and well being.

18. CORNER STONES OF ENVIRONMENTAL JURISPRUDENCE 4. INTER GENERATIONAL EQUITY • Three principles that form the basis of intergenerational equity are the following:- • The first principle is called the principle of ‘conservation of options’. This requires each generation to conserve the diversity of the natural and cultural resource base in such a manner that the options available to future generations are not restricted. • The second principle is the principle of ‘conservation of quality’. This states that future generations should not be subjected to a quality of the planet worse than what it is today. In other words, future generations are also entitled to quality enjoyment of the diversity in the natural and cultural resource base. • The third principle was the principle of ‘conservation of access’ which is to say that future generations have an equitable right to access the diversity of the natural and cultural resource base as is available to the present generation.

19. PART-CENVIRONMENT IMPACT ASSESSMENT (EIA)

20. RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT, 1992 Preamble • The United Nations Conference on Environment and Development, having met at Rio de Janeiro from 3 to 14 June, 1992. • Realfirming the Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm on 16 June, 1972, and seeking to build upon it, • With the goal of establishing a new and equitable global partnership through the creation of new levels of co-operation among States, key sectors of societies and people. • Working towards international agreements which respect the interests of all and protect the integrity of the global environmental and developmental system. • Recognizing the integral and interdependent nature of the Earth, our home, Proclaims that :

21. RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT, 1992 Principle 10 • Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. Principle 17 • Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.

22. Article 253 OF THE CONSTITUTION OF INDIA • 253. Legislation for giving effect to international agreements – Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory country or countries or any decision made at any international conference, association or other body.

23. EIA NOTIFICATION, 1994 • In compliance to the commitment made by Government of India to the Rio declaration, Central Government issued EIA Notification, 1994. • Certain activities which are mentioned in the “Schedule” which are considered by the Central Government as major polluting in Nature need to conduct Environment Impact Assessment (EIA) Study and conduct public hearing to seek the views of stake holders and to mandatory to take prior Environmental Clearance before the commencement of the Activity / construction.

24. SOME OF THE PROJECTS REQUIRING ENVIRONMENT CLEARANCE FROM THE CENTRAL GOVERNMENT There are 32 type of projects in the “Schedule” requiring prior Environment Clearance from the Central Government before the commencement of activity. Some of them are :- • Ports, Harbours, Airports, • Chemical Fertilizers • Petrochemical complexes • Bulk Drugs & Pharmaceuticals • Asbestos and Asbestos products • Thermal Power Plants • Mining projects (major minerals with leases more than 5 ha.) • Distilleries • Cement Plants • New Construction Projects • New Industrial Estates

25. EIA NOTIFICATION, 2006 • The EIA Notification, 2006 was issued by MoEF superseding the EIA Notification, 1994. • There are 39 activities in the “Schedule” of the Notification requiring prior Environment Clearance from the Central Government before the commencement of activity. • Environment Impact Assessment :- • This is to ensure that development and environment protection go hand in hand. • This is a tool to decide whether an activity or development is environmentally sustainable for a specific site. • The EIA Notification, 2006, categorized the projects in to Category A & Category B based on the impact potential of the project. • All Category A projects will be considered at Central level (at MoEF level) and all Category B projects with be dealt at State level (at SEIAA level).

26. FACETS OF ENVIRONMENT Water environment Land environment Air environment Noise environment Socio-economic environment Ecological environment

27. ENVIRONMENT IMPACT ASSESSMENT PROCESS Aspect/Activity Impact Assessment Mitigation measures (EMP)

28. WATER ENVIRONMENT

29. ENVIRONMENT ASPECTS & IMPACTS WATER

30. Impacts on water environment – competing users (public supply)

31. Impacts on water environment – competing users (ground water) Empty Plot

32. Environment Aspects & Impacts – Contd… SEWAGE

33. Environment Aspects & Impacts – Contd… STORM WATER

34. Environment Aspects & Impacts – Contd… EIA is site specific - project site abutting the water body

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