International Law on Environments Important Declaration

1. Stockholm Declaration on Human Environment, 1972

The Declaration consists of 26 principles constituting the general framework for the preservation and conservation of environment. This declaration deals with problems that include minimizing human impact on the earth must be handled at a global level. This declaration has many different impacts on the environment including temporarily stopping the discharge of harmful substances and heat release in large quantities in the air and water protecting wildlife and their habitats in marine and terrestrial ecosystems controlling the growth of the population as a whole The function of the Stockholm Declaration was to maintain and improve the natural environment while focusing mainly on supporting people and their overall needs throughout the process. An international institution of the United Nations that arranges environmental activities and helps developing countries to become environmentally friendly and enforce their practices. Environment protection & human rights, environment and human development, importance of rational planning, science and technology, education, scientific research for addressing environmental problem is acknowledged in this declaration.

2. Rio Declaration on Environment and Development, 1992

The 1992 Rio Declaration on Environment and Development defines the rights of the people to be involved in the development of their economies, and the responsibilities of human beings to safeguard the common environment. The declaration builds upon the basic ideas concerning the attitudes of individuals and nations towards the environment and development, first identified at the United Nations Conference on the Human Environment (1972).The Rio Declaration states that long term economic progress is only ensured if it is linked with the protection of the environment. If this is to be achieved, then nations must establish a new global partnership involving governments, their people and the key sectors of society. Together human society must assemble international agreements that protect the global environment with responsible development. There are 27 numbers of principles in this declaration. Principles of Integration, Precaution , Polluter Pay , Intergenerational equity, common but differential responsibility, Good neighbourliness, Right to development, poverty eradication, reducing disparities across the world, participation of citizens in protection of environment are duly acknowledged in this declaration.

3. Johannesburg Declaration, 1992

Johennesburg Declaration adopted at WSSD (World Summit on Sustainable Development) contains a set of political commitments. It recognized eradication of poverty as key for achieving sustainable development. It addressed other important issues like patterns of

production and consumption, cultural diversity, health, armed conflicts, gender issues and financing for development. It recognized that globalization added new dimension to environmental issues. It expressed the need for more accountable, effective and democratic international institutions. It is an agreement to focus particularly on "the worldwide conditions that pose severe threats to the sustainable development of our people, which include: chronic hunger; malnutrition; foreign occupation; armed conflict; illicit drug problems; organized crime; corruption; natural disasters; illicit arms trafficking; trafficking in persons; terrorism; intolerance and incitement to racial, ethnic, religious and other hatreds; xenophobia; and endemic, communicable and chronic diseases, in particular HIV/AIDS, malaria and tuberculosis.

Principles of International Environmental Law

1. Principal of Sustainable Development

WECD (World Commission of Environment & Development) popularized the concept of sustainable development. The guiding principle of sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. Sustainable development recognises the interdependence of environmental, social and economic systems and promotes equality and justice through people empowerment and a sense of global citizenship. Whilst we cannot be sure what the future may bring, a preferable future is a more sustainable one.

Sustainable development as a concept however, accommodates many other related principles like Principle of Precaution, Polluter pay, Principle of Intergenerational equity, Principle of Common but Differential Responsibility.

2. Polluter Pay

The polluter pay principle requires that the cost of pollution should be borne by the persons responsible for causing the pollution and consequential costs. The meaning of this principle and its application to particular cases and situations remain open to interpretation, particularly in relation to the nature and extent of cost included. The practical effects of the principle are that those persons, enterprise or a state responsible for environment damage will have to incur liability. It also calls for internalization of environmental costs. During environmental negotiation , developing countries always highlights the historic responsibility of northern states for the present scale of global pollution and on that basis bargain for the imposition of greater obligations on the North in the implementation of environmental goals. The demands of developing states for the transfer of financial and technological resources to them from the developed states rest in this principle of Polluter Pay.

3. Principle of Precaution

It requires preventive action in anticipation of damage. It adheres to proactive approach rather than reactive approach. According to this principle, scientific uncertainty about the possibility

of damage should not come in the way of taking up measures for avoiding damage or at least minimizing the consequences of the same. The principle of precautionary action has 4 parts:

People have a duty to take anticipatory action to prevent harm. The burden of proof of harmlessness of a new technology, process, activity, or

chemical lies with the proponents, not with the general public. Before using a new technology, process, or chemical, or starting a new activity,

people have an obligation to examine "a full range of alternatives" including the alternative of doing nothing.

Decisions applying the precautionary principle must be "open, informed, and democratic" and "must include affected parties."

4. Principle of Intergenerational Equity

Inter-generational equity is concerned with fairness between current and future generations. This means striking a reasonable balance between satisfying our needs now and setting aside enough to provide for needs of our children and grandchildren in the future. This principle rests on the fact that environment benefits are common endowment for all generation to come. Therefore, it is a matter of fairness to show due concern to needs of future generation.

Environmental Concern & International Response

1. Marine Pollution

Contamination of marine waters adversely impact the ecological balance, wind and tide patterns, biological quality and even the aesthetic beauty of the sea. Natural habitats get destructed. Food chain contamination affects human health. The two major convention that govern law of the sea are Geneva Conventions (1958) & UN Law of the Sea Convention (1982).

A. Geneva Convention

This Convention includes for conventions. The Geneva Convention on continental Shelfs requires states to avoid interference with conservation of living resources of sea during exploration and exploitation of resources of continental shelf. Geneva convention on High sea requires flat states to ensure prevention of collision, to draw regulation in order to prevent oil pollution from ships or pipelines or resulting from exploration or exploitation activities, to prevent pollution from dumping of radioactive wastes. Fisheries convention stipulates provisions on conservation of fisheries.

B. UN Law of the Sea Convention

This convention establishes a comprehensive legal framework for the protection & preservation of the marine environment. By addressing all source of marine pollution, such as pollution from vessels, sea-bed activities, ocean dumping, and land based sources; this convention promotes continuing improvement in the health of the world’s ocean. It seeks balance economic and environmental interests in general; and the interest of coastal states in the protecting their environment and natural resources with the rights and freedoms of navigation in particular.

This convention also impose general obligation on the states to protect and preserve the marine environment, seeks to strike balance between the sovereign and other rights of the states to exploit their natural resources and the duty to preserve and protect marine environment. The convention recognizes the differential capabilities of state in taking measures to protect marine environment. The convention obliges the state not to transfer damage hazards.

2. Global Warming

Global warming is a major environment issue of concern to the entire international community. Global warming causes severe impact on environment and human health. Hotter temperature leads to reduced water supplies, erratic weather patterns, desertification, drier soils , stress on food system, polar melting, sea level rise, soil erosion, rise in microbial activity leading to many health infections etc.

Climate Change Convention (CCC), 1992

During the Earth Summit, Climate Change Convention 1992 was adopted to meet the challenge of climate change by stabilizing the Green House Gas (GHG) emissions which are responsible for global warming. This Convention relying on the principle of common but differential responsibility imposed legal obligation to cut GHG emission only on the developed states.

Kyoto Protocol, 1997

COP (Conference of Parties) met in 1997 to review the implementation of Climate Change Convention and adopted Kyoto Protocol. It set out targets for GHG reductions by the specified individual industrial states during the first commitment period (2008-2012) totalling 5.2 % below the aggregate 1990 emissions. In order to facilitate the fulfilment of the obligations, Kyoto Protocol provide for 3 flexible mechanisms. They are, Joint Implementation, Emission Trading and Clean Development Mechanism (CDM). Kyoto Protocol expires by 2012.

3. Ozone Depletion

Depletion of ozone which shields the earth from the harmful solar radiation is another issue of concern. Its adverse impacts include increase of skin cancer, cataract, immune deficiency, damage to crops etc. Chloroflouro Carbons (CFCs) are primarily responsible for ozone depletion.

Montreal Protocol, 1987(amended in 1990 & 1992)

It seeks to phase out the production of substances responsible for ozone depletion. It is widely adopted instrument. It has undergone several reviews. The Protocol takes into consideration the differing capacities of states in fulfilling the objectives of Protocol. The protocol takes into consideration the differing capacities of states in fulfilling the objectives of Protocol. The protocol makes special provision for the needs of the developing states.

CRZ Notification

‘Coastal Zone Management’

India has a vast coastline of 7,516 Km. Out of its one billion populations; nearly 20 % live in the coastal areas. Many highly populated and industrialized cities like Bombay, Madras, Calcutta, Cochin, and Visakhapatnam are located along/near the coastline. There are 11 major and a number of minor ports handling shipping to various degrees of intensity. There are four features of the coastal areas, which make it a particularly sensitive eco-zone.

It is an inter-face zone where land meets the sea. It has the highest primary productivity of the planet. It is the tail end ecosystem and consequently receives all the negative externalities

of terrestrial pollution. It is where the human population density is highest and is also home to many social

communities such as fisher folk.

The uniqueness of the coast requires a special and distinct attention for the management of the coastal areas. Law is an important tool for the regulation of human conduct. It has a very useful role in the wise management of the coast. The economic potential and aesthetic value of the coasts has made the coastal land, a most sought after area for development. Important legislation in connection with coastal zone is ‘CRZ Notification which was formed in 1991 and later on amended in 2011.

On February 19, 1991, the Ministry of Environment and Forests (MoEF) issued a notification under Section 3 of the Environment Protection Act of 1986, seeking to

regulate development activity on India’s coastline. The approach adopted by the first notification was to define the ‘High Tide Line’ (HTL) and ‘Coastal Regulation Zone’ (CRZ) and thereafter specify the activities permitted and restricted in the vicinity of the CRZ. This regulated zone was further divided into four categories (CRZ I-IV) as per permitted land use. Apart from that, the Island Protect ion Zone Notification, 2011 has been notified for the first time covering the Andaman and Nicobar Islands and Lakshadweep.

The Notification prohibits certain activities within the CRZ, which would have a detrimental effect on the sensitive coastal areas. At the same time, it permits other activities under specific conditions. In essence, the CRZ notification recognized that the coastal area was a sensitive area and only those activities that required the waterfront and foreshore area could be permitted and that too only in select areas with proper safeguards.

Definition of CRZ Area

The area under the jurisdiction of the notification is called Coastal Regulation Zone (CRZ).The area under CRZ includes the land area from HTL to 500 m on the landward side, as well as the land area between HTL to 100 m or width of the creek, whichever is less, on the landward side along tidal influenced water bodies connected to the sea. The CRZ also includes, for the first time, water area up to 12 nautical miles in the sea and the entire water area of a tidal water body such as creek, river, estuary without imposing any restrictions of fishing activities. Thus, the main change in the scope of regulation has been to expand the CRZ to include territorial waters as a protected zone. The notification also covers the area between High Tide Line (HTL) & Low Tide Line (LTL).

Objective

1. Protection of livelihoods of traditional fisher folk communities2. Preservation of coast al ecology3. Promotion of economic activity that have necessarily to be located in coastal regions.

‘No Development Zone’

The "no development zone" definition has been changed. It is reduced from 200 metres from the high-tide line to 100 meters only. This has been done to meet increased demands of housing of fishing and other traditional coastal communities.

The entire CRZ of the country is classified into different zones, CRZ-I, II, III & IV.

‘CRZ-I’

(i) Area those that are ecologically sensitive areas (including marine parks,sanctuaries, mangrove parks, mangrove areas, wildlife habitats, heritage areas, historically important areas, area likely to be inundated by global warming etc.)

(ii) Area refers to inter-tidal zone lying between LTL & HTL.

‘CRZ-II’

Areas are those that are already developed close to or upto the shoreline. These developed areas are only those within the municipal limits or in other legally designated urban areas which are already substantially built up and which have been provided with drainage, approach roads and other infrastructural facilities such as water supply and sewage mains.

‘CRZ-III’

Areas are those which are relatively undisturbed and which don’t belong to either Category I or II. These include the coastal zone in rural areas (developed and undeveloped) and areas within municipal limits or in other legally designated urban areas, which are not substantially built up. By definition then, all rural area classified as CRZ-III and some urban area could also be included in this category.

‘CRZ-IV’

Consists of those coastal stretches in the Andaman and Nicobar Islands, the Lakshadweep and small islands, except those designated and CRZ- I, II or III. While the general prohibitions apply to all CRZ categories, the permitted activities can be undertaken only in certain areas of these 4 CRZ categories. For each of the CRZ categories, the regulations differ.

Agenda 21:

The Agenda 21 is the monumental center piece agreement adopted by all participating nations as the Earth Summit in Rio. It is a comprehensive global plan of action to confront and overcome the most pressing environmental, health and social problems facing our planet. The Conventions, Principles and Declarations of the Earth Summit, provide guidelines to deal with the problems of poverty, hunger, resource consumption and the deterioration of ecosystems. Agenda 21 provides a format for this to happen, detailing an action plan for sustainable development and establishing targets for actions that combine economic development and environmental protection. Agenda 21:

Is the blueprint for sustainability in the 21st century. Provides options for combating the deterioration of land, air and water, whilst

conserving habitats and their diversity. Deals with poverty, over consumption, health and education. Promotes roles for all. Everyone – governments, business, trade unions, scientists,

teachers, indigenous people and youth – have roles to play in achieving sustainable development and should be involved in the decision making processes.

Encourages the reduction of environmentally and socially detrimental processes, but within a framework which allows economic success.

Presently a nation’s wealth is gauged by its financial standing and the more money the better. Agenda 21 promotes the attitude that a nation’s wealth should also account for the full value of its natural resources. Agenda 21 also encourages nations to consider the costs of environmental degradation. In addition, to reduce the risk of damage, environmental assessments should be carried out and where degradation does occur, those responsible should bear the costs.

Agenda 21 highlights the need to eradicate poverty. One of the major problems facing poorer nations is their lack of resources and ability to live sustainably. Developed nations have taken on the responsibilities of assisting poorer nations to reduce their environmental impacts and achieve sustainable development.

Agenda 21 asks governments to integrate sustainable development into their national strategies and highlights the importance of involving non-governmental organisations (NGOs) and the public in the process. For sustainable development to work, issues must be tackled on a local, national and international level and nations must work ‘towards international agreements which respect the interests of all and protect the integrity of the global environmental and developmental system.

Notes on Acts:

Indian Forest Act, 1927:

The Indian Forest Act, 1927 was enacted after repealing the Indian Forest Act, 1878 for the purpose of consolidating the law relating to forests, the transit of forest produce and the duty leviable on timber and other forest produce. This Act is an important piece of the Central legislation and various State enactments have made amendments to suit their local requirements and some of the States have enacted their own full scale forests Acts.

The Indian Forest Act was enacted to preserve and safeguard the forests generally in India. The Act makes various provisions for such conservation of forests and in the scheme it provides for a State Government to constitute any forest lands or waste lands, which are property of Government over which the Government have proprietary rights, a reserved forest.

Environment Tribunal Act, 1995:

In 1995, the National Environment Tribunal Act which strict liability approach was established to provide quick relief and compensation in case of damage to a person, property and environment due to accidents occurring while handling a hazardous substance. In 1997, the National Environment Appellate authority Act, NEAA, has been enacted to hear appeals from decision relating to restriction of areas in which industries, industrial operation or process can be or can’t be carried out. NET was not established and NEAA has limited application. SO, a comprehensive NGT act has been enacted replacing both NET act 1995 and NEAA 1997. The act established National Green Tribunal to provide speedy and expeditious disposal of cases relating to environment protection and enforcement of any legal right relating to environment and giving necessary relief and compensation.

Wild Life Protection Act, 1972(Amended in 2002):

The Wildlife Protection Act, 1972, provides for protection to listed species of flora and fauna and establishes a network of ecologically-important protected areas. The Act consists of 60 Sections and VI Schedules- divided into Eight Chapters. The Wildlife Protection Act, 1972 empowers the central and state governments to declare any area a wildlife sanctuary, national park or closed area. There is a blanket ban on carrying out any industrial activity inside these protected areas. It provides for authorities to administer and implement the Act; regulate the hunting of wild animals; protect specified plants, sanctuaries, national parks and closed areas; restrict trade or commerce in wild animals or animal articles; and miscellaneous matters. The Act prohibits hunting of animals except with permission of authorized officer when an

animal has become dangerous to human life or property or as disabled or diseased as to be beyond recovery.

The Act underwent many amendments. An amendment to the Act in 1982, introduced provisions permitting the capture and transportation of wild animals for the scientific management of animal population. An amendment in the year 1991 resulted in the insertion of the special chapters dealing with the protection of specified plants and the regulation of zoos. This also recognized the needs of tribal and forest dwellers and changes were introduced to advance their welfare. The near-total prohibition on hunting was made more effective by the Amendment Act of 1991.

Bio diversity Act, 2002:

To regulate access to genetic resources and associated sharing arrangements, apart from developing policies and programmes on long term conservation and protection of biological resources and associated knowledge, the Biological Diversity Act, 2002 was promulgated. The National Biodiversity Authority (NBA) set up at Chennai on 1st October 2003 as per the provisions of the Biological Diversity Act, 2002 is mandated to facilitate implementation of the Act. Key Points are:

All foreign national require approval from NBA for obtaining Biological Resources. (Section - 3)

Indian individuals/entities to seek approval before transferring knowledge / research and material to foreigners. (Section - 4)

Prior approval of NBA before applying for any kind of IPR based on research conducted on biological material and or associated knowledge obtained from India. (Section -6)

Indians required to provide prior intimation to State Biodiversity Boards for obtaining biological material for commercial purposes. SBB can regulate such access. (Section -7)

Growers and cultivators of Biological Diversity and vaids and hakims who are practicing Indian system of medicines and local people exempted.

The Water (Prevention & Control of Pollution) Act, 1974:

Specific to the Problem of water Pollution, a central act, namely, the water (Control and Prevention of Pollution) Act, 1974, hereafter referred to as ‘the water act’. It was enacted in 1974.

The objective of the water Act is to prevent and control water pollution and to maintain/restore wholesomeness of water. According to the Act, ‘Pollution’ means contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid gaseous or solid substances into water( whether directly or indirectly) as may or

is likely to create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses or to the life and health of animals, plants or of aquatic organism.

Key Points of this Act is as below:

‘Establishment of Boards’

One of the chief contributions of the Act is to establishment of Central Pollution Control Board (CPCB), State Pollution Control Board (SPCB) and joint Boards (by virtue of agreements entered into two or more contiguous state government or between the central Government on behalf of one or more UT and state/state contiguous to such UT.

‘Prevention and Control of Water Pollution’

The State board or any officer empowered by it is given the power to obtain various kind of information in order to further the objects of the Act. Further, the State Board may give directions to persons requiring information regarding abstraction of water or discharge of sewage or trade effluents. It may also, with a view to preventing or controlling water pollution, direct persons in charge of an establishment where any industry, operation or process, or treatment and disposal system is carried on to furnish information regarding such establishment or process.

Person empowered by State Board shall have a right to enter any place for the purpose of examining any plant, record, register, document, or other material object and also seizing, if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this act or rules made hereunder.

‘Safeguards against pollution’

The act prohibit any person from knowingly causing or permitting any poisonous or noxious substance determined in accordance with standards as may be laid down by the State Board to enter into any water body, and also places similar prohibitions on person from permitting any matter from entering into streams which may either directly or in conjunction with other matter impede the proper flow of water, leading to substantial aggravation of water pollution. To guard against future pollution, the Act places restriction on new outlets and new discharges. Without the previous consent of the board, no person shall establish or take steps to establish any industry, operation or process, which is likely to cause water pollution.

‘Powers in case of Actual Pollution’

The person or local authority in charge of any industry, operation or process, or treatment or disposal system, where due to accident or unforeseen act or event, any other poisonous, noxious or polluting matter is being discharged or likely to be discharged into a stream or well or sewer or on land, resulting in pollution, is bound to

intimate forthwith the occurrence of such accident to the State Board and appropriate authorities.

Further, the Board is given powers to carry out emergency measures in case of pollution of stream or well, which may extend to, removing the polluting matter from stream or well.

‘Penalties and Procedure’

Failure to comply with directions given under various section of the Act lead to varying kinds of punishment as prescribed in the Act itself.

The Water Cess (Prevention & Control of Pollution) Act, 1977:

This Act empowers central government to impose Cess on water consumed by listed industries. A rebate of 25% of cess is given to the complying industries and authorities.

This act has been adopted as part of economic incentive for controlling pollution and to augment the resource of Pollution Control Boards for effective implementation of water Act.

Forest Right Act, 2006:

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 is a result of the protracted struggle by the marginal and tribal communities of our country to assert their rights over the forestland over which they were traditionally dependent. This Act is crucial to the rights of millions of tribal and other forest dwellers in different parts of our country as it provides for the restitution of deprived forest rights across India, including both individual rights to cultivated land in forestland and community rights over common property resources.

This Act is a potential tool:

To empower and strengthen the local self governance To address the livelihood security of the people, leading to poverty alleviation and

pro poor growth. To address the issues of Conservation and management of the Natural Resources

and conservation governance of India.

Air (Prevention & Control), 1977:

To implement the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June 1972, Parliament enacted the nationwide Air (Prevention & Control of Pollution) Act. To enable an integrated approach to environmental problems, the Air Act expanded the authority of the Central and State Boards established in the Water Act to include air pollution control. States which have

not constituted the Water Pollution Boards were required to constitute Air Pollution Boards. Under the Air Act, all industries operating within designated air pollution control areas must obtain consent (permit) from the State Boards.

Salient Features of Air Act, 1981: The Act deals with the particular type of pollution and presents an integrated

approach to tackle the problem of pollution. Air (Prevention and Control of Pollution) Act 1981 is an appropriate step for the

preservation of the natural environment on the Earth which includes the preservation of the quality of air and control of air pollution. In other words, this is an Act to provide for the prevention, control and abatement of air pollution

The Air (Prevention and Control of Pollution) Act 1981 has 54 Sections and is divided into seven chapters relating to i) Preliminary, ii) Central and State Boards for the Prevention and Control of Air Pollution, iii) Powers and Functions of Boards, iv) Prevention and Control of Air Pollution, v) Funds, Accounts and Audit, vi) Penalties and Procedures, and vii) Miscellaneous.

The Act provides that the State Government, in consultation with the State Board, is empowered to declare any area or areas within the jurisdiction of the concerned State an “Air Pollution Control Area”.

The Air Act, 1981 provides that the Central or State Board for prevention, control and abatement of water pollution shall exercise the powers and perform the functions of the Central or State Board for the prevention, control and abatement of air pollution.

The Act provides that the State Government in consultation with the State board has a power to give instructions to the registration authority under the Motor Vehicle Act, 1939 (Act 4 of 1939) for ensuring standard for emission from automobiles driven with the help of petrol or diesel.

The Act provides for the imposition of restriction on the use of certain industrial plant in any pollution control area without the previous permission and consent of the State Board.

The Act provides that the Board has the power to make an application to the Court for restraining persons from causing air pollution.

The Act provides that whoever:

Operates or establishes any industrial plant in an pollution control area without the consent of the State Board or

Allows emission of an air pollutant in excess on the standard laid down by the State Board, or

violates any direction issued by the Board, in the above situation, is punished with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine. If this fails or contravention continues, the guilty person is punished with the additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues even after the conviction for the first such failure or contravention. If it continues beyond a period of one year after the date of conviction, the offender shall be

Environment Protection Act, 1986:

In 1986, following the tragedy of Bhopal, Parliament was motivated to address all environmental pollutants by enacting the Environment (Protection) Act. After the enactment of Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, it was thought that there should be a general legislation for environmental protection as well as for coordinating the activities of various regulatory agencies. Need was felt to create authority with adequate power for environment protection, regulation of discharge, handling of hazardous substances, speedy response to accidents threatening environment and deterrent punishment to those who endanger human environment, safety and health.

‘Objectives of EPA, 1986’

1. To implement the decisions made at the U.N. Conference on the Human Environment held at Stockholm in June, 1972.

2. To co-ordinate activities of the various regulatory agencies under the existing laws and creation of an authority or authorities for environment protection.

3. To provide for deterrent punishment to those who endanger human environment, safety and health.

4. To ensure sustainable development is also one of the goals of the EPA, 1986. If the act is not armed with the powers to ensure sustainable development, it will become a barren shell.

5. To enact general law on environmental protection which could cover uncovered gaps in the areas of major environmental hazards as the existing laws generally focused on specific types of pollution or on specific categories of hazardous substances and some major areas of environmental were not covered.

In short, the EPA, 1986 aims at protecting and improving the environment and prevention of hazards to human beings, other living creatures, plant and property.

Public Liability Insurance Act, 1991:

Under this Act, every owner of an industry shall take out, before he starts handling any hazardous substance, insurance policy to cover his liability. The amount of insurance policy to cover his liability. The amount of insurance policy shall not be less than the amount of paid up capital of the undertaking handling any hazardous substance owned or controlled by the owner and not exceeding Rs.50 Crores. Emergency relief fund is created into which premiums of the policy must be credited. The Acts intend to provide mechanism that would enable an immediate financial relief to the victims. It is based on the principle of no-fault based liability.

The Forest Conservation Act, 1980:

The Parliament has enacted the Forest (Conservation) Act, 1980, to check further deforestation and conserve forests and to provide for matters connected therewith or ancillary or incidental thereto.

This Act has five Sections which deal with conservation of forests. The Act was enacted with the twin objectives under Section 2 of restricting the use

of forest land for non-forest purposes, and preventing the de-reservation of forests that have been reserved under the Indian Forest Act, 1927. However, in 1988 the Act was further amended to include two new provisions under Section 2, where it sought to restrict leasing of forest land to private individuals, authority, corporations not owned by the Government, and to prevent clear felling of naturally grown trees.

The Act empowers the Central Government to constitute a committee to advise the Government with a grant of approval under Section 2, as also on any other matter connected with the conservation of forest and referred to it by the Central Government.

The Act provides for the punishment of imprisonment, extendable to fifteen days for the contravention of the provisions of the Act.

The Act provides for punishment of offenders from the Government Departments, including Head of the Departments and authorities. However, these persons can escape criminal liabilities if they can prove that: The offence was committed without their knowledge, They had exercised all due diligence to prevent the committing of such offence.

Illustrations:

Bhopal Gas Disaster:

Since 1984, 20,000 people lost their lives in Bhopal, India after a chemical gas spill from a pesticide factory. More than 40 tons of methyl isocyante (MIC) gas created a dense cloud over a resident population of more than half a million people.

People woke in their homes to fits of coughing, their lungs filling with fluid.  More than 8,000 people were killed in just the first few days following the leak, mainly from cardiac and respiratory arrest.

The chemical factory responsible for this disaster belonged to Union Carbide, which negotiated a settlement with the Indian Government in 1989 for $470 million - a total of only $370 to $533 per victim - a sum too small to pay for most medical bills. In 1987, a Bhopal District Court charged Union Carbide officials, including then CEO Warren Anderson, with culpable homicide, grievous assault and other serious offences. In 1992, a warrant was issued for Anderson's arrest.

But justice has eluded the people of Bhopal for more than 20 years. Dow, since its merger with Union Carbide, refuses to assume these liabilities in India - or clean up the toxic poisons left behind.

More than 20,000 people still live in the vicinity of the factory and are exposed to toxic chemicals through groundwater and soil contamination. A whole new generation continues to get sick, from cancer and birth defects to everyday impacts of aches and pains, rashes, fevers, eruptions of boils, headaches, nausea, lack of appetite, dizziness, and constant exhaustion.

Trail Smelter Arbitration:

From 1925 to 1937, a corporation of Canada (defendant) owned a smelter plant which emitted noxious fumes that caused damage in Washington State in the United States (plaintiff). The United States sought injunctive and declaratory relief, as well as damages for air pollution from Canada based on the fumes. A Special Arbitral Tribunal (Tribunal) considered the case.

Govind Singh v. Shanti Sarup:

Oleum Gas Leak Case (Shriram Fertilizer Gas Leak):

On December 4, 1985 a major leakage of Oleum gas took place from one of the industrial units of Shriram Fertilizers situated in Delhi. This leakage affected a large number of people, both amongst the workmen and the Public and an advocate practicing in the Tis Hazari Court died on account of inhalation of Oleum Gas. The leakage created a scare amongst people residing in that area.

‘Principle of Absolute Liability’

This rule was proposed by CJ Bhagwati in necessity of liability to deal with a usual situation which has arisen and which is likely to arise in future in account of hazardous or inherently dangerous industries. According to this principle an enterprise which is engaged in hazardous industries poses a potential threat to the health and safety of the person working in the factory and resident in the surrounding areas. Hence, owes an absolute and non-delegable duty to the community to ensure that no harm results to any one on account of such activity. The enterprise must be absolute liable to compensate for such harm without excuse whatsoever.

Doon Valley Litigation:

Ganga Pollution Case:

The Ganga Pollution Cases is a loose title given to two court cases that have focused on environmental pollution in the Ganga river basin. The first case began in 1985 and is still underway in the Supreme Court. The second case began in 1997 and is still underway in the High Court of the state of Uttar Pradesh. Both cases are part of the corpus of public interest litigation suits filed by lawyers and citizens against polluters in India. Lawyers and citizens draw upon the body of legislation dealing with water and rivers.

Important Questions:

Public Trust Doctrine:

The public trust doctrine is the principle that certain resources are preserved for public use, and that the government is required to maintain them for the public's reasonable use. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes.

Public trust doctrine serves two purposes: it mandates affirmative state action for effective management of resources and empowers citizens to question ineffective management of natural resources. It is a common law concept, defined and addressed by academics in the United States and the United Kingdom. Various common properties; including rivers, the seashore, and the air, are held by the government in trusteeship for the uninterrupted use of the public. The sovereign could not, therefore, transfer public trust properties to a private party if the grant would interfere with the public interest. The public trust has been widely used and scrutinized in the United States, but its scope is still uncertain. Various have been made to apply this doctrine to protect navigable and non-navigable waters, public land sand parks, and to apply it to both public and private lands and ecological resources. The Supreme Court of California has broadened the definition of public trust by including ecological and aesthetic considerations. Although the public trusts doctrine is not without its fair share of criticism it is being increasingly related to sustainable development, the precautionary principle and bio-diversity protection.

Power & Function of State Pollution Control Board:

‘Functions of the Central Board at the National Level’

1. Advise the Central Government on any matter concerning prevention and control of water and air pollution and improvement of the quality of air.

2. Plan and cause to be executed a nation-wide program for the prevention, control or abatement of water and air pollution;

3. Co-ordinate the activities of the State Board and resolve disputes among them;4. Provide technical assistance and guidance to the State Boards, carry out and sponsor

investigation and research relating to problems of water and air pollution, and for their prevention, control or abatement;

5. Plan and organise training of persons engaged in programme on the prevention, control or abatement of water and air pollution;

6. Organise through mass media, a comprehensive mass awareness programme on the

prevention, control or abatement of water and air pollution;7. Collect, compile and publish technical and statistical data relating to water and air

pollution and the measures devised for their effective prevention, control or abatement;

8. Prepare manuals, codes and guidelines relating to treatment and disposal of sewage and trade effluents as well as for stack gas cleaning devices, stacks and ducts;

9. Disseminate information in respect of matters relating to water and air pollution and their prevention and control;

10. Lay down, modify or annul, in consultation with the State Governments concerned, the standards for stream or well, and lay down standards for the quality of air; and

11.Perform such other function as may be prescribed by the Government of India.

‘Functions of the Central Board as State Boards for the Union Territories’

Advise the Governments of Union Territories with respect to the suitability of any premises or location for carrying on any industry which is likely to pollute a stream or well or cause air pollutions; Lay down standards for treatment of sewage and trade effluents and for emissions from automobiles, industrial plants, and any other polluting source; Evolve efficient methods for disposal of sewage and trade effluents on land; develop reliable and economically viable methods of treatment of sewage, trade effluent and air pollution control equipment; Identify any area or areas within Union Territories as air pollution control area or areas to be notified under the Air (Prevention and Control of Pollution) Act, 1981; Assess the quality of ambient water and air, and inspect wastewater treatment installations, air pollution control equipment, industrial plants or manufacturing process to evaluate their performance and to take steps for the prevention, control and abatement of air and water pollution.

As per the policy decision of the Government of India, the CPCB has delegated its powers and functions under the Water (Prevention and Control of Pollution) Act, 1974, the Water (Prevention and Control of Pollution) Cess Act, 1977 and the Air (Prevention and Control of Pollution) Act, 1981 with respect to Union Territories to respective local administrations. CPCB along with its counterparts State Pollution Control Boards (SPCBs) are responsible for implementation of legislations relating to prevention and control of environmental pollution.

Corporate Environment Liability:

A corporate that uses hazardous substances/ materials is bound to come under the arena of environmental issues and liabilities. Civil and criminal liabilities both trap such corporations. A corporation which uses hazardous materials may also face toxic tort suits if it exposes its employees or customers to hazardous materials, fails to provide adequate employee training, or fails to provide required notice of hazardous materials dangers to employees, customers, neighbours, or the public. Bhopal Gas tragedy explains most of it and was a thrive in the matter for India. This paper deals with various type of liabilities and also with case laws looks into the liability under various legislations.

Environmental offences, unlike traditional offences, generally are strict liability offences. These must be assessed in two ways: by determining consequentiality (i.e., what is the consequence of a given action or inaction), and by assigning moral responsibility for certain outcomes (known in legal parlance as a deontological perspective). The intent of the offender is not very important for strict liability offences; the penalties are to be borne simply because some barred outcome occurred.

Law on Municipal, Hazardous & Bio medical Waste:

Environment Impact Assessment:

The Environment Impact Assessment (EIA) is an effort to anticipate measure and weigh the good and bad effects of a proposed activity or project up on the environment. USA is the first country to make EIA a mandatory condition for obtaining formal approval for any proposed project or activity.

Through several amendments EIA is made mandatory requirement for certain listed activity. EC is required for specified projects. The main purpose of environment clearance is to assess the impact of the proposed project and accordingly try to abate or at least minimize such impact. Project proponents identify the project site by ensuring compliance with the existing site guidelines. In case if the project is one of those projects which requires environmental clearance, same has to be obtained through the specified process.

According to new EIA programme, all schedule new projects, expansion and modernization of existing projects and any project with change in product mix in an existing manufacturing unit require environmental clearance from the central government or the state government as the case may be. Depending upon the potential environmental impact, all projects have been divided into Category A & Category B. The screening of category A&B will be done by state and central government. Category A must contains the projects that require Environment Clearance only from central (MoEF) thru assessment by Environmental Appraisal Committee (Different environmental appraisal committee will work for different kind of projects requiring different expertise for assessment).Public hearing is also conducted if the project is a special or a controversial project based on the recommendation of Appraisal Committee. For Category B projects which contains list of project which should obtain clearance from the state/ Union Territory constituted Environmental Impact Assessment Authority (SEIAA). Category B are further divided into B1 (EIA and Public Consultation) & B2 (EIA).

ISO Certification:

Land Acquisition in India:

Land Acquisition may be defined as the action of the government whereby it acquires land from its owners in order to pursue certain public purpose or for any company. This acquisition is subject to payment of compensation to the owners or to persons interested in the land. Land acquisitions by the government generally are compulsory in nature, not paying heed to the owner's unwillingness to part with the land.

Acquisition and Requisition of property falls in the concurrent list, which means that both the centre and the state government can make laws on the matter. There are a number of local and specific laws which provide for acquisition of land under them but the main law that deals with acquisition is the Land Acquisition Act, 1894.

The Act authorizes governments to acquire land for public purposes such as planned development, provisions for town or rural planning, provision for residential purpose to the poor or landless and for carrying out any education, housing or health scheme of the Government. It hinders speedy acquisition of land at reasonable prices, resulting in cost overruns.

It was enacted for building an adequate stock of urban land for public interest purposes such as low-income housing, road widening, development of parks and other amenities. Such land is typically acquired by the government through payment of compensation to landowners as per market value.

The objective of the Act is to amend the laws relating to land acquisition for public purpose and for companies and also to determine the compensation, which is required to be made in cases of land acquisition. The enactment states that the expression land includes benefits that arise of land and things attached to the earth or permanently attached to the anything fastened to the earth.

Moreover if the compensation given is under protest than as per the enactment the awardees are entitled to refer the matter to the court for determination of requisite amount of compensation.

Procedure for Industrial Sitting:

In selecting sites for industries, care should be taken to minimise the adverse impact of the industries on the immediate neighbourhood as well as distant place. Following distance should be maintained while industrial sitting:

a) 25 Km away from ecological and sensitive areab) In coastal region 500 m from HTL. [CRZ]c) In flood plain of the River system at least 500m distance should be maintained.

[CRZ]d) At least 500 m from highway & railway. [Railways Act]e) 25 Km from Major settlement (3, 00,000 Population).

Following Sitting criteria is followed while recognizing industrial site:

a) Non conversion of forest land for non-forest activity.[Forest Conversion Act,1980]

b) No prime agricultural land shall be converted into industrial site.c) Within the acquired site the industry must locate itself at the lowest location to

remain obscured from general sight.d) Land acquired should be of sufficient size for waste disposal, recycle and reused.

The green belt shall be 500 m wide around the battery limit of the industry.e) The green belt b/w two adjoining large scale industries shall be 1 km.f) Enough space should be, provided for storage of solid wastes so that these could

be available for possible reuse.g) Layout and form of the industry that may come up in the area must conform to

the landscape of the area without affecting the scenic features of that place.h) Associated township of the industry must be created at a space having

physiographic barrier b/w the industry and the township.i) Each industry is required to maintain three ambient air quality measuring

stations within 120 degree angle b/w stations.

Public Hearing Notification:

It is a mandatory step in the process of environmental clearance for Category “A” and “B1” listed projects in the Schedule of the EIA Notification, 2006. This provides a legal space for people of an area to come face-to-face with the project proponent in the presence of regulatory bodies and express their concerns. The process of public hearing is conducted once the Draft EIA report is completed by the project proponent. The Member-Secretary of the concerned Pollution Control Board (PCB) shall finalize the date, time and exact venue of public hearing within 7(seven) days of the date of receipt of the draft environmental impact assessment report. The District Collector is the Chairperson of the EPH committee. The committee hears the objections/suggestions from the public and concerns expressed shall be recorded by the representative of the PCB, the minutes of hearing shall be signed by the district magistrate or his or her representative on the same day and forwarded to the PCB concerned.

Provision for Consent:

To guard against future pollution, the Act places restriction on new outlets and new discharges. Without the previous consent of the board, no person shall establish or takes steps to establish any industry, operation or process, which is likely to cause air pollution. An application of consent will have to be filed, and such application can be accepted in or rejected with reasons to be recorded in writing. Person obtaining consent will have to comply with the conditions imposed, and such condition may be varied if due to any technological improvement, the state board feels there is any need for variation in conditions.

Special Economic Zone: