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Lecture 2
Policy and Legal Aspects of EM
STRUCTURE
Overview
Learning Objectives
2.1
Introduction to Environmental Polic ies
2.1.1 Economics and environmental polic ies
2.1.2 Industries and environmental policies
2.1.3 Agriculture and environ mental policies
2.1.4 Ecosystem and environmental polic ies
2.1.5 Environmental policy instruments (EPI)
2.2
Environmental Po licies and Programmes in Ind ia
2.2.1 Forest conservation activities
2.2.2 NGO movements for environmental protection
in India
2.3
Environmental Laws and Legislations
2 .3.1 Private and Public la w
2 .3.2 Principles of international la w
2 .3.3 Indian Environmental Laws
2.3.4 International institutions
2.3.5 Key international treatie s
2.3.6 Objectives and principles of legislation
2.4
Environmental Legislations in India
2.4.1 Evolution of Ind ian Legislations
2.4.2 Constitution of India
2.4.3 Union Government initiatives
Summary
Suggested Readings
Model Answers to Learning Activit ies
OVERVIEW
In Unit 1, we introduced you to the fundamental principles and
concepts of the environment and ecosystem. In this Unit (i.e., Unit
2), we will provide you with the background to the evolution of
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LEARNING OBJECTIVES
After completing this Unit, you should be able to:
2.1
INTRODUCTION TO ENVIRONMENTAL
POLICIES
have
sound
knowledge
of
the
actual
and
potential
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In
other
words,
the
immediate
benefits
resulting
from
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2.1.2
The need
to meet increasingly
stricter
environmental
regulations.
Stakeholder pressure (e.g., pressure from shareholders,
insurers and investors).
Supply-chain pressure from customers.
Historically poor relations with regulatory bodies and local
communities.
Many industries have established environmental management
systems (EMS) to tackle activities, which either pose a serious
threat to ecosystems in the event of accidents or involve
significant expenditure because of the costs associated with raw
material use and/or waste disposal. An EMS is "the part of an
overall management system that includes organisational structure,
planning
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activities,
responsibilities,
practices,
procedures,
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impacts
of agriculture may be
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of
environmental
services,
specific
agriculture-
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performance
through
improved
production
practices.
General policy principles
When markets do not exist to allocate costs and benefits of
agriculture-environmental impacts and outputs, policy action may
be needed to account for
environmental
targets
and
the costs
to
ensure
of not respecting
the
provision
of
costs
of
not
respecting
environmental
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mining,
road
construction,
agriculture,
dams,
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management
plans
for
all
protection
of
forests.
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2.1.5
(ii)
Market-based instruments
that act as
incentives
for
particular activities.
(iii)
Information-based
instruments
that
seek
to
change
of
subsequent
and
more
specific
policy
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make
public
information
on
their
environmental
performance.
Financial and technical incentives: Governments may
stimulate cleaner production measures by providing grants,
loans and favourable tax regimes, and/or by supplying
targeted technical assistance to relevant industrial enterprises.
Regulatory instruments
Since the inception of environmental policy, the predominant
strategy for pollution control has generally been through the use of
regulatory instruments. Usually, a public authority sets standards,
and then inspects, monitors and enforces compliance to these
standards, punishing transgressions with formal legal sanction.
These regulations may, for example, specify an environmental
goal such as the reduction of carbon dioxide emissions by a
specified date. They may also mandate the use of a particular
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Market-based instruments
Market-based instruments generally seek to address the market
failure of environmental externalities either by incorporating the
external cost of a firm's polluting activities into the firm's private
cost (for example, through taxation), or by creating property rights
and facilitating the establishment of a proxy market (for example,
by using tradable pollution permits).
Before introducing any new economic instruments, governments
should identify and evaluate any economic incentives that may
already be in operation, either explicitly or implicitly. These
include, for example, the use of subsidies to make local industries
more competitive. Many of these policies lead to artificially low
prices for resources, such as energy and water, and as a result of
which these resources may be overused, creating both pollution
and shortages. Government assessments of such policies are,
therefore, needed before other economic instruments are applied.
Taxes, fees and charges may be used to promote cleaner
production practices by raising the costs of unwanted outputs or
by providing incentives to promote more efficient use of natural
resources. In some instances, it may be appropriate to use the
revenues generated from these instruments to support cleaner
production
activities
and
thereby
stimulating
preventative
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technological
development.
Governments
must,
educational
institutions
to
incorporate
and/or
consumption
supporting
such
as
measures
eco-labelling
that
address
schemes
and
cleaner
production.
(www.uneptie.org/pc/cp/understanding_cp/cp_policies.htm).
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2.2
70
India is well known for its aranya sanskriti or forest culture. Forest
dwelling communities lived in symbiosis with a large number of
wild animals, hunting some and venerating others. With the
advance of agriculture with the Iron Age, forests began their
retreat to the hilly regions of the Himalayas and their lesser
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exploitation
marked
an
ecological,
economic
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2.2.2
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and
Gandhian
disciples
spearheaded
its
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76
2.3
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of
stable,
unambiguous
undertakings
and
agreements.
Legislations have evolved in response to problems, so that there
is often a delay between the need and the establishment of
satisfactory law. Without effective legislation, resource use,
pollution control, conservation and most fields of human activity
are likely to fall into chaos and conflict. Law can encourage
satisfactory performance, enable authorities to punish those who
infringe environmental management legislation, confiscate faulty
equipment or close a company. It may also be possible for
employees, bystanders and product or service users to sue for
damages, if they are harmed. Environmental laws, in essence, are
indispensable instruments in curbing environmental degradation.
Environmental laws can be categorised as public and private laws
depending on the environmental issue; this is discussed in the
next section.
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2.3.1
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law with science background to win the case and to judge which
ones are not worth pursuing the case.
Environmental law is practised in the public interest for public
benefit in the form of groups or individuals seeking environmental
protections. Strength of law lies in its potential elasticity that
represents the basis for developing an environmental tort action
unconnected to land and capable of protecting wider community
interests.
Public interest rarely happens whereas the law that is practised in
private interest in the form of groups or individuals who are
responsible for polluting or committing environmentally destructive
activities who can also avoid violating these environmental laws in
the process are usually common cases issues. This clearly shows
private law plays negative role in environmental cases. This law
balances only individual interests such as challenging uses of land
rather than environmental protection.
2.3.2
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Principle
of
non-discrimination:
According
to
this
(iv)
(v)
82
first
wave
of
modern
environmentalism
was
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84
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Case 2.1
Given below is the list of principles laid down by United Nations Conference on
Human Environment.
Principle 1 : Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life of dignity and
well-being, and he bears a solemn responsibility to protect and improve the
environment for present and future generations. In this respect, policies
promoting or perpetuating apartheid, racial segregation, discrimination, colonial
and other forms of oppression and foreign domination stand condemned and
must be eliminated.
Principle 2: The natural resources of the earth, including the air, water, land,
flora and fauna and especially representative samples of natural ecosystems,
must be safeguarded for the benefit of present and future generations through
careful planning or management, as appropriate.
Principle 3: The capacity of the earth to produce vital renewable resources
must be maintained and, wherever practicable, restored or improved.
Principle 4: Man has a special responsibility to safeguard and wisely manage
the heritage of wildlife and its habitat, which are now gravely imperiled by a
combination of adverse factors. Nature conservation, including wildlife, must
therefore receive importance in planning for economic development.
Principle 5 : The non-renewable resources of the earth must be employed in
such a way as to guard against the danger of their future exhaustion and to
ensure that benefits from such employment are shared by all mankind.
Principle 6 : The discharge of toxic substances or of other substances and the
release of heat, in such quantities or concentrations as to exceed the capacity of
the environment to render them harmless, must be halted in order to ensure that
serious or irreversible damage is not inflicted upon ecosystems. The just
struggle of the peoples of ill countries against pollution should be supported.
Principle 7 : States shall take all possible steps to prevent pollution of the seas
by substances that are liable to create hazards to human health, to harm living
resources and marine life, to damage amenities or to interfere with other
legitimate uses of the sea.
Principle 8 : Economic and social development is essential for ensuring a
favorable living and working environment for man and for creating conditions on
earth that are necessary for the improvement of the quality of life.
Principle 9: En vironmental deficiencies generated by the conditions of underdevelopment and natural disasters pose grave problems and can best be
remedied by accelerated development through the transfer of substantial
quantities of financial and technological assistance as a supplement to the
domestic effort of the developing countries and such timely assistance as may
be required.
Principle 10: For the developing countries, stability of prices and adequate
earnings for primary commodities and raw materials are essential to
environmental management, since economic factors as well as ecological
processes must be taken into account.
Principle 11: The environmental policies of all States should enhance and not
adversely affect the present or future development potential of developing
countries, nor should they hamper the attainment of better living conditions for
all, and appropriate steps should be taken by States and international
organizations with a view to reaching agreement on meeting the possible
national and international economic consequences resulting from the application
of environmental measures.
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Principle 23: Without prejudice to such criteria as may be agreed upon by the
international community, or to standards which will have to be determined nationally,
it will be essential in all cases to consider the systems of values prevailing in each
country, and the extent of the applicability of standards which are valid for the most
advanced countries but which may be inappropriate and of unwarranted social cost
for the developing countries.
Principle 24: International matters concerning the protection and improvement of
the environment should be handled in a cooperative spirit by all countries, big and
small, on an equal footing. Cooperation through multilateral or bilateral
arrangements or other appropriate means is essential to effectively control, prevent,
reduce and eliminate adverse environmental effects resulting from activities
conducted in all spheres; in such a way that due account is taken of the sovereignty
and interests of all States.
Principle 25: States shall ensure that international organizations play a coordinated,
efficient and dynamic role for the protection and improvement of the environment.
Principle 26: Man and his environment must be spared the effects of nuclear
weapons and all other means of mass destruction. States must strive to reach
prompt agreement, in the relevant international organs, on the elimination and
complete destruction of such weapons.
2.3.4
International institutions
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active
on
subjects
such
as
deforestation
and
conservation of fisheries.
The World Meteorological Organisation (WMO): This plays
a crucial role in the field of climate change and global
warming.
The International Atomic Energy Agency (IAEA): This
agency although not initially much concerned on the subject,
but in the wake of the Chernobyl disaster in Russia has
focused its attention towards environmental pollution.
International Bank for Reconstruction and Development
(IBRD)/The World Bank (WB): This has, in recent years,
begun to pay more attention to the environmental side effects
of its lending policies.
Outside the UN system, regional organisations, which have
adopted significant legal instruments in the field of the
environment, include the Organisation for Economic Co-operation
and Development (OECD), the Conference on Security and Cooperation in Europe (CSCE) and the Organisation of African Unity
(OAU).
2.3.5
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(ii)
(iii)
(iv)
(v)
(vi)
(x)
90
(xi)
(ii)
(iii)
(iv)
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economic harm and danger in travel. With regard to the humanmade environment it seeks the protection of historic and cultural
environment. It seeks harmonisation of standards and the
enforcement of those standards through legislative provisions
particularly
relating
environmental
to
the
management
introduction
systems
to
of
appropriate
harness
scarce
resources.
The further objectives of environmental legislation are to set
standards such as achieving a high level of protection by taking
into account the diversity of situations in the various regions, to
give a legal basis to the precautionary principle whereby
legislative action is taken where there is no reason to believe that
substances or energy or materials introduced directly or indirectly
into the environment, may, or are likely to create, hazards to
human health, harm living resources, damage communities or
interfere with other legitimate uses. This can be done even where
there is no conclusive evidence of a cause or relationship between
inputs and their effects and to give a legal basis to the principle
that preventive action should be taken as prevention and if
successful, to advise all the detailed legislation relating to steps to
be taken to cure a problem.
Environmental legislation is generally based on the principles that
environmental damage should, as a priority, be rectified at source
and that the polluter should pay. Environmental protection
requirements should be integrated into the definition and
implementation of legislation relating to non-environmental issues.
Where cross border matters relating to provisions primarily of a
fiscal matter, measures concerning town and country planning and
land use (other than waste management), management of water
resources and measures significantly affecting the choice between
different energy resources and the general structure of energy
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2.4
intent", or
"knowingly"
discharge
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Constitution of India
98
pass resolutions
empowering the
Environment Management
established
an
environmental
information
system,
and
Forests
(MOEF).
MOEF
was
more
conducting
environmental
assessments
and
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water cess again since the charges were still well below the
current effluent treatment costs.
The MOEF also decided to shift from concentration to load-based
standards. This would add to a polluters costs and remove
incentives to dilute effluents by adding water, and strengthen
incentives for adoption of cleaner technologies. It also issued
water consumption standards, which were an additional charge for
excessive water use.
Targeting small-scale industries has been an important task as
well, since these facilities greatly add to the pollution load. The
Ministry provides technical assistance and limited grants to
promote central effluent treatment plants. It has also created
industrial zones to encourage clusters of similar industries in order
to help reduce the cost of providing utilities and environmental
services.
In January 1994, the Union government introduced new
restrictions
and
prohibitions
on
the
expansion
and/or
an
an
environmental
impact
assessment
(EIA)
and
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2006,
which
makes
environmental
clearance
102
1)
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7)
Brick Kiln Ca se: New Delhi Metropolit an authority drafter a
Master Plan in the year 1990. According to that plant Brick Kilns were
categoriz ed as H. The S upreme Court of India directed them t o clos e
down their industries or alternatives they can be shift ed outside Delhi
limits within three years of the master plan coming into effect.
Applications were filed by the brick kiln owners of Delhi for
modification of the order in whic h the applicants had been directed to
surrender the land without being paid any compensation. Their
contention is that In t he Master Plan of 1990, brick kilns were not
shown as a category H industry. But the Delhi pollution Control
Committee in their report submitted to the Sup reme Court on 1996
appraised the fact that 246 brick kilns are operating in NCT of Delhi.
While ordering closure and shifting of these industries in Delhi the
Supreme Court in their earlier judgment had directed that the use of
the land which would become available on account of
shifting/relocation of brick kilns shall be permitted in terms of the
order of 10th May, 1996. It was also stated that that brick kilns shall
be given incentives and brick kiln should shift to fly ash technology.
The Court in their order held that with the closure of brick kilns or the
change in use to fly ash technology, the owners of the land in which
they are situated would not be under any obligation to surrender the
land. To that extent the order of 26/11/ 96 got modified. The Co urt
also made it clear that this order will not apply to those brick kilns
owners who have availed this Court order dated 26/11/96 and have
benefited in the same in the matter of relocation.
8)
Coa stal areas ca se: As already been discussed in this article
the Coastal Zone Regulation Notification had come into existence in
the year1991. In spite of the notification no coastal Stat es had
formulat ed coastal zone management plan. The result is haphazard
constructions and industrial activities are permitted in thes e areas. It
lead to the large scale damage to coastal ecology and loss of
livelihood to lakhs of fishermen and ot her indigenous communities
dependent on marine resources. Indian Council for Enviro - Legal
Action (ICELA) filed a Public Interest Litigation for the protection of
coastal zone according to the notification issued by the Government
of India. S upreme Court delivered a landmark Judgment banning
industrial/ construction activity within 500 meters of the High Tide
Line and set a time limit for the coastal states to formulate coastal
management plans.
9)
Environmental awareness and education ca se : The social
SUMMARY
work ers, NGOs and the public spirited lawyers in India are well aware
of the facts that moving the Supreme Court by way of Public Interest
Litigation
is not we
sufficient
to abate
environmental
pollution.
In
this Unit,
discussed
thethehistory
of environmental
Prevention is better than c ure. This can be achieved by educating the
general public. Their
awareness
helpimpetus
in combating
the problem
on
management
in India,
learntcanthe
provided
by nona major scale. The S upreme Court of India directed that all o ver the
government
sector t heaters
movements
the formulation
of policies
and
country the cinema
shall to
exhibit
two slides free
of cost on
environment
in
each
show
failing
which
their
licens
es
will
be
cancelled.
legislations and described the institutional framework for
For televisions a minimum 5 to 7 minutes will be given by the
environmental
television network
management.
in the country to televis e programmes on
environment apart from giving a regular weekly programme on
environment. Environment has become a compulsory subject up to
12th standard from academic session 1992 and University Grants
SUGGESTED
READINGS
Commission will also introduce this subject in higher classes in
different Universities
Official
website
for
Ministry
of
105
Lecture 2
Model Answers to Learning Activities
LEARNING ACTIVITY 2.1
Product bans and extended producer responsibilities are two
examples of policy instruments for cleaner production.
(ii)
(iii)
(iv)
(v)
Development Alternatives.
106
(ii)
(iii)
107