Is consolidation or implementation the key?

From an era where we care little about environmental costs, our country has moved to a stage where regulators are holding companies to account for their performance on environmental, social and governance (“ESG”) metrics. We have streamlined our projects and policies to achieve our Sustainable Development Goals (“SDGs”). Our legal system has ensured that environmental compliance is no longer a matter of choice but a constraint. He has ensured that regulators properly discharge their legal obligations and ensure that industries comply with environmental regulations in letter and spirit.

As India gained independence and our economy began to grow, it was necessary to enact laws to protect the natural environment and its various components, be it air, water, forests, wildlife, biodiversity, etc. More importantly, since India had started becoming a signatory to various international environmental conventions, it was mandatory that we protect our environment at home. The Water (Pollution Prevention and Control) Act 1974 (“Water Act”) was the first major step in this direction, which most importantly helped establish the Central Pollution Control Board ( “CPCB”) and national pollution control commissions. This was followed by the Air (Pollution Prevention and Control) Act of 1981 (“Air Act”) and the Environmental Protection Act of 1986 (“EPA”), which been framework legislation empowering the central government to enact laws through various rules, notifications, etc. to address specific environmental issues.

The recommendations of the TSR Subramanian commission had been rejected by the parliamentary standing committee in 2015. While it would be unfair to note that not all of the commission’s recommendations were substantiated, the concern then was that there should have been a wider consultation by the committee. before making its recommendations in the report and that the laws should have been reviewed and analyzed in a more comprehensive manner. It is pertinent to note that, from time to time, various changes have been made to environmental laws based on changing societal and business requirements. Environmental laws in India have come a long way since their enactment in the 1970s and 1980s. However, it is not the provisions or their overlap but their effective and consistent implementation that leave much to be desired.

Last year, the draft Environmental Impact Assessment (“EIA”) notification was released for comment. While it was feared that this was an attempt to weaken the law, it was argued that the purpose was simply to consolidate all the amendments and streamline the law and process for environmental permits. Similarly, it is now proposed that the EPA, Air Act, and Water Act be consolidated into a single environmental management act to avoid overlap and conflict, incorporate environmental compensation provisions and tools such as emissions trading, extended producer responsibility, etc. note that revising a notification to consolidate all amendments is entirely different from consolidating different laws enacted for specific purposes into one.

While consolidation and streamlining are important, as is the need to make laws stricter by incorporating environmental offset provisions, this should in no way be seen as an attempt to weaken our laws or complicate them further. . The judiciary over the past decades has done an excellent job of interpreting and clarifying existing environmental laws. Our established principles of statutory interpretation have also guided us where there may be potential conflicts and overlaps. We have specific laws to deal with various aspects of environmental protection. Therefore, revising laws that are fairly established may not be the best idea. Instead, it may be right to incorporate through amendments such provisions that help improve our laws and focus on transparent and effective implementation of those laws.

We have often explored the idea of ​​creating a national environmental protection agency on the model of the United States Environmental Protection Agency. This is indeed a great idea. However, we must also remember that countries like the United States have specific laws to deal with specific aspects of environmental protection and natural resource conservation. It may not be wrong to say that these specific laws have served the United States very well, a country that still has very high standards for environmental protection and polluter liability. If the objective is to fill the gaps related to environmental compensation, waste management, etc., we can always explore the possibility of having specific laws on the model of the law on response, compensation and global environmental responsibility (“CERCLA”) or resource conservation and conservation. Recovery Act (“RCRA”), as in the United States. In fact, we have adopted various rules in the past to that effect. We don’t necessarily need to change our whole legislative framework for that. Doing so at this point, when most laws seem pretty well established and serve very specific purposes, may not be the best idea.

Strengthening our institutions and strictly implementing our existing environmental laws is key. Self-certification will certainly help improve accountability and we already have laws where this is provided. Change is the only constant, although it may not be imminent when it comes to our legislative framework for environmental law. The key is not really consolidation, but effective and transparent implementation and interpretation of existing laws to ensure that they serve the purpose for which they were originally enacted.



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