Table of Contents:
TITLE:
The title of my project is “A comparative study between Environmental legislations of India and USA”.
OBJECTIVE OF THE STUDY:
The
objective of the project undertaken is to perform a thorough study of
the environmental legislations of the US and India. Suggestions will be
made in direction of good governance. The main issue is to drive home
the conclusion as to how these legislations have affected the present
day scenarios. Whether is it correct way to achieve the concept of good
governance?This project also sets the following objectives:
HYPOTHESIS
Framing
hypothesis is very important part of any study on legal systems.
Following hypothesis will be used to arrive at conclusion-“Role of Judiciary is not to just interpret legislation but also help in the process of law making so that we can follow the concept of good governance.” |
INTRODUCTION AND BACKGROUND OF ENVIRONMENTAL LAWS
“Plans to protect air and water, wilderness and wildlife are in fact plans to protect man.” –
Stewart Udall
Environmental law is a collective term describing international treaties (conventions), statutes, regulations, andcommon law or national legislation (where applicable) that operates to regulate the interaction of humanity and thenatural environment, toward the purpose of reducing the impacts of human activity.
The topic may be divided into two major subjects: pollution control and remediation, and resource conservation, individual exhaustion. The limitations and expenses that such laws may impose on commerce, and the often unquantifiable (non-monetized) benefit of environmental protection, have generated and continue to generate significant controversy.
Given the broad scope of environmental law, no fully definitive list of environmental laws is possible. The following discussion and resources give an indication of the breadth of law that falls within the "environmental" metric
Environmental law is a “belt-and-suspenders” collection of laws that work together and often overlap in areas. The origin of the Environmental Protection Agency (EPA) is rooted in a reorganization of the executive branch under the Nixon Administration. Reorganization Plan No. 3 of 1970 proposed the establishment of EPA to integrate the administration of numerous federal pollution control laws that had been carried out by several federal agencies. This plan was part of a broader effort to reorganize an array of environmental responsibilities of many federal agencies, which also resulted in the creation of the National Oceanic and Atmospheric Administration (NOAA).Environmental law is a collective term describing international treaties (conventions), statutes, regulations, and common law or national legislation (where applicable) that operates to regulate the interaction of humanity and the natural environment, toward the purpose of reducing the impacts of human activity.
The topic may be divided into two major subjects: pollution control and remediation, and resource conservation, individual exhaustion. The limitations and expenses that such laws may impose on commerce, and the often unquantifiable (non-monetized) benefit of environmental protection, have generated and continue to generate significant controversy. Environmental law is often the source of controversy. Notably, the early history of national environmental regulation in the United States (at the time the world leader in environmental regulation) was marked by relative political unity. The National Environmental Policy Act (1969), the Clean Air Act (1970), the Clean Water Act (1972), and the Endangered Species Act (1973) all were enacted with broad bipartisan support, and ultimately signed into law by Republican President Richard Nixon. Even then, however, critics raised concerns regarding the need for such laws and the costs involved in implementing them. Richard Nixon himself initially vetoed the Clean Water Act, citing its projected costs, though he was ultimately overridden by Congress. Debates over the necessity, fairness, cost, and need for environmental regulation continue to this day. On the other hand, in India National Green Tribunal Act, 2010 (NGT) is a federal legislation enacted by the Parliament of India, under India's constitutional provision of Article 21, which assures the citizens of India the right to a healthy environment. The tribunal itself is a special fast-track court to handle the expeditious disposal of the cases pertaining to environmental issues.
India has a progressive environmental regulatory framework. The right to an environment that is not harmful to one’s health or well-being is entrenched as a fundamental right in the Constitution of India.
ENVIRONMENTAL LAWS IN USA
The environmental
policy of the United States is federal governmental action to regulate
activities that have an environmental impact in the United States. The goal of environmental policy is
to protect the environment for future generations while interfering as
little as possible with the efficiency of commerce or the liberty of the
people. This policy grew mainly out of the environmental movement in the United States in the 1960s and 1970s during which several environmental laws were passed, regulating air and water pollution and forming the Environmental Protection Agency (EPA).
Partially due to the high costs associated with these regulations,
there has been a backlash from business and politically conservative interests,
limiting increases to environmental regulatory budgets and slowing
efforts to protect the environment. Since the 1970s, despite frequent
legislative gridlock, there have been significant achievements in
environmental regulation, including increases in air and water quality
and, to a lesser degree, control of hazardous waste. Due to increasing scientific consensus on global warming and political pressure from environmental groups, modifications to the United States energy policy and limits on greenhouse gas emission have been proposed, but such efforts have made limited progress.The United States now spends more than any other country in the world on cleaning up the environment. In 1993, $140 billion was spent on the environment, or about 2.4 percent of GNP[1]. These expenditures are a direct result of laws regulating the environment, which were administered by the United States Environmental Protection Agency (EPA). The EPA is, arguably, the most powerful agency in the United States that regulates health, safety or the environment. Since its inception in 1970, the EPA has been given an increasing amount of responsibility and power to control pollution.
In general, federal environmental policies have had a positive impact on cleaning up the environment, though the precise magnitude of this impact is difficult to measure. Overall trends in air quality are positive for conventional air pollutants, such as sulphur dioxide and lead. Indeed, since 1970, there has been a downward trend for most significant air pollutants, with the exception of nitrogen oxides. The picture for toxic pollutants is less clear, but there is reason to believe that toxic air pollutant emissions were reduced, and will continue to decline substantially in the future as a result of the 1990 Clean Air Act Amendments. The trends in water quality are less dramatic. Some waterways have definitely improved, particularly those near urban areas that were highly polluted in the early 1970s. Other waterways have remained roughly the same or have deteriorated in quality. The data strongly suggest there has been great progress on local pollution problems. In the last few years, there appears to have been substantial progress in reducing the amount of toxic material produced. Moreover, the health data suggests that the cancer risk from toxic emissions is relatively small, accounting for only about two percent of total cancers[2].
All three branches of government exert control over important aspects of federal environmental policy. Congress enacts the laws and also has some informal control over how the laws are implemented. The official responsibility for implementing the laws is left to the Executive Branch. In particular, EPA is primarily responsible for administering most environmental statutes, though the Department of the Interior and the Department of Agriculture also play important roles in different policy arenas. While EPA has generally been the dominant administrative agency in designing and promulgating regulations, there have been a number of notable attempts on the part of the Executive Office of the President, government departments and other regulatory agencies to influence environmental policy. major environmental laws and amendments involving EPA have been enacted during all recent administrations. There is every reason to believe that such laws will continue to be passed with some regularity. This trend reflects the public's growing demand for the government to address environmental concerns. It also reflects our evolving understanding of how laws are implemented as well as the science governing environmental processes.
The following is a table of major federal environmental laws implemented by the EPA.
1970 Clean Air Act Amendments
1972 Federal Water Pollution Control Act
Federal Environmental Pesticides Control Act
Marine Protection Act
1973 Safe Drinking Water Act
1976 Toxic Substances Control Act
Resource Conservation and Recovery Act
1977 Clear Air Act Amendments
Clean Water Act Amendments
1980 Comprehensive Environmental Response, Compensation, &
Liability Act
1984 Resource Conservation and Recovery Act Amendments
1986 Safe Drinking Water Act
Superfund Amendments & Reauthorization Act
1987 Clean Water Act Amendments
Global Climate Protection Act
1988 Ocean Dumping Act
1990 Clean Air Act Amendments
Pollution Prevention Act
Oil Spill Prevention Act
ENVIRONMENTAL LAWS IN INDIA
A policy is a board guideline for planners and administrators. It lays down the general objectives and its execution is left to the administrators. Policy formulation becomes indispensable because policy is in an instrument of transformation of a given environment into a preferred environment. It is through a policy that we can precisely identify the problems; fix priority to form alternative approaches and solutions; make a choice among alternatives on the basis of comprehensive analysis if benefits and costs; articulate the choice in terms of goals expressed; provide organization, personnel and resources to ensure effective implementation; and to lay down a mechanism for continuous monitoring of the policy. In India, attention has been paid right from the ancient times to the present age in the field of environmental protection and improvement. Historically speaking, the laws relating to environment improvement were simple but quite effective and people were aware of the necessity of environmental protection. The present day legislations in India are the outcome of the growing industrialization and population pressure. There are stated to be over 500 Central and State statues which have at least some concern with environmental protection, either directly or indirectly. Besides that, the common law and Constitutional remedies relating to environmental protection are also there. By early 1972 it had been realized (as observed in the Fourth Five Year Plan earlier) that unless a national body was established to bring about greater coherence and coordination in environmental policies and programmes and to integrate environmental concerns in the plans for economic development, an important lacuna would remain in India‟s planning process. Thus, in Feb. 1972, a National Committee on Environmental Planning and Coordination (NCEPC) was established in the Dept. of Science and Technology.The NCEPC was an apex advisory body in all matters relating to environmental protection and improvement. The Committee was to plan and coordinate, but the responsibility for execution remained with the various ministries and governmental agencies. Over time the composition of the Committee changes significantly and it became unwieldy, and decision making more complex. Greater bureaucratization occurred with the addition of more secretaries. The Fifth Five Year Plan (1974-79) stressed that the NCEPC should be involved in all major industrial designs and a link and balance between development planning and environmental management has to bemaintained. In this context, Minimum Needs Programme (covering rural education, health, nutrition, drinking water, etc.) received a fairly high 97priority, and was expected to minimize environmental pollution and degradation in rural areas.In the Sixth Five Year Plan (1980-85), an entire chapter on „Environment and Development‟ was included that emphasized sound environmental and ecological principles in land use, agriculture, forestry, mineral extraction, energy production, etc. It provided environmental guidelines to be used by administrators and resource managers when formulating and implementing programmes, and lay down an institutional structure for environmental management by the Central and State Governments. The basic approach taken by the Seventh Plan (1985-90) was to emphasize sustainable development in harmony with the environment, as the federal government had recognized the negative effects that development programmes were having on the environment. The Plan called for the government and voluntary agencies to work together to create environmental awareness:
“This is a philosophy which must permeate the entire effort in the filed of environment.‟ However, even today this basic philosophy has still not taken hold because the entire emphasis on industrialization, agri-business and powergeneration projects (form First to Fourth Five Year Plans), with little concern for environmental protection, has not relinquished its grip on decision makers.”The Seventh Plan recognized that „the nation‟s planning for economic growth and social well-bring in each sector must also work to secure improvement in environmental quality‟. The leaders of the country had realized that poverty and under-development, as opposed to development activities, had led to many of the country‟s environment problems. The Eight Five Year Plan (1992-97) gave an important place to the environment by moving it to the fourth category of subjects examined in the text. The Plan stated:“Systematic efforts have been made since the Sixth Plan period of integrate environmental considerations and imperatives in the planning process in al the key socioeconomic sectors. As a result of sustained endeavour, planning in all major sectors like industry, science and technology, agriculture, energy and education include environmental considerations.”The Ninth Plan (1997-2002) has emphasized “Growth with Social Justice and Equity”. The Joint Forest Management and Community Forestry have been specially emphasized in the Plan. The Tenth Plan (2002-200&0 is on the similar lines.In India, there are a number of laws which deal with various aspect of environment protection regulation, conduct of environmentally harmful activities and provide for remedies in case of their breach. Some of them are „general‟ having an “indirect” bearing on environment protection, while 103 others are „special‟ (viz. Water, Air and Environmental Acts, Forest Act, etc.) being “directly” concerned with environment protection.General legislation comprises of Indian Penal Code, 1860; Code of Criminal Procedure, 1973; Code of Civil Procedure, 1908; and, specific sectoral legislations having a bearing on the environmental aspects viz. The Factories Act, 1948, The Mines Act, 1952, The Industries (Development and Regulation) Act, 1951, The Insecticides Act, 1968, The Atomic Energy Act, 1962, The Motor Vehicles Act, 1939 and 1988, The Delhi Municipal Corporation Act, 1957, etc.Under Indian law, for instance, the remedies for a public nuisance are (i) a criminal prosecution for the offence of causing a public nuisance (Indian Penal Code 1860, Sec. 268), (ii) a criminal proceeding before a Magistrate for removing a public nuisance (Criminal Procedure Code 1973, Secs. 133-44), and (iii) a civil action by Advocate General or by two or more members of the public with the permission of the court, for a declaration, an injunction or both (Civil Procedure Code 1908, Sect. 91).The remedy under the civil law is not often used, however this provision is a reservoir for class action against environmental violations. Traditionally, the interpretation of the Indian Penal Code has been viewed as a conservative attempt at enforcement. This is because punishment and fines have been characterized as meager. The law of public nuisance contained in Sec. 133, Cr. P.C. has been used in a number of cases for the purpose of protection of the environment. In 1987, shortly after the Bhopal gas tragedy and the Supreme Court‟s ruling in the Shriram Gas Leak Case[3] , the 1987 amendment to the Factories Act introduced special provisions on hazardous industrial activities. The amendment empowers the States to appoint „site appraisal committees‟ to advise on the initial location of factories using hazardous processes. The occupier of every hazardous unit must disclose to her workers the Factory Inspector the local authority and the general public in the vicinity all particulars regarding health hazards at the factory, and the preventive measures taken. The regulation of nuclear energy and radioactive substances in India is governed by the Atomic Energy Act of 1962, and the Radiation Protection Rules of 1971. Under the Act, the Central Government is required to prevent radiation hazards, guarantee public safety and the safety of workers handling radioactive substances, and ensure the disposal of radioactive wastes. The control of air pollution resulting from the vehicular emissions which contributes for about 65-70 per cent of the pollution load in India was taken care of by the Motor Vehicles Act, 1939. The Act empowered the State Government to make rules inter-alia regarding the emission of smoke, visible vapour, sparks, ashes, girt or oil. The 1939 Act has now been repealed by the Motor Vehicles Act, 1988. Section 110 of the new Act empowers the Central Government to make rules regulating the construction equipment and maintenance of motor vehicles and trailers. In 1989, the Central Motor Vehicles Rules introduced nation-wide emission levels for both petrol and diesel engine vehicles. These rules were further amended in 1992. The amendments lay down standards regarding emission levels of carbon monoxide, nitrogen oxides and unburnt hydrocarbons for petrol and diesel vehicles. The vehicles manufactured after April 1, 1992 must meet the additional emission standards prescribed for petrol and diesel vehicles. As a pat of control mechanism, the amended rules authorized the regional or State Transport authorities to allow private agencies such as petrol stations to test the emission levels of vehicles and issue “pollution under control” certificates. Under Rule 116, the 105registration of a vehicle found to be exceeding the permissible emission levels can be suspended.The various municipal laws have also provided for legal control of pollution. The Delhi Municipal Corporation, Act, 1957 contains extensive provisions for prohibiting the erection of latrines, septic tanks near wells, water pipes, tank or discharging sewage or dumping rubbish, etc., near water lines. The Act empowers the Municipal Commissioner to make an order restraining the use of water from any well, tank or other source of supply not vested in the corporation when it is so polluted as to be prejudicial to health of the people. Thus, there are a number of general legislations in India which are relevant from the environmental point of view. However, these statuses contain piecemeal provisions which are not only insufficient but have no effective mechanism for controlling pollution. Further, different authorities envisaged under these Acts is inimical to an integrated approach to conservation issues.
The general legislations like IPC, Cr. PC, CPC, MV Act, Labour Acts, etc., could be quite effective in controlling environmental violations because of the easy availability of the enforcement machinery (Police, judiciary, etc.,) in every district of the country. Some of these Acts have been amended recently to incorporate current trends and requirements. Thus, besides an effective implementation of these Acts and creating a greater public awareness about them, there should be coordination between different types of authorities so as to effectively preserve and protect the environment.
THE NATIONAL GREEN TRIBUNAL ACT, 2010
The legislate Act of Parliament defines the National Green Tribunal Act, 2010 as follows,"An Act to provide for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto"[4].
The Tribunal's dedicated jurisdiction in environmental matters shall provide speedy environmental justice and help reduce the burden of litigation in the higher courts. The Tribunal shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice. The Tribunal is mandated to make and endeavour for disposal of applications or appeals finally within 6 months of filing of the same.Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible; New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other 4 place of sitting of the Tribunal.[5]
It is a matter of common knowledge that the higher judiciary in India is overburdened with a large backlog of cases. It may be appreciated that in order to have effective prevention of environmental pollution environmental complaints should be decided expeditiously which is not possible in the present context of judicial administration. Therefore, there was an urgent need for an alternative forum so that environmental cases were decided without much delay. The Indian Apex Court opined that it would be desirable to have the setting up of “environmental courts on the regional basis with a professional judge and two experts drawn from the...Ecological Science Research Group.”[6] A similar view was expressed by some of the prominent jurists of the country. It may be noted that Principle 13 of the Rio Declaration on Development and Environment states that “states shall develop the national law regarding liability and compensation for the victims of Pollution and other environmental damage”. To give effect to the above directive and to provide for a forum for effective and expeditious disposal of cases arising from any accident occurring while handling any hazardous substance, the Indian Parliament enacted the National Green Tribunal Act, 2010. It may be appreciated that the Stockholm Declaration 1972 which has been described as International “Magna Carta” of our environment and the Rio declaration, 1992 have exhorted the members of the International Community including India, to take appropriate steps for the protection and improvement of human environment. To give effect to these exhortations contained in the global declarations on environment and to provide for a specialized forum for effective and expeditious disposal of cases arising out of enforcement of environmental laws in the country, the Indian Parliament has enacted, recently,[7] the National Green Tribunal Act, 2010 which has come into force on 2 June 2010[8]. The Act seeks to replace the National Environment Tribunal Act, 1995[9] and the National Environment Appellate Authority Act, 1997 which have been in operation for sometime in the country. The Act has been enacted in response to the recommendations of the Law Commission of India and the Indian Supreme Court which highlighted the large number of environment – related cases pending in the courts[10].
CONCLUSION
This
report has provided a review of EU environmental legislation on waste,
water and three other legislative acts (namely the SEVESO II Directive,
the Air Quality Directive and the EU Ecolabel Regulation) for their
coverage of nanomaterials. The identification of gaps in the
environmental legislations and its subsequent implementation required an
understanding of the potential risks associated with environmental
exposure to waste. This understanding drew on possible environmental
exposure pathways for specific wastes and wastes in general and on data
on the possible hazards associated with specific wastes that were
identified in the literature. Although a wide range of possible exposure
pathways were identified, concrete evidence of releases was only found
to support some of these pathways, notably releases of treated waste
waters into surface waters and into soil through sewage sludge and
treated effluent from sewage plants. For other pathways, either the very
limited number of studies or the complete lack of studies made the
identification of possible exposure more speculative. Regarding hazards,
there is a lack of ecotocicological data even for the most tested
wastes such as fullerenes, carbon nanotubes, nano titanium dioxide, nano
zinc oxide, and nano silver. The wide range of different wastes and the
subsequent diversity of their environmental footprints mean that
general statements cannot be made concerning the hazards associated with
wastes. It is relevant to highlight the relevance of the precautionary
principle to the discussion of whether to act to regulate nanomaterials
and, if so, how to act. The precautionary principle serves to guide
decision makers in cases where preliminary objective scientific
evaluation uncovers reasonable grounds for concern regarding potentially
dangerous effects on the environment, human, animal or plant health,
effects that may be inconsistent with the high level of protection
chosen for the the concerned country. Given the particular emphasis on
managing limitations in scientific knowledge, recourse to the
precautionary principle would seem to be extremely relevant to the
regulation of wastes.
Bibliography:
RESEARCH DOCUMENTS:- F. Cairncross, The Environment: An Enemy, and Yet a Friend, The Economist, Sept. 8, 1990, at 3.
- W. Brookes, Dead Wrong Again, 43 Nat'l Rev. 29 (1991)
- “The Little Green Data Book ". The World Bank. 2010.
- "Status of Sewage Treatment in the India". Central Pollution Control Board, Ministry of Environment & Forests, Govt of India. 2005.
- "India: Country Strategy paper, 2007–2013". European External Action Service, European Union. 2007.
- Scenic Hudson Preservation Conference v. Federal Power Commission,354 F.2d 608, December 29, 1965
- Barcott, Bruce. "Changing All the Rules." The New York Times April 2004.
Web sources:
- http://www.indiaenvironmentportal.org.in/node/300742
- http://www.envfor.nic.in/legis/env/env1.html
- http://moef.nic.in/rules-regulations/national-green-tribunal-ngt
[1] . Office of Policy, Planning and Evaluation, U.S. Environmental Protection Agency, EPA-
230-11-90-083, Environmental Investments: The Cost of a Clean Environment (1990).
[2] R. Doll & R. Peto, The Causes of Cancer: Quantitative Estinates of Avoidable Risks of Cancer
in the United States Today, 66 J. Natl Cancer Inst. 1193, 1256 (June 1981)
[3] (AIR 1987 SC 1086)
[4] http://moef.nic.in/downloads/public-information/NGT-fin.pdf
[5] http://moef.nic.in/rules-regulations/national-green-tribunal-ngt
[6] M.C. Mehta v. Union of India, AIR 1987 SC 965-967
[7] While the Lok Sabha Cleared the Bill on 30-04-2010, the Rajya Sabha approved the same on 05-05-2010
[8] The Act, in Section 1(2), stipulates that it shall come into force on such date as the Central Government by notification in official Gazette appoint. The Central Government
has not yet issued any notification in this regard.
[9]The environmental tribunal under this act has not been established.
[10] See186th Report, 2003 of the Law Commission of Indi a. See also the decision of the Supreme Court in M.C. Mehta v. Union of India, (1997) 2 SCC 653, See also M.C. Mehta v. Union of India, AIR 1987 SC 965 and Charanlal Sahu v. Union of India, MANU/SC/0285/1990.
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