New body may face similar challenges as Epca, say experts

New Delhi: The Union government’s decision to set up a new umbrella agency to fight air pollution may run into the same problems that dogged the Supreme Court-appointed

New Delhi: The Union government’s decision to set up a new umbrella agency to fight air pollution may run into the same problems that dogged the Supreme Court-appointed Epca, experts warned, while some others also said that any renewed focus on the problem was welcome and the answer to the long persisting problem could lie in a new federal body.

HT Image

Till Thursday, the most crucial agency monitoring and acting on the pollution issue was the environment pollution (prevention and control) authority (Epca), which was set up in 1998 and had a mandate empowered by the top court.

“There are several concerns with this ordinance, starting with the fact that legal and regulatory changes to tackle public issues like air pollution need a democratic conceptualisation. At the outset it is clear that the central government has taken control over the pollution control matters in the Delhi NCR region. This starts with the fact that the chairperson of this commission is a central government appointee. The commission will be heavily dominated by bureaucrats, to whom the legal frameworks gives various powers. The enforcement mechanism clearly top down and so far there is no indication that it will include third party monitoring and citizen-driven enforcement,” said Kanchi Kohli, legal researcher, Centre for Policy Research.

She added, “One important issue is limiting the adjudication to the National Green Tribunal (NGT) and not any other court. This is problematic as the appointments of the chairperson and members of both the commission and the NGT will be done by the Centre.”

SN Tripathi of IIT-Kanpur, however, welcomed the move, saying the commission will better coordinate efforts to curb air pollution among National Capital Region (NCR) states. “There was no single body, authority, ministry or state which was empowered or dedicated to do that. This ordinance is an excellent example of learning from what the US did in California. While the US Environment Protection Agency (USEPA) was an autonomous and empowered body set up to manage air pollution across the country, California posed a singular challenge as a hotspot, that’s when the California Air Resource Board was set up to tackle that particular airshed. The problem of dealing with air pollution in California has a striking similarity to NCR in terms of meteorological and other conditions that we see in the Indo-Gangetic plains,” said Tripathi, who heads of the civil engineering department.

Legal experts said the commission may not be able to do much more than what Epca was already doing. Environmental lawyer Ritwick Dutta said the commission has been given powers similar to the one conferred on Epca by a 1998 notification. Epca had powers under section 5 of the Environment Protection Act, 1986, which include power “to direct --- the closure, prohibition or regulation of any industry, operation or process; or stoppage or regulation of the supply of electricity or water or any other service to the polluter. It also had powers to take suo motu action on the basis of complaints, take steps to ensure compliance with vehicle standards, powers to enter, inspect and seize material from premises of polluters and many others”.

“Epca, in its 22 years of existence, has rarely exercised its statutory powers and had become an advisory body to the Supreme Court. The same situation is likely to take place with regard to the new commission. Section 12 gives power to entertain complaints. Such power already existed with Epca, but was never exercised. The same is likely to continue with the new commission. The reason is simple. Under the ordinance, if an offence has been committed, a complaint has to be filed before the judicial magistrate first class. Given the fact that a majority of members of the commission are serving government servants, including chief secretaries and secretaries, it would amount to filing cases against themselves. It is for this very reason that Epca never filed a single complaint before the magistrate in 22 years of its existence,” Dutta said.

The environment ministry in a note issued to journalists on Thursday said actions and orders made by Epca shall continue to be effective and deemed to have been done under this ordinance.

Legally, however, the commission would be more powerful than Epca, said Dutta. He said that the commission will have parliamentary mandate after the ordinance is passed. “It will become an Act of Parliament, independent of other statutes. For NCR and adjoining areas this commission will operate. It is a complete code in itself,” he said.

Shibani Ghosh, a public interest lawyer and a CPR fellow, said that even under the new body, criminal conviction would be used as the primary tool to deter environmental offences. The commission will have the powers to levy a fine which may extend up to ₹1 crore or imprisonment for a term of up to five years or both. Ghosh said it is not practical.

“The commission has to file a complaint in a criminal court for non-compliance or contravention of its directions and orders. Whether it decides to exercise this power, and how often, would depend significantly on its staff and resources as criminal prosecution is a very time intensive process. The fear of criminal conviction has failed to deter environmental offences in India so far and it is unfortunate that the new law continues to use that as the primary tool for enforcement,” she explained.

Dutta said the commission’s initiatives could reduce judicial intervention. The SC was monitoring the air pollution issue in NCR until now through Epca. “With the commission there will be little judicial monitoring. It will now be a completely bureaucrats driven exercise as the body mainly consists of bureaucrats,” explained Dutta.

The commission doesn’t include members from ministry of health, ministry of labour and ministry of rural development who are also stakeholders in the matter.