Air pollution: New law, new hope, old challenges

Legal experts said the commission may not be able to do much more than what Epca was already doing.

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.

Children playing football on a hazy morning in New Delhi.(Vipin Kumar/HT Photo)

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.

“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 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. “With the commission, it will now be a completely bureaucrats driven exercise,” explained Dutta.