A global rise in environmental laws has not led to an improved climate for environmental defenders or more freedom for civil society intervention. One of the greatest challenges to implementing environmental rule of law is a lack of political will, according to a new UN report, 'Environmental Rule of Law, First Global Report', released on 24 January. It is an important assessment on how countries in the world are destroying their own well-established legal systems by poor enforcement.
The report found that despite a 38-fold increase in environmental laws since 1972, failure to fully implement and enforce these laws is one of the greatest challenges to mitigating climate change, reducing pollution and preventing widespread species and habitat loss. While there are still gaps in many of the laws, the substantial growth of environmental laws has been dramatic. Also more dangerous and equally dramatic has been the rising attacks on environmental defenders. Between 2002 and 2013, 908 people — including forest rangers, government inspectors, and local activists — were killed in 35 countries, and in 2017 alone, 197 environmental defenders were murdered, the report said. During 2016, more than 200 defenders were killed in 24 countries, the report observed.
It pointed out that a second backlash has been to restrict efforts by civil society. In the past 20 years, a growing number of countries have imposed legal restrictions on civil society involvement and funding. China recently ordered over 7,000 foreign non-governmental organisations to find a Chinese governmental correspondent to vouch for them and then to register with the police — or stop working in China. India, too, is among the countries that adopted legal restrictions on foreign funding flows to locally operating non-governmental organisations and restrictions on the activities of foreign non-governmental organisations. It is also a country where environmental defenders are at risk, though not as bad as Brazil, which reported 527 killings between 2000-2015. India and Paraguay reported 13 deaths, and China, 5, for the same period.
Ironically, the report holds up China’s response to its environmental crisis as an example. China made significant legal reforms between 2008-2018 which went hand-in-hand with efforts to strengthen enforcement. At least in part due to these reforms, the report concludes that China is starting to turn the corner on pollution control, and recent statistics show significant pollution reductions.
The report comes at a time when miners trapped in the rat-hole mines in Meghalaya met a ghastly fate despite a stern warning to shut down these mines by the National Green Tribunal (NGT). The report praises an order of the NGT which ordered an interim cessation of unsafe, environmentally harmful “rat hole” mining in Meghalaya. It created a committee, composed mainly of Meghalaya officials, and assigned them the tasks of reporting illegal coal extractions, monitoring the legal removal of already-extracted coal, and recommending better mining guidelines. The Tribunal, the report said, held that miners or transporters caught illegally extracting or transporting coal are liable for royalties paid to the state of Meghalaya, and that these royalties are to be used for restoration of the environment.
This is a classic case of lack of enforcing environmental law, despite a court ruling that the report enumerates not only in India but in the rest of the world. The report revealed that shortcomings in implementing environmental law are by no means limited to developing nations. Many developed nations have adopted aggressive and comprehensive environmental laws like the European Union and the USA, but have stumbled in their implementation.
The report cites other sterling examples of legal intervention from India. For instance, the Supreme Court compelled a municipal council to carry out its duties to the community by constructing sanitation facilities pursuant to clear and mandatory statutory authority — another order that probably went unheeded. Importantly it said that the analysis of environmental legislation suggests that implementation of even widely accepted principles like access to environmental information is constrained by gaps in legislation: “And a key reason for limited traction of environmental law in India is that the laws generally do not give the government civil enforcement authority or a range of enforcement sanctions short of shutting-down pollution sources, which is often politically untenable. This gap in the law inhibits effective enforcement.”
Other than environmental laws, the report found numerous cases in India which demonstrate the use of the constitutional right-to-life provision, article 21, to elevate environmental concerns. Despite the existence of environmental provisions in the Indian Constitution (articles 48 and 51), the violations of the constitutional right to life were the primary basis for court orders to take measures to address the environmental harms caused by private activities. In a country notorious for non-implementation of public hearings for projects or environmental impact assessment, the report cites the one example of “public consultation” to keep intact the rights of tribes in the Niyamgiri Hills. The Supreme Court stepped in, not for the first time, and ruled that the rights of the indigenous communities must be taken into account in deciding whether to proceed with the mining project. The villagers voted out the project in 2014. The apex court both resolved the dispute at hand and sought to prevent future disputes from emerging, the report pointed out.
Finding honourable mention is India’s National Green Tribunal started in 2010 to hear civil cases that involve a substantial environmental question. India and the Philippines both allow broad standing for individuals and organisations in environmental cases extending even so far as to unborn citizens in the Philippines. India is among the countries which have dedicated laws for whistleblowers, the report added.
Despite all its flaws, India is among the 31 countries rated 'Very Good' by the Environmental Democracy Index, 2015 which is based on assessments of 70 countries conducted in 2014. It tracks progress in enacting national-level laws, regulations, and practices. It does not include comprehensive measurements of implementation of these laws. And that is where the problem lies. “In India, Thailand, and Uganda, for example, data on pollution stemming from industrial facilities can only be obtained from the government with a personal contact.”
It also refers to the importance of training to those charged with implementing public participation mechanisms. Here too, the country fares poorly. “After India mandated training of officials in its public information laws, a World Bank study found that 60 per cent of public information officers had not received any training.”
However, India is among those countries recognising indigenous land tenure in national laws and also among the 17 countries with national laws that make significant progress toward addressing community land tenure. On the flip side, it must be noted that the Forest Rights Act suffers from poor implementation, emphasising the point that the report makes — that it is not enough merely to have laws alone. The report mentions that after the Bhopal gas disaster in 1984, an Indian court ordered the government to use settlement proceeds for medical insurance for 100,000 persons who might develop symptoms in the future and encouraged the responsible company to fund construction of a local hospital, which it did. However, we mustn’t forget that the world’s worst environmental disaster did not result in adequate compensation to its victims who settled for a pittance of Rs 750 crore or $470 million, in response to a claim of Rs 7413 crore. The Supreme Court as part of the settlement also ordered the dismissal of all criminal charges and civil suits in India against Union Carbide and its chairperson Warren Anderson. India and other countries may have the right legal framework but we are weak-kneed when it comes to delivering environmental justice.
Firstpost is now on WhatsApp. For the latest analysis, commentary and news updates, sign up for our WhatsApp services. Just go to Firstpost.com/Whatsapp and hit the Subscribe button.
Updated Date: Feb 02, 2019 09:26:50 IST