As reported on October 30, 2020, the Central government has decided to set up a new umbrella agency (commission) to fight air pollution. However, experts are of the view that the commission may face the same challenges that dogged the most crucial, monitoring, and acting agency, namely, Environment Pollution (Prevention and Control) Authority (EPCA), appointed by the Supreme Court in 1988. However, SN Tripathi of IIT-Kanpur is of the view that the commission will better coordinate efforts to curb air pollution among National Capital Region (NCR) states. Legally, the commission would be more powerful than EPCA as it will have parliamentary mandate after becoming an Act of Parliament, independent of other statutes, and will be a complete code in itself for NCR and adjoining areas.
Concerns Related to the Ordinance
The Union government’s decision to set up a new agency has the following concerns:
1. As per the Kanchi Kohli, legal researcher, Centre for Policy Research, legal and regulatory changes to tackle public issues like air pollution require a democratic conceptualisation. Clearly, the central government has taken control over the pollution control matters in the Delhi NCR region, which means that the chairperson of this commission is a central government appointee. Such commissions are heavily dominated by bureaucrats who are empowered by the legal frameworks. Thus, there will be a top-down enforcement mechanism. Moreover, there is no indication that it will include third party monitoring and citizen-driven enforcement.
2. Limiting the adjudication to the National Green Tribunal (NGT) and not any other court is another issue because the appointments of the chairperson and members of both the commission and the NGT will be done by the Centre.
3. Legal experts opine that the commission may not be able to do much more than what EPCA has done so far. The commission has been given powers very much similar to the one conferred on EPCA, under Section 5 of the Environment Protection Act, 1986.
4. EPCA rarely exercised its statutory powers during its 22-year lifespan and became just an advisory body to the Supreme Court. The experts view that the same would happen with the new commission.
5. Section 12 empowers the commission to entertain complaints, which also existed with EPCA, but that was never exercised. The new commission will also meet the same fate because if an offence is committed, a complaint has to be filed before the judicial magistrate I class, as per the ordinance. Most of the members of the commission are serving government servants, including chief secretaries and secretaries. Therefore, it would amount to filing cases against themselves, and for this very reason, EPCA never filed a single complaint before the magistrate.
6. As per the environment ministry, actions and orders made by EPCA shall continue to be effective and deemed to have been done under this ordinance.
7. According to Shibani Ghosh, a public interest lawyer and a CPR fellow, criminal conviction would be used as the primary tool to deter environmental offences even under the new body. The commission will have to file a complaint in a criminal court for non-compliance or contravention of its directions and orders. However, it would depend significantly on its staff and resources whether or not to exercise this power, as criminal prosecution is a time-intensive process. Unfortunately, the new law continues to be used as the primary tool for enforcement.
8. The commission’s initiatives could reduce judicial intervention because the exercise will be completely affected by bureaucrats.
Comment
This decision of the Union government is being treated as an excellent example of learning from what the US did in California. Though the US Environment Protection Agency (USEPA) was an autonomous and empowered body to manage air pollution across the country, California posed a singular challenge as a hotspot when the California Air Resource Board was established to deal with that airshed. That problem in California is strikingly similar to NCR in terms of meteorological and other problems in the Indo-Gangetic plains. The government’s decision is appreciable though, the crux of the problem is the enforcement of the law and justice done to the commission!
Courtesy: HindustanTimes