Environmental Law: Concepts and Global Issues

Introduction to Environmental Law

• This unit covers environmental law, concepts, governance, and international protocols. Topics include climate change, carbon offsetting, and the Environment Protection Act of 1986.

Global Environmental Issues

• Environmental regulation is required to solve Ozone Depletion. Acid Rain, Global Warming, Climate Change and Biodiversity loss. As well as Pollution of air, water, soil and noise, and depletion of natural resources.

Concept of Law and Policy

• Policy outlines user actions to achieve objectives.
• Laws are formal rules and guidelines that governments must follow.
• Policy provides a decision-making framework, while laws set standards, procedures, and guidelines.
• Policies are flexible, while laws are rigid.
• Policies are drafted and revised based on discussion and situational demands before any law is enacted.
• Laws aim for equality and justice, whereas policies focus on governance and organizational operations.
• Laws prescribe severe punishments for non-compliance, whereas policies issue less severe ones.
• Laws set standards to govern behavior, while policies provide the protocols or procedures to enforce those laws.
• The objective of law is justice. On the other hand, policies target certain achievements.
• Civil, Criminal, and International laws are examples of law types, while policies can be social or public in nature.
• Laws are administered through courts and policies are not.
• Laws are formal and rigid, while policies are more liberal.
• Violating laws leads to punishment, but violating policies does not.
• Laws guide the public; policies guide the government.

Environmental Policy

• Environmental policy is any deliberate action taken to manage human activities to prevent, reduce, or mitigate harmful effects on natural resources and to ensure man-made environmental changes do not harm humans or the environment.

Case Study: Charan Lal Sahu vs. Union of India

• This case concerned the Bhopal gas leak disaster.
• Charan Lal Sahu represents the petitioner as an Advocate from Bhopal.
• The respondent was the Union of India.
• Union Carbide (India) Limited, a subsidiary of Union Carbide Corporation, was established in India in 1954, with the Indian government holding approximately 22% of UCIL shares.
• Methyl Isocyanide (MIC), a highly toxic gas, was manufactured in a UCIL-owned chemical plant in Bhopal for pesticides.
• Approximately 3,000 individuals lost their lives. Thousands suffered injuries when the MIC storage tank at the Bhopal plant leaked on the night between December 2nd and 3rd, 1984.
• The flora, fauna, and environment were badly affected.
• Numerous suits were filed in various district courts of the United States of America on behalf of the victims.
• Multi-district litigation decided the US District Court, Southern District of New York should consolidate the suits and Judge Keenan was selected as the presiding judge.
• On the ground of forum non conveniens, the legal battle moved to the Indian courts and decided it would not proceed in the US courts.
• The Indian government established the Bhopal Gas Leak Disaster (Processing of Claims) Act in 1985 for the speedy, effective, and equitable settlement of Bhopal gas leak disaster claims.
• Three issues were in question, involving whether the act aligned with Indian Constitution Articles 14, 19, and 21 and whether it aligned with Natural Justice principles.
• The Indian government had a 22% share in the Union of India joint-tort-feasor firm.
• Issues related to giving victims and their legal heirs a chance to be legally represented.
• The central government seemed to display a conflict of interest, as they seemed to be judging its own cause, which ran contrary to the rules of natural justice.
• The issue was whether they had legislative power to destroy people’s rights while deceptively giving them aid.
• Sections 3, 4, and 11 of the Bhopal Act 1985 were questioned as unconstitutional.

Respondent Arguments: Charan Lal Sahu vs. Union of India

• Authority is because of "Parens Patriae" as the government argued.
• Articles 38, 39, and 39A clubbed with the Preamble of India, gives the government authority.
• The government argued the case was not a violation of the principles of Natural Justice, but was acting on behalf of the victims only and not as a judge in the case.
• The Doctrine of necessity was also stated and considered more important than the principle of Natural Justice.
• A key point is that in Article 39A of the Constitution of India, the state should make decisions for the welfare of the public in general.

MC Mehta vs. Kamal Nath Case

• M.C. Mehta was the petitioner.
• Kamal Nath and Span Hotels Pvt. Ltd were the responders.
• Span Hotels Pvt. Ltd, built motels on forest land by River Beas that was taken on lease from the government for a 99-year period.
• Respondents diverted the Beas River flow using heavy earthmovers, constructed cemented embankments near the river and encroached barren forest land.
• The Forest Department of Kulu authorized these actions, and Mr. Kamal Nath was an interested party in the deal.

Petitioner’s Argument: MC Mehta vs Kamal Nath Case

• M. C. Mehta argued interfering with rivers, forests, air, and water disturbs the ecological balance.
• Mehta argued this violates Fundamental Rights under Article 21 and fundamental duties under Article 51A(g) of the Constitution. Article 51A(g) states that a citizen must look after and develop the natural environment and show compassion for living creatures.

Respondent’s Argument: MC Mehta vs Kamal Nath Case

• Kamal Nath declared no right, title, or interest in ‘Span Resorts’ in the above petition.
• Allegations were exaggerated with malicious intent from press reports.
• Banwari Lal Mathur disclosed all Span Motels Pvt. Ltd shares were owned by Kamal Nath's family but the Court did not comment on this.
• S. Mukerji tried to defend Motel activity was done in good faith towards the environment and the community.
• The Motel stated they took action for protecting the land, but were unable to finish due to the allegations against them.

Doctrine of Public Trust

• The Supreme Court applied the 'Doctrine of Public Trust' to the MC Mehta vs Kamal Nath Case.
• Pubic trust is an ancient legal doctrine that states the Government held common properties in trust for the public use.
• A Public Trust Doctrine rests on the principle that holds resources like air, sea, water, and forests are owned by the public and resources gifted by nature should be available freely to all.

Environmental Governance

• Comprises the rules, practices, policies, and institutions that shape human interaction with the environment.
• It is a key driver for achieving sustainable development.
• Global problems, such as air pollution, biodiversity loss, global warming, and ozone depletion require local, state, national, and international cooperation.
• Effective governance at all levels is critical for finding solutions.
• Considers the environment and natural resources as global public goods and also considers environment as global public goods.
• Crucial materials mean materials that provide utility and human satisfaction.
• Public Goods must be non-rivalrous and non-excludable in nature.
• Good governance takes into account all the stakeholders, from governments to NGOs, the private sector, and civil society and cooperation is critical to achieving effective governance.

Global Environmental Governance

• On an international scale, global environmental governance is a set of organizations, policy instruments, financing mechanisms, rules, procedures, and standards to regulate global environmental protection.
• Sustainable development emerged at the United Nations Conference on the Human Environment (UNCHE) held in Stockholm, Sweden, in 1972.
• UNCHE also looked at the term “Pollution of poverty” when it adopted an Action Plan on Human Development.
• The United Nations Environment Programme (UNEP) was established as a result of the UNCHE.
• UNEP plays a key role in global environmental governance by coordinating activities within UN agencies and initiating new projects.

United Nations Environmental Programme (UNEP)

• UNEP was established in 1972 and acts as a watchdog to ensure MEAs are implemented by signatory countries.
• UNEP has been delivering expert scientific assessments and providing an international platform for negotiations and decision-making since 1972.
• MEA country parties must implement conventions, treaties, and protocols by redrafting national plans, policies, and laws.
• The Conference of Parties (COP) meets periodically and is the supreme body of these conventions. Note: the Conference of Parties of UNFCCC is held annually

Goal’s of UNEP’s environmental governance sub program

• Sound Science is need for decision-making as initially approaches were unscientific
• International cooperation because Some major environmental issues are not restricted to one area.
• National development planning to assist UN in helping countries create the Multi-Lateral Environmental Agreements (MEAs) implementation and with countries in policy development and implementation processes.
• International policy setting and technical assistance for science-based solutions for global problems. This helps give governments ways to strengthen and implement environmental law.

UN Development Decades

• 1960s were focused on applying scientific and technological advancements to boost prosperity to underdeveloped nations. The aim was for development as "More like the West".
• The 1970s, applied growth and scientific knowledge to boost prosperity to underdeveloped nations. Development was not shared equally among the nations.
• the 1980s were focused on economic dimensions of development (sustainable).
• The 1990s emphasized to Least Developed Countries (LDC). Development should be responsive to social needs, reduce poverty, and promote human resources.

Environmental Governance Processes

• Centralized “top-down” approach: policies and plans from the government are adopted through centralized consultations among government ministries and departments.
• Decentralized "bottom-up" approach: plans and policies are adopted through grass-root consultation.
• Development planning uses a Multi-stakeholder Integrated Sustainability Planning (MISP) model.
• It is important to include grassroots people to ensure "ownership” by the affected people. This process considers views and concerns on pollution through national governance.

Article 253

• Parliament enacted The Air Act of 1981 and the EPA of 1986 thanks to Article 253 and entry 13 of the union list.
• Passed to implement the decisions at the Stockholm conference, 1972.

The Right to Wholesome Environment

• Part 3 of the Indian Constitution includes Fundamental rights.
• Environmental protection is a fundamental right to life and personal liberty in Article 21.
• The Right to life includes the right to livelihood. This was decided by the Supreme court in Subhash Kumar case as as the right to unpolluted air and water.

Article 14 – Right to equality

• The Ganesh Wood products vs State of Himachal Pradesh case introduced intergenerational equity.
• Each generation of individuals should to benefit from cultural and natural heritage.
• Article 19 (1) (g) is freedom to trade vs. environmental protection.

History of Environmental Governance in India

• From date of Indira Gahndi's return from the United Nations Conference on Human, Environment, and Development in Stockholm in 1972, is the start of Environmental Governance in India (25 years after independence).
• Indira Gahndi established established The National Environmental Planning and Coordination Committee
• CPCB (Central Pollution Board) was founded in 1972. By 1980 the Department of the Environment was created and state department were too. Water laws were enacted in 1974, next followed air and forest and the Environment Protection Act of 1986. In 1992 an Environment Policy and Strategy Statement was released and environmental impact assessments were needed from all industries. Sectors needed evaluation and centre was the authority. By 1996 India became what it is today for environmental governance. (coastal biomedical, plastic and hazardous
• High Courts allowed Public Interest Litigation.

Need for Environmental Governance

• India’s ecosystem is in a bad shape and rivers are polluted. Solid trash is not handled and higher even in wealthy states like Maharashtra.
• Approximately 3/4 of India’s population lives in locations where air pollution levels four times higher, which exceeds Indian national guidelines. 72 of the 640 districts in the northern region emissions are higher. Global Environmental Quality Performance Index ranked at 177th out of 180.
• State of Global Air 2020 reports long-term air exposure lead to yearly fatalities of 1.67 million due to conditions stroke, heart attack, diabetes, lung cancer and children illness. As reported b WHO air pollution is responsible for 10% of children deaths before 5.
• Poverty exacerbates environmental impacts due to them experiencing impacts by fishers, farmer and forest people.
• Environmental pollution raises burdens on public health and degraded resources impact those with little livelihoods. Additionally high workers refuse the high rates of polluted states.
• Difficulties and challenges may necessitate regional or international agreements and initiatives

Sustainable Development and Environment

• Sustainable development takes into account the present as well as future needs and future generations.
• Brundtland Commission introduced “Sustainable development”, titled “Our common Future,” in 1987.
• The Theme: Transforming our World: The 2030 Agenda for Sustainable Development.
• This aims for peace and prosperity for people and the planet.

SDG Index 2.0

• Measures State and Union Territories progress towards 2030 SDG targets. NITI Aayog publishes documents.

Objectives of Sustainable Development

• Poverty Eradication and Production patterns and consumption patterns
• Sustainable development balances the need and what is for “greed”.

UNEP and International Protocols

• UNEP United Nations Environmental Programme organization founded in 1972 in United Nations for the environment
• international cooperation provides guidance and promotes a UN organization for environmental projects. Kenya hosts headquarters.
• UNEP provides guidance and promotes int coop on environmental isses
• mission is to inspire people

6 Areas of Concentration of UNEP

• Climate Change to integrate country with leadership adaptation and finance low carbon societies renewable energy increase public.
• Post conflict assess and provide framework with legislative management. in countries and Afghanistan.
• ecosystem management and restore GPA UNEP helps governments.
• Harmless substance impact risks .mercury

Goal for adaption of goals adaptation.

• Move to low carbon societies focus efficient

###Understanding climate science

• It builds info on better data to influence action on the public.

Ramsar Convention

• There is specific ecosystem for international treaty.
• Is a convention for wetlands
• Signed in Iranian city. in 1971.
• It provides framework for national action. adopted by protocol the Regina was put there . there are currently 75 cities and 85 counties.
• World wetland is 2nd of Februarys

3 Pillars of Ramsar Convention

• This aims to help the Human well-being.
• The ministry put 75 cities healthy and managed.

Criteria's to be considered for getting Ramsar Tag

• representative, rare, or unique example.

International Cooperation

• Intergovernmental of Wetland.
• Consultation from the country on the convention.

Montreux Record

• Wetlands on the international Importance for pollution.
• This is a good impact for Ramsar.