As we are celebrating the World Environment Day (WED) on June 5 with the theme of “Ecosystem Restoration” we also need to analyse whether or not we have succeeded, even tried, enforcing the green laws enacted for the protection and promotion of the natural environment.
Since 1974, the WED has become a global platform to declare that pollution is a business of shame in the environment. The WED was firstly observed in the United States in 1974 with the theme of “Only One Earth”. The milestone was set by the 1972 Stockholm Declaration. A home to 26 principles, Stockholm declaration emphasizes control of pollution and conservation of natural resources. The convention gave a message that humans are at the centre of development and environment.
This year, Pakistan is hosting WED with a pledge to plant 10 billion trees to restore over one million hectares of forest across the country. Last year, WED was hosted by Columbia in partnership with Germany under the theme of “Time with Nature”. Similarly, in 2019, WED was hosted by China with a “Beat Air Pollution” theme. In 2018, India hosted it with a “Beat Plastic Pollution” theme. However, India is yet to take significant steps in banning the use of plastics. It thus fails to stand by the commitment.
Where does Nepal stand?
The Constitution of Nepal hosts a plethora of fundamental rights that supplement the right to clean and green environment of the citizens. The Environment Protection Act (EPA), 2019, which is enacted to enforce right to clean environment envisaged under Article 30 of the constitution embodies environmental principles like sustainable development, Environment Impact Assessment (EIA), or Polluter Pays Principle (PPP) to foster purposive and progressive environmentalism.
These green laws mandate that there should be developments but that development should be in closest possible harmony with the environment. Otherwise, there would be development at the cost of the environment ultimately resulting in total devastation.
As per the Act, a victim of environmental pollution is entitled to file an application at the concerned authority demanding compensation from the person or organization involved in causing the pollution. This goes in line with polluter pays principle (PPP), as provisioned under Article 30(2) of the Constitution of Nepal. The notion of PPP finds a prominent place under Principle 16 of 1992 Rio Declaration which mirrors Principle 22 of Stockholm Declaration of 1972.
Unlike the erstwhile 1997 Environment Protection Act, the 2019 Act redefines the term “pollution” so as to include waste, chemical, heat, sound, electronic magenta or radiations that have potential to degrade the quality of the natural environment. In addition to this, the expression “harmful substances” has been defined in line with Basel Convention (1989) in an inclusive form that includes harmful wastes incidentally transported from one national boundary to the other.
Interestingly, the 2019 Act prohibits carrying out any developmental work in non-compliance of Environment Study Report, Environmental Management Plan, Environment Assessment Report and Supplementary Environment Impact Assessment. The 1997 environment law had only provision for Initial Environmental Examination and Environment Impact Assessment (EIA). The present Act places more restrictions so as to strike a balance between development and environment.
Moreover, the government has been empowered to declare any place with natural heritage, rare wildlife, plants or places with biodiversity and places of historical and cultural significance as protected areas. The government has also been conferred with the power to classify any area as a green zone.
Nepal has ample constitutional provisions to promote environmentalism. The government needs to enforce the green laws that exist for the cause of green democracy.
Similarly, the government is entitled to restrict the movement of people in and around a place which has been declared a “polluted area” where harmful materials or wastes have been stored or disposed of.
The EPA (2019) allows the government to take part in carbon trading in line with international treaties and agreements with foreign governments or organizations.
The current EPA hosts measures for protecting the fundamental rights of citizens to live in a clean and healthy environment. It seeks to guarantee compensation against pollution. Besides, the law directs the private as well governmental institutions to refrain from undertaking any developmental activities at the cost of the environment.
But has the government been able to implement these laws?
Weaknesses of laws
Section 6(2) of the 2019 Act provides that if a developer carries out developmental activity in non-compliance of the Environment Study Report, the developer has to face the consequences. If a proposal is implemented without a summary (brief) environment study report, or any act in defiance of it, a fine of up to half a million rupees will be levied upon the defaulting party. If a proposal is implemented without an Initial Environmental Examination report, or any act in defiance of it, then a fine of up to one million rupees shall be levied upon the defaulting party. However, in case of non-compliance of EIA, the stipulated fine is up to five million rupees.
The EPA (2019) is a general legislation that covers many aspects of pollution, including that of climate change. However, the Act is fraught with shortcomings. For example, it prescribes a maximum fine for non-compliance of ESR, EIA or any mechanism, but no minimum fine has been envisaged. The government may impose only a minimum fine and not the maximum. Ultimately, the deterrent effect of the legislation would be diluted. Furthermore, the legislation does not incorporate any incentive (or provision for reward and regard) for the private citizens for taking steps in conservation of ecology or for bringing the outliers in the notice of the government.
The provincial governments are mandated to act in pursuance of the directions, plans and policies of the federal government. The Act does not expressly provide that the federal government would give grants to the provincial governments in a certain ratio for implementing the provisions. Yet it is a positive piece of legislation that aims to implement the right to the environment guaranteed to every citizen of Nepal.
Onus on citizens
The right to information and community participation is necessary for the protection of the environment. Principle 10 of Rio Declaration (1992) recognizes the right to receive information and community participation in formulation of necessary programs.
The right to know plays an important role in environmental matters. As per Brundtland Commission Report (1987), free access to information can provide an informal basis for public discussion when the environmental impact of a proposed project is particularly high, public scrutiny of the case should be mandatory and whenever feasible, the decision should be subject to prior public approval, perhaps by referendum.
In this respect, if our government had acted in line with Brundtland Report and Rio Declaration, the proposed Nijgadh International Airport, which is expected to see the chopping down of thousands of trees and dislocation of migratory species, perhaps would not have been floated in the first place.
Needless to say, the dereliction of duty on the part of the citizens causes disruption in environmental protection. One could observe this in Provincial Hospital based in Janakpur and other private hospitals which are found to be discharging dirty and untreated waters, solid wastes on public roads and drainages causing pollution. This is against the EPA (2019).
It is the duty of the state to take effective steps to protect the guaranteed constitutional rights. The right to clean water, right to fresh air and right to live in an unpolluted atmosphere are attributes of right to life.
It is the duty of the state to take effective steps to protect the guaranteed constitutional rights. The right to clean water, right to fresh air and right to live in an unpolluted atmosphere are attributes of right to life, for, those are the basic elements which sustain life itself.
The rampant pollution and unsustainable development patterns across the globe raise a concern as to whether the countries are successful in connecting and consolidating environmental actions within the context of sustainable development in letter and spirit. Celebrating World Environment Day without the commitment to ending pollution would be worthless.
Nepal has ample constitutional provisions to promote environmentalism. The government needs to enforce the green laws that exist for the cause of green democracy. Nepal deserves a green democracy.
The author, formerly a Lecturer of Environmental Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpur.