Laws versus realities: Where is Nepal failing in environment protection?

Nepal has ample constitutional and legal provisions to promote environmentalism. The government just needs to implement them.

Photo: www.pri.org

Jivesh Jha

  • Read Time 6 min.

During the official meetings, when I say that I am from Janakpur the first comment usually is that Janakpur is the place of Goddess Sita, wife of Lord Rama. It’s a city of god as it’s the capital city of ancient Mithila, they compliment. Then they also mention that Janakpur and other places of Madhesh province cannot become free from pollution.

Janakpurdham is undergoing a severe environmental crisis. Some decades ago, water did not come in plastic gallons but was extracted through hand pumps. Now hand pumps have gone dry and Janakpur dwellers rely on either water gallons or on water supply from the government.

You see stranded pigs, solid wastes from hospitals and households on the streets, unmanaged drainages, bad smells of rotten things, and abnormally high numbers of mosquitoes. An over populated and polluted Janakpur cannot survive rapid unsustainable development, which badly harms the natural environment. It’s unfortunate that the focus of civic responsibilities and citizen’s involvement has been solely on electoral participation. Governments have failed to establish any institutional forums for involving volunteers on issues like environmental protection. The laws of the land confer power on the local bodies and provincial governments to act on ecology. For this, budget and aid are also allocated from the federal government and donor agencies but the actual implementation remains modest.

So what are the legal provisions for environment protection? What can the local bodies do about it? This article is focused on these two key issues.

What laws promise  

The health of the environment and the community’s economic situation are inextricably linked. The preservation of the environment is a worldwide concern.  In order to protect ecological interests, Nepal’s Parliament passed the Environment Protection Act in 2019, which replaced the previous environmental protection legislation of 1997.  The federal, provincial and local governments and even private individuals are obligated to safeguard and conserve the environment under this green law.

The Act includes a number of clauses aimed at environmental conservation and enhancement. The Act’s preamble envisions that the pollution victims have the right to seek compensation from the individuals or entities responsible for the pollution. This arrangement is in accordance with Nepal’s Constitution’s ‘polluter pays principle’ as stated in Article 30 (2). Pollutants are defined as chemical waste, heat, sound, and electronic magenta/radiations that harm the quality of the natural environment, according to the Act of 2019. Similarly, “harmful substances” refers to hazardous wastes moved over national borders, as specified by the Basel Convention of 1989.

Development work that does not conform to the Environment Study Report (ESR), Environmental Management Plan, Environment Assessment Report, or Supplementary Environment Impact Assessment reports is prohibited by the 2019 Act. However, the erstwhile 1997 Act demanded only Initial Environment Examination and EIA. This paradigm shift clarifies that the current Act puts additional restrictions to reaffirm our ties with nature and sustainable development.

The 2019 Act provides ample powers to the second and third tiers of government to adopt plans and policies for the conservation of the environment. For instance, Section 3 (2) (b) of 2019 Act envisages that the Environment Study Report shall be submitted to the provincial government in cases where the development project falls under the jurisdiction of provincial law. Likewise, Section 3 (2) (C) directs the local governments to oversee Environmental Study Report and Initial Environmental Examination in case of proposals relating to development falling under the jurisdiction of local levels. Still, the law mandates that the EIA will be regulated by the provincial government even if the developmental project falls under the local jurisdiction. Nevertheless, the proponent is duty-bound to prepare ESR in line with the standards and quality determined by the Government of Nepal.  The concerned agency—federal, provincial or local government—may immediately prevent the project from being implemented if a proponent executes a project without having ESR.

If sustainable development is to become a national priority, we must think about major reforms, including environment decentralization for a climate resilient future.

In order to ensure the compliance of ESR and standards relating to pollution control, the provincial government may designate any officer as Environmental Inspector to inspect over the compliances prescribed by the Act. Interestingly, the local governments have also been empowered to employ “any employee” as Environmental Inspector to monitor whether or not the acts to be performed pursuant to ESR have been performed effectively. 

Under Section 18, both federal and provincial governments have power to establish laboratories to study, test or examine the samples collected to analyze pollution. Similarly, the federal or provincial governments can issue pollution control certificates to any industrial enterprise.   Along with this, the provincial government is under an obligation to make public necessary information required to combat pollution, and climate change. The Act envisages that the provincial governments would give priority to the issues of biodiversity, climate change, or strategies to mitigate pollution in developing plans and policies for the province. In order to avoid adverse impacts of environmental risks or climate change, the provincial, local or federal government may adopt adaptation plans in their respective jurisdiction. Under Section 30, the federal government has power to declare an environment protection area in consultation with provincial or local government.

Photo: https://blog.ipleaders.in/

The legislation foresees the Environment Protection and Climate Change Management National Council under the chairmanship of Prime Minister where the Chief Ministers of provinces are ipso facto members. The Chief Ministers could press and pass their agendas from the meetings of the Council which would ultimately help the second-tier governments to adopt measures to mitigate pollution and climate change under their respective jurisdiction.

In this respect, it can be said that Nepali environment laws are more progressive than India’s. In India, the Environment Protection Act (1986) does not confer power on the state governments to adopt plans and policies or establish laboratories or inspect any plant.      

In Nepal, provincial and local governments are empowered to adopt measures to fight against climate change and pollution. They can establish laboratories to test the samples to analyze the quality of air or water or natural environment. 

The Nepali law does not confer power on the provincial governments on the matters of national importance, climate change, carbon trading and among others. It appears that the role of provincial government is rather secondary. The provincial and local governments are obliged to act in furtherance of the direction and policies issued by the federal government.

If sustainable development has to become a national priority, we must think about major reforms, including environment decentralization for a climate-resilient future. In this context, the Local Government Operation Act (2017) hosts a plethora of provisions where the local units have been conferred with the power to enact laws, policies and other measures at their competence for the protection and promotion of green democracy. The local bodies have been vested with power to adopt and enact measures to contain the pollution and to ensure clean water and fresh air. The local governments are entitled to bring policy measures for waste management in coordination and cooperation with private citizens, NGOs and other organizations.

According to the Local Government Operation Act, the local government could adopt policy and law regarding the conservation of ecology, biodiversity, environmental risk reduction, pollution, and reduction of carbon emissions. However, there are provisions which suggest that the local bodies would have to act in pursuance of the federal and provincial governments.

Section 11(4) envisages that the local bodies may adopt laws, policies and other measures for the protection and conservation of biodiversity, forest and the environment in line with the central and provincial laws. The law empowers the local governments to make policy, rules, and measures for managing, protecting and promoting forests, biodiversity, migratory species, flora and fauna, and monuments of historical importance, and to maintain their record in their respective jurisdiction.

In doing so, the local bodies could come up with a detailed report about the number of monuments, flora and fauna, forests and the overall situation of the environment in their jurisdiction. There are provisions that the community forest consumer committee shall prepare an annual working plan regarding the sale and use of timber and other forest produce and the said working plan has to be submitted before the concerned local unit for approval. 

What should be done?

We are celebrating World Environment Day today with the theme of “living sustainably in harmony with nature.” As we do so, we also need to analyze whether or not we have succeeded, even tried,  in enforcing the green laws promulgated for the protection and promotion of the natural environment. 

Nepal cannot survive with unsustainable development practices, especially given that Nepal is an ancient country of an environment-friendly people. Nepal has ample constitutional and legal provisions to promote environmentalism. The government just needs to implement them.

It’s high time for the federal government to bring a mechanism of cutting the financial aid to the local governments if they fail to curb the pollution in their respective jurisdiction.

All the 753 local units deserve to become pollution-free palikas. Janakpur, the land of Goddess Sita, deserves to be free from pollution. I look forward to the time when I can proudly announce during the official meetings that I am from Janakpur, a clean, pollution-free holy city of Nepal.

ncell_ad