By Armin Rosencranz and Shikha Parakh
In 2015, the climate change conference in Paris dominated world news as well as the news in India. This served as an indication that climate change has taken its place in the global agenda as much as in the agenda of the current Indian government. Despite the attention received by the 2015 Paris Accord, it only provides the framework for the construction of binding global obligations to curb climate change. In this context, the positions that will be adopted by various developed and developing countries will determine the ultimate success of the current climate change efforts.
Parallel to making efforts to combat climate change, governments at the central and state level continued to adopt technology for increasing environmental awareness.The Government of India launched a new website and mobile application to integrate information from existing Environment Information System centers on a single platform.
This was in response to demands from civil society organizations to increase access to environmental data in the public domain for better scrutiny. The Union Government under Prime Minister Modi continued its revamp of all waste management rules as a part of the ongoing reform of environmental by-laws. These included new rules for the wetlands, hazardous waste management and plastic waste management.
The other major legislation that was slated for amendment was the Environment (Protection) Act, 1986. The proposed amendments to the legislation were released for public consultation under the Environment Laws (Amendment) Bill 2015. This bill attracted criticism for being regressive and pro-industry as it proposed to introduce the principle of “pollute-and-pay”. It also intended to curb the power of the environment-friendly National Green Tribunals, which had been launched by Parliament in 2010. The draft bill is due for debate by stakeholders before it is passed.
India experienced deep and disturbing environmental impacts across various regions which could be reasonably linked to climate change. Floods in all of Southern India including the metro city of Chennai, and forest fires in Uttarakhand, were all reported to be worse than any experienced historically. Some of these environmental events served as a befitting backdrop when India attended the climate change talks in Paris in December 2015.
India undertook to expand its renewable energy sector ten-fold by 2022. With other efforts from the Indian contingent such as the emphasis on developed countries helping the developing countries with financing and capacity building for a renewable energy shift, the planet should collectively benefit from the Paris Accord of 2015.
While the central government seemed to have deftly navigated the international climate change discussions, at the domestic level the concerns of apathy remained. State governments in Andhra Pradesh and the newly formed Telangana continued to be reckless towards environmental concerns in their quest for industrial development. It was observed that industrial development licenses were issued without due diligence regarding their environmental impact.
Biodiversity and Bio-safety
The Union Ministry of Environment, Forests and Climate Change (“MoEFCC”) proposed amendments to many existing environmental by-laws. While the motives for these amendments were sometimes questionable, for most amendments there was a thrust towards improving or facilitating implementation. The latest in this series of amendments was the new draft of the Wetlands (Conservation and Management) Rules to replace the 2010 version.
India is a party to the Ramsar Convention for the protection of wetlands and the 2010 rules provided for such protection.
The new draft rules envisage the creation of a body at each state to decentralize and hence facilitate wetland protection.
The new draft rules attracted criticism for not providing an exhaustive list of prohibited activities concerning wetlands and for introducing subjectivity in determining what activities may be undertaken in such wetlands.The draft of the new rules now awaits comments from the public before being finalized. Given the critical role wetlands play in ecological balance and biodiversity conservation, it is hoped that detailed parameters for identification of wetlands as well for identifying prohibited activities will be included in the final draft of the rules.
Toxics and Hazardous Wastes
The MoEFCC notified the Solid Waste Management Rules, 2016 to replace the Municipal Solid Waste (Management and Handling) Rules, 2000. The rules introduce some critical responsibilities such as segregation at source by the waste generator as well as special responsibilities for constructing sanitary waste generators. They also introduce a user fee to be charged to waste generators in a bid to build a financially sustainable waste management system. The rules fill some important gaps and recognize the informal sector, i.e., the scrap dealers (or the local ‘kabadiwallas’) in helping with the recycling of waste. It will be worth noting how effectively the new rules are implemented by the local agencies and the population at large.
Similarly, the MoEFCC also notified the Plastic Waste Management Rules, 2016, to replace the 2011 rules which were framed for ‘restricting the manufacture and use of plastic carry bags’ and ‘for setting up of plastic waste management systems by the municipal authorities’. The Union Government’s major emphasis in the 2016 rules has been on much needed principles such as “extended producer’s responsibility (EPR)”, plastic waste minimization, source segregation, recycling, and involving waste pickers. The 2016 draft bans the use of non-recyclable multi-layered packaging, recycled plastic for packaging food, and plastic sachets for packing tobacco in any form. The minimum thickness of plastic carry bags has been increased from 40 microns to 50 microns under the 2016 rules. The rules also introduce the collect-back system for plastics. In light of the disturbing revelations from the Indian Environment Minister that the abdomen of every dead cow/buffalo in India has about 30 kilograms of plastic, the plastic waste management rules seemed to be the need of the hour.
The battle for forest rights of the tribals continues. In a landmark judgment on the subject, the Supreme Court of India ruled in favour of tribals’ rights to decide whether they wish mining to take place in their traditional forest-lands. However, the Government of Odisha continued to violate the Supreme Court judgment by passing orders to alienate the rights of the tribals. In 2015, the Government of Odisha also filed an application claiming that the Forest Rights Act and its rules do not require any consent from the gram sabha (village councils) for the use of forest-lands if the government decides that the rights of the people have been considered. The Supreme Court again came to the rescue of the tribals’ rights and dismissed the application.
The lower house of the Parliament passed the Compensatory Afforestation Fund (CAF) Bill, 2015. This bill establishes the National Compensatory Afforestation as well as State Compensatory Afforestation Funds for each state. These funds will be primarily spent on afforestation to compensate for loss of forest cover, regeneration of forest ecosystem, wildlife protection and infrastructure development. Experts have raised doubts over the implementation of resources from these funds because forest departments lack the planning and implementation capacity to carry out compensatory afforestation. Forest conservation and land acquisition for forestation continues to be a challenge.
The other critical policy for forestation launched in 2015 was the Green Highways (Plantation, Transplantation, Beautification & Maintenance) Policy 2015.Under this policy, every year 1 per cent of the civil cost of national highway development projects is to be set aside for the planting of trees on the 6000 Kilometres of national highways as a part of the Green Highways Fund.To ensure implementation, the policy envisages penalties to be levied on the entity responsible for highway construction.
Environmental Governance and Protection
The Government of India introduced the Swachh Bharat Cess (the Clean India cess) on all taxable services from November 15, 2015. The cess will be levied at the rate of 0.5% to advance the Swachh Bharat (Clean India) initiative. This, along with the Clean Energy Cess, is a tool being used by the Union Government to tackle climate change and improve the environment. The Clean Energy Cess on coal was first levied in 2010 and has been doubled every year since Prime Minister Modi’s government was formed in 2014.
As per the World Health Organisation’s (WHO) latest report on ‘Ambient Air Pollution 2016’, India was reported to have the most polluted cities in the world, 22 out of the top 50.This news came as a major disappointment in light of the various efforts made by the central government to curb air pollution. These included efforts by the Delhi government to implement the controversial odd-even rule which has been used worldwide with mixed success. The WHO’s report however, focused only on data between 2008-2013 and also only on medium and fine particulate matter (i.e., PM10 and PM2.5). There are other types of pollutant matter which were not studied, such as sulphur dioxide, nitrogen dioxide and benzene. Therefore, according to Indian officials, the list of polluted cities does not present a true picture of the other regions of the world where citizens are suffering.
As per government data, India’s tiger population has shown an increase of 30 percent between 2010 to 2014. This is a result of the widespread conservation efforts being undertaken for the last few decades, with India spending more resources than any other country.
Effects on the population of tigers and other wildlife will also need to be monitored when the Ken-Betwa river interlinking is undertaken because this project will submerge a small but significant portion of the Panna tiger reserve. The tiger reserve has been held as model of tiger conservation in the past.
India also became a formal member of the South Asia Wildlife Enforcement Network (SAWEN) whose mission is ‘to strengthen, promote and co-ordinate regional co-operation for curbing illegal wildlife trade that threatens the wild flora and fauna of South Asia’. SAWEN, a regional network, is comprised of eight countries in South Asia: Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka.
Internationally, India continued to promote renewable energy reliance. The Indian Prime Minister helped to build an International Solar Alliance with 120 other countries that support “the promotion of solar energy”. India will help establish and run this collaborative platform for sharing solar energy technologies and experiences to increase reliance on solar energy amongst the members of the alliance. This International Solar Alliance should help India try to attain its proposed solar panel installation of 100GW by 2022.
India also made some progress on its delayed nuclear power programme. Électricité de France (EDF) entered into a Memorandum of Understanding with the Nuclear Power Corporation of India (NPCIL) to build six reactors in India. This is a ray of hope given that India’s nuclear power programme has been slow to take off. The primary reason for this is the reluctance of foreign investors to assume liability for accidents under the Indian liability law. It is unclear how the liability clauses are being dealt with by Électricité de France (EDF).
Food Safety and Security
The controversies surrounding the implementation of the National Food Security Act, 2013, continued with some states still not implementing the legislation due to their own reservations about the scheme. The scheme entitles priority groups identified there under to wheat at ₹2/kg and rice at ₹3/kg — subject to a cap of 5 kg per person per month.This ceiling doesn’t, however, apply to the ‘poorest of the poor’ covered by the Antyodaya Anna Yojana (AAY), who are entitled to 35 kg of food-grains per family per month. Ironically, the reservations to the scheme are related to the inadequacy of supplies.
The Union Government launched a new micro irrigation scheme called Pradhan Mantri Krishi Sinchayee Yojana (Prime Minister’s Agriculture Irrigation Scheme) (PMKSY) with the objectives of extending the coverage of irrigation and improving water use efficiency. The PMKSY has a planned outlay of ₹500 billion over the next 5 years. An emphasis on increasing efficiencies in water usage for agriculture is critical as the country suffers from a drought which arises from an over-reliance on the seasonal Monsoon rains.
In a setback to the flagship ‘Make in India’ initiative, the World Trade Organization ruled that India’s domestic content requirements for solar panels under its solar power programme, the Jawaharlal Nehru National Solar Mission, violate its obligations under the General Agreement on Tariffs and Trade (GATT) and the Agreement on Trade Related Investment Measures (TRIMs). The requirements were intended to boost the indigenous producers of solar equipment while also reducing reliance on imports. The United States and India are engaged in a dispute relating to these domestic content requirements as it directly affects exporters of solar cells and panels from the United States.
Supreme Court Judgments
The Supreme Court of India (“Supreme Court”) continued to issue orders for measures, both big and small, to protect the environment. In the public interest litigation Swaraj Abhiyan – (I) v. Union of India & Ors, the Supreme Court directed the national government to draft a new drought management policy to replace the 2009 drought manual. This litigation came in the wake of the declaration of drought in some districts or parts thereof in nine States of India, that is, Uttar Pradesh, Madhya Pradesh, Karnataka, Andhra Pradesh, Telangana, Maharashtra, Odisha, Jharkhand and Chhattisgarh. The Supreme Court also criticized the current national government stating that in matters of disaster management, the assistance provided by the Union government cannot be financial assistance alone.
The Supreme Court also directed the Union government to set up a National Disaster Mitigation Fund, which has not been set up despite being provided for under the Disaster Management Act, 2005.
It is estimated that a total of 330 million people spread across 13 states are affected by the current drought.
National Green Tribunal
The National Green Tribunal continued to undertake small but important measures to improve the environment. It has issued orders to ban plastic bags in several districts including Haridwar, an important tourist and pilgrimage site on the banks of the Ganges. Several other states have banned plastic for use in carry bags, but these bans are being opposed by the plastic manufactures and workers alike.
In another judgment, the National Green Tribunal allowed the Art of Living (AOL) Foundation’s World Culture Festival to be organized on the fragile floodplains of the dying Yamuna River by merely paying a fine of ₹50,000,000 ($8.5 million). The National Green Tribunal attracted significant criticism for allowing a polluting entity to ‘pay-and-pollute’.
Other Judicial Pronouncements
The battle against diesel started by the National Green Tribunal in the National Capital Region continued as the Supreme Court also participated with its own set of bans. The Supreme Court had banned the registration of any new diesel fueled cars having engine capacity beyond 2000 cc in Delhi and the larger National Capital Region till March 31, 2016. In line with this Supreme Court ban, the National Green Tribunal has, in Vardhaman Kaushik & Ors. v. Union of India & Ors, issued an interim ban on registration of any new diesel fueled cars in the National Capital Region. However, there is no currently available technology to convert diesel engines to CNG!
The Supreme Court also directed the state government to explore the possibility of introducing more electric furnaces at the crematorium next to the Taj Mahal and offering the cremation services for free. This order was issued after the Court was informed of the damage being caused to the Taj Mahal from wind-borne smoke and ash emanating from near-by funeral pyres.
Armin Rosencranz is a lawyer and political scientist. He is the founder of Pacific Environment, an international environmental NGO. He was formerly a trustee at Stanford University.