Environmental Law 2024 Comparisons

The Constitutional Framework

The Indian Constitution, as originally adopted in 1950, did not have any specific provision related to environment or environmental protection. It is only by way of the 42nd Amendment of the Constitution in 1976, that environmental protection found mention in India’s constitution, requiring firstly the state to “protect and improve the environment” (Article 48A), which is part of the Directive Principles, and secondly, a fundamental duty of citizens to protect and improve the environment (51A (g)). However, both the Directive Principles and fundamental duty, by themselves do not have legal sanction for their violation. It is pertinent to point out that while the state has a duty to protect the “environment”, the citizen’s duty extends to “natural environment”. However, while the Constitution includes “Forest”, ‘Wildlife” and “Water” in the list of subjects to be divided between the centre and the state, there is no mention of “environment” in any list. As a result, it comes within the “residuary” subjects, and the power to legislate exists only with the Parliament and not the state legislature. Therefore, legislating on environment is the exclusive domain of the Parliament. 

The Supreme Court has, however, expanded the provisions of the Constitution to include environmental protection as well as the right to a clean environment within the scope of fundamental rights. The Constitution of India, under Article 21, provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. This fundamental “right to life” has been interpreted by the Supreme Court of India to include the fundamental right to a clean environment [see M.C. Mehta v Kamal Nath and Ors (2000) 6 SCC 213]. It was held that “Any disturbance of the basic environmental elements, namely, air, water and soil, which are necessary for ‘life’, would be hazardous to “life” within the meaning of Article 21 of the Constitution”. Recently, in March 2024, the Supreme Court of India held that the right to be free from the adverse effects of climate change is a facet of the fundamental right to equality under Article 14 and the fundamental right to life under Article 21. [see M K Ranjitsinh and Others v Union of India and Others 2024 SCC OnLine SC 570]. It was held that “without a clean environment which is stable and unimpacted by the vagaries of climate change, the right to life is not fully realised”. Though the judgment has been praised for recognising the intersection between climate change and international human rights, particularly the right to health and the right to equality, it has been criticised for potentially encouraging a “conflation of climate action with renewable energy promotion”, while refraining from adequately addressing the need to boost climate adaptation and resilience, as a necessary component of this right. The judgment’s myopic emphasis the benefits of renewable energy, while ignoring its potential problems, such as restricting access of traditional communities to land, fragmentation of wildlife habitats, and unsustainable consumption of water.

The key regulatory authorities for environmental policy and enforcement include the following.

• Ministry of Environment, Forests and Climate Change, Government of India (MoEFCC) is responsible for developing the nation’s environmental policies. Several statutes confer powers on the central government to frame guidelines and grant clearances/approvals. For instance, developmental projects and activities that fall under the Category A of the Schedule of the EIA Notification, 2006, are referred to the central government for the grant of environmental clearance. These include, for example, all oil and gas exploration, river valley projects with power generation above 50 MW, and all nuclear power projects.
• A State Level Environment Assessment Authority (SEIAA) is constituted by the central government in consultation with the concerned state government. Category B projects are referred to SEIAA for the grant of environmental clearance. These include, for example, river valley projects with power generation below 50 MW but above 25 MW.
• The Central Pollution Control Board (CPCB) is constituted under Section 3 of the Water (Prevention and Control of Pollution) Act, 1974 and performs functions for the prevention and control of both air pollution and water pollution. The functions of the CPCB include advising the central government on issues such as abatement of pollution and collecting and publishing technical and statistical data relating to air and water quality along with preparing manuals or guidelines on the same. Recent amendments made to the Air (Prevention and Control of Pollution) Act, 1981 allows the central government, in consultation with the CPCB, to exempt certain categories of industrial plants from requiring consent of State Pollution Control Boards (SPCB) before establishing such plants. Previously, consent of the SPCB was required for all such plants.
• The SPCBs are similarly constituted under the Water (Prevention and Control of Pollution) Act, 1974 and are tasked with inspecting equipment, industrial plants, manufacturing processes, and issuing directions to persons operating such equipment or plants for the control or abatement of air and water pollution, and laying down, in consultation with the CPCB, standards for emission of air and water pollutants from industrial plants and automobiles, etc. However, the functioning of the CPCB and SPCBs has been plagued by lack of capacity, persistent vacancies in technical positions, lack of funding, and concerns over conflicts of interest. A Performance Audit Report prepared by the Comptroller and Auditor General for the Gujarat Pollution Control Board (GPCB) for the year 2022, for example, indicates that that the GPCB monitored Ambient Air Quality (AAQ) at 62 stations covering only 14 cities. AAQ was not being monitored in major industrial estates and areas prone to air pollution. In addition, despite a CPCB direction to ensure the installation of an Online Continuous Emission Monitoring System (OCEMS) in 2016, six years later, 67 units were lacking such a monitoring system. Further, online emission data for 17 category units were not available in the public domain. SPCBs do not have the power to impose spot fines or penalties proportionate to environmental harm on errant industries, however, they can issue orders for the closure of industries or the cessation of operations.
• The Commission for Air Quality Management in the National Capital Region and Adjoining Areas (CAQM) was established to resolve air quality issues in the National Capital Region of Delhi and neighbouring areas which experience dangerous dips in air quality, especially around the winter season. The CAQM implements the Graded Response Action Plan (GRAP) which is an emergency response mechanism with various stages, triggered when the Air Quality Index (AQI) reaches “poor levels”. The stages involve enforcement of regulations on the plying of certain diesel vehicles, limited operation hours for certain diesel generators, and in a situation where the AQI exceeds 450, potential closure of educational institutions and non-essential businesses.
• The National Board for Wildlife (NBW) is constituted under Section 5A of the Wildlife Protection Act, 1972 and consists of the Prime Minister, Minister-in-Charge of Forests and Wildlife, eminent conservationists, ecologists and environmentalists, and the Chief of Army Staff, among other members. It is tasked with, inter alia, framing policies on promoting wildlife conservation, controlling poaching and illegal trade, and carrying out impact assessments of various projects and activities on wildlife habitats and granting clearances.

Regulatory bodies are constituted by the government and work under the supervision of the government. Although they are “autonomous”, they are not fully independent.

Industries and project proponents co-operate with regulatory authorities in the following manner:

• Public consultation – the EIA Notification provides for “public consultation” as one of the steps prior to being granted an environmental clearance. This allows stakeholders and locally affected communities to air their concerns.
• Environmental Impact Assessment (EIA) – co-operation involves disclosing important information regarding distance from wildlife habitats, geological vulnerabilities, etc, in the Form-1 prior to the preparation and preparing of extensive EIA reports, conducting public consultations, and addressing concerns raised during the EIA process.
• Environmental Management Plans (EMP) – developing plans to manage and mitigate the environmental impact of projects, including monitoring, reporting and remediation activities.
• Corporate Social Responsibility (CSR) – companies co-operate with authorities by engaging in CSR activities that may benefit the environment and local communities.
• Audits and inspections – authorities conduct audits and inspections to ensure compliance. Companies co-operate by providing access to facilities, records, and assisting inspectors during their visits.

The Environment (Protection) Act, 1986 is a comprehensive Act which empowers the central government to issue notifications, rules and guidelines on the standards of quality of water, soil or air, the maximum permissible limits of environmental pollutants, and the restriction on the location of industries and processes in different areas.

Specific Legislation

Specialised legislation such as the EIA Notification, 2006 and the CRZ Notifications, provide for detailed steps for the impact assessment of developmental activities near coastal stretches and ecologically sensitive areas.

Breaching protections

Recent amendments under the Jan Vishwas (Amendment of Provisions) Act, 2023 have revised fines under the EPA, Water Act and Air Act. Offences under the same have been “decriminalised” and will no longer attract imprisonment. However, the fines prescribed are a minuscule proportion of most violating companies’ annual turnover and are likely to promote a culture of “pollute and pay”.

Contravention of any conditions in an environmental clearance may result in the clearance being revoked. Where an errant industry has breached provisions and caused substantial environmental degradation, the National Green Tribunal has imposed costs and compensation and ordered restitution. Under Section 26 of the NGT Act, 2010, the NGT may impose imprisonment which may extend to three years or a fine which may extend to INR100 million as punishment for any non-compliance of its order, award or decision.

Environmental Incidents and Permits

Investigative and access powers

• Authority to conduct inspections – the CPCB and SPCB have been empowered to carry out inspections at industrial facilities to ensure compliance with emission standards and norms. They can initiate inspections based on complaints from the public or suo moto in a situation where they suspect a violation.
• Information gathering – while conducting an inspection, the authorities may seek information about effluent discharges, emissions and waste disposal from the operators of an industry.
• Surveys and sampling – officials of the SPCB are also empowered to take air, water and soil samples to assess compliance with prescribed standards.
• Request for further information – officials can request the operator of a facility or industry to provide other information for their investigation.

Environmental permits/approvals

Before establishing any industry or developmental activity, project proponents must obtain certain clearances and permits.

• Consent to Establish (CTE) – the project proponent must apply for a CTE from the SPCB or PCC before commencing any project.
• Consent to Operate (CTO) – once the industry has been established, the project proponent needs to obtain a CTO from the same authority that issued the CTE.
• Forest Clearance (FC) – if the project requires forest land, a forest clearance is required under the Forest (Conservation) Act, 1960. Permission from the Gram Sabha may also be required, if forest rights of scheduled tribes or indigenous communities are involved.
• Environmental clearance – depending on the project’s location, nature of activity, and scale, an environmental clearance may be necessary.
• Other permits – depending on the nature of the activity, other permits may be required. Groundwater usage may require a No Objection Certificate (NOC) from the Central Ground Water Authority (CGWA). Projects falling within National Parks, Wildlife Sanctuaries, Tiger Reserves, and Corridors, or within the 10 km radius of any protected area, require a wildlife clearance from the Standing Committee of the National Board of Wildlife (NBWL).

Environmental permit regime

Appeal mechanism– project proponents may appeal a decision of the SPCB under Section 31 of the Air Act and Section 28 of the Water Act before the Appellate Authority. They may also appeal against a decision of the SPCB before the NGT. As aforementioned, decisions granting or refusing forest clearances or environmental clearances may also be appealed before the NGT. Additionally, an aggrieved party may also file a Writ Petition against the decision of an authority before the High Court or Supreme Court of India under Article 226 and Article 32 of the Constitution respectively.

Approach to policy and enforcement

Legislation such as the EPA, Air Act, Water Act, and the Environmental Impact Assessment Notification, 2006 were enacted in fulfilment of India’s commitment at the 1972 UN Conference on the Human Environment in Stockholm to protect and improve the environment and prevent hazards to human beings, other living creatures, plants and property. However, in recent times, there have been many regressive amendments to these laws with the intention of reducing the “burden” of compliance, and promoting “ease of doing business”. This despite the fact that the NGT has recognised the “principle of non-regression” which, according to the International Union for the Conservation of Nature (IUCN) is “an international law principle... requiring that norms which have already been adopted by states not be revised, if this implies going backward on the standards of protection”. This is exemplified by the recent decriminalisation of offences under the EP Act and Air Act by way of the Jan Vishwas (Amendment of Provisions) Act, 2023 which aims to “amend certain enactments for decriminalising and rationalising offences to further enhance trust-based governance for ease of living and doing business”.

Transferring permits/approvals

An existing Consent to Operate (CTO) may be transferred from the previous owner to the new one, within the same validity period, in the case of a merger or acquisition, where the industry will continue at the same scale. The new owner must inform the SPCB to confirm the transfer. If there is an expansion in the activity or a change in the nature of the activity, a fresh CTO application is required. Similarly, a forest clearance and environmental clearance may be transferred as long as the nature of activity, scale, etc, of the project remains unchanged.

Consequences of breaching permits/approvals

The Water Act, Air Act, and the EPA prescribe penalties for offences by companies. Individuals in managerial positions can be held responsible if the company commits an offence. However, they can avoid liability if it is proved that the offence had been committed without their knowledge or that they exercised all due diligence and precautions to prevent the commission of the offence. Suppression of information and submission of false information in the EC application can also lead to cancellation/revocation of an environmental clearance. The CPCB has devised a formula to calculate environmental compensation for violations based on factors such as the extent of pollution, duration of the violation, scale of operation and the location. The NGT, High Courts and Supreme Court are empowered to impose additional penalties.

Recent amendments under the Jan Vishwas (Amendment of Provisions) Act, 2023 have revised fines under the EPA, Water Act and Air Act. Offences under the same have been “decriminalised” and will no longer attract imprisonment. However, the fines prescribed are a minuscule proportion of most violating companies’ annual turnover and are likely to promote a culture of “pollute and pay”.

Contravention of any conditions in an environmental clearance may result in the clearance being revoked. Where an errant industry has breached provisions and caused substantial environmental degradation, the National Green Tribunal has imposed costs and compensation and ordered restitution.

See the discussion on investigative and access powers in 3.1 Protection of Environmental Assets.

See the discussion on environmental permits/approvals in 3.1 Protection of Environmental Assets.

See the discussion on India’s approach to policy and enforcement in 3.1 Protection of Environmental Assets.

See the discussion on transferring permits/approvals in 3.1 Protection of Environmental Assets.

See the discussion on consequences of breaching permits/approvals in 3.1 Protection of Environmental Assets.

Tortious Liability

In MC Mehta v Union of India [AIR (1987) SC 965] the Supreme Court of India established the “absolute liability” principle where those engaged in inherently hazardous activities are held to be absolutely liable for any harm or damage, irrespective of fault or intent.

Criminal Liability

Section 270 of the Bharatiya Nyaya Sanhita, 2023 makes “public nuisance” a crime, which includes actions or omissions that harm the public or cause significant disturbance in a community. Section 279 of the same makes fouling of the water of a public spring or reservoir to be an environmental crime.

Civil Liability

• Compensation – polluters and operators may be required to compensate victims of pollution or environmental damage for health impacts, losses or damage to property.
• Restitution – courts can order the restoration or rehabilitation of polluted land, water bodies and ecosystems.
• Statutory liability – violators of the Water Act, Air Act and the EPA can be held liable for failing to comply with the law.
• Vicarious liability – entities may be held vicariously liable for the actions or omissions of their employees in violation of environmental laws.
• Joint and several liability – multiple parties can be held jointly and severally liable for the costs of remediation.
• Penalties by NGT – the NGT can impose substantial fines and penalties on violators of environmental laws and can order relief, compensation and restitution.
• Exemplary damages – the NGT may impose exemplary damages on polluters to deter environmental violations.
• Contractual liability – polluters may be subject to contractual liabilities if their activities result in environmental breaches specified in contracts or agreements.

EIA – environmental issues must be disclosed as part of the EIA process. Project proponents must submit a comprehensive EIA report that includes details of the project’s environmental impact, mitigation measures and plans to address the concerns of persons likely to be affected.

CTE and CTO – project proponents must disclose information about effluent discharges, air emissions, waste management and compliance with standards.

Projects that require clearance for forest land must disclose the environmental impact of the project on forests, wildlife and ecosystems as part of the FC application.

Corporate reporting – publicly listed companies in India are often required to disclose their environmental performance and initiatives in their annual reports as part of their CSR obligations.

Pollution reporting – companies and entities engaged in potentially polluting activities must regularly report their pollution and emissions data as per statutory requirements under the Water Act, Air Act and other environmental laws.

Consequences of Non-disclosure/Incomplete Disclosure

Non-disclosure can lead to the rejection of permits, clearances or approvals, and legal action including imposition of penalties and claims for compensation and restoration.

In India, liability for historical environmental damage or historical pollution is subject to the law of limitation, doctrine of latches as well as statutory period of limitation under the National Green Tribunal Act, 2010

Section 9 of the EPA, Section 31 of the Water Act and Section 23 of the Air Act require notifying the authorities when there has been a release of an environmental pollutant exceeding the specified standards or when there is an apprehension of such a release.

Enterprises involved in inherently dangerous or hazardous activities are absolutely liable to compensate those affected by such environmental harm, irrespective of whether reasonable care was taken by them.

Liability is established upon demonstrating a causal link between the defendant’s actions and environmental harm. The amount of compensation levied depends on the annual turnover or capacity of the enterprise.

Defences available include:

• proving that there has been no violation of a statutory provision;
• proving that no harm has been caused to the environment;
• proving that the harm was not due to the defendant’s actions; or
• the harm was unforeseeable.

The EPA, Air Act and Water Act provide that any person conducting the affairs of a company shall be liable for any violation of environmental law by the company.

The Ministry of Road Transport and Highways levies a “Green Tax” on old vehicles. The rate of tax varies according to whether the vehicle is a transport vehicle or a personal vehicle. Vehicles such as hybrids, electric vehicles, and those operating on alternative fuels such as CNG, LPG and agricultural vehicles have been exempted. In MC Mehta v Union of India [(2018) 18 SCC 752], the Supreme Court of India imposed an Environment Compensation Charge (ECC) of 1% for the registration of diesel cars having an engine capacity greater than 2,000 CC in Delhi-NCR.

Some investments in renewable energy or energy efficient technologies may qualify for tax benefits and incentives under Section 80-IA of the Income Tax Act, 1961.

Obtaining “Green Certifications” such as ISO 14001 (Environmental Management System), can improve a company’s credibility and demonstrate a commitment to the environment.

Certain sectors and industries that may have a minimal impact on the environment such as small and medium-sized businesses in agro-based, electronic, food and beverages, plastic and textile sectors have been characterised as “white industries” and are exempt from obtaining an Environmental Clearance. Draft amendments to the Air Act and Water Act propose to exempt these “white industries” from CTO and CTE permit requirements. Such industries must “self-declare” their compliance with environmental provisions through forms submitted to the SPCBs, instead.

Companies that contravene provisions may be subject to penalties, environmental compensation and exemplary damages.

Usually, the shareholder and the parent company will not be held liable for environmental damage or breach of environmental law by a company or subsidiary company. In certain exceptional circumstances, a regulator may lift the corporate veil to hold a parent company liable for environmental damage caused by a subsidiary company.

The Security and Exchange Board of India (SEBI) issued a circular providing that the top 1,000 listed companies in India are required to prepare a “business responsibility and sustainability report” which includes disclosures with respect to energy consumption, water withdrawal, air emissions, greenhouse gas emissions, waste management, sustainable sourcing, and compliance with extended producer responsibility. In addition, there are limited mandatory ESG disclosure requirements. For example, under Section 134(m) of the Companies Act, 2013 companies are required to make disclosures regarding energy conservation in their annual reports.

Environmental audits are statutorily mandated under Rule 14 of the EP rules. It makes it compulsory for all persons carrying on an industry, operation or process requiring consent under the Water Act or Air Act or both or an authorisation under the Hazardous Waste Management Rules, to submit a statement to the SPCB every year for the period ending 31 March.

The EPA, Air Act and Water Act provide that any person responsible for the conduct of a company’s business including directors and key managerial persons shall be deemed guilty of all offences and shall be liable accordingly.

Regulation 25(10) of the SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015 mandates that the top 1,000 listed companies in India (by market capitalisation) hold a Directors & Officers (D&O) Insurance Policy for its independent directors.

Owners, users and carriers of hazardous chemicals, as defined under the EPA, who possess more than the minimal quantity specified in the Public Liability Insurance Act, 1991 are required by the Act to obtain insurance. Certain private insurance providers have introduced “green insurance” which cover liabilities arising from the pollution of water, land, air or collateral damage to the environment, which can help with the restoration of damage. Use of asbestos or lead, prior knowledge, terrorism and war are exceptions to insurance coverage.

Lenders are not directly held accountable for environmental non-compliance and damages unless they hold a position on the board of directors or are otherwise involved in the daily operations of the company.

Lenders are ordinarily not exposed to liabilities for environmental non-compliance. However, lenders can conduct due diligence on the company concerned to avoid any vicarious impact of such liabilities.

The NGT has the jurisdiction to hear civil cases involving an environmental issue arising from any of the statutes mentioned in Schedule I to the NGT Act. Civil claims can also be filed in competent civil courts for compensation in relation to non-compliance with environmental laws arising out of contractual disputes.

Courts impose exemplary damages for harm caused to the environment. The Supreme Court has held that the quantum of compensation must be correlated to the capacity and magnitude of the enterprise at fault.

Class actions are not prevalent in India. Order 1 Rule VIII of the Civil Procedure Code, 1908 (CPC) provides for the filing of representative suits. A representative suit is filed by one or more persons on behalf of themselves and others having a common interest in the suit. Further, a public interest litigation may be filed by a person who does not have personal interest in a matter and is not directly affected.

In Vellore Citizens’ Welfare Forum v Union of India (1996) 5 SCC 647, the Supreme Court of India applied the precautionary principle and held that the burden of proof is on the project proponent to demonstrate that the proposed activity is environmentally benign.

In MC Mehta v Kamal Nath (1997) 1 SCC 388, the Supreme Court held the doctrine of public trust to be an essential part of environmental law jurisprudence. It was held that the state acts as a trustee of natural resources and bears the legal duty to protect natural resources. There have been numerous judgments of the National Green Tribunal fixing liability on the polluters.

The regulator fixes liability on the identified defaulter/offender/polluter. Therefore, liability cannot be transferred or apportioned between parties. However, a company can enforce indemnities or enter into contractual agreements for the recovery of fines/penalties imposed.

See 9.1 Environmental Insurance.

India does not have a legislation on contaminated land. However, the EPA provides for the testing of samples, including soil samples, in an environmental laboratory notified by the central government. In case of a violation, the EPA prescribes a fine for damage caused by contamination of soil.

Section 9 of the EPA provides that where the discharge of any environmental pollutant is in excess of the prescribed standards, the person responsible for such discharge is bound to prevent or mitigate the environmental pollution caused as a result of it. This applies to land contaminated as a result of discharge of environmental pollutants.

The Supreme Court has, in a number of cases, held industries to be jointly liable for environmental degradation caused by them. For instance, in Vellore Citizens’ Welfare Forum v Union of India [(1996) 5 SCC 647], the Supreme Court held 533 tanneries responsible for discharging untreated effluents into agricultural fields, roadsides and open lands. The court imposed heavy costs on each such tannery that failed to take remedial measures.

Public-spirited citizens or non-governmental organisations can file Public Interest Litigations (PIL) before constitutional courts against polluters. In cases where individuals or communities are directly affected, a person seeking relief and compensation may approach the NGT.

CPCBs or SPCBs have been empowered to conduct inspections at industrial entities upon receiving a complaint or suo moto. Constitutional courts may also direct authorities to carry out investigations. They can collect samples, search facilities, and ask the occupier to provide information.

India does not have any legislation to deal with climate change. The National Action Plan on Climate Change is a policy document and is not legally enforceable.

At the Conference of Parties (COP) 28 held in Dubai, India announced that it had successfully reduced the emission intensity vis-à-vis its GDP by 33% between 2005 and 2019, thus achieving the initial Nationally Determined Contribution (NDC) target for 2030, 11 years ahead of the scheduled time.

India aims to attain net-zero emissions by 2070 via an emissions trading system known as the Carbon Credit and Trading Scheme (CCTS).

India also announced that it had achieved 40% of electric installed capacity through non-fossil fuel sources, nine years ahead of the target for 2030. Between 2017 and 2023, India has added around 100 GW of installed electric capacity, of which around 80% is attributed to non-fossil fuel-based resources.

India has banned asbestos mining but is the top importer of white (chrysotile) asbestos used primarily by the construction industry for asbestos-cement roofing. This despite the fact that the World Health Organisation (WHO) and several countries have opined that asbestos has no safe uses.

Key laws and regulatory controls governing waste in India are as follows.

• The E-Waste (Management) Rules, 2022 provide for the Extended Producer Responsibility (EPR) regime for e-waste recycling and have re-introduced annual e-waste recycling targets.
• The Plastic Waste (Management) Rules, 2016 provide that producers minimise the generation of plastic waste, prevent littering of plastic waste, and segregate plastic waste at the source. The rules also provide for the collecting and recycling of plastic waste by producers via the EPR regime.
• Hazardous Waste Management Rules provide for the scientific storage, treatment and disposal of hazardous and other waste which by reason of characteristics such as physical, chemical, biological, reactive, toxic, flammable, explosive or corrosive nature are likely to cause danger to the environment and human life.
• Construction and Demolition Waste Management Rules, 2016 provide for the management of waste generated by construction, remodelling, repair and demolition of any civil structure.
• Bio-Medical Waste Management Rules, 2016 provide for the management of bio-medical waste – ie, waste generated in any form during the diagnosis, treatment or immunisation of human beings or animals or research activities or in the production or testing of biological materials or in health camps.
• Solid Waste Management Rules, 2016 provide for the safe and scientific disposal of solid waste including solid or semi-solid domestic waste, sanitary waste, commercial waste, institutional waste, catering and market waste and other non-residential waste, street waste, silt removed or collected from the surface drains, horticulture waste, agriculture and dairy waste.
• Batteries (Management and Handling) Rules, 2022 provide that producers (including importers) of batteries are responsible for the recycling of waste batteries, and materials recovered from the waste are used in the manufacture of new batteries.
• Municipal Solid Wastes (Management and Handling) Rules, 2000 provide for the management of solid waste including commercial and residential wastes generated in municipal or notified areas.

The liability for waste disposal and management primarily lies with the producer. In certain situations, responsibility is shifted to third parties such as refurbishers (under Rule 7 of the E-Waste Rules), bulk consumers (under Rule 8 of the E-Waste Rules), recyclers (under Rule 9 of the E-Waste Rules) and occupiers (under Rule 4 of the Bio-Medical Waste Management Rules, 2016).

Under the Plastic Waste Management Rules, 2016 an Extended Producer Responsibility (EPR) regime has been introduced which requires producers, importers, and brand owners to ensure that their plastic packaging waste is processed through recycling, re-use or end-of-life disposal via waste-to-energy, industrial composing etc. However, the implementation of this scheme has recently come under the scanner with the National Green Tribunal (NGT) issuing notice to the Central Pollution Control Board and Ministry of Environment, Forests and Climate Change (MoEFCC) on the recovery of 600,000 fake EPR certificates at four plastic recycling companies in the Indian states of Gujarat, Maharashtra, and Karnataka. The EPR certificates were being issued to companies that utilise plastic packaging to meet legal obligations to recycle a certain percentage of plastic used by them. However, the Central Pollution Control Board (CPCB), by way of an audit, found that the companies were generating far more EPR certificates than their capacity to recycle waste.

Waste operators are bound by the “polluter pays” principle.

Section 9 of the EPA, Section 31 of the Water Act, and Section 23 of the Air Act require notifying the authorities when there has been a release of an environmental pollutant exceeding the specified standards or when there is an apprehension of such a release.

An Indian citizen may obtain environmental information via an application under the Right to Information Act, 2005. Certain information is exempted however, under Section 8 of the Act.

• Information that any court of law or tribunal has forbidden to be published, or the disclosure of which would be contempt of court.
• Information which would harm the competitive position of a third party, unless the authority believes that it would be in the interest of the public that such information be disclosed.
• Information that concerns personal information without any prevailing larger public interest.

“Public Authority” means any authority or body or institution of self-government established:

• by or under the Constitution of India;
• by any other law made by Parliament;
• by any other law made by state legislature; or
• by notification issued or order made by the appropriate government including any:
1. body owned, controlled or substantially financed; or
2. non-governmental organisation substantially financed, directly or indirectly, by funds provided by the appropriate government.

See 7.5 ESG Requirements.

The government of India has taken various steps to encourage the development of green finance.

• Renewable energy projects such as solar/biomass-based power generators, windmills, micro-hydel plants, street-lighting systems, and village electrification are given loans on priority as part of the Priority Sector Lending (PSL) scheme.
• The government has introduced sustainable finance instruments such as sustainability-linked loans and sustainability-linked bonds. Indian entities also raise offshore finance through green bonds, social bonds, sustainable bonds and sustainability-linked bonds.

In February 2022, the government of India declared plans to issue sovereign green bonds to fund green infrastructure such as solar, wind and small hydropower plants, along with research and development of new technologies such as tidal energy. These funds are to be used in public sector projects which contribute towards reducing the carbon intensity of the Indian economy.

It is common for buyers to carry out environmental due diligence to ascertain any environmental non-compliance, and pre-transaction environmental liabilities could be transferred from the seller to the buyer. The seller may then propose to indemnify the buyer against any risks/liabilities arising out of environmental non-compliance.

A seller is required to make the disclosure of any environmental compliances and violations to the satisfaction of the purchaser.

Environmental due diligence is seen as a mere formality to be complied with. The lack of ethical standards means that there is a huge gap between what is claimed and what exists on the ground. The lack of publicly available information also makes due diligence difficult.