Environmental Law 2024

Last Updated November 28, 2024

India

Law and Practice

Authors



Doughty Street Chambers has a climate and environmental justice (CEJ) group which brings together barristers from across a range of Chambers’ core practice areas, pooling existing specialisms to respond comprehensively to a crisis which is global, multifaceted and complex. The climate and ecological emergency is profoundly influencing the application and understanding of existing legal norms, and Doughty Street’s CEJ group is well placed to advise and act in climate litigation domestically and abroad. Doughty Street Chambers’ commitment to environmental and climate justice is long-standing, as is the climate literacy of its members. The multidisciplinary CEJ group brings together barristers working across a number of areas of law to offer innovative and cross-cutting solutions to address matters ranging from mitigation and adaptation to climate inequality and biodiversity loss, to defending the rights of climate and environmental justice campaigners. The firm would like to thank Namrata Caleb for her contribution to this chapter.

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.

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Trends and Developments


Authors



Doughty Street Chambers has a climate and environmental justice (CEJ) group which brings together barristers from across a range of Chambers’ core practice areas, pooling existing specialisms to respond comprehensively to a crisis which is global, multifaceted and complex. The climate and ecological emergency is profoundly influencing the application and understanding of existing legal norms, and Doughty Street’s CEJ group is well placed to advise and act in climate litigation domestically and abroad. Doughty Street Chambers’ commitment to environmental and climate justice is long-standing, as is the climate literacy of its members. The multidisciplinary CEJ group brings together barristers working across a number of areas of law to offer innovative and cross-cutting solutions to address matters ranging from mitigation and adaptation to climate inequality and biodiversity loss, to defending the rights of climate and environmental justice campaigners. The firm would like to thank Namrata Caleb for her contribution to this chapter.

Environmental laws in India owe most of their origin to the Stockholm Conference on Human Environment, 1972. The post-Stockholm era marked the enactment of significant environmental laws in India: the Air Act, 1974, Water Act, 1981, and the Environment (Protection) Act, 1986. The Bhopal Gas disaster – regarded as one of the most horrific environmental disasters in recent history, exposed both the inadequacy of environmental legislation as well as the lack of corporate accountability. The fact that a major transnational corporation could escape with no criminal liability still remains a blight on India’s environmental legislation.

The setting up of the National Green Tribunal 2010 marked a watershed in environmental litigation in India. For the first time, the Parliament recognised the right of citizens to approach a specialised judicial forum for asserting their right to a clean and healthy environment. Significantly, it recognised the right of citizens to claim damages and fix liability on entities involved in environmental harm. Over a decade and a half, the NGT has rendered significant judicial decisions which have had an immense impact on shaping the way in which environmental law is understood and implemented in India.

India is seen as a global leader when it comes to the evolution of environmental jurisprudence. Environmental law principles such as the “polluter pays” principle, precautionary principle and public trust doctrine were treated as the “law of the land” by the Supreme Court from the 1990s onwards. Later, new principles such as “eco-centric” and “species best interest standard” became part of judicial decisions. However, there has been a wide gap between law and practice. The “polluter pays” principle has become more of a “pay and pollute” regime; while the doctrine of proportionality has been extensively relied on by the courts to allow for transgressions of environmental law. Though the Supreme Court has highlighted the importance of the “Environmental Rule of law”’ and the centrality of the same in governance, its impact on day-to-day environmental governance is yet to be seen.

The deteriorating quality of the environment, with nearly 12 of the 20 most polluted cities in the world located in India, and lack of governmental initiative, has meant that impacted communities and citizen groups still see law and litigation as a tool for ensuring not only clean air and water but also secure environmental justice. In such a scenario, India’s environmental law litigation is bound to see a quantum leap in the years to come. Specifically, litigation around climate change, which today accounts for a minuscule percentage of cases in India as well as South Asia in general, is bound to see a quantum leap. In addition, new Conventions such as the Hong Kong Convention on Safe Recycling of Ships and the Global Plastic Treaty (GPT) will add a new dimension to environmental law implementation in India and other countries in South Asia. Overall, the trend in environmental law will be from local and national to transnational environmental concerns including issues relating to liability and trans-boundary environmental harm.

The Direction that Environmental Law Will Take in the Coming Years

Climate justice-related legal action

Climate change is bound to impact Small Island nations the most. However, in terms of total number of people impacted, it is countries in South Asia which will be most affected. In fact, factoring in climate change is crucial not only from the point of view of communities and nature but also from an economic development perspective. The Supreme Court recognised the negative effect of climate change on economic growth by relying on the report of the Reserve Bank of India which estimated a loss of 9% GDP due to climate change (Imtiaz Versus State of Telengana).

The climate crisis is no longer a crisis of the future: damages due to climate change are becoming more pronounced. In such a situation, the quest for a just resolution becomes more urgent. Litigation is emerging as an effective tool to address climate change-related issues and activists for climate justice are increasingly finding their voice in courts across the world. Impacted communities, concerned citizens and groups turn to the law to urge governments and the corporate sector to take responsibility.

On 29 March 2023, the United Nations General Assembly took the unprecedented step of adopting a resolution proposed by the island nation of Vanuatu to seek an opinion from the International Court of Justice on the legal obligations of nations to protect climate systems and people affected by the climate crisis. This is a significant legal acknowledgment of the climate crisis on the one hand and the need for the international court to apply its judicial mind to an unparalleled crisis of survival.

With growing and more evident losses from climate change, expectations are quickly turning into responsibility in national legal systems to bring about climate action. The breach of such climate-related responsibilities and violation of various rights have been reaching national courts that require a decision in the civil, administrative or even criminal spheres (Setzer and Higham, 2022). As a result of legal practices developing through courts’ precedents in favour of climate action, climate litigation risks – or climate liabilities – have become increasingly more material and the risks associated with ignoring such liabilities for companies and governments are now substantial.

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 [M K Ranjitsinh and Others v Union of India and Others 2024 INSC 280]. 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. Others have criticised the judgment’s myopic emphasis on the benefits of renewable energy, while ignoring it’s potential problems, such as restricting access of traditional communities to land, fragmentation of wildlife habitats, and unsustainable consumption of water. Nevertheless, the court recorded the importance of climate litigation and the need to have a specific national law to deal with climate change.

“The topics of environmental degradation, pollution, industries and infrastructure projects have long formed the corpus of cases before courts across countries. Of late, however, an increasing number of cases are to do with climate change, in one way or another.” (Paragraph 45 of the judgment).

The Supreme Court cited some of the cases in other jurisdictions such as State of the Netherlands v Urgenda Foundation, In Sacchi, et al. v Argentina, et al and Ioane Teitiota v The Chief Executive of the Ministry of Business, Innovation and Employment, in order to emphasise that “these cases, all instituted and decided in the past decade, indicate the type of concerns which will travel to the courts in the next few years” (paragraph 50).

The authors see that this trend of climate litigation is bound to increase, especially in the global south, as the science behind the attribution of climate hazards to human-induced climate change advances and the link between domestic legislation, international commitments and impacts due to climate change establishes precedents globally. The role of environmental lawyers is bound to be crucial given that the issues will relate not just to law but also to the science. In fact, it is recognised that science is central to legal debates on the links between climate change, human actions and the impacts on the environment. This, combined with advances in international law and commitments at the climate Conference of the Parties (COP), shows how trends in climate litigation are advancing as legal tools which are made available to national courts to respond to the climate emergency.

Specifically, the authors see litigation in South Asia in general and India in particular to be rather focussed around adaptation and resilience since mitigation targets remain largely voluntary in nature besides the fact that per capita emission is South Asia is among the lowest in the world. There is a crucial need for specialised legal advise in the area of environmental law in general and climate change in particular. However, addressing issues related to climate change from a purely environmental angle is unlikely to address the issue from a holistic perspective. At the centre of the climate crisis is the issue of rights. The impact of climate change is not equal.

There is a close link between climate justice and human rights at the core of the Doughty Street Chambers practice area. As climate attribution and loss and damage become more prominent, it is imperative for expert legal advise and assistance to impacted and vulnerable communities in seeking legal remedies. At another level, there will be greater need for legal advise by civil society groups while making meaningful interventions at the Conference of Parties on UNFCCC.

Toxic Trade and Waster Colonialism

The practice of exporting waste from higher-income countries to lower-income countries, which are often ill-equipped to handle this waste, is a form of environmental racism or waste colonialism. Waste trade is often referred to as “waste colonialism” due to the unequal and exploitative dynamics involved in the global movement of waste. The term highlights the power imbalance between economically developed countries of the Global North, typically the exporters of waste, and the less affluent nations that serve as recipients.

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted on 22 March 1989, and entered into legal force on 5 May 1992. Numerous international scandals regarding hazardous waste trafficking that began to occur in the late 1980s spurred the call for the treaty. The objective of the Basel Convention is to protect human health and the environment from the adverse effects of waste, in particular taking into account the vulnerabilities of developing countries. Treaty obligations include: (i) reducing and minimising waste at source; (ii) managing waste within the country in which it is generated; (iii) reducing transboundary movement of waste to a minimum; (iv) managing waste n an environmentally sound manner; and (v) strictly controlling waste trade that does occur via a notification and consent mechanism known as “prior informed consent”.

One of the most significant amendments in the Convention is the Basel Ban Amendment, which is an agreement taken by Basel Convention Parties to prohibit the member states of the Organization for Economic Cooperation and Development (OECD), the European Union (EU), Liechtenstein, and the countries that have ratified the ban amendment from exporting hazardous wastes as defined by the Convention to other countries – primarily developing countries or countries with economies in transition. After the Ban Amendment entered into legal force on 5 December 2019, it became part of the Basel Convention as Article 4a. This means that the Ban Amendment is legally binding for countries that decide to ratify the treaty after this date (such as the USA) because it will be part of the treaty. Since the Ban Amendment has now become a part of the Convention, violations are treated the same as other illegal traffic under the Convention. Violations by national citizens or corporations shall be considered illegal traffic and a criminal act to be prosecuted by the party having ratified the Ban Amendment.

Generally, with the force now of international law, exports of hazardous waste from rich industrialised powers to poorer countries will be perceived as a criminal or irresponsible act as will other forms of exploitive externalisation of real costs and harm to poorer countries. Although, India is yet to ratify the Basel Ban Amendment, there are restrictions on countries which have ratified the ban from exporting hazardous waste to India. The Basel Convention is an area that will require more legal oversight from the angle of both environmental justice and fixing liability on illegal exporters of hazardous waste.

Hong Kong Convention on Ship Recycling

South Asia is the “ship recycling hotspot”, with the majority of ships being dismantled in the coastal areas of India, Bangladesh and Pakistan. Following increased international criticism of the shipping industry’s scrapping practices, the International Maritime Organisation (IMO) Hong Kong Convention for the Safe and Environmentally Sound Recycling of Ships (HKC) was adopted at a Diplomatic Conference held in Hong Kong, China, in May 2009. After 16 years, the HKC will enter into force on 26 June 2025. The Convention sets standards for ship recycling and puts the responsibility for enforcement on the vessel’s flag state and the recycling state.

The Hong Kong Convention is aimed at ensuring that ships, when recycled after reaching the end of their operational life, do not pose any unnecessary risk to human health and safety or to the environment. The Hong Kong Convention was developed with input from IMO member states and non-governmental organisations, and in co-operation with the International Labour Organization and the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. It intends to address all the issues around ship recycling, including the fact that ships sold for scrapping may contain environmentally hazardous substances such as asbestos, heavy metals, hydrocarbons, ozone depleting substances and others. It will address concerns about working and environmental conditions in many of the world’s ship recycling facilities. Regulations in the new Convention cover: the design, construction, operation and preparation of ships so as to facilitate safe and environmentally sound recycling, without compromising the safety and operational efficiency of ships; the operation of ship recycling facilities in a safe and environmentally sound manner. Ship recycling yards will be required to provide a Ship Recycling Plan, to specify the manner in which each individual ship will be recycled, depending on its particulars and its inventory. Parties will be required to take effective measures to ensure that ship recycling facilities under their jurisdiction comply with the Convention.

However, there are serious concerns with respect to how effectively the Convention has been framed. First, it is widely accepted that the HKC has failed to provide an equivalent level of control to that of the Basel Convention. Second, it has failed the test of environmental justice as it does nothing to prevent the disproportionate burdening of developing countries from toxic waste from ships. Third, it has failed the test of cost internalisation as it has avoided attaching financial responsibility to the beneficiaries of the useful life of a ship, nor to the generators of the risks and liabilities, and has instead pushed all costs downstream. Fourth, it has failed to create an incentive or a mandate for toxic-free and more safely recyclable ships, thus failing the test of prevention through design. Notwithstanding the shortcomings, the HKC will see some changes in the arena of ship recycling and will therefore require close legal scrutiny.

Plastic Pollution and the Proposed Global Plastic Treaty

Plastic pollution is closely linked with the triple planetary crisis of climate change, biodiversity loss and pollution. Plastic is projected to account for 15% of greenhouse gas emissions by 2050 if no action is taken, and plastic pollution is clearly identified as an important issue in the 7th target of the Global Biodiversity Framework that has the aim of “preventing, reducing, and working towards eliminating plastic pollution”.

In March 2022, the United Nations Environment Assembly (UNEA) adopted resolution 5/14 entitled “End plastic pollution: towards an international legally binding instrument”. The resolution called for the Executive Director of UNEP to convene an intergovernmental negotiating committee (INC) to develop an international legally binding instrument on plastic pollution, including in the marine environment.

In a study published in the journal Nature, it  was concluded that “plastic pollution emissions are highest across countries in Southern Asia, Sub-Saharan Africa and South-eastern Asia with the largest amount (9.3 Mt year) emitted by India, equivalent to nearly one-fifth of global plastic emissions”. The study observes:

“India reports that its dumpsites (uncontrolled land disposal) outnumber sanitary landfills by 10:1 and, despite the claim that there is a national collection coverage of 95%, there is evidence that official statistics do not include rural areas, open burning of uncollected waste or waste recycled by the informal sector. This means that India’s official waste generation rate (approximately 0.12 kilograms per capita per day (kg cap−1 day−1)) is probably underestimated and waste collection overestimated”.

As per the study, high-income countries have higher plastic waste generation rates, but none are ranked in the top 90 polluters, as most have 100% collection coverage and controlled disposal, the study highlighted. However, the researchers acknowledged they may have underestimated plastic waste emissions from some high-income countries, as they deliberately excluded plastic waste exports from their analysis.

It is in this context that the internationally legally binding instrument that is likely to be finalised in 2025 has to be viewed. Although the instrument is still under discussion, its focus will be on measures to manage, reduce and, where possible, eliminate emissions and releases to the atmosphere, soil, water and the marine environment of chemicals of concern and plastic products including microplastics. The instrument will focus on supply chain and total life cycle of the product. Concepts such as Extended Producer Responsibility (EPR), “total life cycle”, “avoidable and problematic” plastics are likely to be part of the legal jargon. There will be liability cases arising out of non-compliance with EPR. Plastic pollution-related issues are already visible in India with the NGT hearing a number of cases, either based on petitioners approaching the court or through exercise of the suo moto powers of the Tribunals and Courts. As it is seen, legal action with regard to plastic pollution is bound to take place both at the domestic as well as international levels with governments as well as civil society groups suing corporate entities for violating the legally binding instrument by their failure to adhere to the provisions of the instrument.

Conclusion

In the era of climate crisis, environmental issues can no longer be dealt with in the narrow confined of domestic jurisdiction. Environmental harms and liability are transnational in nature. Principles such as “polluter pays”, the public trust doctrine and many of the other innovations of the courts are unlikely to provide relief to those impacted due to climate change and environmental harm. There is thus a critical need to reinvent environmental law to meet the present day challenges. Unfortunately, domestic environmental legislation is essentially 1970s vintage, drafted at a time when industrialisation was it its infancy in India and much of South Asia. There is thus a critical need for laws to evolve to reflect the current challenges. The role of lawyers and specialised lawyer groups becomes crucial in giving shape to the new laws and institutions which will help develop an environmental rule of law. It is important to highlight that development in environmental and climate law cannot happen in isolation. Enforceability of environmental laws depends public participation; public participation depends on the freedom of association, freedom of information and primacy of rule of law. The last few years has seen a spurt of SLAPP filed by the state and corporate entities against environmental defenders and environmental organisations. This adds another layer of work for lawyers and law groups in defending the rights of defenders.

Notwithstanding the lack of legal enforceability of many of the international environmental Conventions, there is still scope for creatively interpreting the Conventions and the legal opportunities provided in them in order to ensure environmental justice. It is clear that there exists a close link between environmental and human rights issues and that necessitates a holistic legal strategy to deal with the environmental crisis. The coming years will see a spurt in climate-related litigation as well as litigation related to plastic pollution, hazardous waste and biodiversity loss. These legal disputes will require understanding the legal systems in the countries involved in the dispute as well as understanding the relevant environmental agreements and conventions.

Doughty Street Chambers

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Law and Practice

Authors



Doughty Street Chambers has a climate and environmental justice (CEJ) group which brings together barristers from across a range of Chambers’ core practice areas, pooling existing specialisms to respond comprehensively to a crisis which is global, multifaceted and complex. The climate and ecological emergency is profoundly influencing the application and understanding of existing legal norms, and Doughty Street’s CEJ group is well placed to advise and act in climate litigation domestically and abroad. Doughty Street Chambers’ commitment to environmental and climate justice is long-standing, as is the climate literacy of its members. The multidisciplinary CEJ group brings together barristers working across a number of areas of law to offer innovative and cross-cutting solutions to address matters ranging from mitigation and adaptation to climate inequality and biodiversity loss, to defending the rights of climate and environmental justice campaigners. The firm would like to thank Namrata Caleb for her contribution to this chapter.

Trends and Developments

Authors



Doughty Street Chambers has a climate and environmental justice (CEJ) group which brings together barristers from across a range of Chambers’ core practice areas, pooling existing specialisms to respond comprehensively to a crisis which is global, multifaceted and complex. The climate and ecological emergency is profoundly influencing the application and understanding of existing legal norms, and Doughty Street’s CEJ group is well placed to advise and act in climate litigation domestically and abroad. Doughty Street Chambers’ commitment to environmental and climate justice is long-standing, as is the climate literacy of its members. The multidisciplinary CEJ group brings together barristers working across a number of areas of law to offer innovative and cross-cutting solutions to address matters ranging from mitigation and adaptation to climate inequality and biodiversity loss, to defending the rights of climate and environmental justice campaigners. The firm would like to thank Namrata Caleb for her contribution to this chapter.

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