Act now to strengthen green democracy

Jivesh Jha

Jivesh Jha

Act now to strengthen green democracy

Those green laws are not mere cosmetic arrangements but like lampposts showing vivid paths

The Environment Protection Act, 2019 is a comprehensive piece of legislation, enacted primarily to give effect to Article 30 of the Constitution that guarantees the citizens’ right to fresh air and clean environment.

Introduced to consolidate environment laws, this Act assures victims of pollution a reasonable amount of compensation from the polluter. The main legislative intentions are to ensure the right to a clean and green environment, maintain balance between environment and development, and protect communities from adverse environmental impacts and climate change. While celebrating World Environment Day (WED) on June 5 with the theme of “Beat Plastic Pollution,” we need to analyze whether we have succeeded or even tried enforcing the green laws meant for protecting the environment. This year’s WED has put on Cote d’ivoire, the host of the event in partnership with the Netherlands,  one more responsibility: To lead a global drive against plastic pollution. In 2018, India hosted the WED with the theme of “Beat Plastic Pollution.” It’s high time for India to realize that their fight against plastic pollution was not robust and their failure made the United Nations Environment Program carry the same slogan in 2023 as well.

The 1972 Stockholm Conference on Human Environment laid the foundation for the Environment Day celebration the world over, and has been held yearly on June 5 since 1973. The first WED was held in the USA with the theme of “Only one Earth” in 1974. The 1972 Stockholm Declaration, adopted at the end of WED events held at Stockholm from June 5 to 16 with the participation of 114 states, set the milestone by adopting 26 principles that emphasize pollution control and nature conservation. In 1987, the idea of rotating the center of environmental activities under different themes by selecting different host countries began.

A Green Charter

The Constitution of Nepal has stipulated the right to a clean environment as a fundamental right.  The charter has specific provisions associated with the environment like the right to live in a clean environment, right to clean water and hygiene; right to food sovereignty; the right of the state to effect land reforms on agriculture and environment; and the right of consumers to have quality foodstuffs and services.

The law obliges the state to control or prevent any act or omission polluting or likely to pollute the environment. The Supreme Court and High Courts (under Article 133 and 144, respectively) can issue required directives, orders or writs for this purpose.

The charter has conferred powers to all tiers of government in this regard. In reference to the charter, the government of Nepal, under schedule-V, entry 27 (Environment management, national parks, wildlife reserves, wetlands, national forest policies, carbon services) and provincial governments, under schedule-VI, entry 19 (Use of forests and waters and management of environment within the state) and both governments under schedule-VII, entries 12 (Ayurvedic medicine, veterinary, Amchi and other professions), 18 (Tourism, water supply and sanitation) & 23 (Utilization of forests, mountains, forest conservation areas and waters stretching in inter-state form) have to  work on issues of ecology, sanitation, clean and healthy water, wildlife conservation and afforestation.

The Directive Principles provided in part-IV of the charter call upon the local/provincial governments to adopt policies for the protection of the environment (Article 51). In partnership with the private sector, NGOs, communities, religious and cultural groups, the government can take  measures for environmental conservation.


A climate-friendly polity

The Environment Protection Act, 2019, meant to  implement Article 30 of the charter, aims to protect and improve the environment and to mitigate pollution; to enforce the right to a clean environment; to grant compensation to victims of pollution; and to implement EIA, Environmental Study and Environment Examination reports. It imposes on the state duties like setting standards to reduce and regulate emissions, hazardous waste, vehicular pollution, industrial pollution and pollution from  hotels, restaurants and equipment. Unlike the Act of 1997, the 2019 Act has outlined measures for dealing with climate change and controlling the emission of greenhouse gases (GHGs).

The center has exclusive jurisdiction over identification of areas emitting GHGs, determination of their national reference level, specification of open or green areas, identification of polluted areas, prevention of development activities therein and participation in carbon trading with foreign countries.

Moreover, the Act specifies various roles and functions for provincial governments. Provinces have to develop plans and policies for environmental protection at their levels. Section 3(2)(c) of the Act allows local governments to oversee  related environmental study reports, including EIA. Central and provincial governments can also set up laboratories to test or analyze samples of pollution under Section 18.


Gray area, green judgements

The Act has envisaged heavy fines for non-compliance of laws and government policies. Section 35 of the Act stipulates imposing a fine of up to five million rupees at the instance of non-compliance of EIA.

Also, defiance of Initial Environmental Examination would lead to a fine of up to one million rupees. A vast discretionary power is given to law enforcing officials. Minimum fine is not fixed leaving vast discretion, so the provision requires correction. The imposition of a minimal fine in violation of this law may help defeat the spirit of law itself. Also, the Act has no provision of reward for those making  exemplary contributions to environment conservation and protection.

The Local Government Operation Act, 2017 has given local units the power to enact laws, policies and other measures for the protection and promotion of green democracy. Section 11(2)(i) has given local bodies  the power to adopt and enact measures to curb pollution and to ensure clean water and fresh air. Over the years, the Supreme Court has issued judgments on environmental issues. Decades ago, in Surya Dhungel v Godavari Marbles Pvt Ltd (1995) case, it observed that environmental pollution and degradation would be a threat to living beings, so a healthy environment is a requisite for better human life and livelihood. In Pro Public v HMG Nepal (2006, Decision Number 758) the court  sought immediate steps for decreasing the adverse impact of pollution from brick kilns located around densely populated areas, schools, cultural and touristic zones.

Summing up, our green laws are like lampposts and not mere cosmetic arrangements. Nepal deserves to have a truly green democracy. As an ancient country of environment-friendly people, Nepal cannot survive with unsustainable development practices. Environmentalist Keith Hawkins has rightly said: Pollution control is done in a moral, not a technological world. The Himalayan republic has enacted a number of green laws for promoting green democracy. It’s high time to make a pledge for a robust fight against pollution in all forms.

The author is a Judicial Officer at Dhanusha District Court, Janakpur

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