Institutional strengthening of Pollution Control Boards and local governments need of the hour

The Union Ministry of Environment, Forest and Climate Change (MoEF&CC) proposed amendments to several environmental laws in July 2022, including the Water (Prevention and Control of Pollution) Act, 1974. The amendments aimed to reduce the burden of compliance and structuring funds, among others.

The amendments proposed decriminalising environmental violations by bringing in stiffer penalties instead of imprisonment. The rationale was “to weed out the fear of imprisonment” for simple infractions, according to MoEF&CC. 

Many environmental activists and lawyers argued against this move, as criminal proceedings are one of the few deterrents threatening violators. On the other hand, some environmental lawyers spoke for decriminalisation, as even with the criminal provisions, not many cases are registered under these acts. 

Two questions loom in this context. Considering that these amendments are passed, how will this impact governance and compliance? And secondly, will the new funds set up under the Act lead to the restoration of the damaged environment and improvement in the quality of waterbodies? 

Polluter pays should not become pay to pollute

The good news here is that the laws are being amended. The Water Act, in its current form, was passed in 1974. There have been no major amendments recently in the Act, apart from minor revisions in Water Act rules and two minor modifications in sections 78 and 88.

This is striking since the country has seen rapid changes in urbanisation and industrialisation, and resultant pollution loads, over the past few decades. In contrast, Environmental Impact Assessment (EIA) 2006 has had 67 amendments to date.

It is also interesting to note that the proposed amendments are, in part, trying to undo the 1988 amendments that brought in stringent penalties like an increase in fines and imprisonment under section 41 of the Water Act. 

Since then, the quality of Indian waterbodies has drastically declined due to unfettered urbanisation and development. Many waterbodies have been lost or have shrunk considerably due to encroachment and pollution-induced eutrophication. 

Now, the question is, has the increase in fines, as proposed in the amendments, increased the cost of non-compliance over the cost of compliance? Have these new amendments raised the stakes so high that even polluters with enormous resources will be deterred from polluting due to high fines?

Although fines have increased, they are not high enough to deter polluters who have resources at their disposal, according to environmental lawyers. The upper limit for the penalties specified in the amendments is Rs 5 crore. It is also unclear how the penalties will be calculated as the revisions have not established a formula. 

The amendments have listed a set of factors, such as the population and the area impacted by the violation, the frequency and duration of the violation, etc, that must be considered for assessing the penalty. However, considering these factors alone may serve merely as compensation and not as a punitive deterrent. 

One way to ensure that the compensations have a punitive element is to consider the industry’s or establishment’s profitability, which violates the law. Comments from the public and policy professionals in response to the environmental amendments pointed out this lacuna and proposed alternatives. 

This article is published as a part of the Smitu Kothari Fellowship of the Centre for Financial Accountability, Delhi.

This article was originally published in Down To Earth and can be read here.

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