Part 1 lecture- environmental regulation in energy sector

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Lectures on Energy Law delivered by Dr. Tabrez Ahmad

Lectures on Energy Law delivered by Dr. Tabrez Ahmad

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  • Kyoto was signed in Dec 1997 . Effective from 2005 - 2050


  • 1. Environmental Regulation in Energy Sector Part-1 Dr. Tabrez Ahmad, Professor of Law Dr. Tabrez Ahmad, 1
  • 2.  To gain an in-depth understanding and the application of the energy sector policy and its response to environment  To explore the Indian and international energy policy perspectives  To gain practical knowledge on the effective implementation of environmental management strategies Dr. Tabrez Ahmad, 2 Learning Outcomes
  • 3.  Introduction to Environment and Energy Regulation  Indian Energy Scenario  Historical Evolution  Electricity Laws in India  Other Policies and regulatory Developments  Institutes/ Organisations/ regulatory Bodies  Energy Innovation System  Organisational Architecture  Key Players in Energy Sector  Impact of Liberalisation and Globalisation  Environment - Definition and Meaning  Energy and Environment  Laws Governing Environment  PIL and Development of Environmental Law  Rule of Absolute Liability and Environment Protection  International framework of Environmental Law  European Union / UK FrameworkDr. Tabrez Ahmad, 3 Agenda
  • 4.  Under Section 2(h) of the Energy Conservation Act 2001 “Energy means any form of energy derived from fossil fuels, nuclear substances or materials, Hydro electricity and includes electrical energy or electricity generated from renewable sources of energy or biomass connected to the grid”  Energy is a critical input for socio-economic development.  Energy is being used in all areas of life and production activities.  Most crucial elements of manufacturing industry. 4 Introduction to Environment and Energy Regulation Dr. Tabrez Ahmad,
  • 5.  The main Energy sources are  fossil fuels (oil containing hydrocarbon, natural gas and coal)  new renewable energy sources (solar, wind, wave, bio energy etc.)  Nuclear Energy.  The electricity energy in the world is produced by mainly based on thermal sources.  67.8percent of the total production is thermal  15.9percent is hydro  13.75percent is nuclear  2.5percent is geothermal, solar, wind, bio energy and wave based sources. (OECD) 5Dr. Tabrez Ahmad,
  • 6. Indian Energy Scenario 6Dr. Tabrez Ahmad,
  • 7. Historical Evolution  “Electricity” is a subject within the concurrent jurisdiction of the Centre and the States.  When India became independent in 1947, the country had a power generating capacity of 1,362 MW.  Hydro power and coal based thermal power have been the main sources of generating electricity.  The power Sector has been receiving adequate priority ever since the process of planned development began in 1950.  The Electricity (Supply) Act, 1948, provides an elaborate institutional frame work and financing norms of the performance of the electricity industry in the country 7Dr. Tabrez Ahmad,
  • 8.  The Industrial Policy Resolution of 1956 envisaged the generation, transmission and distribution of power almost exclusively in the public sector.  The Act envisaged creation of State Electricity Boards (SEBs) for planning and implementing the power development programmes in their respective States.  The Act also provided for creation of central generation companies for setting up and operating generating facilities in the Central Sector  The Central Electricity Authority constituted under the Act is responsible for power planning at the national level.  Act also allowed from the beginning the private licensees to distribute and generate electricity in the specified areas designated by the concerned State Government/SEB. 8Dr. Tabrez Ahmad,
  • 9.  Fifth Plan onwards (1974-79), the Government of India started generation and bulk transmission of power.  The National thermal Power Corporation (NTPC) and National Hydro-electric Power Corporation (NHPC) were set up for these purposes in 1975.  North-Eastern Electric Power Corporation (NEEPCO) was set up in 1976 to implement the regional power projects in the North-East.  Tehri Hydro Development Corporation (THDC) and Nathpa Jhakri Power Corporation (NJPC) in 1988.  National Power Transmission Corporation (NPTC) - set up in 1989 and renamed as Power Grid in 1992 9Dr. Tabrez Ahmad,
  • 10.  L AWS IN I NDIA  Indian Electricity Act, 1910  Electricity(supply) Act, 1948  Electricity Regulatory Commissions Act, 1998  Electricity Act, 2003 (Amendments in 2003 and 2007)  The Atomic Energy Act, 1962 Atomic Energy (Arbitration Procedure) Rules, 1983  Atomic Energy (Working of mines, minerals and handling of prescribed substances) Rules, 1984  Atomic Energy (Safe Disposal of Radioactive Wastes) Rules, 1987  Atomic Energy (Factories) Rules, 1996  Radiation Protection Rules, 2004  The Civil liability for Nuclear Damage Act, 2010 Power Ministry handles all the affairs in the Power sector Electricity Laws in India Dr. Tabrez Ahmad, 10
  • 11.  Other Policies and regulatory Developments are 11 Policy / regulation Year Key Focus ERC Act 1998 Independent Regulation Electricity Act 2003 Sector reorganization and competitive markets National Electricity Policy 2005 Overall sector development National Tariff Policy 2006 Performance based regulation Guidelines for competitive bidding 2006 Transparent tariff based bidding for new generation Rural Electrification Policy 2006 Access to all by 2012 Hydropower policy 2008 Accelerated hydropower development Dr. Tabrez Ahmad,
  • 12. Policy / Regulation Year Key Focus Terms and conditions of tariff, CERC 2009 Generation and Transmission tariff determination Grid operations with competitive markets and renewables Indian Electricity Grid code Regulation 2010 Grid operations with competitive markets and renewables REC regulations 2010 Trading of RE certificate Power Market Regulations 2010 Transparent power market operations Sharing of transmission charges regulations 2010 Efficient transmission pricing 12Dr. Tabrez Ahmad,
  • 13.  Mega Power Policy- 1995  Ultra Mega power Projects- 2005  The Coal Mines (Nationalisation Act) 1973  National Mineral Policy 1993  Colliery Control Order 2000  New Coal Distribution Policy 2007  Coal Mines (Amendment ) Bill 2000  New Exploration Licensing Policy(NELP)1999  National Tariff Policy(Amended) 2011  Atomic Energy Act 1962  US-India Civil Nuclear Agreement 2008  The Civil Liability for Nuclear Damage Act 2010 13Dr. Tabrez Ahmad,
  • 14. Institutes/ Organisations/ regulatory Bodies  Bureau of Energy Efficiency(BEE)- 2002  National Thermal Power Corporation (NPTC)1975  Rural Electrification Corporation (REC)  Power Grid Corporation of India  North Eastern power Corporation (NEEPCO)  National Hydroelectric Power Corporation (NHPC)  Power Finance Corporation (PFC)  Central Electricity Regulatory Commission (CERC)  State Electricity Regulatory Commission (SERC) 14Dr. Tabrez Ahmad,
  • 15.  Coal India Limited (CIL)  Singareni Callieries Company Limited (SCCL)  Neyveli Lignite Corporation Limited (NLC)  Directorate General for Hydrocarbons (DGH) 1993  The Petroleum Planning and Analysis Cell (PPAC) 2002  The Oil and Natural Gas Corporation (ONGC) 1961  The Oil India Limited (OIL) 1959  Oil Marketing Companies (OMCs)  Indian Oil Corporation Limited  Bharat Petroleum Corporation Limited  Hindustan Petroleum Corporation Limited  Chennai Petroleum Corporation Limited 15Dr. Tabrez Ahmad,
  • 16.  The Gas Authority of India Limited (GAIL) 1984  Petroleum and Natural Gas Regulatory Board (PNGRB)  Indian Renewable Energy Development Agency (IREDA)  NTPC Vidyut Vyapar Nigam (NVVN)  National Power Corporation of India Ltd(NPCIL)  Bharathiya Nabhikiya Vidyut Nigam Ltd(BHAVINI)  Uranium Corporation of India Ltd (UCIL)  Atomic Energy Commission (AEC)  Atomic Energy Regulatory Board (AERB) 16Dr. Tabrez Ahmad,
  • 17. Energy Innovation System  An increasing recognition within the science and technology policy community that technological change and development is best understood as the outcome of ‘national innovation systems’ (Lundvall, 1992; Nelson, 1993; OECD, 1997).  Defined as a network of institutions public and private, whose activities and interactions are central to the development, modification and diffusion of new technologies (Freeman, 1987; Nelson, 1993).  Both domestic and international linkages between institutions are particularly relevant for global energy innovation key partnerships include those between different agencies within governments; between the public, private and non-profit sectors; between developing- and industrialized-country institutions; and between domestic and transnational institutions (PCAST, 1999). 17Dr. Tabrez Ahmad,
  • 18.  The main actors are  Planning Commission  EGOM  MOP  MOC  MNRE  MOPNG  DAE 18Dr. Tabrez Ahmad,
  • 19. Main Institutions  Public Sector  BEE  NPTC  REC  POWERGRID  NEEPCO  NHPC  PFC  CERC  SERC  CIL  SCCL  NCL  DGH  PPAC  ONGC  OIL  GAIL  IREDA  AEC  UCIL  BHAVINI  AERB  Private Sector  BARC  AEES  TMC  CEBS  SINP  IP  IPR  HRI  IMSC  TIFR  NISER  RRCAT  AMC  IGCAR  And many other institutes and organisation from private sector and Aided. 19Dr. Tabrez Ahmad,
  • 20. 20Dr. Tabrez Ahmad,
  • 21. Organisational Architecture  Planning Commission  EGOM  Five different ministries have structurally handled the Indian energy sector.  MOP  MOC  MNRE  MOPNG  DAE 21Dr. Tabrez Ahmad,
  • 22. 22Dr. Tabrez Ahmad,
  • 23. Ministry Of Power(MOP) 23Dr. Tabrez Ahmad,
  • 24. Ministry of New and Renewable Energy 24Dr. Tabrez Ahmad,
  • 25. Ministry of Coal 25Dr. Tabrez Ahmad,
  • 26. 26Dr. Tabrez Ahmad,
  • 27. 27Dr. Tabrez Ahmad,
  • 28. Key Players in Energy Sector 28Dr. Tabrez Ahmad,
  • 29. 29Dr. Tabrez Ahmad,
  • 30. 30Dr. Tabrez Ahmad,
  • 31. 31Dr. Tabrez Ahmad,
  • 32. 32Dr. Tabrez Ahmad,
  • 33. Impact of Liberalisation and Globalisation  During the pre-reform period, the Energy sector was totally regulated by the government.  The economic reform and liberalization has gradually welcomed private sector participation in the coal, oil, gas and electricity sectors in India.  The policy of liberalisation the Government of India announced in 1991 and consequent amendments in Electricity (Supply) Act have opened new vistas to involve private efforts and investments in electricity industry.  Financial Environment for private sector units modified to allow liberal capital structuring and an attractive return on investment. Up to 100% foreign equity participation can be permitted for projects set up by foreign private investors in the Indian Electricity Sector. 33Dr. Tabrez Ahmad,
  • 34.  Administrative & Legal environment modified to simplify the procedures for clearances of the projects.  FDI up to 100 % is permitted for projects of electricity generation, transmission, distribution and power trading. 34Dr. Tabrez Ahmad,
  • 35.  The Indian petroleum sector has opened up to the private sector, both domestically and foreign, for investments through joint ventures and strategic alliances  Indian oil and natural gas fields have opened to the private sector - to foreign participation under production sharing contracts.  Price Regulations given to the Companies  The importation of natural gas and LNG is under the Open General License- For gas fields developed in the private sector, promoters are free to market the gas at market related prices. 35Dr. Tabrez Ahmad,
  • 36. ENERGY- Indian, China & US 36Dr. Tabrez Ahmad,
  • 37. Analysis  India has a serious energy poverty in all the period.. After economic reform Energy poverty is there and the price of energy also increased..  India has great potential and capacity for producing Energy from renewable sources.. But still concentrate on fossil fuels and Atomic Energy.  Privatisation and foreign investment are making more complex Indian Energy Scenario.  To reduce Energy poverty and to protect our Economy and Environment India must concentrate on renewable Energy Sources rather than Fossil fuels.  A strong Political leadership and Government is needed to address Energy Challenge and related issues 37Dr. Tabrez Ahmad,
  • 38.  India’s policy objective of inclusive development and affordable energy should be maintained.  India can reduce its vulnerability to energy price fluctuation through a flexible and competent renewable energy market.  Energy Policies should be reformed. 38Dr. Tabrez Ahmad,
  • 39. 39Dr. Tabrez Ahmad,
  • 40.  The word "environment" is most commonly used describing for "natural" environment and means the sum of all living and non- living things that surround an organism, or group of organisms.  Environment includes all elements, factors, and conditions that have some impact on growth and development of certain organism.  Environment includes both biotic and abiotic factors that have influence on observed organism.  Abiotic factors such as light, temperature, water, atmospheric gases combine with biotic factors (all surrounding living species).  Environment often changes after some time and therefore many organisms have ability to adapt to these changes.  However tolerance range is not the same with all species and exposure to environmental conditions at the limit of a certain organism's tolerance range represents environmental stress. Environment - Definition and Meaning Dr. Tabrez Ahmad, 40
  • 41.  Dr. T.N Khoshoo defines environment as “the sum total of all conditions and influences that effect the development and life of all organs.”  The United States council on Environmental Quality provides that, “man’s total environmental system includes not only the biosphere but also his interactions with his natural and manmade surroundings.”  The Encyclopedia Britannica defines environment as “the entire range of external influence acting on an organism, both physical and biological i.e. other organism, forces of nature surrounding an individual” Definitional Dimensions Dr. Tabrez Ahmad, 41
  • 42.  The European commission defined “environment as the combination of elements whose complex interrelationship make up the settings, the surroundings and the conditions of life of the individual and of society as they are and as they felt.”  Section 2(a) of the Environment (Protection) Act, 1986 defines the term “environment”. It includes water, air and land and also includes the human beings, other living creatures, plants, micro- organisms and property.  The definition given under section 2(a) of the Environment (Protection) Act, 1986 is inclusive definition and, therefore, it does not exhaust the entire universe of what is covered by the word “environment.” Exhaustive definitions in an evolving field like environmental control are likely to lead to recourse to judicial interpretation of highly complex scientific and technological matters, whose complexion is ever changing as knowledge accumulates dynamically.Dr. Tabrez Ahmad, 42
  • 43.  There are several types of pollution, and while they may come from different sources and have different consequences, understanding the basics about pollution can help environmentally conscious individuals minimize their contribution to these dangers.  In total, there are nine recognized sources of pollution in the modern world.  These sources of pollution don't simply have a negative impact on the natural world, but they can have a measurable effect on the health of human beings as well. Types of Environment Pollution Dr. Tabrez Ahmad, 43
  • 44.  Air Pollution  Air pollution is defined as any contamination of the atmosphere that disturbs the natural composition and chemistry of the air. This can be in the form of particulate matter such as dust or excessive gases like carbon dioxide or other vapors that cannot be effectively removed through natural cycles, such as the carbon cycle or the nitrogen cycle.  Air pollution comes from a wide variety of sources. Some of the most excessive sources include:  Vehicle or manufacturing exhaust  Forest fires, volcanic eruptions, dry soil erosion, and other natural sources  Building construction or demolition  Depending on the concentration of air pollutants, several effects can be noticed. Smog increases, higher rain acidity, crop depletion from inadequate oxygen, and higher rates of asthma.  Many scientists believe that global warming is also related to increased air pollution. Dr. Tabrez Ahmad, 44
  • 45.  Water Pollution  Water pollution involves any contaminated water, whether from chemical, particulate, or bacterial matter that degrades the water's quality and purity. Water pollution can occur in oceans, rivers, lakes, and underground reservoirs, and as different water sources flow together the pollution can spread.  Causes of water pollution include:  Increased sediment from soil erosion  Improper waste disposal and littering  Leaching of soil pollution into water supplies  Organic material decay in water supplies  The effects of water pollution include decreasing the quantity of drinkable water available, lowering water supplies for crop irrigation, and impacting fish and wildlife populations that require water of certain purity for survival. Dr. Tabrez Ahmad, 45
  • 46.  Soil Pollution  Soil, or land pollution, is contamination of the soil that prevents natural growth and balance in the land whether it is used for cultivation, habitation, or a wildlife preserve. Some soil pollution, such as the creation of landfills, is deliberate, while much more is accidental and can have widespread effects.  Soil pollution sources include:  Hazardous waste and sewage spills  Non-sustainable farming practices, such as the heavy use of inorganic pesticides  Strip mining, deforestation, and other destructive practices  Household dumping and littering  Soil contamination can lead to poor growth and reduced crop yields, loss of wildlife habitat, water and visual pollution, soil erosion, and desertification. Dr. Tabrez Ahmad, 46
  • 47.  Noise Pollution  Noise pollution refers to undesirable levels of noises caused by human activity that disrupt the standard of living in the affected area. Noise pollution can come from:  Traffic  Airports  Railroads  Manufacturing plants  Construction or demolition  Concerts  Some noise pollution may be temporary while other sources are more permanent. Effects may include hearing loss, wildlife disturbances, and a general degradation of lifestyle. Dr. Tabrez Ahmad, 47
  • 48.  Radioactive Pollution  Radioactive pollution is rare but extremely detrimental, and even deadly, when it occurs. Because of its intensity and the difficulty of reversing damage, there are strict government regulations to control radioactive pollution.  Sources of radioactive contamination include:  Nuclear power plant accidents or leakage  Improper nuclear waste disposal  Uranium mining operations  Radiation pollution can cause birth defects, cancer, sterilization, and other health problems for human and wildlife populations. It can also sterilize the soil and contribute to water and air pollution. Dr. Tabrez Ahmad, 48
  • 49.  Thermal Pollution  Thermal pollution is excess heat that creates undesirable effects over long periods of time. The earth has a natural thermal cycle, but excessive temperature increases can be considered a rare type of pollution with long term effects. Many types of thermal pollution are confined to areas near their source, but multiple sources can have wider impacts over a greater geographic area.  Thermal pollution may be caused by:  Power plants  Urban sprawl  Air pollution particulates that trap heat  Deforestation  Loss of temperature moderating water supplies  As temperatures increase, mild climatic changes may be observed, and wildlife populations may be unable to recover from swift changes. Dr. Tabrez Ahmad, 49
  • 50.  Light Pollution  Light pollution is the over illumination of an area that is considered obtrusive. Sources include:  Large cities  Billboards and advertising  Nighttime sporting events and other nighttime entertainment  Light pollution makes it impossible to see stars, therefore interfering with astronomical observation and personal enjoyment. If it is near residential areas, light pollution can also degrade the quality of life for residents.  Visual Pollution  Visual pollution - eyesores - can be caused by other pollution or just by undesirable, unattractive views. It may lower the quality of life in certain areas, or could impact property values and personal enjoyment.  Sources of visual pollution include:  Power lines  Construction areas  Billboards and advertising  Neglected areas or objects such as polluted vacant fields or abandoned buildings  While visual pollution has few immediate health or environmental effects, what's causing the eyesore can have detrimental effects.Dr. Tabrez Ahmad, 50
  • 51.  Personal Pollution  Personal pollution is the contamination of one's body and lifestyle with detrimental actions. This may include:  Excessive smoking, drinking or drug abuse  Emotional or physical abuse  Poor living conditions and habits  Poor personal attitudes  In some cases, personal pollution may be inflicted by caregivers, while in other cases it is caused by voluntary actions. Taking positive steps in your life can help eliminate this and other sources of pollution so you can lead a more productive, satisfying life.  How to Fight Pollution  All types of pollution are interconnected. For example, light pollution requires energy to be made, which means the electric plant needs to burn more fossil fuels to supply the electricity.  Those fossil fuels contribute to air pollution, which returns to the earth as acid rain and increases water pollution.  The cycle of pollution can go on indefinitely, but once you understand the different pollution types, how they are created, and the effects they can have, you can make personal lifestyle changes to combat poor conditions for yourself and others around you. Dr. Tabrez Ahmad, 51
  • 52.  Production and transportation of crude oil and petroleum products and the flaring of natural gas associated with petroleum production have associated environmental risks.  The impact of the production and use of energy on the environment is undeniable and varying in its degrees.  The exploitation of biomass for energy purposes results in deforestation, while the use of fossil based fuels contributes to carbon dioxide emissions.  The use of inferior cooking equipment also has negative health impacts Dr. Tabrez Ahmad, 52 Energy and Environment
  • 53. • Promote the use of environmentally friendly energy supply sources such as renewable energy (solar, wind, waste) in the energy supply mix of the country; • Encourage a shift from oil to gas wherever gas is a technically feasible alternative; • Promote the use of improved wood fuel burning equipment for cooking in households and other commercial activities; • Support and actively participate in international efforts and cooperate with international organisations that seek to ensure sustainable delivery of energy to mitigate negative environmental impacts and climate change Dr. Tabrez Ahmad, 53 India’s response- Energy and Environment
  • 54.  Encourage and enable all relevant entities engaged in activities in the energy sector to explore and access international environmental financial mechanisms and markets to overcome investment, technology and other relevant barriers  Ensure effective disposal of all hazardous substances and materials associated with the  production, transportation and use of energy; and Facilitate environmental protection awareness programmes Dr. Tabrez Ahmad, 54 India’s response- Energy and Environment
  • 55.  Constitutional Provisions and Environment Protection in India  In India, the concern for environment protection has not only been raised to the status of Fundamental Law of the land, but it is also wedded with human rights approach and it is now well established that it is the basic human right of every individual to live in pollution free environment with full dignity.  In view of the various constitutional provisions and other statutory provisions contained in various laws relating to environment protection, the Supreme Court of India has held that the essential feature of “sustainable development” such as the “precautionary principle” and the “polluter pays principle” are part of the environmental law of the country. Laws Governing Environment Dr. Tabrez Ahmad, 55
  • 56.  The Constitution of India obligates the “State” as well as “Citizens” to protect and improve the environment. At the very outset, the preamble of the Constitution of India provides that our country is based on “socialistic” pattern of society where the State pays more attention to the social problems than on any individual problems.  The basic aim of the socialism is to provide “decent standard of life to all”, which can be possible only in a pollution free environment.  Pollution is one of the social problems and the “State” is required under the Supreme Law to pay more attention to this social problem and march towards the avowed aim of just social order.  This objective of preamble is reflected clearly and in specific terms in Part IV of the Constitution, dealing with directive principles of state policy. Dr. Tabrez Ahmad, 56
  • 57.  The Preamble also declares India to be a “Democratic Republic”. In a democratic set up, people have the right to participate in government decisions.  Also people have the right to know and access to information of government policies which is very important for the success of environmental policies.  The other objectives of preamble, i.e., justice, liberty and equality find place in Part III dealing with fundamental rights. Dr. Tabrez Ahmad, 57
  • 58.  Federal System of Government  India has adopted a federal system in which the governmental power is shared between the Union and or Central Government and the State Governments. Part XI of the Constitution (Articles 245 to 263) regulates the legislative and administrative relations between the Union and the States.  Article 245 empowers the Parliament to make laws for the whole country whereas the State Legislatures have the power to legislate for their respective States.  Article 246 further divides the subject areas of legislation between the Union and the States. This division is based on three lists, i.e., Union List, State List and Concurrent List, which are given in the VII Schedule to the Constitution.  Article 254 removes the inconsistency which may arise between the laws made by the Parliament and the laws made by the legislatures of the different States. It provides that when a Central Law and State Law conflicts with the State Law on a subject –matter mentioned in the concurrent list, the Central Law shall prevail.  However, a State Law passed subsequent to the Central Law will prevail if it has received the assent of the President under Article 254. Dr. Tabrez Ahmad, 58
  • 59.  Obligation to Implement International Agreement  India is a contracting party or signatory to numerous international treaties and agreements relating to regional or global environmental issues. Thus, India is under an obligation to translate the contents and decisions of international conferences, treaties and agreements into the stream of national law.  Article 51(c) provides that “the State shall endeavor to foster respect international law and treaty obligations in the dealings of organized people with one another”.  Article 253 of the Constitution specifically empowers the Parliament “to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, associations or other body.” Dr. Tabrez Ahmad, 59
  • 60.  Fundamental Duties  The Constitution (Forty Second Amendment) Act, 1976, added a new part IV-dealing with “Fundamental Duties” in the Constitution of India.  Article 51-A of this part enlists ten fundamental duties.  It is interesting to note that this part was added on the recommendations of Swarn Singh Committee bringing the Constitution of India in line with Article 29(1) of the Universal Declaration of Human Rights.  Article 51-A (g) specifically deals with the fundamental duty with respect to environment.  It provides: It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Dr. Tabrez Ahmad, 60
  • 61.  Article 51-A (j) further provides:  It shall be the duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavor and achievements.  Directive Principles of State Policy  Part IV of the Constitution deals with directive principles of state policy. These directive principles represent the socio-economic goals which the nation is expected to achieve.  The directive principles form the fundamental feature and the social conscience of the Constitution and the Constitution enjoins upon the State to implement these directive principles.  These directive principles are designed to guide the destiny of the nation by obligating three wings of the State, i.e., legislature, judicature and executive to implement these principles.  Article 47 of the Constitution is one of the directive principles of State policy and it provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.  The improvement of public health will also include the protection and improvement of environment without which public health cannot be assured.Dr. Tabrez Ahmad, 61
  • 62.  The Constitution (Forty-Second Amendment) Act, 1976, added a new directive principle in Article 48-dealing specifically with protection and improvement of environment. It provides:  The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country.  Thus, Indian Constitution became one of the rare Constitutions of the World where specific provisions were incorporated in the suprema lex putting obligations on the “State” as well as “citizens” to “protect and improve” the environment. This certainly is a positive development of Indian Law.  The State cannot treat the obligations of protecting and improving the environment as mere pious obligation. The directive principles are not mere show-pieces in the window-dressing. They are “fundamental in the governance of the country” and they, being part of the Supreme Law of the land, have to be implemented. Dr. Tabrez Ahmad, 62
  • 63.  Article 37 of the Constitution provides:  The provisions contained in this Part IV shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.  In view of Article 37 of the Constitution, the Court may not be able to actively enforce the directive principles by compelling the State to apply them in making of law. Dr. Tabrez Ahmad, 63
  • 64.  Fundamental Rights  Principle 1 of the Stockholm Declaration finds reflection in Articles in 14, 19 and 21 of the Constitution of India dealing with the right to equality, freedom of expression and right to life and personal liberty respectively. In order to treat a right a fundamental right it is not necessary that it should be expressly stated as one in Part III of the Constitution dealing with fundamental rights.  The provisions of Parts III and IV, dealing with fundamental rights and directive principles respectively, are supplementary and complementary to each other. Fundamental rights are but means to achieve the goal indicted in Part IV and thus, must be construed in the light of the directive principles.  A right can be recognized as a fundamental right even though not expressly mentioned in Part III.  In other words, there are various unremunerated fundamental rights in Part III and judicial activism in India has taken a lead in interpreting various unremunerated rights in Part III of the Constitution.  Environment Protection is one of them. The Indian judiciary has demonstrated willingness to exercise its power whenever the political/executive organs of the state have failed to discharge their constitutional obligations effectively.  This willingness has been often termed as ‘judicial activism’. Dr. Tabrez Ahmad, 64
  • 65.  Around 1980, the Indian legal system, particularly the field of environmental law, underwent a sea change in terms of discarding its moribund approach and instead, started charting out new horizons of social justice. This period was characterized not only by administrative and legislative activism but also judicial activism.  A subset of this has been environmental activism, which has developed in India in a very major way. One of the reasons for judicial activism in specific environmental cases has been the relaxation of the rule of locus standi giving a chance to the public to approach the Court under Articles 32 and 226 of the Indian Constitution. Also, the recognition of environmental rights as a ‘fundamental right’ under Article 21 (Right to Life) of the Indian Constitution has given a constitutional sanctity to the 'right to enjoy a clean and healthy environment'.  The environment protection needs immediate attention worldwide. It has been realised that the protection and improvement of the human environment is a vital major issue affecting not only the creatures/living men and animals but also the non- living. It is the duty of all governments and urgent need for the people of the whole world that protection and improvement of environmental problem should be given proper attention. The gravity of seriousness relating to the problem of environment is evident from the fact that in all the advanced countries scientists, economists, policy makers and administrators have given serious thought to environmental problems. Dr. Tabrez Ahmad, 65
  • 66.  In India the seeds of PIL were sown by Justice Krishna Iyer in 1976 (without using the terminology)  in Mumbai Kamgar Sabha v. Abdulbhai wherein the Learned Judge observed “Public Interest Litigation is promoted by a spacious construction of Locus Standi in our socio economic circumstances and conceptual latitudinarism permits taking liberties with individualization of the right to invoke the Higher Courts where the remedy is shared by a considerable number particularly when they are weaker.”  The doctrinal limitations of standing started getting diluted in the wake of legal aid movement and in  1997 the National Committee on Juridicare expressly recommended broadening the rule of locus standi as a means of encouraging PIL.  The concept of PIL was slowly and steadily nourished, nurtured and developed by the Apex court through a series of land mark decisions in matters of public policy, executive excesses, Constitutional infractions, environmental degradation etc. PIL and Development of Environmental Law Dr. Tabrez Ahmad, 66
  • 67.  While elaborating the rationale of expanded standing, the Apex Court in S.P Gupta v. Union in India laid down that any individual acting bonafide and having sufficient interest can have access to the Court for the purpose of redressing the public injury, enforcing public duty, protecting social, collective, diffuse rights or interests for vindicating public interest.  PIL has extended its helping hand to prevent environment damage. The strategic arm of PIL has also made a substantial dent in environmental pollution cases.  Greening the law of public nuisance, the Supreme Court in Municipal Council, Ratlam v. Vardichand identified the responsibilities of local bodies towards the protection of the law of public nuisance in the Code of Criminal Procedure as a potent instrument for enforcement of their duties.  Justice V.R Krishna Iyer in this case observed-“Decency and dignity are non-negotiable facets of human rights and are a first charge on local self governing bodies.  Similarly providing drainage systems-not pompous and attractive, but in working condition and sufficient to meet the needs of the people can-not be evaded if the municipality is to justify its existence.  In the above case Supreme Court also rejected the plea of the municipality of insufficiency of funds.  The Court pointed out that ‘financial constraints can-not validly exonerate the municipality from performing its statutory liability and the human rights under Part III of the Constitution have to be respected by the Municipality regardless of budgetary provisions.” Dr. Tabrez Ahmad, 67
  • 68.  Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh was the first case of its kind in the country involving issues relating to environment and ecological balance which bought into sharp focus the conflict between environment and development.  The Apex Court delicately poised the balance between environment and development.  Favouring ecological integrity against industrial demands on forest resources, the court considered the hardship caused to the lessees but thought that it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance to the ecological balance.  Workers were to be rehabilitated by employing them in the reclamation, afforestation and soil conservation programmes in the area. Dr. Tabrez Ahmad, 68
  • 69.  Treating environmental problem with a right duty discourse, the Court in Damodhar Rao v. S.O Municipal Corporation, Hyderabad observed that the protection of environment is not only the duty of the citizens but also the obligation of the state.  The Court further held that- “Environmental Law has succeeded in unshackling man’s right to life and personal liberty from the clutches of common law theory of individual ownership.  There can be no reason that the practice of violent extinguishment of life would be regarded as violative of Article 21 of the Constitution.  The slow poisoning by the polluted atmosphere caused by environmental pollution and spoliation should also be regarded as amounting to violation of Article 21 of the Constitution. Dr. Tabrez Ahmad, 69
  • 70.  In M.C Mehta v. Union of India (popularly known as the Taj Mahal case) the Apex court once again followed the path of sustainable development and applied the “precautionary principle’ by directing that the industries operating in Taj Trapezium Zone using coke/coal as industrial fuel must stop functioning and they must relocate themselves to the alternate site provided under the Agra Master Plan.  The shifting industries were directed to be given incentives at the new industrial estates in terms of the Agra master Plan.  In this case also the Supreme Court specified the rights and benefits to which the workmen of such industries were entitled.  Dr. Tabrez Ahmad, 70
  • 71.  Indian Council for Enviro-Legal Research v. Union of India (popularly known as H. Acid case) is a monumental judgement on environment protection and sustainable development.  In this case a PIL was filed not for issuance of writ, order direction against such units but against the Union of India, State government and State Pollution control Board concerned to compel them to perform their statutory duties on the ground that their failure to carry out their duties violated the right to life of citizens under Article 21 of the Constitution. Dr. Tabrez Ahmad, 71
  • 72.  In M.C Mehta v. Kamal Nath the Apex court held that the state as a trustee of all natural resources is under a legal duty to protect them and that the state as a trustee of all natural resources is under a legal duty to protect them and that the resources are meant for public use and cannot be converted into private ownership.  It is submitted that this doctrine can also be extended to arrest depletion of forest wealth because degraded resources may deprive local inhabitants and tribals of their life support base. Dr. Tabrez Ahmad, 72
  • 73.  The rule in Ryland’s v. Fletcher holds a person strictly liable when he brings or accumulates on his land something likely to harm if it escapes and damage arises as a natural consequence of its escape.  But ‘strict’ liability is subject to a number of exceptions that considerably reduce the scope of its operation.  Exceptions that have been recognised are (i) Act of God (ii) Act of the third party (iii) The Plaintiff’s own fault (iv)The Plaintiff’s Consent (v) The natural use of the land by the defendant (vi) Statutory Authority. Rule of Absolute Liability and Environment Protection Dr. Tabrez Ahmad, 73
  • 74.  In M.C Mehta v. Union of India (popularly known as the Oleum gas Leak case), the Supreme Court rejecting the rule of Ryland’s v. Fletcher in situations involving hazardous industries observed that –  “where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to any one on account of accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accidental.  Any such liability is not subject to any of the exceptions which operate Vis a Vis the tortuous principle of strict liability under the rule in Ryland’s v. Fletcher. Dr. Tabrez Ahmad, 74
  • 75.  discernible in the Doon Valley case, the Court’s concern towards ecological balance was evident when it observed that the natural resources have got to be tapped for the purposes of the social development but one cannot forget at the same time that tapping of resources have to be done with requisite attention and care so that ecology and environment may not be affected in any serious way,  there may not be depletion of water resources and  long term planning must be under taken to keep up the national wealth.  It has always to be remembered that these are permanent assets of mankind which are not intended to be exhausted in one generation. Dr. Tabrez Ahmad, 75
  • 76.  In Tarun Bharat Sangh v. Union of India, the petitioner through PIL brought to the notice of the Court that the State Government of Rajasthan, though professing to protect the environment by means of the notifications and declarations, was itself permitting the degradation of the environment by authorizing mining operations in the area declared as “reserve forest”.  In order to protect the environment and wildlife within the protected areas, the Supreme Court issued directions that no mining operations of whatever nature shall be carried out within the protected areas.  In M.C Meta v. Union of India (popularly known as Ganga water pollution case or the Kanpur Tanneries case) the Court observed-  “We are therefore issuing the directions or the closure of those tanneries which have failed to take minimum steps required for the primary treatment of industrial effluent.  We are conscious that closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people.” Dr. Tabrez Ahmad, 76
  • 77.  Following Pradeep Krishen’s case, the Supreme Court further observed that the total forest cover in our country is far less than the ideal minimum of the 1/3rd of the total land.  We cannot, therefore, afford any further shrinkage in the forest cover in our country.  If one of the reasons for this shrinkage is the entry of villagers and tribals living in and around these sanctuaries and the national Park, there can be no doubt that urgent steps must be taken to prevent any destruction or damage to the environment, the flora and the fauna and wild life in those areas.  The state government is therefore, expected to act in matters enjoined by Articles 51-A (g) of the Constitution. Dr. Tabrez Ahmad, 77
  • 78.  CONCLUSION:  There is no doubt that judiciary is playing a vital role in providing justice to the masses of poor, backward, illiterate, socially and economically weaker sections of the society and safeguarding the rights and privileges enacted in the constitution and other law made from time to time.  The shortcomings of the executive in coping with the pressures on the environment brought about by change in the country’s economic policies had thrust the responsibility of environmental protection upon the judiciary.  This has meant that in India, the Judiciary in some instances had to not only exercise its role as an interpreter of the law but has also had to take upon itself the role of constant monitoring and implementation necessitated through a series of public interest litigations that have been initiated in various courts.  In its efforts to protect the environment, the Supreme Court and the Indian Judiciary in general have relied on the public trust doctrine, precautionary principle; polluter pays principle the doctrine of strict and absolute liability,  the exemplary damages principle, the pollution fine principle and inter- generational equity principle apart from the existing law of the land.  Another guiding principle has been that of adopting a model of sustainable development.  The consistent position adopted by the courts as enunciated in one of its judgments has been that there can neither be development at the cost of the environment or environment at the cost of development.Dr. Tabrez Ahmad, 78
  • 79. National Framework  The Wildlife (Protection) Act, 1972  The Water (Prevention and Control of Pollution) Act, 1974  The Water (Prevention and Control of Pollution) Act, 1977  The Forest (Conservation) Act, 1980  The Air (Prevention and Control of Pollution) Act, 1981  The Environment (Protection) Act, 1986  The Motor Vehicles Act, 1988  The Public Liability Insurance Act, 1991 Regulatory Acts and Laws of Environment and Energy Sector Dr. Tabrez Ahmad, 79
  • 80.  United Nations Framework Convention on Climate Change  1972- Stockholm Declaration  1992 - The Kyoto Protocol  2007 - Bali Conference  2008 – Warsaw Conference  2009 – Copenhagen Conference Dr. Tabrez Ahmad, 80 International framework of Environmental Law
  • 81.  Declaration of the United Nations Conference on the Human Environment  The United Nations Conference on the Human Environment, having met at Stockholm from 5 to 16 June 1972,having considered the need for a common outlook and for common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment, Stockholm Declaration 1972 Dr. Tabrez Ahmad, 81
  • 82.  The Kyoto Protocol is an international agreement linked to the United Nations Framework Convention on Climate Change, which commits its Parties by setting internationally binding emission reduction targets.  Recognizing that developed countries are principally responsible for the current high levels of GHG emissions in the atmosphere as a result of more than 150 years of industrial activity,  the Protocol places a heavier burden on developed nations under the principle of "common but differentiated responsibilities."  The Kyoto Protocol was adopted in Kyoto, Japan, on 11 December 1997 and entered into force on 16 February 2005.  The detailed rules for the implementation of the Protocol were adopted at COP 7 in Marrakesh, Morocco, in 2001, and are referred to as the "Marrakesh Accords."  Its first commitment period started in 2008 and ended in 2012. Kyoto Protocol-1992 Dr. Tabrez Ahmad, 82
  • 83. •New commitments for Annex I Parties to the Kyoto Protocol who agreed to take on commitments in a second commitment period from 1 January 2013 to 31 December 2020; •A revised list of greenhouse gases (GHG) to be reported on by Parties in the second commitment period; and •Amendments to several articles of the Kyoto Protocol which specifically referenced issues pertaining to the first commitment period and which needed to be updated for the second commitment period. Dr. Tabrez Ahmad, 83
  • 84.  On 21 December 2012, the amendment was circulated by the Secretary-General of the United Nations, acting in his capacity as Depositary, to all Parties to the Kyoto Protocol in accordance with Articles 20 and 21 of the Protocol.  During the first commitment period, 37 industrialized countries and the European Community committed to reduce GHG emissions to an average of five percent against 1990 levels.  During the second commitment period, Parties committed to reduce GHG emissions by at least 18 percent below 1990 levels in the eight-year period from 2013 to 2020; however, the composition of Parties in the second commitment period is different from the first. Dr. Tabrez Ahmad, 84
  • 85.  The Bali Climate Change Conference brought together more than 10,000 participants, including representatives of over 180 countries together with observers from intergovernmental and non-governmental organisations and the media.  Governments adopted the Bali Road Map, a set of decisions that represented the various tracks that were seen as key to reaching a global climate deal.  The Bali Road Map includes the Bali Action Plan, which launched a "new, comprehensive process to enable the full, effective and sustained implementation of the Convention through long-term cooperative action, now, up to and beyond 2012", with the aim of reaching an agreed outcome and adopting a decision at COP15 in Copenhagen. Governments divided the plan into five main categories: shared vision, mitigation, adaptation, technology and financing. Bali Conference-2007 Dr. Tabrez Ahmad, 85
  • 86.  Other elements in the Bali Road Map included:  A decision on deforestation and forest management;  A decision on technology for developing countries;  The establishment of the Adaptation Fund Board  The review of the financial mechanism, going beyond the existing Global Environmental Facility.  The Ad Hoc Working Group on Long-term Cooperative Action (AWG-LCA) was set up to conduct work under the Bali Action Plan.  The Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol (AWG-KP) was to work in parallel. The central task of the AWG-KP was to decide the emission reduction commitments of industrialized countries after the Kyoto Protocol's first commitment period expired in 2012. Dr. Tabrez Ahmad, 86
  • 87.  Delegates agreed on principles for the financing of a fund to help the poorest nations cope with the effects of climate change and they approved a mechanism to incorporate forest protection into the efforts of the international community to combat climate change.  Negotiations on a successor to the Kyoto Protocol were the primary focus of the conference. 2008 – Warsaw Conference Dr. Tabrez Ahmad, 87
  • 88.  The overall goal for the COP 15/CMP 5 United Nations Climate Change Conference in Denmark was to establish an ambitious global climate agreement for the period from 2012 when the first commitment period under the Kyoto Protocol expires.  However, on November 14, 2009, the New York Times announced that "President Obama and other world leaders have decided to put off the difficult task of reaching a climate change agreement... agreeing instead to make it the mission of the Copenhagen conference to reach a less specific "politically binding" agreement that would punt the most difficult issues into the future".  Ministers and officials from 192 countries took part in the Copenhagen meeting and in addition there were participants from a large number of civil society organizations.  As many industrialized countries are now reluctant to fulfill commitments under the Kyoto Protocol, a large part of the diplomatic work that lays the foundation for a post-Kyoto agreement was undertaken up to the COP15. Copenhagen Conference-2009 Dr. Tabrez Ahmad, 88
  • 89.  The conference did not achieve a binding agreement for long-term action. A 13-paragraph 'political accord' was negotiated by approximately 25 parties including US and China, but it was only 'noted' by the COP as it is considered an external document, not negotiated within the UNFCCC process.  The accord was notable in that it referred to a collective commitment by developed countries for new and additional resources, including forestry and investments through international institutions, that will approach USD 30 billion for the period 2010–2012.  Longer-term options on climate financing mentioned in the accord are being discussed within the UN Secretary General's High Level Advisory Group on Climate Financing, which is due to report in November 2010.  The negotiations on extending the Kyoto Protocol had unresolved issues as did the negotiations on a framework for long-term cooperative action. The working groups on these tracks to the negotiations are now due to report to COP 16 and CMP 6 in Mexico. Dr. Tabrez Ahmad, 89
  • 90.  COP 16 was held in Cancún, Mexico, from November 29 to December 10, 2010.  The outcome of the summit was an agreement adopted by the states' parties that called for the 100 billion USD per annum "Green Climate Fund", and a "Climate Technology Centre" and network. However the funding of the Green Climate Fund was not agreed upon. Nor was an commitment to a second period of the Kyoto Protocol agreed upon, but it was concluded that the base year shall be 1990 and the global warming potentials shall be those provided by the IPCC.  All parties "Recognizing that climate change represents an urgent and potentially irreversible threat to human societies and the planet, and thus requires to be urgently addressed by all Parties,".  It recognizes the IPCC Fourth Assessment Report goal of a maximum 2 °C global warming and all parties should take urgent action to meet this goal. It also agreed upon greenhouse gas emissions should peak as soon as possible, but recognizing that the time frame for peaking will be longer in developing countries, since social and economic development and poverty eradication are the first and overriding priorities of developing countries. 2010: COP 16/CMP 6, Cancún, Mexico Dr. Tabrez Ahmad, 90
  • 91. The 2011 COP 17 was held in Durban, South Africa, from November 28 to December 9, 2011.  The conference agreed to a legally binding deal comprising all countries, which will be prepared by 2015, and to take effect in 2020.  There was also progress regarding the creation of a Green Climate Fund (GCF) for which a management framework was adopted.  The fund is to distribute US$100 billion per year to help poor countries adapt to climate impacts.  While the president of the conference, Maite Nkoana-Mashabane, declared it a success, scientists and environmental groups warned that the deal was not sufficient to avoid global warming beyond 2 °C as more urgent action is needed. 2011: COP 17/CMP 7, Durban, Dr. Tabrez Ahmad, 91
  • 92.  Qatar hosted COP 18 which took place in Doha, Qatar, from 26 November to 7 December 2012.  The Conference produced a package of documents collectively titled The Doha Climate Gateway.  The documents collectively contained:An amendment of the Kyoto Protocol (to be ratified before entering into force) featuring an second commitment period running from 2012 until 2020 limited in scope to 15% of the global carbon dioxide emissions due to the lack of commitments of Japan, Russia, Belarus, Ukraine, New Zealand (nor the United States and Canada, who are not parties to the Protocol in that period) and due to the fact that developing countries like China (the world's largest emitter), India and Brazil are not subject to emissions reductions under the Kyoto Protocol.  Language on loss and damage, formalized for the first time in the conference documents.  The conference made little progress towards the funding of the Green Climate Fund.  Russia, Belarus and Ukraine objected at the end of the session, as they had a right to under the session's rules. In closing the conference, the President said that he would note these objections in his final report. 2012: COP 18/CMP 8, Doha, Qatar Dr. Tabrez Ahmad, 92
  • 93.  Main article: 2013 United Nations Climate Change Conference  COP 19 was the 19th yearly session of the Conference of the Parties (COP) to the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and the 9th session of the Meeting of the Parties (CMP) to the 1997 Kyoto Protocol (the protocol having been developed under the UNFCCC's charter). The conference was held in Warsaw, Polandfrom 11 to 23 November 2013.[33] 2013: COP 19/CMP 9, Warsaw, Poland Dr. Tabrez Ahmad, 93
  • 94.  Main article: 2014 United Nations Climate Change Conference  In 2014, Lima, Peru will host the 20th yearly session of the Conference of the Parties (COP) to the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and the 10th session of the Meeting of the Parties (CMP) to the 1997 Kyoto Protocol (the protocol having been developed under the UNFCCC's charter). The pre-COP conference will be held in Venezuela.  2015: COP 21/CMP 11, Paris, France  Main article: 2015 United Nations Climate Change Conference 2014: COP 20/CMP 10, Lima, Peru Dr. Tabrez Ahmad, 94
  • 95.  European Union  Emissions Trading Scheme (EU ETS)  Carbon Capture Scheme (CCS) Directive – draft in EU parliament – Committee vote 7th October 2008  Politics now at work  UK Government  2008 Energy Bill (Chapter 3 = CCS)  Regulation in drafting (BERR and Crown Estate) Dr. Tabrez Ahmad, 95 European Union / UK Framework
  • 96. Do you have any question? Revert back to 96Dr. Tabrez Ahmad
  • 97. Dr. Tabrez Ahmad 97
  • 98. 98 Dr. Tabrez Ahmad