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Environmental Regulation in
Dr. Tabrez Ahmad,
Professor of Law
Dr. Tabrez Ahmad, http://energylex.blogspot.in 1
To gain an in-depth understanding and the application of
the energy sector policy and its response to
To explore the Indian and international energy policy
To gain practical knowledge on the effective
implementation of environmental management
Dr. Tabrez Ahmad, http://energylex.blogspot.in 2
Introduction to Environment and Energy Regulation
Indian Energy Scenario
Electricity Laws in India
Other Policies and regulatory Developments
Institutes/ Organisations/ regulatory Bodies
Energy Innovation System
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, http://energylex.blogspot.in 3
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
Energy is a critical input for socio-economic development.
Energy is being used in all areas of life and production
Most crucial elements of manufacturing industry.
Introduction to Environment and Energy
Dr. Tabrez Ahmad, http://energylex.blogspot.in
The main Energy sources are
fossil fuels (oil containing hydrocarbon, natural gas and coal)
new renewable energy sources (solar, wind, wave, bio 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, http://energylex.blogspot.in
Indian Energy Scenario
6Dr. Tabrez Ahmad, http://energylex.blogspot.in
“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, http://energylex.blogspot.in
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, http://energylex.blogspot.in
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
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, http://energylex.blogspot.in
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,
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, http://energylex.blogspot.in 10
Other Policies and regulatory Developments are
Policy / regulation Year Key Focus
ERC Act 1998 Independent Regulation
Electricity Act 2003 Sector reorganization and
National Electricity Policy 2005 Overall sector
National Tariff Policy 2006 Performance based
Guidelines for competitive
2006 Transparent tariff based
bidding for new generation
Rural Electrification Policy 2006 Access to all by 2012
Hydropower policy 2008 Accelerated hydropower
Dr. Tabrez Ahmad, http://energylex.blogspot.in
Policy / Regulation Year Key Focus
Terms and conditions of
2009 Generation and
operations with competitive
markets and renewables
Indian Electricity Grid code
2010 Grid operations with
competitive markets and
REC regulations 2010 Trading of RE certificate
Power Market Regulations 2010 Transparent power market
Sharing of transmission
2010 Efficient transmission
12Dr. Tabrez Ahmad, http://energylex.blogspot.in
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, http://energylex.blogspot.in
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, http://energylex.blogspot.in
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, http://energylex.blogspot.in
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, http://energylex.blogspot.in
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,
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, http://energylex.blogspot.in
The main actors are
18Dr. Tabrez Ahmad, http://energylex.blogspot.in
Five different ministries have structurally handled the Indian
21Dr. Tabrez Ahmad, http://energylex.blogspot.in
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
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
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, http://energylex.blogspot.in
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, http://energylex.blogspot.in
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
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
35Dr. Tabrez Ahmad, http://energylex.blogspot.in
ENERGY- Indian, China & US
36Dr. Tabrez Ahmad, http://energylex.blogspot.in
India has a serious energy poverty in all the period.. After economic
reform Energy poverty is there and the price of energy also
India has great potential and capacity for producing Energy from
renewable sources.. But still concentrate on fossil fuels and Atomic
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, http://energylex.blogspot.in
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, http://energylex.blogspot.in
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, http://energylex.blogspot.in 40
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
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”
Dr. Tabrez Ahmad, http://energylex.blogspot.in 41
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, http://energylex.blogspot.in 42
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
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, http://energylex.blogspot.in 43
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
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
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, http://energylex.blogspot.in 44
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, http://energylex.blogspot.in 45
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
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
Dr. Tabrez Ahmad, http://energylex.blogspot.in 46
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:
Construction or demolition
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, http://energylex.blogspot.in 47
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
Dr. Tabrez Ahmad, http://energylex.blogspot.in 48
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:
Air pollution particulates that trap heat
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, http://energylex.blogspot.in 49
Light pollution is the over illumination of an area that is considered
obtrusive. Sources include:
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 - 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:
Billboards and advertising
Neglected areas or objects such as polluted vacant fields or abandoned
While visual pollution has few immediate health or environmental effects,
what's causing the eyesore can have detrimental effects.Dr. Tabrez Ahmad, http://energylex.blogspot.in 50
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
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
Dr. Tabrez Ahmad, http://energylex.blogspot.in 51
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
Dr. Tabrez Ahmad, http://energylex.blogspot.in 52
Energy and Environment
• 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
• 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, http://energylex.blogspot.in 53
India’s response- Energy and
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
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, http://energylex.blogspot.in 54
India’s response- Energy and
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, http://energylex.blogspot.in 55
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
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
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, http://energylex.blogspot.in 56
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
Dr. Tabrez Ahmad, http://energylex.blogspot.in 57
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
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
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, http://energylex.blogspot.in 58
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, http://energylex.blogspot.in 59
The Constitution (Forty Second Amendment) Act, 1976, added a
new part IV-dealing with “Fundamental Duties” in the Constitution
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, http://energylex.blogspot.in 60
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, http://energylex.blogspot.in 61
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, http://energylex.blogspot.in 62
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, http://energylex.blogspot.in 63
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, http://energylex.blogspot.in 64
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
Dr. Tabrez Ahmad, http://energylex.blogspot.in 65
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
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, http://energylex.blogspot.in 66
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
Dr. Tabrez Ahmad, http://energylex.blogspot.in 67
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
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
Dr. Tabrez Ahmad, http://energylex.blogspot.in 68
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, http://energylex.blogspot.in 69
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
Dr. Tabrez Ahmad, http://energylex.blogspot.in 70
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, http://energylex.blogspot.in 71
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
Dr. Tabrez Ahmad, http://energylex.blogspot.in 72
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
Dr. Tabrez Ahmad, http://energylex.blogspot.in 73
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
“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, http://energylex.blogspot.in 74
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
there may not be depletion of water resources and
long term planning must be under taken to keep up the national
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, http://energylex.blogspot.in 75
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
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, http://energylex.blogspot.in 76
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
The state government is therefore, expected to act in matters
enjoined by Articles 51-A (g) of the Constitution.
Dr. Tabrez Ahmad, http://energylex.blogspot.in 77
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
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, http://energylex.blogspot.in 78
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, http://energylex.blogspot.in 79
United Nations Framework Convention on Climate
1972- Stockholm Declaration
1992 - The Kyoto Protocol
2007 - Bali Conference
2008 – Warsaw Conference
2009 – Copenhagen Conference
Dr. Tabrez Ahmad, http://energylex.blogspot.in 80
International framework of Environmental Law
Declaration of the United Nations Conference on the
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, http://energylex.blogspot.in 81
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
Its first commitment period started in 2008 and ended in 2012.
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•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, http://energylex.blogspot.in 83
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, http://energylex.blogspot.in 84
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
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.
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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
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
Dr. Tabrez Ahmad, http://energylex.blogspot.in 86
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
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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.
Dr. Tabrez Ahmad, http://energylex.blogspot.in 88
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, http://energylex.blogspot.in 89
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, http://energylex.blogspot.in 90
The 2011 COP 17 was held in Durban, South Africa, from November 28 to December 9,
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
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, http://energylex.blogspot.in 91
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
The conference made little progress towards the funding of the Green
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
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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.
2013: COP 19/CMP 9, Warsaw, Poland
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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
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Emissions Trading Scheme (EU ETS)
Carbon Capture Scheme (CCS) Directive – draft in EU
parliament – Committee vote 7th October 2008
Politics now at work
2008 Energy Bill (Chapter 3 = CCS)
Regulation in drafting (BERR and Crown Estate)
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European Union / UK Framework
Do you have any question?
Revert back to
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Dr. Tabrez Ahmad http://corpolexindia.blogspot.in