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Unit 2: Policy and Legal Aspects of EM
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Lecture 2
Policy and Legal Aspects of EM
STRUCTURE
Overview Learning Objectives 2.1 Introduction to Environmental Policies 2.1.1 Economics and environmental policies 2.1.2 Industries and environmental policies 2.1.3 Agriculture and environmental policies 2.1.4 Ecosystem and environmental policies 2.1.5 Environmental policy instruments (EPI) 2.2 Environmental Policies and Programmes in India 2.2.1 Forest conservation activities 2.2.2 NGO movements for environmental protection in India 2.3 Environmental Laws and Legislations 2.3.1 Private and Public law 2.3. 2 Principles of international law 2.3.3 Indian Environmental Laws 2.3. 4 International institutions 2.3. 5 Key international treaties 2.3. 6 Objectives and principles of legislation 2.4 Environmental Legislations in India 2.4.1 Evolution of Indian Legislations 2.4.2 Constitution of India 2.4.3 Union Government initiatives
Summary Suggested Readings Model Answers to Learning Activit ies
OVERVIEW
In Unit 1, we introduced you to the fundamental principles and concepts of the environment and ecosystem. In this Unit (i.e., Unit 2), we will provide you with the background to the evolution of
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environmental policies and legislations in India. We will begin the Unit by explaining the international environmental policies in general. This will give us a context for our discussion of the policies in India. We will also discuss some of the salient features of environmental laws, the NGO movement and legislations, as they pertain to India.
LEARNING OBJECTIVES
After completing this Unit, you should be able to:
discuss the evolution of environmental policies and laws; explain the implications of international policies and laws for India.
2.1 INTRODUCTION TO ENVIRONMENTAL
POLICIES
Environmental policies may be either enacted as laws by governing bodies or created and enforced by government agencies. They may originate from local, national or foreign governments, and address an array of issues including (but not limited to) air or water quality, fossil fuel extraction, energy conservation, habitat protection or restoration, pesticide use, storage/disposal of hazardous materials, recycling and trafficking in endangered species.
An environmental policy being interdisciplinary in nature draws together technology, economics, and natural and social sciences. In order to develop sustainable policies, therefore, it is necessary to have sound knowledge of the actual and potential environmental impacts of certain activities and some knowledge of
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In other words, the immediate benefits resulting from environmental policies are extremely difficult to assess. As a consequence, the costs of environmental measures are often paid more attention than the benefits resulting from the implementation of the policy.
The definition of the property rights of natural resources plays a vital role in the distributional effects of environmental policies. The implementation of strict standards and regulations will effect a change in the definition of property rights. For example, industries polluting the rivers will be confronted with regulations that prevent them from, or reduce their opportunities for, using the rivers. However, throughout the process of formulating the regulations, polluting industries will try to influence and stifle the policies. (Note that we will discuss some of the industrial policies as they pertain to the environment in Subsection 2.1.2.)
Let us now consider below a few examples of sectoral economic policies that influence the environmental policies directly or indirectly:
Agricultural sector: Virtually the entire food cycle attracts huge direct or indirect subsidies, at a cost to taxpayers and consumers. These subsidies, more often than not, send farmers far more powerful signals than do the small grants, usually provided for soil and water conservation. They encourage farmers to occupy marginal land and to clear forests and woodlands, make excessive use of pesticides and fertilisers, and use underground and surface waters in irrigation indiscriminately. We will discuss the policies of the agricultural sector in detail in Subsection 2.1.3. Forestry sector: The pressures on forests throughout the world vary greatly in both developed and developing countries, which are reinforced by government policies. The logging and
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forestry industry attracts a variety of direct and indirect subsidies. The perverse incentives that encourage the over harvesting of temperate as well as tropical forests also mark world-trade in forest products.
Transport sector: This sector, especially motor vehicles, also benefits from economic policies that are ecologically perverse. Fuel taxes in many jurisdictions, for example, still fail to distinguish between the environmental effects of different types of fuel (e.g., petrol or diesel, leaded or unleaded). The tax and tariff structure, and direct and indirect subsidies, encourage heavier and more energy-intensive vehicles and road freight, as opposed to rail transport in many countries. In addition, in some countries, private vehicle expenses can be deducted from taxable income.
Energy sector: The major obstacle to energy efficiency is the existing framework of incentives for energy exploration, development and consumption. These incentives underwrite coal, oil and gas, ignore the costs of air, land and water pollution and seem to favour inefficiency and waste. While industrialised countries have been spending billions to distort the market and consumer prices in ways that actively promote acid rain and global warming, they have been spending only a few million on measures to promote energy efficiency. As long as pollution problems are mainly national, there is a need for a strong national authority. However, environmental problems are becoming increasingly international or global. This complicates the environmental policies considerably. On the one hand, international co-operation in the fighting of environmental problems is absolutely necessary. On the other hand, different countries have different economic interests. Furthermore, polluting sectors are not evenly distributed among countries.
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processes and resources for developing, implementing, achieving reviewing and maintaining the environmental policy" (BSI, 1996 – see http://www.env.hie.co.uk/welcome.asp.LocID_envdev.htm for details). A EMS aims to help organisations achieve sound environmental performance by identifying key activities which impact, already or potentially, on the environment and by putting in place management controls to ensure that the organisation continues to meet its legal and policy requirements to deal with these impacts.
Traditionally, most of the work on EMS has been done by those industrial sectors with the greatest potential to affect the environment, e.g., the chemical, waste management and oil refining sectors. In addition to this basic need to control pollution, some companies have identified EMS as an effective way of improving productivity through waste and resource minimisation initiatives and a mechanism for increasing sales as customers turn on to environmentally safer products.
Arguably, implementing effective EMS can be a useful de- regulatory tool for business. For example, by reducing the use of certain hazardous substances, some organisations in India have achieved major improvements in their air emissions and, as a result, they came out of the strict controls imposed on them by the Environmental Protection Act (EPA) 1990. In addition, they have gained a better working environment for their employees and eliminated a difficult raw material storage hazard.
Close on the heel of industrial policy is the agricultural policy that can be adopted to prevent the deleterious effect of agricultural activities on the environment. Let us discuss this issue in Subsection 2.1.3.
2.1.3 Agriculture and environmental policies
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Agriculture has a major impact on the environment, especially on land, water and biodiversity. Over the last 10 - 15 years, the environmental performance of agriculture has been mixed. For example, nitrogen and pesticide loading in water remain relatively high and risks of soil erosion and water resource depletion persist in many regions and countries. In recent years, however, there have been improvements in wildlife habitats, landscapes and sinks for greenhouse gases provided by agriculture, but the most significant progress has occurred where environmental pressures have been greatest.
The main environmental impacts of agriculture may be characterised through the beneficial or harmful contribution of agricultural activities to:
soil quality (e.g., erosion, nutrient supply, moisture balance, salinity, etc.); land quality (e.g., ecological management of agricultural land); water quality (e.g., nutrient, pesticide and sediment run-off and leaching, salinity); water quantity (e.g., irrigation consumption, use efficiency, water retention capacity, flood prevention, etc.); air quality (e.g., emissions of dust, odours, ammonia and greenhouse gas, absorption of carbon dioxide, etc.); bio-diversity (e.g., farm and indigenous animal and plant diversity); wildlife and semi-natural habitats (e.g., diversity of animal and plant habitats associated with farming);
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possibility of offering transitional financial incentives to encourage farmers to adopt appropriate production practices for improving their environmental performance through reducing environmental harm. It includes the case of transitional financial assistance provided to stimulate the development of new pollution control technologies and abatement equipment to achieve a better environmental performance through improved production practices.
General policy principles
When markets do not exist to allocate costs and benefits of agriculture-environmental impacts and outputs, policy action may be needed to account for the costs of not respecting environmental targets and to ensure the provision of environmental benefits. When designing and implementing policy measures, the environmental problem needs to be clearly defined and the following principles for policy design need to be kept in mind:
The necessary condition for a welfare gain from implementing an agriculture-environmental policy measure is that the resulting environmental benefits exceed the costs associated with the policy. These costs include those due to a reduction in outputs, associated with more environmentally friendly technologies and practices and the transaction (administrative) costs of policy implementation and enforcement. When farmers and other economic agents provide a specific environmental service, the level of benefit should be clearly specified and efforts made to ensure that the most efficient operator is the provider. When a specific environmental outcome is jointly the result of agricultural output, a wide range of policy options and approaches may achieve its provision by an individual farmer
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that either provides positive incentives (through, for example, a payment) or negative incentives (e.g., a tax). If incentives were set correctly, it would be in the individual farmer’s interest to achieve the outcome and receive the incentive payment, or achieve the outcome and avoid paying the tax. The effectiveness of either a tax or a payment depends not only on whether it correctly confronts the farmer with the opportunity costs of not respecting environmental requirements, but also on the degree to which the associated obligations can be enforced and tailored to local environmental circumstances and demands. The more the payment or tax is tailored to specific circumstances, the larger the need for monitoring, the lower the probability of individual control, and the higher the transaction costs.
In addition to what we have discussed, an environmental policy that conserves the ecosystem is a sagacious attempt to manage the environment. We will explain this in Subsection 2.1.4.
2.1.4 Ecosystem and environmental policies
The objective of ecosystem conservation and management as stipulated in the Forest Policy (MNRT, 1998a) is to ensure ecosystem stability through conservation of forest biodiversity, water catchments and soil fertility. Forest biodiversity is faced with problems of encroachment, shifting cultivation, wild fires, lack of systematic forest management and inadequate infrastructure and staff to prevent excessive resource use.
Watershed management and soil conservation face similar problems as biodiversity conservation due to increase in population pressure and inefficient forest management and protection in watershed areas. Poor management and protection have resulted in deterioration of watershed areas causing water
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Biodiversity conservation and management is to be included in the management plans for all protection of forests. Involvement of local communities and other stakeholders in conservation and management is to be encouraged through joint management agreements. Biodiversity research and information dissemination should be strengthened in order to improve biodiversity conservation and management. Biodiversity conservation must be incorporated in the management regimes of natural production forests and plantations. Management plans must incorporate biodiversity conservation and management guidelines. This minimises the replacement of natural forests by exotic plantations. Watershed management and soil conservation should be included in the management plans for all protection and production forests. Involvement of local communities and other stakeholders in watershed management and soil conservation will be encouraged through joint management agreements. Research and information dissemination must be strengthened in order to improve watershed management and soil conservation. EIA is required for the investments, which convert forestland to other land use or may cause potential damage to the forest environment.
Having looked at some of the sectoral policies that influence environment policies, let us now discuss the instruments used in implementing these policies.
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2.1.5 Environmental policy instruments (EPI)
Environmental policy instruments (EPI) usually refer to official actions taken to curb and remove the negative environmental impacts caused by society. The methods, laws, administration and decisions relating to these actions are collectively termed environmental policy. A EPI is divided into economic, information and legal measures. Indicators of sustainable development frequently measure the status of development or pressures directed at it. Indicators of environmental policy instruments reflect society’s reaction, and the steps taken to make sustainable development possible.
A number of different typologies are used to classify EPI. One of the most commonly used typologies divides a EPI into the following three categories:
(i) Regulatory instruments that mandate specific behaviour.
(ii) Market-based instruments that act as incentives for particular activities.
(iii) Information-based instruments that seek to change behaviour through the provision of information.
We will discuss each of these, next. But, let us first note that governments may establish formal cleaner production strategies or programmes to act as a framework for the coordinated implementation of subsequent and more specific policy instruments. Cleaner production strategies may take one or a combination of the following shapes:
Product bans: The imposition of a ban or defined phase-out schedule for a particular product or substance is an
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technology or process. Such an approach gives the regulator the maximum authority to control where and how resources will be allocated to achieve environmental objectives. Also, this provides the regulator with a reasonable degree of predictability as to how much the pollution levels will be reduced.
Specified and negotiated compliance
The specified compliance approach imposes the precise and specific demands on the regulated communities without any scope for bargaining and exceptions. However, this approach has some significant drawbacks in that the regulated community may tend to become alienated from the authorities and united in its opposition to the rules and regulations.
The negotiated compliance approach, by contrast, adopts a more co-operative approach between the regulators and the regulated in setting and enforcing standards. This shared responsibility between the government and industry enhances the likelihood of a more open exchange of information between the parties and allows greater flexibility regarding the means of meeting the standard. Moreover, a number of countries have started to develop regulations where attainment of certain targets (e.g., recycling targets) is required while concrete means of achieving such targets are left in the hands of industries (non-prescriptive regulations). This, in turn, may increase the economic efficiency of the regulation and may be conducive to the adoption of innovative, preventative approaches.
Indeed, with the growing appreciation of the limits of conventional policy instruments, many governments are encouraging the adoption of self-regulatory and co-regulatory policy instruments for promoting cleaner production.
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Market-based instruments
Market-based instruments generally seek to address the market failure of environmental externalities either by incorporating the external cost of a firm's polluting activities into the firm's private cost (for example, through taxation), or by creating property rights and facilitating the establishment of a proxy market (for example, by using tradable pollution permits).
Before introducing any new economic instruments, governments should identify and evaluate any economic incentives that may already be in operation, either explicitly or implicitly. These include, for example, the use of subsidies to make local industries more competitive. Many of these policies lead to artificially low prices for resources, such as energy and water, and as a result of which these resources may be overused, creating both pollution and shortages. Government assessments of such policies are, therefore, needed before other economic instruments are applied.
Taxes, fees and charges may be used to promote cleaner production practices by raising the costs of unwanted outputs or by providing incentives to promote more efficient use of natural resources. In some instances, it may be appropriate to use the revenues generated from these instruments to support cleaner production activities and thereby stimulating preventative approaches. A significant constraint against the more widespread adoption of market-based instruments, however, is that it is not always politically feasible to set taxes at a sufficiently high level to achieve desired environmental goals. Governments often face resistance, if taxation related to environment is taken merely as a means of increasing its revenues.
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and transfer register, stimulating greater voluntary corporate reporting and requiring the provision of information on specific materials. Initiating and/or supporting measures that address consumption such as eco-labelling schemes and environmental product declarations. Promoting the adoption of effective training initiatives. Issuing high profile awards for enterprises that have effectively implemented cleaner production.
(www.uneptie.org/pc/cp/understanding_cp/cp_policies.htm).
Note that in some instances, a EPI is characterised by more than one of the above categories. Furthermore, it is important to note that different policy instruments are sometimes best used in conjunction with others.
Let us now discuss the evolution of environmental policies and programmes with particular reference to India.
LEARNING ACTIVITY 2.
List any two policy instruments of cleaner production. Note : a) Write your answer in the space given below. b) Check your answer with the one given at the end of this Unit.
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2.2 ENVIRONMENTAL POLICIES AND
PROGRAMMES IN INDIA
The year 1972 marks a watershed in the history of environmental management in India. Prior to 1972, different government ministries dealt with environmental concerns such as sewage disposal, sanitation and public health, and each pursued these objectives in the absence of a proper coordination system at the governmental or the intergovernmental level. During the twenty- fourth UN General Assembly of 1972, Mr. Pitamber Pant, a member of the Planning Commission of India prepared three reports about India. With the help of these reports, the impact of the population explosion on the natural environment and the existing state of environmental problems were examined.
The Planning Commission subsequently set up an expert committee to formulate long-term sectoral (including environment and forest) policies. It also noted that many environmental problems were continuing to cause serious concern, for example, the loss of top soil and vegetative cover, the degradation of forests, continuing pollution by toxic substances, careless industrial and agricultural practices and unplanned urban growth. It acknowledged that environmental degradation was seriously threatening the economic and social progress of the country.
The continuing decline in the quality of the environment spurred the Union, government and a few State governments to adopt stronger environmental policies, to enact fresh legislation and to create, reorganise and expand administrative agencies. Based on the recommendations of the Union Government in April 1990, the Government of India adopted a National Conservation Strategy (NCS) and Policy Statement on Environment and Development.
