ECOLOGICAL RESTORATION THROUGH THE JUDICIAL LENS: A ROMP THROUGH 2020-21
Lianne D’Souza, Research Fellow, CEERA, NLSIU
Alekhya Sattigeri, Law Student, USLLS, Guru Gobind Singh Indra Prastha University
Ecosystem restoration or eco-restoration, as it is colloquially referred to, represents the “process of assisting the recovery of an ecosystem that has been degraded, damaged or destroyed”. Restoration is a holistic approach that focuses on reviving both biotic and abiotic components of a denuded ecosystem and entails the recovery of an ecosystem to its pre-degraded shape through active human intervention. In present day, restoring the earth’s endangered eco-system has emerged to be one of the most pressing environmental agendas across the globe. The glaring reality of ecosystem degradation being one of the biggest environmental threats necessitates the urgent need for eco-restoration. Today, almost all ecosystems ranging from terrestrial to freshwater to marine, stand at the brink of destruction due to a combination of harmful anthropogenic actions and pressures along with other natural stressors like invasive alien species. In this backdrop, as we find ourselves in an era of unprecedented biodiversity loss and degradation of the environment, restoration measures are the only saving grace to preserve what little is left of pristine ecosystems. Realising the critical importance of preserving the fragile ecosystems, the United Nations has designated 2021-30 as the UN Decade of Ecosystem Restoration. Further, to kick-off the commencement of the decade, World Environment Day 2021 has been dedicated to the long-term recovery goal of ecological restoration with the theme of “Reimagine, Recreate and Restore”.
As India is home a diverse range of eco-systems, most of which are endangered or at the brink of being endangered, this UN Resolution is an opportunity for India to take positive strides towards eco-restoration. In the past, India has demonstrated initiatives towards eco-restoration. For instance, in, as early as 2011, India communicated its allegiance to the Challenge in 2015 and pledged to restore 21 hectares of degraded land by 2030. Moreover, to realise its commitments, the Ministry of Environment, Forest and Climate Change and IUCN India, have also constituted a Bonn Challenge Consultative Committee. These international imperatives, combined with the State’s constitutional obligations have created an impetus for the Indian Government to prevent, halt, and reverse the degradation of ecosystems.
While on the legislative and policy front, there have been some interventions by the Indian Government to protect and conserve its natural resources, the Judiciary has also demonstrated action towards ecological restoration. Through their judicial pronouncements, the courts have elicited the need to repair and reverse the damaged environment and to prevent future degradation. This article takes a glimpse through the past year to highlight how the Indian Judiciary has played a pivotal role in ecological restoration and the trends the judicial pronouncements towards this endeavour.
Ecological Restoration and the Indian Judiciary.
The Indian Judiciary is known to spearhead remarkable and path-breaking initiatives towards environmental protection. In particular, it has been highly appreciated for discovering new avenues vis-à-vis human rights and enjoyment of environment. For instance, through a purposive interpretation, the Supreme Court has read into Article 21 of the Indian Constitution various rights such as the right to clean environment, right to pollution free air and water. But a closer look reveals that these landmark pronouncements have been adjudged from an anthropogenic lens.
However, lately, a shift towards an eco-centric approach can be witnessed, with the Indian Judiciary emerging as a staunch advocate for environmental protection. The Courts, through their activism, have recognised and in certain instances introduced tenets such as the Public Trust Doctrine, the Principle of Absolute Liability, the Polluter Pays Principle, the Precautionary Principle, concept of Sustainable Development, inter-generational equity, thus giving birth to a novel face to environmental jurisprudence.
In the context of restorative efforts, the adjudicatory bodies have acknowledged the power they wield to effectuate the restoration of the pristine ecology. In the notable case of Paryavaran Suraksha Samiti v. UOI,  the NGT underlined that to ensure the fundamental right to a clean environment, it is its legal duty to pass appropriate orders for restoration of the damaged environment even in the absence of an identified victim. Thus, the Courts and the NGT have fortified proactive responses towards the ecological conservation and restoration.
An overview of judicial pronouncements in the past year hint at certain trends in the way the judiciary has approached eco-restoration in cases. These trends may be understood as follows.
The National Green Tribunal (NGT) created under the NGT Act, 2010, is a specialised statutory tribunal effective and expeditious disposal of cases dealing with environmental issues. Section 15 of the NGT Act reflects the wide discretion conferred upon the NGT in determining and awarding compensation. Accordingly, the NGT is empowered to award compensation for environmental damage arising out of non-compliance with the provisions of enviro-centric legislation and for restitution and restoration of such affected areas. While the NGT Act does not provide for any minimum or maximum amount of compensation that could be awarded, Section 20 obliges the NGT to apply the three fundamental principles of environmental jurisprudence, namely, the principles of sustainable development, the Precautionary Principle and the Polluter Pays Principle, while ascertaining the award. Thus, Section 15(1)(c) of the NGT Act read with Section 20, is an entire island of power and jurisdiction. The NGT has a legal obligation to exercise its powers to provide for preventive and restorative measures in the interest of the environment wherever the ecology is being compromised and jeopardized. Hence, the common approach adopted by the NGT and the Supreme Court has been to order indemnification for the environmental degradation caused by the polluter’s harmful activities, by recovering compensation for restoration.
The NGT has multiple times emphasised that before undertaking restoration measures, the extent of damage to the environment and ecology must be carefully assessed and proportional compensation must be recovered by the CPCB relying upon the Sustainable Development Principle, the Precautionary Principle and the Polluter Pays Principle. It has been explicitly ruled that once the factum of pollution and violation of law is affirmed, compensation for the damage needs to be assessed and recovered on the ‘Polluter Pays’ principle.
For example, in the case of Centre for Wildlife and Environment Litigation v. Union of India,  the NGT was concerned with the infamous, legacy waste dumpsites at Bhalswa, Ghazipur and Okhla, New Delhi which have been adversely impacting public health and the surrounding environment. While dealing with the issue of remediation measures, the NGT referred to a study conducted by a joint Committee constituted under the direction of the NGT, to assess and recover the monetary cost of damage caused to the environment, on account of non-compliance with waste disposal rules from the bodies and individuals responsible for the continued existence of legacy waste dump site at Bandhewadi, Gurgaon. Before arising at its decision of compensation amounting to Rs. 148.46 crore, the Committee examined various factors such as damage to the air quality, pollution due to release of leachate into the soil and water, damage cost associated with climate change due to carbon dioxide and methane, damage caused due to aesthetics loss, price depreciation due to dis-amenity cost etc.
Joining hands with the NGT in the endeavour to ensure eco-restoration, the Supreme Court in National Highways Authority of India v. Aam Aadmi Lokmanch, upheld the NGT order decreeing the Respondents to pay restitution charges and penalty for degrading the environment due to over-mining, and to carry out afforestation for restoring and rejuvenating the affected and damaged hill.
In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, the Supreme Court is seen to have adopted an inter-disciplinary approach. The dispute had arisen on account of an NGT order that had mandated the closure of the erring industries as they were operating without requisite environmental clearance. As a result, the industries appealed to the Supreme Court for respite. Although the Court underlined that Environment law cannot countenance the notion of an ex post facto clearance, as it runs contrary to both the Precautionary Principle as well as the Sustainable Development Principles, the Court reversed the impugned NGT order. Keeping in view the huge employment offered and investments made by industries, the Supreme Court stated that the NGT order did not accord with the principle of proportionality. The Court, however, emphasised the industries caused significant environmental degradation, and thus, could not escape liability. Citing a balanced approach, the SC ordered payment of punitive damages, which was to be duly utilised for environmental restorative measures.
It must be noted that while the Judiciary has been consistent in its approach towards recovering compensation from polluters, there are associated loopholes in the procedure. Environmental compensation is a dynamic concept, which differs across diverse ecosystem, flora and fauna, environs and the type and extent of damage caused to the environment. These multiple variables prevent the derivation of a straight-jacket formula.
At present, there is an absence of a coherent methodology for the quantitative assessment of environmental damage.While a floor level formula can be deduced as an interim measure to avoid arbitrariness and unguided discretion in calculating the award, the efficacy of such methodology is contentious in the long run.
In Rahul Hanumant Chauhan v. State of Maharashtra, referring to its earlier order, the NGT highlighted that the compensation should be equal to the cost of restoration so that polluting activity is not profitable. However, the NGT’s current practical approach reflects to the contrary. In the recent past, the Tribunal has calculated the compensation amount based on the project cost rather than the turnover of a project. From the perspective of successful industries, the project costs are nominal in comparison to the revenue/profits acquired. This approach disincentivises industries to internalise environmental costs, and is therefore, faulty.
On a positive note, in a recent case concerning the issue of illegal sand mining, i.e., National Green Tribunal Bar Association v. Virender Singh, a turn-over based approach was adopted. The NGT took a constructive decision by accepting the Net Present Value (NPV) method devised by the CPCB for calculating compensation, as opposed to the Direct Compensation method. The NPV method calculates the differences between the costs and benefits of an investment or project, and is thus, used as a tool to analyse profitability. The NGT stated that till a comprehensive NPV is formulated to account for the ecological damages in a site-specific manner, States and UTs should compute a simplified NPV. In the present case, the NGT recommended that for calculating the NPV, the formula should be modified by substituting Market Value of the extracted illegal sand amount as Total Benefits(B), and Market Value Adjusted for risk factor as the Total Ecological Costs (C) imposed by the activity.
A significant proportion of the damage caused to the ecology of an affected area, is an “invisible loss”. Even though the NGT is comprised of both judicial members as well as experts in the field of environmental studies, this scientific uncertainty serves as a roadblock in adequately documenting such loss, and assessed proportionate compensation. However, the NPV approach solves the invisible loss conundrum as it accounts for the foregone environmental services and associated risks and environmental damage arising out of the polluter’s actions. While adopting this methodology, the NGT highlighted that the rationale for levying this NPV is based on expert opinion that reversal and restoration of the ecological damages is usually not possible within a short time-period and rarely is it feasible to achieve 100% restoration.
In a few cases, instead of ascertaining the compensation amount itself, the NGT has, alternatively, set up Committees for the same purpose. As it may lack the expertise to determine the precise cost of restoration, the Tribunal appoints an expert committee to calculate the same. For instance, in Vinit Kumar v. Sir Shadilal Distillery and Chemical Works Pvt. Ltd, the NGT constituted a joint Committee to determine appropriate amount of compensation taking into account the cost of restoration, the unit’s financial capacity, the extent of violation and the element of deterrence. Moreover, the Tribunal also entitled the State PCB to take coercive action of reducing the functioning capacity of the unit until it complies with environmental norms and payment of environmental compensation assessed by the Committee.
As highlighted above, the Indian judiciary has been diligent in awarding damages for restoration of ecological balance. However, keeping in mind that the Supreme Court and High Court judges lack the scientific know-how and are not assisted by expert members, it is extremely important that qualified professionals participate in the economic and scientific analysis of environmental damage and subsequent assessment of compensation. To ensure realisation of the Polluters Pay Principle, the penalty imposed should be commensurate to the ecological loss, and must have sufficient deterrence value. Another ambiguity that demands clarification is whether the fine collected needs to be allotted to the State treasury or the respective Environmental funds.
In addition to the recovery of compensation, the importance of preparing appropriate action plan and strict execution thereof, cannot be stressed enough. There must be effective utilisation of the environment compensation and an independent vigilance statutory body must be established for monitoring restoration projects. In the absence of a follow up implementation and monitoring mechanism, the imposition of costs will remain a perfunctory act.
- Appointment of Committees for restoration and formulation of Action Plans
Although the appointment of specialised or expert committees as oversight bodies is not a new phenomenon, such a modus operandi is highly evident in cases involving restorative efforts. Lately, even the NGT has employed this course of action in restorative cases, which was a matter of debate in many instances. But the position of whether the NGT has the jurisdiction to establish special Committees was clarified in State of Meghalaya v. All Dimasa Students Union. Responding in the affirmative, the Supreme Court explicitly held that under Sec. 19 of the NGT Act, 2010, the tribunal enjoys the authority to constitute expert Committees for carrying out technical investigations, obtaining scientific evidence and reports, and ensuring implementation of its orders.
We have witnessed that to ensure efficacious utilisation of environmental compensation and vigilant monitoring body, the NGT has been establishing specific Committees to formulate action plans for restoration on a case-to-case basis. These committees vary in their composition- typically including the CPCB, concerned State PCB, and other environmental protection bodies and are entrusted with the functions of devising and overseeing plans of actions towards restoring certain eco-systems.
For example. In the matter of: News item published in The News Indian Express dated 12.02.2021 titled “at least 19 dead in Virudhunagar firecracker factory blast, more than 30 injured”, the Tribunal created a committee and entrusted it with the duty to prepare a report mentioning the extent of damage to the environment, water, soil, air, and to recommend steps to be taken for restitution of the damaged property and environment, and the cost involved.
The NGT has, through various cases, also hinted upon certain factors that can be contemplated by the Committees before it finalises the restoration plan. For instance, in Shankarlal Prajapat v. State of Madhya Pradesh the Tribunal recommended that the restoration plan may relate to environmental quality in the area, water quality of the river stretch in question. It may involve provisions for the conduct of health surveys for analysing and improving the ground water quality, and steps for establishment of Sewage Treatment Plants, in-situ remediation of drains joining the river, creation of biodiversity parks.
In Karnail Singh v. CPCB, the NGT directed the State PCB to ensure compliance by the impugned erring industries in a time bound manner, in terms of preventing pollution, assessment and recovery of compensation for the past violations and restoration of the environment. It established a joint Committee of CPCB and State PCB for the preparation of the restoration plan and subsequent time-bound execution of the scheme. The Tribunal further dictated that the action plan should provide for the treatment of wastewater in areas where water quality has declined, rehabilitation of the deteriorated soil quality and restoration of drains adversely affected by the discharge of pollutants including hazardous waste. The NGT also directed the Committee to specify the role to be played by the industrial units in the implementation of the action plan.
The NGT issued a similar decree in Bonani Kakkar v. Oil India Limited (also known as the Baghjan case), the NGT took cognizance of the unfortunate natural gas blowout from Oil India Limited’s Baghjan Oilfield in Assam that occurred in May 2020. The Tribunal established a ten-member Committee constituting various stakeholders and environmental experts, and granted upon the Committee wide powers for enabling it to assess the damage to the environment and formulate an action plan for restoration of the affected ecology of Dibru-Saikhowa National Park and the Maguri-Motapung Wetland. It was also adjudged that the entire cost for the restoration work and honorarium payable to non-official members of the Committee shall be borne by the OIL. Moreover, to ensure that the OIL could not disown its responsibility, the NGT also stated that the restoration plan shall be duly executed by the OIL subject to supervision of the concerned statutory regulators.
The NGT’s resolution towards ensuring a comprehensive, coherent and appropriate action plan can be witnessed in Ashish Kumar Dixit v. State of Uttar Pradesh. In this case, the Tribunal expressed its reservations on the action plan devised by the Uttar Pradesh PCB. It stated that the CPCB may not have examined the proposal with full attention and detail and directed the body to revisit the utilisation of environment compensation fund and environment restoration action plan, and accordingly grant subsequent approval. Concerning the utilisation of the environment restoration fund, the Tribunal advised that the same should be spent on various requirement necessary for environmental restoration such as strengthening vigilance mechanism, setting up of laboratories, for monitoring of environment, coordination with the District Magistrates to prepare District Environment Plans, hiring of experts and consultants, undertaking remediation and study of contaminated sites etc.
In Lt. Col. Sarvadaman Singh Oberoi V. Union of India, the NGT was concerned with the issue of identification, protection, and remediation of polluted water bodies throughout India. The matter was being heard in continuation of the Tribunal’s order dated 10.05.2019, wherein States and UT’s were directed to formulate a holistic action plan for restoration of the water bodies. The NGT articulated that preparation and implementation of catchment area treatment plans, setting up of green belt and bio-diversity parks around the water bodies, cleaning up of the garbage/debris, assigning geo-referenced-UID to water bodies, preparation of action plan are key steps in ensuring restoration.
The report submitted by the CPCB on 25.02.2020, highlighted that majority of the States had failed to submit an action plan. In pursuance of the CPCB report, the Tribunal laid guidelines to be followed for effective restoration, namely, identification and geo-tagging of ponds and lakes, assessment of water quality, prioritization of ponds or lakes for restoration in consultation with the respective SPCB, preparation, submission and execution of CPCB approved action plans. The Tribunal further directed all the States/UTs to furnish the requisite information by 31.03.2020, failing which, they were to be held liable to pay compensation at the rate of Rs. 1 lakh per month until compliance. The Tribunal also mentioned April’2020- March’2021 as the timeline for restoration work.
However, as per the report of the CPCB, only 20 States and 02 UTs provided information as per the format circulated by CPCB. In light of the Covid-19 pandemic, the CPCB requested for an extension of restoration period. Pursuant to the CPCB report, the NGT directed the formulation of a centralized inventory of water bodies and designation of a single, nodal, oversight agency to supervise the restoration project of polluted water bodies. Acknowledging that the State of Uttar Pradesh had failed to submit an action plan despite extension of time, the NGT constituted an Oversight Committee to manage restoration of water bodies in Uttar Pradesh. The report of the Committee highlighted that the proposed Action Plan should stipulate for continuous assessment of water quality of these water bodies to be done by State Pollution Control Board, indicate the prioritization of the work and specific time-lines, the budgetary allocations. Further it also highlighted that despite non-compliance with the NGT’s order, the CPCB failed to recover the stipulated penalty.
This goes to show that despite outstanding judicial orders, these orders form just one half of the solution. The crux lies in the due implementation of these directions and monitoring of restoration work by the appropriate administrative bodies.
In many instances, the judiciary has not shied away from pinpointing the lackadaisical attitude of oversight bodies. For instance, in Doaba Paryavaran Samiti v. State of Uttar Pradesh, the NGT expressed its dissatisfaction over the failure to recover the assessed environmental compensation, and its utilisation on restoration works. Similarly, in the noteworthy case of Aryavart Foundation v. Vapi Green Enviro Ltd., the NGT was extremely critical of the unsatisfactory state of affairs. It condemned the State PCBs for its failure in hiring experts and requisite manpower, arranging equipment, and adopting remediation and restoration measures despite having adequate funds. The Tribunal highlighted that despite the presence of certain punitive provisions, punishment is rarely awarded to violators, and the instances of inadequate recovery of compensation are rampant. As a result, the environment suffers a great deal. The NGT emphasised that in order to ensure the advancement of environmental rule of law and achievement of sustainable development goals, polluters must not be allowed to damage the environment for their monetary interests. It underlined that to promote environmental governance, maintenance of quality and quantity of competent manpower, and mechanism to ensure adequate monitoring, stringent vigilance and adverse action, are paramount.
Thus, it can be noted that despite the novelty of the Court’s directions and orders in restoration, the ultimate test lies in the execution of the same through effective implementation and monitoring. On various occasions the Judiciary has intervened due to lack of timely reports and failure of effective vigilance, highlighting the need for imbibing greater accountability onto such executive bodies.
An overview of the efforts taken by the judiciary to spark restorative measures suggests that the courts have shown much interest in halting environmental degradation. Whether by requiring the wrong doers to make good the damage done through compensatory measures or by setting up expert committees to formulate or monitor restorative action plans, the judiciary has demonstrated keen efforts towards restoration. Interestingly, the judiciary’s take on ecological restoration has seen positive transformations. On the first account, this transformation is evident in the way courts are approaching environmental matters from an eco-centric approach. By viewing the effects of ecologically benign activity from an eco-centric lens, the Courts have approached restoration from a broader and holistic approach. For example, in the case of Rohith Prajapati v. Ministry of Environment, Forest and Climate Change, the NGT was concerned with the issue of pollution of the Vishwamitri river and the illegality of the Vishwamitri Riverfront Development project. In devising the need for a river restoration plan the Tribunal took note of the importance of the river basin for the sustenance and survival of certain vulnerable species and directed the State to formulate and implement a River Action Plan that would restore the river to its former glory.
Secondly, the courts have no longer viewed restoration as merely a tool for managing a fait accompli but also as a means for preventing further denudation of fragile ecosystems or destruction of critically endangered species. For instance, in the case of MK Ranjithsin v. Union of India, the Court adopted the idea of the ‘best interest of the species’ in deliberating on the issue of the extinction of two species of the Great Indian Bustard, caused due to overhead power lines. The court noted that it was the responsibility of the state to conserve this critically endangered species and its habitat and therefore directed the parties to implement alternative mechanisms such as flight bird divertors or underground wires.
Arguably, one can say that the Courts have taken positive strides towards restoration. However, there are a few grey areas where even the Courts are lagging behind. One such area is the need for mainstreaming community participation in restoration plans. While the significance and need for encouragement of community participation in eco-restoration, such as at the Panchayat and Gram Sabha levels, has also been highlighted in a few instances there are very few cases in which the local communities have been involved. To effectively achieve the goal of eco-restoration, indigenous and local communities habiting in these areas must be actively engaged in the process, as it is their livelihood that is negatively affected. Lessons from the Brazilian indigenous tribes and the Australian aboriginals have reflected that these communities have significant contributions to offer, owing to their traditional knowledge and stronger links with the ecosystems. In this way, the livelihood of indigenous people and revival of the environment can be harmoniously achieved.
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