Journal on Environmental Law, Policy and Development Vol-7 (2020)
About the Journal
Journal on Environmental Law, Policy and Development, is an annual peer reviewed journal of the Centre for Environmental Law, Education, Research and Advocacy (CEERA). Seven volumes of the Journal has been released. Over the years, the Journal has featured articles on different themes of environmental law ranging from the governing principles of environmental law, the adjudicatory authorities and their roles in dispensing environmental justice, waste management and climate change to other contemporary issues in the domain on environmental law and policy.
JELPD is a listed Journal with the University Grants Commission – Consortium for Academic and Research Ethics (UGC-CARE) and is a double blind peer reviewed journal with an ISSN: 2348-7046.
1. Authors Prof. (Dr.) Sairam Bhat and Ms. Lianne D’Souza, NGT: A Tribunal in Trouble?. With 2020 marking ten years of the establishment of the National Green Tribunal, an insight into its functioning is imperative. Although to its credit, the NGT has passed a few remarkable orders, the Tribunal seems to have suffered a setback. The Supreme Court and various High Courts have acted in a manner setting the boundary limits for the NGT to function. The authors discuss the path breaking cases relating to Sterlite Industry and the Mantri Techzone and analysing that the tribunal is indeed in trouble.
2. Author Izuoma Egeruoh-Adindu, Climate Change Effects And Internal Displacement In Nigeria: Legal And Institutional Challenges. Climate change is one of the greatest challenges of our time. The Intergovernmental Panel on Climate Change (IPCC) first assessment report in 1990 stated that the greatest single impact of climate change may be on internal displacement and migration. The report estimated that by 2050, more than 150 million people could be displaced by floods, desertification, water scarcity, storms and other climate change-related disasters. Over 30 years after, the socio-economic impacts of climate change is being felt and the risk of constant displacement of human beings by natural disaster is 60% higher than estimated by the panel. Accordingly, records from the National Commission for Refugees Migrants and Internally Displaced Persons (NCFRMI) as at date shows that about 2,200,000 Nigerians are internally displaced. However, scholars and researchers have accepted the fact that climate change is the major reason for this number and will result in large-scale movement and displacement of people. Research shows that developing countries like Nigeria will bear the greatest costs, as a result of constant emission of greenhouse gases through increased human activities which are the foremost causes of climate change in these regions. Considering the prevalence of flood and other natural disaster in Nigeria, mitigating internal displacement that arise afterwards is paramount. To achieve this goal, the study identifies the need for synergy and expansion of the mandates of the institutional stakeholders to reflect the recommendations of this research. The paper, using doctrinal research methodology seeks to underscore the role of law in achieving the aim of this research.
3. Author Kudrat-E-Khuda’s, Inter-relationship between Environment and Human Rights: An Overview on Legal Context. Every year more than two million people met the tragic end of their lives across the world for different causes. Thousands of individuals suffer from pollution-related illnesses. Ecosystems, for water scarcity, improper management of natural disasters, and disposal of toxic and hazardous products are degrading across the world due to environmental pollution. Climate change has an adverse impact on human health. These facts indicate that environmental and human-rights are closely related. The UN attempts to tackle environmental issues-the Stockholm and Rio Declaration-illustrate the importance of the link between human rights and dignity, and the environment. Already 69 years of the Universal Declaration of Human Rights have been passed but human rights are still facing serious crisis. This crisis impacts on environment and human right to the environment. The article aims to focus the environmental concerns in human rights discourse; to explore the relationship between human rights and environmental rights in light of the worsening global environmental situation, and to encourage the excellent practices pertaining to implementation of human rights obligations and responsibilities for informing and strengthening the development of overall environmental issues. The article makes use of secondary data like books, articles, and different national and international law reports.
4. Authors Dr. M.P. Chengappa and Nishita Shrivastava’s, Assessment of Climate Action Plan in India: A Perspective of Green Federalism. The extension of the concept of Federalism for the protection of the environment & combating climate change is gaining admiration in the present century. With the rising concerns relating to global warming, climate change, and environmental degradation, the need for rectifying the problem at the grass-root level has been felt. Though climate change and ecological degradation is a global menace for which the countries are joining hands to fight for, it is at the grass-root level the affirmative actions are needed to be implemented. The concept of green Federalism recognizes that it is shared and collective responsibility of center, state, and local bodies to act towards protection of environment & climate change. Thus, for environment protection and address issues of climate change, it calls for the decentralization of power and policies relating to the environmental safeguards and protection between multi-level governmental bodies starting from the center, state, municipal and panchayat level. This can only be possible if there is a devolution of power and shared responsibilities between the center, states, and local bodies. Particularly with the 73rd and 74th Constitutional Amendment Act, 1992, which devolves power further from the center and states to the panchayats and municipalities, the hazard of rising global temperature and climate change can be very well addressed by adopting bottom to top approach.
This paper, therefore, delves into critically analyze the state climate action plans adopted currently on the touchstone of the federal structure of the country. Moving ahead, the paper put forth the idea of ‘green federalism’ as a last resort to fight climate change and argues for the greater involvement of local bodies and people to combat the menace of climate change. The paper, therefore, proposes to integrate climate action concerns into existing machinery at the grass-root level to ensure that the action against climate change can be taken by the active participation of municipalities, village panchayats, and the public at large.
5. Authors Dr. Shelley Ghosh’s, Mitigation and Adaptation Strategies of India for Implementing Paris Goals-A Critical Analysis explores how India aims to implement its mitigation and adaptation strategies as is reported in its Intended Nationally Determined Contribution (INDC) Report submitted to UNFCCC as a part of its commitment to the Paris Agreement. The paper also highlights India’s limitations and critically explores the possibility of successful implementation of its INDC post 2020.
6. Authors Nishant Kumar and Deepak Kumar’s, Role of UN vis-a-vis ASEAN to Combat Transboundary Environmental Damage: A Case Study of Implementation of Good International Practices. A cornerstone and cardinal principle of international environmental law is that states are under an obligation not to cause harm to the environment of other states, or to the areas beyond national jurisdiction. The essence of this obligation, often referred to as the no-harm rule or the prohibition of transboundary environmental harm, is that states may not either conduct or permit activities within their territories, or in common spaces, without regard to other states or for the protection of the global environment. The aim of this study is to provide an analysis of the contribution of the ASEAN, United Nation organisation (UNO) along with International Court of Justice (ICJ) to the development of the consensus and cooperation concerning transboundary environmental harm among ASEAN members. In attempt to seek above said aims and objectives, this study would also attempt to answer following research questions with the help of relevant international jurisprudence, primarily from the UNO, ICJ and ASEAN Co-operation Plan on Transboundary Pollution.
– What is meant by transboundary environmental damage?
– Does the rule apply to all types of damage, or only to damage that exceeds a certain threshold? Furthermore, does the rule require that all harm exceeding the current threshold is prevented, or is there a standard of care which, if the source state meets it, may free the same state from responsibility for harm?
– If so, what is required by states in terms of conduct under the standard of care? Is the standard differentiated, i.e., lower for developing states?
7. Authors Amruta Das and Madhusudan Dash, Environment, Biodiversity and Intellectual Property Rights: Need for a Harmonious Ecosystem. Biodiversity has been the primary source of livelihood with richness of diverse plant species catering to human consumption and economic development of the nation. Science and technology galvanized human intervention resulting either in great innovations or abuse of biodiversity. Biotechnology in agriculture led a pivotal role in unlocking immense possibilities (tangible and intangible) for Intellectual property protection, however, ethical, socio-legal concerns on patenting of life forms and effect on public health remaining debatable. Commodificaion of bio-resources by external actors for profit making is criticized as misuse and illegal use of traditional knowledge. Globally, bio resources and biodiversity-related knowledge is regulated through national regulatory laws and permission contracts as a measure to promote fair and equitable access, benefit sharing and sustainable use amongst stakeholders justifying belongingness of the common heritage and customary practices. Developing countries often experience exploitation as donor-exporter of bio-resources and repository of traditional knowledge being misappropriated either under restrictive trade contracts or otherwise illegal gateways. In the 1980s, monopolistic restrictions have been extended to microorganism and genetic modified species with the U.S. Supreme Court’s legitimizing Ananda Chakrabarty’s (Diamond v. Chakrabarty, 447 U.S. 303 (1980)claim for a genetically engineered bacterial strain and opening up windows for research and investment in pharmaceuticals, agro industries, while legality of access, misappropriation, public health remain debatable . This paper tries to study the convergence of biodiversity with Intellectual property rights, international regulatory standards and India’s defense in justifying national obligations vis-à-vis compelling pressure of developed economies.
8. Author Ashutosh Raj Anand on, Emphasizing Sendai Framework Mandates on Disaster Risk Reduction in the wake of Covid – 19, explores the UN World Conference on Disaster Risk Reduction emphasizing the Sendai Framework and attempts to delineate its relevancy in the present crisis and in promoting avowed principles of sustainable development.
9. Authors Saksham Mahajan and Manas Aggarwal’s on Bio-Medical Waste Management: A Social Responsibility and a Legal Necessity. The rampant mismanagement in handling bio-medical waste, often reported proves for the lackadaisical implementation of rules along with violation of environmental laws including flouting of constitutional provisions. The Indian Express (29 November, 2019) recently reported, an aborted foetus, half-eaten by a cat to be discovered lying in the premises of KEM Hospital, Mumbai. Bio-medical waste forms a part of the hospital waste generated and includes materials like human and anatomical waste, blood soiled cotton, discarded medicines etc. Given the nature of such waste, it is highly hazardous and infectious and poses serious threats upon human health and ecology until disposed properly. Proper and safe disposal of hazardous medical waste remains a problem for the authorities and hospitals across the country. In order to ensure the effective disposal of such hazardous waste materials and to avoid its perilous impacts, under the powers conferred by the Environment (Protection) Act, 1986, the Central Government formulated the Bio-Medical Waste Management Rules, 1998 which have been last amended in the year 2016 for the management and handling of bio-medical waste. In the light of the coronavirus pandemic, which demands hygiene and sanitation as a precaution, proper waste management across the country is quintessential to prevent the outbreak from further spreading.
Thus, at this juncture, this paper aims at critically analysing the 2016 rules and thereby highlight the faults and fissures in the law regulating bio-medical waste, the institutional framework, lack of political will, absence of checks and balances and regulatory mechanism etc., all of it contributing towards a grave and serious situation. The paper further examines bio-medical waste management focussing on the city of Mumbai, to realise the immediate need for serious action to be taken to minimise the perilous impacts on human health and environment.
10. Author P.L. Sundar on, Offshore Wind Energy in India: Legal Regulatory Mechanisms, provides a comprehensive picture about the policy governing the offshore wind energy sector in India mainly from an environmental aspect and further touches on intricacies of onshore wind energy to draw up similar trends that could be extrapolated. The article also explores the prospective technological developments and practices that are emerging in other economies that could shape the framework in India. The article suggests measures to mitigate or avoid the impact of offshore wind energy technology on the biodiversity and environment and explores the different trends of siting employed in other economies on various factors. It makes a critical observation on the clearances required for wind energy projects and clarifies the categorization of” offshore wind energy” projects.
11. Author Prof. (Dr.) M.K. Ramesh has contributed book-reviews on the titles Nature Conservation in the New Economy: People, Wildlife and the Law in India and Post-Growth Thinking in India: Towards Sustainable Egalitarian Alternatives, that seek to enthral the reader to plunge into the same.
12. Author Prof. G.B. Reddy in his Book Review on Idea and Methods of Research, succinctly delves into the contours of best practices to research methodology discussed in the book, evoking the curiosity in the minds of readers.
Challenges to environment protection are rampant and a daunting task. With strengthened global consensus in the protection of environment by the international community, there is a greater requirement for a strength-oriented approach at the grass roots. Urbanisation is one of the biggest drivers of land use change which largely occurs with little or no assessment of the environmental impact of future or present land use change. Effects of urbanisation are compounded by climate change which also interplays with existing environmental concerns such as air and water pollution, accumulation of untreated waste, encroachment of green belts, water scarcity, leading to higher incidences of heat waves, droughts, cloud burst, riverine floods, rise in temperatures, higher incidence of diseases etc. Land degradation caused on account of improper waste segregation, management and disposal is one of the major problems faced by most developing countries. Despite having in place several legislative and policy measures, the leverage of existing law in regulation of waste-management, municipal, industrial, plastic, construction and bio-medical, is miniscule and requires constant scrutiny.
Centre for Environmental Law, Education, Research and Advocacy [CEERA], National Law School of India University, Bengaluru has been pivotal in organising various Seminars and Certificate Courses on Environment and allied areas, including Energy Security, Climate Change, Chemical and Hazardous Waste Management, etc. towards enabling a greater dissemination of research and training on national and international legal policies. The Centre has been the steady choice of various ministerial and government departments including Union Public Service Commission, Hindustan Aeronautics Limited and the Central Pollution Control Board for the past two decades towards organising training programs for their personnel and other regulatory bodies.
Currently, we are undertaking a Three-year Ministry of Environment, Forest & Climate Change -Global Environment Facility project on ‘Collaborative Engagement for Research, Training and Development in Handling of Chemical and Hazardous Waste under various Multilateral Environmental Agreements (MEA)’, wherein we are required to undertake extensive research and training at the grass-root level on the impact of the MEAs and advise the Ministry on various aspects covered therein. In November 2019, under the aegis of this project, we published the Handbook on Chemical and Hazardous Waste Management and Handling in India.
In pursuit of our objectives, this 7th Volume of the Journal of Environmental Law, Policy and Development, endeavors to provide for the dissemination of legal awareness in one of our core competencies, viz. Environmental Law.