New Delhi is in the news again as respirable particulate matter is said to have crossed hazardous limits. On the one hand, this is environmental damage that affects everyone, while on the other, it is damage with multiple determinants — vehicle exhaust, construction dust, Diwali firecrackers, pollution caused by the burning of paddy stumps and agricultural residue, and, of course, apathy. In quantifying environmental damage, there are at least two stumbling blocks: identifying when the damage started and what its impact will be; and finding the source and cause of damage.
It is timely then that an attempt is being made in India to quantify and penalise environmental damage. The Environmental Laws (Amendment) Bill has been put out for comment. For example, it seeks to define the scope of damage by gauging its distance from a project site, and circumscribing penalties for damage. While this is an important first attempt, the Bill falls short in understanding the scope, ramifications and extent of environmental damage.
Damage beyond pollution
The Bill focusses on environmental damage as pollution. It is only when we experience pollution that we become alert to environmental problems or damage. Water pollution makes potable water undrinkable, soil pollution contaminates ground water or renders soil infertile, while air pollution exacerbates respiratory ailments. While pollution is an important source of damage, all damage is not just pollution.
While the Bill suggests that there are three kinds of environmental damage — substantial, non-substantial and minor — it does not elaborate on what the differentiating factors between these categories are. It suggests that damage under these three categories is contained within pollution and hazardous substances. It states that “substantial damage means damage to the environment whether by release of environmental pollutant or environmental pollution or handling of hazardous substance or any other substance or otherwise determined in the manner as may be prescribed by which the environment is affected or is likely to be affected.” It adds that violation of “statutory environmental obligations” would count as environmental damage.
But there are several other types of environmental damage that merit inclusion in the Bill that change the ecological integrity or character of an ecosystem. These include dredging activities that can fill up an important wetland or the cutting off of water supply. The extent or presence of environmental damage can be quantified by measuring a difference or drop in ecosystem services. For example, land degradation can affect plant pollination and forests can turn barren, in turn affecting carbon sequestration and air purification.
Further, the idea of pollution as damage is interlinked with our health. Legislation in other parts of the world has gone beyond human-centric definitions. For instance, under British law, environmental damage is defined as that which causes a significant, harmful effect on the conservation status of an EU [European Union] protected species or natural habitat. Even harmful effects on the ecological structure and function of an area of “special scientific interest” come under the ambit of damage. This is due to the commitments built into wildlife protection laws and also the concern about keeping habitats intact for future generations. Therefore, projects that fragment wild habitats or irretrievably damage ecosystems can be considered as factors that cause environmental damage.
Thus, these points merit further debate. In India, would we consider damage to wild species and wild places as environmental damage? Or would we confine ourselves to damage that is pollution? These are tough questions that need to be posed to scientists, ecologists, affected communities and citizens.
The second major point is the role of distance as a factor in determining environmental damage, and its use in setting the extent of penalties. The Bill suggests that the costs of environmental damage, in the form of hazards and pollution, “may extend to 10 crore rupees” within a 5 km distance from a project site. For damage within 5 to 10 km from a site, the sum should be between Rs.10-15 crore and beyond 10 kilometres, Rs.15-20 crore. Continuing environmental damage would attract a fixed, per day penalty for all three categories. The underlying assumption seems to be that if there is pollution beyond 5 or 10 km, it must be of a serious nature and should attract heavier penalties. This may be true in some cases.
In several cases such as radiation or air pollution, proximity to the site of damage exacerbates damage and suffering. While air pollution causes grievous harm, the nature of the pollutant is such that it causes more harm through proximity, and not through distance. This is the logic that serves many metropolitan cities which ban cars on certain days in critically polluted areas, and not in other spots. Radiation leaks, accidents and spills are also likely to impact people, wildlife and habitat closest to the site.
Finally, thought needs to be given about capping penalties for environmental damage. Should such penalties have a ceiling? While most believe that there should be a minimum penalty to be paid for damaging the environment, it may be counter-intuitive to also prescribe the maximum amount. As the Bhopal gas tragedy showed us, environmental damage can last for generations, and it requires long term and sustained redressal.
Adjudicating authority
Perhaps what is of most interest in the Bill is the proposal to set up a two-man adjudicating authority to decide on pollution and whether environmental damage has been caused. Given the poor performance of pollution control boards, the question on whether environmental damage should be considered by government officials or independent courts assumes importance.
In the end, there are questions related to both science and perception. While science and laboratory tests can determine impact on health, there must be larger consensus on whether we want to go beyond the perception of pollution as constituting environmental damage. Protecting the environment is a Fundamental Duty under the Constitution. How we begin to perceive the incommensurable damage caused to Nature and the environment requires more attention and application.
