Do You Pollute the Air? Expect a Friendly Letter From the Authorities.

You know you will be penalised for driving a car without a license. But if you spewed toxic materials into the air without a licence under environmental law, you only need to fear receiving an amiable letter.

This is the second of a two-part analysis of the EPCA’s performance. Read the first part here.

The air pollution spike has prompted various authorities to issue statements on action that needs to be taken to deal with it. Recently, Harsh Vardhan, the Union environment minister declared that criminal cases will be initiated against those who violate environmental law. According to Vardhan, “It doesn’t matter how big an agency or how influential its official is, the CPCB will not be hesitant to initiate criminal prosecution against them. No laxity will be tolerated and we will not allow anyone to play with the health of people,” he said. The CPCB is the Central Pollution Control Board.

Vardhan said that a fixed procedure would be adopted when dealing with air pollution complaints. First, CPCB officials would warn the concerned agency or polluter within 48 hours of a complaint being lodged on the ministry’s ‘Sameer’. If the polluter or agency fails to take corrective measures within the subsequent 48 hours, the CPCB would initiate criminal prosecution.

There are two fundamental problems with this approach. First, the law does not contemplate any ‘warnings’ to a violator. The enforcement agency is not a schoolteacher or parent overseeing a misbehaving child. Second: once the violation has occurred, penal action has to be initiated irrespective of whether the violator has later complied with the law.

In fact, this is one of the core issues vis-à-vis enforcement: the complete lack of political will and administrative capacity to deal with violators. Unlike the income tax and sales tax departments, environment agencies like the pollution control boards remain reluctant to initiate legal action against offenders.

The standard approach of the pollution control board has been to write a ‘request letter’ to the violator to desist from committing an illegal act. This is followed by a second letter reminding the violator of the previous letter. The tone is decidedly friendly and apologetic. If the violator doesn’t heed the warning, the board simply ceases correspondence. It has turned out to be like a bad loan given to a big company: it is less effort for the bank to write it off, clear their balance sheets and achieve tax efficiency than to endeavour to have the money returned.

This approach is further evident with the Environment Pollution (Prevention and Control) Authority (EPCA). The environment minister’s statement about the CPCB initiating action citizens complaint is surprising. His own ministry – on October 3, 2018, reissued a 1998 notification that specifically constituted EPCA, with the specific mandate of receiving and acting on complaints of environmental laws being violated. The EPCA has had this power for two decades and it has never exercised it. Rather than adopt a strict policing role, the EPCA has on the contrary preferred to play the part of a caregiving parent and gently reprimands violators. The result of this attitude is the air-quality disaster over the National Capital Region, leaving the people at a point of almost-no-return.

All statutory laws with respect to the environment were allowed to be violated when the Pragati Maidan, New Delhi, was being redeveloped. The construction of a new ‘Integrated Convention and Exhibition Centre’ was allowed to begin without having received approval under the Air (Prevention and Control) of Pollution Act, 1981, not prior approval under the Environment (Protection) Act, 1986.

An appeal challenging the approval was heard by the National Green Tribunal (NGT). In due course, the NGT clearly expressed its opinion that the EIA Report appeared to be erroneous. However, it finally refused to intervene and upheld the approval granted. Interestingly, the NGT recorded in its judgment that the project did not have the mandatory consent under the Air Act, 1981, but strangely refused to initiate any action.

This is nothing unusual. But what is significant is the sheer brazenness with which the project has been allowed to continue. It is as if the environment ministry, the EPCA, the CPCB and the Delhi Pollution Control Committee are watching on helplessly. Not one agency has bothered to initiate criminal proceedings against the project’s promoters, the Indian Trade Promotion Organisation. There is no reason to believe that the situation will change if complaints are filed on Sameer, the web-based app. After all, an app will not take action – that responsibility falls to human beings. And as the EPCA has shown, this may not come to be, even if a body is vested with all the statutory powers it needs as well as the protection of the Supreme Court.

The next few weeks will see various enforcement agencies, and the courts, attempt to control air pollution. All these are unlikely to have any long-term impact. At the end of the day, all authorities are trying to pass the buck. The court issues a direction to the EPCA to enforce the Graded Response Action Plan to combat air pollution. The EPCA requests chief secretaries of the respective states to initiate action. The chief secretaries write to the district magistrates, who write to the sub-divisional magistrates, and so on. For polluters, it is business as usual; at worst, they may have to shut shop for a few days but that’s okay.

One reason the air pollution crisis is what it is is that we live in a city where passengers will be rightly penalised for driving cars without wearing the seatbelt or without a licence, etc. However, should a citizen spew toxic air and have no licence under environmental law, all that one needs fear is an amiable letter to cease such activity. This friendly approach of the authorities has rendered the National Capital Region an unfriendly, and barely inhabitable, area.

Ritwick Dutta is an environmental lawyer.