Air Pollution | A game of smoke and mirrors

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On paper, India ought to score high on the environment. It boasts a fairly comprehensive legal framework that allows for ‘responsible development’ with sufficient checks and balances; and one of the most empowered of adjudicatory tribunals in the National Green Tribunal (NGT) — both heads of the NGT so far have been just retired Supreme Court judges, Swatanter Kumar and Adarsh Kumar Goel.

Yet, the state of environmentalism in India is perhaps best reflected in the trajectory of two pressing and persistent environmental issues from the National Capital Region (NCR): Pollution in the winter months, and the mountains of garbage — suffocating residents and leaving an unrelenting stench.

Pollution cases normally make national news around Diwali, every year, when the NCR is enveloped in a thick blanket of smog — inviting a slew of orders shutting down of factories, limiting vehicular movement, banning crackers, and in 2019, strictures against bureaucrats for failing to effectively curb crop burning by farmers. Meanwhile, the November pollution got worse with every passing year.

Just like the landfills keep accumulating garbage. The largest of them, at Ghazipur in East Delhi, commissioned in 1984, exceeded its capacity in 2002. But waste continued to be dumped, making it taller than the Taj Mahal, and at one point, just a few metres short of Delhi’s iconic landmark, the Qutub Minar. The fires on the landfill kept burning night and day, the stench relentless.

The water in the area acquired a yellow hue, and respiratory illnesses became common among residents of the area. It had become a rite of passage for officers of the municipal corporation and the pollution control boards, and occasionally, the state government, to get earfuls from the judges, almost on a daily basis. Their response to the judges though, was mostly smoke and mirrors.

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If you follow environmental cases over the last decade, a recurring theme is of the state actively colluding with violators, rather than the citizen — thus becoming the problem. A useful example is iron-ore mining in Goa. In 2014, the Supreme Court quashed the existing licences for iron-ore mining in the state on account of rampant violations. In what can only be described as legal chicanery, these miners then approached the high court arguing that the state government had already collected stamp duty from the miners for the purpose of renewal (while the Supreme Court was still hearing), and therefore, the state was bound to allot them fresh mines. As it turns out, the state government supported this stance, and the high court directed renewal of licences.

An appeal to the Supreme Court took years to get adjudicated, and in 2018, the licences were again quashed. Here, what came to the aid of the environment was perhaps not the judiciary, which took years to decide, but the steep fall in mineral prices, making mining unprofitable.

Or take another curious incident regarding the four-laning of a national highway that passed through the Pench Tiger Reserve in the Maharashtra-Madhya Pradesh border. The Bombay High Court at Nagpur took suo motu cognisance of the decrepit state of the existing road, and not only directed the National Highway Authority of India (NHAI) to construct the road, but also diluted the conditions for the grant of environmental clearance. This was technically, the remit of the NGT. When the tribunal sought to enforce environmental compliance from the NHAI before cutting down of trees, the high court threatened the authority with contempt proceedings for not complying with its orders to immediately cut. With a full blown war looming, the tribunal took a step back.

It is perhaps hypocritical of a State that laments the decrease in tiger population to sanction a four-lane national highway, cutting through one of the largest, and densest, tiger reserves. Politicians across the spectrum love talking about ‘responsible development’, that is, development without enduring damage to the environment. Yet, their actions, inevitably betray the truth. Their lip-service to the environment is merely to comply with the law, necessitated by India’s international commitments. Meanwhile, on the ground, clearances are more often than not, bureaucratic decisions, rather than based on the inputs of experts.

The coup de grace came earlier this year, with the central government proposing to change the rules for Environmental Impact Assessment (EIA). Under draft EIA, 2020, many projects (many of them, ecologically sensitive) are excluded from the requirement for public consultations. For projects operating without clearance, the notification proposes condonation of the violation with a fine, provided the project proponent presents a plan for ‘remediation and resource augmentation’. Apart from being directly in violation of several Supreme Court judgments that have found that ex-post facto clearances are contrary to law, such a facility will only have the effect of encouraging blatant violation.

If the Ghazipur landfill teaches us any lesson, it is that left untended, environmental damage becomes almost impossible to rectify — even with the strictest of laws.

(Disclaimer: the author has appeared in or assisted counsel in the cases described above)

Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.