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National Green Tribunal Bill, 2009: Proposals for Improvement

National Green Tribunal Bill, 2009: Proposals for Improvement

The government is to introduce in the winter session of Parliament legislation to give effect to a suggestion made by the Supreme Court over the years: establishment of "green tribunals" which would deal with environmental litigation. If they are to be effective, these green tribunals must insure the costs of bringing properly evidenced litigation, enable all affected people to bring challenges, avoid delay, ensure the objectivity of tribunal members, and guarantee the enforcement of tribunal orders.

COMMENTARY

National Green Tribunal Bill, 2009: Proposals for Improvement

Armin Rosencranz, Geetanjoy Sahu

premise that such cases raise technical and scientific issues that are best left to expert authorities (Upadhyay 2000). The decade long struggle of the Narmada Bachao Andolan against the Sardar Sarovar Dam is a classic illustration of this deference. Despite the Supreme Court's initial directive that rehabilitation of oustees and ameliorative steps to minimise environmental

The government is to introduce in the winter session of Parliament legislation to give effect to a suggestion made by the Supreme Court over the years: establishment of “green tribunals” which would deal with environmental litigation. If they are to be effective, these green tribunals must insure the costs of bringing properly evidenced litigation, enable all affected people to bring challenges, avoid delay, ensure the objectivity of tribunal members, and guarantee the enforcement of tribunal orders.

Armin Rosencranz (armin@stanford.edu) is Visiting Fellow, Ashoka Trust for Research in Ecology and Environment, Bangalore. Geetanjoy Sahu (geetanjoy@tiss.edu) is at the Tata Institute of Social Sciences, Mumbai.

T
he central government proposes to set up a National Green Tribunal and four regional counterparts, as suggested over the years by the Supreme Court and the Law Commission. The bill notes that the National Environmental Appellate Authority (NEAA), constituted under the NEAA Act, 1997, for the limited purpose of providing a forum to review the administrative decisions on Environment Impact Assessment, had very little work. Since the year 2000, no judicial member has been appointed. The National Environmental Tribunal Act, enacted by Parliament in 1995, has never been implemented (Rosencranz et al 2009). The new bill would replace the NEAA and the never constituted National Environmental Tribunal.

According to media reports (The Hindu, 29 July 2009), the National Green Tribunal Bill is to be introduced in the winter session of Parliament. Because of the complex issues of science and technology that arise in environmental litigation, it is now recognised in several countries that environmental tribunals must not only consist of judges but also include technical and scientific experts. In this commentary, we analyse the bill to ensure that it deals effectively with public objections to government environmental clearances. To do this, the new green tribunals must insure the costs of bringing properly evidenced litigation, enable all affected people to bring challenges, avoid delay, ensure the objectivity of tribunal members, and guarantee the enforcement of tribunal orders.

Possible Benefits

In a series of environmental cases involving infrastructure projects, courts have typically deferred to the executive agencies on the

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damage must precede the construction of the dam, the executive a uthorities did as they pleased. Thousands await rehabilitation even as the dam nears completion. The national green tribunal would include expert members from the fields of physical sciences, life sciences, engineering, and techno logy, and would thus be competent to d ecide all aspects of environmental cases.

The setting up of regional green tribunals would help petitioners to bring local environmental problems to the notice of the tribunal at little cost, and to question the environmental impact of government decisions. The new tribunals would adjudicate disputes relating to all civil cases where a substantive question of environmental protection is involved. The new courts would have the power to declare i llegal and invalid any administrative a ction that contravenes or undermines e nvironmental laws.

The proposed bill seems strong in providing that any non-compliance with any directions or order of the tribunal would be an offence punishable by a fine that may extend up to Rs 10 crore. It also specifies that if non-compliance continues, the tribunal can confiscate the offender’s property and direct its sale for proceeds after three months have elapsed. The green tribunal’s power to deal with noncompliant polluters would strengthen the implementation process. Currently, court orders and directions in environmental cases are typically not implemented. A ccordingly, the green tribunals are likely to be a considerable improvement over the judicial approach to resolving environmental disputes. Moreover, appeals from the regional tribunals’ decisions can be taken to the national tribunal and the Supreme Court, within 30 days of the judgment, which can check abuses of authority in the regional tribunals.

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COMMENTARY

The green tribunal will be empowered to review orders passed under all environment protection laws, including those that cover water, air, forests and wildlife. No other court or authority will be able to e ntertain any application, claim or action that can be dealt with by the tribunal. This would make government departments more cautious in clearing projects with environmental impacts.

Possible Costs and Risks

Notwithstanding the benefits discussed above, the Green Tribunals Bill makes e nvironmental advocates apprehensive. Their first major concern is that the green tribunal can make radical changes in the fate of projects with environmental impacts. These changes can be good or bad, depending on the green tribunal’s use of its sweeping powers. Consider for a m oment the ongoing case of T N Godavarman vs Union of India (T N Godavarman vs Union of India, AIR 1997 SC 1228). The Supreme Court declared that no national park or sanctuary or national or state forest can be dereserved without the approval of the Supreme Court. This has led to many unforeseen economic and s ocial consequences (Rosencranz and Lele 2008). If the green tribunal continues to follow the confusing and contradictory precedents laid down by the Supreme Court, fresh confrontation between the judiciary and other organs of the government could ensue.

Second, given the enormous powers conferred upon the green tribunal and the past experience of judicial activism in s elected environmental cases, one should not expect consistency and uniformity in the green tribunal’s decisions. For example, in spite of its concern for the environment in the Godavarman and Delhi Pollution (CNG buses) cases, the Supreme Court has turned back every environmental challenge to dams, power and mining projects, holding that the policy decisions and fact-finding tasks involved in these large projects are appropriate only for e xecutive action or legislative enactment. The Supreme Court has even allowed the Sardar Sarovar Dam on the Narmada Valley to proceed without ensuring the rehabilitation and resettlement of those displaced. In the process of dealing with e nvironmental cases, the green tribunal

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could fall into the same pitfall of refusing to interfere with India’s development projects (Bhushan 2004).

Third, the excuse being used to set up a green tribunal is that there are too many cases pending in courts. A central tribunal in Delhi and regional ones, it is argued, will take the burden off the courts. The plan is based on the assumption that the groups presently taking matters to courts will be satisfied with the remedies that the green tribunal will offer. What is not fully appreciated is that proponents of projects can use the tribunals to clear their projects if such projects have been denied clearance on environmental grounds. The government would argue that the new process is fair because the green tribunal will contain experts.

Fourth, the bill deals with the eligibility or locus standi of the claimant (aggrieved person) to file an application before the tribunal and envisages that “any representative body or organisation functioning in the field of environment, with permission of the tribunal” can file an application for grant of relief or compensation or settlement of dispute to the tribunal. This “field of environment” qualification could be problematic. The right of an individual or a body of individuals to bring a claim should be recognised by the tribunal, irrespective of the field they are w orking or living in. These could include individuals or groups working in the field of public health, human rights, workers’ rights, resident welfare associations and others. The bill should define the appropriate claimants.

Fifth, cost is dealt with in clause 22 of the bill which empowers the tribunal to make an order for costs as it may consider necessary. The recovery of costs is important for environmental litigation to be v iable. Courts should be willing to award costs of litigation against a losing party. Most US environmental laws contain “citizen suits” provisions where courts are empowered to award the costs of litigation to environmental claimants. These citizen suits provisions, together with the contingency fee system, where law firms pay for litigation on the understanding that they will recover their costs plus one-third of the damage award if they win has vastly increased the number of cases that are brought to court in the US. Obtaining a discretionary order of the tribunal on behalf

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of a claimant taking an environment case can be a disincentive to take action.

Sixth, the bill makes a distinction b etween workmen and other persons for the claiming of compensation for injury or death arising out of a violation of an environmental statute. Under current procedure, workers can claim compensation under the Workers Compensation Act (WCA) 1923, which is a slow and cumbersome process. Under the Green Tribunals Bill, a worker must still bring a claim for injury or death under the WCA, while the worker’s family might be entitled to make a claim to the green tribunal. If the tribunal is to be an expert tribunal, then it should consider all claims relating to the environment (section 17). Again, there is reference to “workman” as defined in the WCA; it is unclear whether the definition is comprehensive enough to include casual workers and contract workers besides regular workers.

Seventh, the tribunal will only entertain disputes which are made within six months from the date on which the cause of action first arose. Where there is sufficient cause, the tribunal will allow a further 60 days. But a cause of action may pre-date the consequence by more than six months. For instance, a water-body may become polluted during the monsoon following the illegal dumping of mining waste near it. Ostensibly, the cause of a ction was the illegal dumping of mining waste which is not a strict water pollution issue. In such a situation, the affected people are out of time. Also, as we know, people generally delay and sensibly try and get public authorities to do their job before litigating. We would suggest that the tribunal should have the discretion to extend time without limitation in the interests of justice (section 14).

Eighth, in relation to compensation for victims of pollution, the tribunal bill stipulates a five-year limitation period from when the cause of such claim for compensation first arose, with a further extension where the applicant was prevented by sufficient cause from filing the application. This is a remarkable provision. The statute of limitations begins tolling in personal i njury cases from the date of knowledge of an injury caused by the alleged wrong. In asbestosis cases, the incubation period is around 15 years before the damage caused by the long-term effects of inhaling asbestos

COMMENTARY

become manifest. In a recent case of cancer caused by the over-use of pesticides, the incubation period was 10 years. The clause should be changed to “or date of first knowledge”, with a proviso to extend time in the interests of justice.

Ninth, even as the bill refers often to public health concerns, it neither defines public health nor specifically includes as tribunal members any professionals familiar with environemtal health or occupational safety.

Finally, the green tribunal will consist of a chairperson/judge, other judicial

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members, and a number of experts from different backgrounds. Since the executive will select the tribunal members, how will the executive be prevented from choosing only pro-government members? The expert members, especially, should be nominated by environmental groups, jurists and academics. The selection process should be open to public scrutiny. Once selected, the expert members must impartially determine the costs and benefits of every project that comes before the tribunal. If this happens, and the green tribunal is empowered to take independent decisions,

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its role will be effective for India’s longterm environmental improvement.

References

Bhushan, Prashant (2004): “Supreme Court and PIL”, Economic & Political Weekly, Vol XXXIX, No 18, pp 1770-74.

Rosencranz, Armin and Sharad Lele (2008): “Supreme Court and India’s Forests”, Economic & Political Weekly, 2 February, Vol XLIII, No 5, pp 11-14.

Rosencranz, Armin, Geetanjoy Sahu and Vyom R aghuvanshi (2009): “Whither the National Environment Appellate Authority”? Economic & Political Weekly, 29 August-4 September, Vol XLIV, No 35, pp 10-14.

Upadhyay, Videh (2000): “Changing Judicial Power”, Economic & Political Weekly, 28 October, Vol XXXIV, Nos 43-44, pp 3789-92.

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