Putting a price on the environment

Climate change is no longer an illusory phenomenon of the future. Extreme weather, erratic rainfall, floods and droughts are some of the events seen across the world, which reveal that the crisis is actively engulfing the land. India is one of the most vulnerable countries which, according to the report of the Intergovernmental Panel on Climate Change, is expected to be exposed not only to natural disasters but also to economic shocks. However, its performance in mitigating an impending crisis is not up to par. Among 180 countries, it was ranked last for its environmental performance in the Environmental Performance Index 2022. At this crucial moment: what should be top of mind for policy makers and legislators? Should it be development or sustainable development? Is there really leeway to choose between the two?

Nevertheless, they make a choice. The recent amendment proposed by the Union Ministry of the Environment, which seeks to decriminalize the existing legislative framework governing the environment, indicates this choice. The Environment (Protection) Act 1986, the Air (Pollution Prevention and Control) Act 1981 and the Water (Pollution Prevention and Control) Act 1974, with the aim of ” eliminate the fear of imprisonment for mere violations” will no longer render an offender criminally liable under the proposal. Instead, financial penalties for non-compliance have been imposed for the majority of violations labeled as “simple”. Under the pretext of simple violations, various provisions of the current law which aim to prevent environmental risks will suffer a blow. For example, Section 10(1) of the EPA grants the right of entry to any place to persons authorized under the law to perform duties, determine compliance with the law, and investigate violations already committed or “about to be committed”. Such a provision made it possible to prevent the commission of an environmental offence. Sub-Clause 2 gives it teeth by requiring “any person engaged in any industry, operation or process in the handling of any dangerous substance to render assistance” to persons performing duties under Sub-Clause 1. Any failure to assisting or willfully delaying and obstructing the same is qualified as an offense punishable by imprisonment and fine. The threat of imprisonment reflected the law’s vigorous approach to the effective implementation of the precautionary principle. This was in pursuit of the spirit of the law, which was enacted for “the protection and improvement of the environment and the prevention of risk to human beings, other living creatures, plants and property “. However, the proposed amendments to the Act tend to dilute this by substituting a monetary fine for criminal liability. Thus, if the proposed changes are adopted, an offender can easily continue to commit a crime without fear of any mandatory surveillance by the state apparatus. He can choose to pay a sum of money so as not to affect his usual activity, even if this may later lead to a possible danger to the environment. The possibility of preventing environmental crimes through prompt intervention by the designated authority is negligible. Moreover, the quantum of the penalty must be decided by an arbitrator at his discretion, which raises even more apprehensions as to arbitrariness.

This change in the nature of the liability likely to be imposed on offenders at a time when serious actions against climate change are taking place on a global scale poorly reflect efforts to implement a sustainable development regime. If environmental crimes are reduced to be offset in mere monetary terms, we are only propagating a “pollute and pay” scheme. States should not fall into this trap of putting a price on the environment just because big business will find it more convenient. They will have more incentive to pollute first and pay later. The profit maximizing ethic of these companies comes first, while the interests of the environment and human society are neglected. If the profit made compensates for the penalty to be paid, offenders would have much less reason not to pollute. It is therefore not unlikely that the proposed changes in the law will be a blessing in disguise for such companies.

The existing argument against criminal liability is that the complaint procedure is cumbersome, resulting in less conviction. However, this can be fixed by making the procedure simpler and faster. Rather than being governed by the technical details of the Code of Criminal Procedure, a separate procedure can be formulated to deal with cases of environmental crimes. Financial penalties are a good step to make a polluter responsible for the damage caused by his companies, however, they should be used when the damage has already been caused and there is no possibility of avoiding it. In situations where the law can prevent the commission of an offence, it should not consciously and deliberately let the offender buy their way out. The two principles, namely the precautionary principle and the polluter-pays principle, constitute the doctrine of sustainable development; and each must be employed at the right time. Big business and industry should not have a “right to pollute” because they can afford to. Environmental damage of any degree, simple or severe, cannot be ignored and overlooked. All stakeholders need to start acting positively; however, the role of the law and the state is paramount. The law can become a key instrument in shaping the social norm around environmental protection for today and tomorrow; therefore, it must treat perpetrators without leniency.

Views are personal.

Richard L. Militello