Emerging Issues and Challenges
Chapter Seventeen
Syllabus topic 1, "The Idea of Environment"
Pages 67 to 70 of 595
In one line
The environmental problems that have arrived since the Indian statutes were drafted are global in scale, chemical in character or digital in origin, and the existing machinery was built for none of them.
In the wording a student can write in an exam: the emerging issues are climate change, plastic and microplastic pollution, electronic waste, the loss of biodiversity, the quality of urban air, the depletion and contamination of groundwater, and the environmental effects of new technology. The challenges they present are that they are diffuse in causation, transboundary in effect, uncertain in science and long in latency, and that the Indian regulatory model was built to answer none of those four features.
Why "emerging" is the right word
The Water Act was drafted in 1974, the Air Act in 1981 and the Environment (Protection) Act in 1986. Between them they assume a model: an identifiable industrial source, discharging an identifiable substance, into an identifiable medium, in a place, at a measurable concentration, controlled by a consent and a standard.
Every problem in this chapter departs from that model in at least one way. That is what makes them emerging: not that they are new in time, but that they are new to the machinery.
The issues
Climate change
The largest of them, and the subject of its own chapter. Its features are the template for the rest: every human being contributes, every human being is affected, the effect is separated from the cause by decades and by continents, and no domestic regulator can solve it.
Plastics and microplastics
Plastic is not a pollutant on the model the Acts assume. It is not discharged from a pipe; it is sold, used and discarded by everybody. It does not degrade, so the stock accumulates. It fragments into particles that have been found in water, in soil, in food and in human tissue, and there is no ambient standard for them.
The Indian response has been rules made under section 3 of the Environment (Protection) Act 1986, the Plastic Waste Management Rules, which use extended producer responsibility, making the producer liable for the material after the consumer has finished with it. That is a different regulatory technique from the consent and standard model, and its arrival is itself part of the answer.
Electronic waste
The fastest growing waste stream, containing both valuable metals and serious toxics. It is generated by households as well as industry, and in India most of it is handled in the informal sector, where recovery is done by burning and by acid leaching in residential areas. The regulatory difficulty is not the standard but the sector: an informal recycler is not an occupier of a factory and does not apply for a consent.
Emerging Issues and Challenges
Biodiversity loss
Species are lost by habitat fragmentation, by degradation of what remains, by invasive species and by climate shift, and rarely by an act any single defendant committed. The law is built around prohibitions on killing and on clearing, which reach the last cause and not the first three. The Wild Life (Protection) Act was amended in 2022 to add a provision on invasive alien species, section 62A, which is a recognition of the point.
Urban air
Not a new problem, but a changed one. The Acts assume a source and a receptor. Urban air quality is the aggregate of millions of sources, some of them mobile, some of them outside the city and some of them outside the State, combined with meteorology nobody controls. Enforcement against one factory does very little, and that is why the response has moved to airshed management and to a national programme rather than to prosecutions.
Groundwater
Depletion and contamination together. Groundwater is drawn by millions of private users under a legal regime that historically treated it as an incident of land ownership, which makes it the hardest resource in India to regulate. Contamination by fluoride, arsenic, nitrate and industrial solvents affects large populations, and the source is often diffuse.
New technology
Genetically modified organisms, nanomaterials, and the environmental footprint of computing, which is now a material consumer of electricity and of water for cooling. In each the science is contested, the harm is speculative, and the regulator has to decide before the evidence exists.
The challenges
Four features, and they are the analytical part of the answer.
Diffuse causation. No defendant. The polluter pays principle needs a polluter, and where a million people each contribute a millionth of the harm, the principle has nothing to attach to.
Transboundary effect. No jurisdiction. The harm crosses State and national boundaries, and the regulator with power over the source is not the regulator answerable to the victim.
Scientific uncertainty. No proof. The harm may be serious and irreversible and may not be demonstrable at the time a decision must be taken. This is precisely what the precautionary principle was designed for, and it is also why the precautionary principle is contested.
Long latency. No plaintiff in time. The damage appears decades after the conduct, by which time limitation has run, the company has been restructured, and the people harmed cannot connect their injury to its cause.
A fifth, which a strong answer adds: the capacity of the regulator. Every one of these problems needs more scientific capability than a State Board possesses, and adding a duty to a body that cannot discharge the ones it has is not a solution.
Emerging Issues and Challenges
Worked example
A short note of about three hundred words is what MU wants. The efficient shape is: one sentence saying why these count as emerging, being new to the machinery rather than new in time; a list of six or seven issues with a clause on each; the four structural challenges named and explained in a line each; and one sentence on the Indian response, which is that the technique has shifted from consent and standard towards extended producer responsibility, airshed management and specialist adjudication in the National Green Tribunal.
That fits, it is specific, and it has an argument in it.
What this topic does NOT ask
It is not a list of pollutants. The question is about what is new and why the law struggles with it, not about naming as many problems as possible.
It does not ask you to predict. Speculation about future technologies adds nothing. The issues above are all present and documented.
Distinctions that carry marks
| The classical problem | The emerging problem | |
|---|---|---|
| Source | An identifiable plant | Millions of dispersed contributors |
| Medium | One, and local | Several, and global |
| Evidence | Measurable concentration now | Contested projection |
| Victim | Identifiable, nearby, now | Diffuse, distant, later |
| Technique | Consent, standard, prosecution | Producer responsibility, airshed management, treaty, constitutional right |
| Forum | Board and criminal court | National Green Tribunal, constitutional court, conference of parties |
Quick revision
- "Emerging" means new to the machinery, not new in time. The Acts of 1974, 1981 and 1986 assume a plant, a pipe, a medium and a standard.
- Issues to name: climate change, plastics and microplastics, electronic waste, biodiversity loss, urban air, groundwater, and new technology.
- Challenges: diffuse causation, transboundary effect, scientific uncertainty, long latency, and the capacity of the regulator.
- The technique has shifted: extended producer responsibility in the plastic and electronic waste rules made under section 3 of the Act of 1986, airshed management for urban air, and specialist adjudication in the National Green Tribunal.
- Section 62A of the Wild Life (Protection) Act 1972, added in 2022, on invasive alien species, is an example of the statute book catching up with an emerging cause.
Test yourself
1. In what sense are these issues emerging, given that some of them are decades old?
They are new to the regulatory machinery rather than new in time. The Water Act, the Air Act and the Environment (Protection) Act assume an identifiable plant discharging an identifiable substance into an identifiable medium at a measurable concentration, and every issue in this chapter departs from that model in at least one respect.
2. Name the four structural challenges these issues present.
Diffuse causation, so that there is no defendant for the polluter pays principle to attach to; transboundary effect, so that the regulator with power over the source is not answerable to the victim; scientific uncertainty, so that a decision must be taken before the harm can be proved; and long latency, so that by the time the damage appears the limitation period has run and the connection cannot be made.
Emerging Issues and Challenges
3. What is extended producer responsibility and why does its arrival matter?
It makes the producer of a material responsible for it after the consumer has finished with it, and it is used in the plastic waste and electronic waste rules made under section 3 of the Environment (Protection) Act 1986. It matters because it is a different regulatory technique from the consent and standard model, adopted because that model cannot reach a product dispersed among millions of users.
4. Why does enforcement against a single factory do little for urban air quality?
Because urban air quality is the aggregate of millions of sources, many of them mobile, many outside the city and some outside the State, combined with meteorology nobody controls. That is why the response has moved to airshed management and a national programme rather than to prosecution of individual sources.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.