The Environment (Protection) Act 1986 as the Umbrella

Section 3(3), the power to constitute authorities, worked in the previous chapter.

Section 4, appointment of officers and their powers and functions.

Section 5, directions, worked in the previous chapter, with its Explanation covering closure and the stoppage of electricity or water.

Section 5A, appeal to the National Green Tribunal. Any person aggrieved by a direction issued under section 5 on or after the commencement of the National Green Tribunal Act, 2010, may appeal to the Tribunal.

Section 6, rules. The Central Government may make rules in respect of the matters in section 3(2), and in particular the standards of quality of air, water or soil for various areas and purposes; the maximum allowable limits of concentration of various environmental pollutants for different areas; the procedures and safeguards for the handling of hazardous substances; the prohibition and restrictions on the handling of hazardous substances in different areas; the prohibition and restriction on the location of industries in different areas; and the procedures and safeguards for the prevention of accidents.

Section 7, the general prohibition. "No person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutant in excess of such standards as may be prescribed."

Section 8, hazardous substances. No person shall handle or cause to be handled any hazardous substance except in accordance with the prescribed procedure and after complying with the prescribed safeguards.

Section 9, duty to inform. Where the discharge of a pollutant in excess of the prescribed standards occurs or is apprehended by reason of an accident or other unforeseen act or event, the person responsible shall forthwith intimate the authorities, and those authorities shall take remedial measures, the expense being recoverable from the person concerned as arrears of land revenue.

Section 10, entry and inspection, and section 11, samples, with the procedure for taking a sample that the Act prescribes.

Broken down

The Act's technique is to legislate almost nothing and to delegate almost everything. Twenty-six sections, of which the operative ones are three: a power to take measures, a power to constitute an authority, and a power to make rules. The substance is in the notifications.

That is both its strength and the objection to it. The strength is speed: a wetland rule, a coastal zone, an impact assessment procedure and a ground water authority can all be created without going back to Parliament. The objection is that the law that actually binds a citizen is made by the executive, and is changed by the executive, with only the laying requirement in section 26 as a check.

Section 7 is the operative prohibition and it is empty without a standard. No person may discharge in excess of "such standards as may be prescribed", so where no standard has been prescribed there is nothing to contravene.

Section 9 is the provision that makes an accident reportable, and the recovery of the cost of remedial measures as arrears of land revenue is a statutory form of polluter pays.

And section 5A gives an appeal to the National Green Tribunal, which is why a direction under section 5 is now challenged there rather than in a High Court.

Worked example

A wetland on the edge of a city is being filled with construction debris by a developer.

Step one, what law applies? The Wetlands (Conservation and Management) Rules, 2017, which prohibit certain activities in a notified wetland, and which are made under sections 3, 6 and 25 of this Act.

Step two, is that enough? Only if the wetland has been notified. The Rules apply to wetlands notified by the State Wetlands Authority, and most Indian wetlands are not notified, which is the standing criticism of the 2017 Rules.

Step three, what if it is not notified? The general power in section 3, a direction under section 5, and the public trust doctrine, which applies whether or not there is a notification. M.C. Mehta v. Kamal Nath is the authority.

Step four, what is the remedy for the debris already tipped? A direction under section 5 to restore, and recovery of the cost. Where the tipping was an accident within section 9, the expenses of remedial measures are recoverable as arrears of land revenue.

Step five, where does the challenge go? To the National Green Tribunal, under section 5A for a direction under section 5, and under section 14 of the National Green Tribunal Act, 2010, for a substantial question relating to the environment.

Distinctions

What it does NOT mean

It does not mean the Act replaces the Water Act. Section 24, as substituted in 2023, gives this Act and the rules and orders made under it effect notwithstanding anything inconsistent in any other law, but the Water Act, 1974, and the Air Act, 1981, continue to operate alongside it, and penalties imposed under the Air Act are credited to the Environmental Protection Fund established under section 16.

It does not mean the Central Government must act. The powers are discretionary in form, and the courts have supplied the compulsion, as in Vellore Citizens Welfare Forum v. Union of India, where the Court directed the constitution of an authority under section 3(3) to implement the precautionary and polluter pays principles.

And it does not mean everything in the environment is regulated. Only what a rule or a notification reaches. Section 7 has nothing to bite on where no standard exists.

Quick revision

Enacted under article 253 to implement the Stockholm decisions of 1972. An umbrella Act of twenty-six sections.

Section 3: general power to take measures; section 3(3), to constitute authorities; section 5, binding directions with closure and cutting off electricity or water; section 5A, appeal to the National Green Tribunal; section 6, rules prescribing standards.

Section 7: no discharge in excess of prescribed standards. Section 8: hazardous substances only per procedure. Section 9: duty to intimate an accidental discharge; cost of remedial measures recoverable as arrears of land revenue. Sections 10 and 11: entry, inspection and samples.

Made under it, for this paper: the Central Ground Water Authority, the Wetlands Rules 2017, the Coastal Regulation Zone Notification and the Environmental Impact Assessment Notification 2006.

Test yourself

1. Under which article was the Act passed, and why does that matter? Article 253, to implement the decisions of the Stockholm Conference of 1972. It matters because it lets Parliament legislate on a subject otherwise largely within the State List.

2. Why is section 7 described as empty without a standard? Because it forbids discharge only "in excess of such standards as may be prescribed", so where no standard has been prescribed for a pollutant there is nothing to contravene.

3. What does section 9 require, and what does it allow to be recovered? It requires the person responsible for an accidental or unforeseen discharge in excess of the standards to intimate the authorities forthwith; the expenses of the remedial measures the authorities take are recoverable from him as arrears of land revenue.

4. Name four instruments in this book that are made under this Act. The order constituting the Central Ground Water Authority under section 3(3); the Wetlands (Conservation and Management) Rules, 2017; the Coastal Regulation Zone Notification; and the Environmental Impact Assessment Notification, 2006.