What an Emerging Legal Control Is

In one line

MU's phrase covers every technique of environmental regulation that is not a licence backed by a prosecution, and the module is arranged around six of them.

The printed label is "Emerging Legal Controls". It is not a term of art, and no textbook defines it, so a student must supply the definition. This chapter does that, sets out what counts and why the six controls in this module belong together, and gives the contrast that makes the phrase intelligible.

What it is contrasted with

Command and control is the older technique and it still carries most of Indian environmental law. Its shape is always the same.

A standard is set. By notification, as Schedule I to the Environment (Protection) Rules 1986 sets industry-wise effluent and emission standards.

A permission is required. Consent to establish and consent to operate under sections 25 and 26 of the Water Act 1974 and sections 21 and 22 of the Air Act 1981; authorisation under the waste rules; registration under the Insecticides Act 1968.

An inspector verifies. Sections 20 and 23 of the Water Act, section 24 of the Air Act, section 10 of the Environment (Protection) Act 1986.

And a breach is punished. Formerly by prosecution, and since 1 April 2024 under the Act of 1986 by a penalty imposed by an adjudicating officer under section 15C.

Command and control has three known weaknesses. It regulates the point of discharge and not the decision that produced it. It depends on inspection, and inspection is the scarcest resource in Indian environmental administration. And it fixes a ceiling that a firm has no reason to go below, because there is no reward for doing better than the standard.

What an emerging legal control is

An emerging legal control is any technique that tries to answer one of those three weaknesses. Three families cover the field.

Controls that move the decision earlier. They act on the project before it exists rather than on the discharge after it exists. Environmental impact assessment is the leading example: the Environmental Impact Assessment Notification 2006 requires prior environmental clearance before construction begins, on the basis of a study of what the project would do. Eco-sensitive zones do the same for an area.

Controls that work through information rather than permission. They assume that a firm that must disclose will behave differently, and that a public which knows will act. The environmental statement in Form V under rule 14 of the Environment (Protection) Rules 1986, the environmental audit, Ecomark and other eco-labels, public participation in decision making, and the right to environmental information under the Right to Information Act 2005 all belong here. So does the disclosure duty in section 84 of the Occupational Safety, Health and Working Conditions Code 2020, formerly section 41B of the Factories Act 1948.