9 Law Relating to Air Pollution

Ms.Lovleen Bhullar

 

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1. Introduction

 

Air pollution refers to the p resence of a pollutant in the air or the atmospher e. There are two types of air pollution: ind oor and outdoor. The sources of indoor air p ollution include smoking, inefficient burning of inferior fuels and poor ventilation. The sourc es of outdoor air pollution include vehicles, industries, power plants, mining activities, constr uction activities, firecrackers, cigarettes and crop burning etc. The urgent need to regulate air p ollution is borne out by the finding of a 201 0 report of the Central Pollution Control Boar d that particulate matter in the air of 180 Ind ian cities was six times higher than World Hea lth Organization standards. Recently, the Yale Environmental Performance Index has ranked India 174 out of 178 countries on air pollution.

 

2. Learning Outcomes

 

This unit will introduce the students to the legal framework relating to th e prevention and control of air pollution in India. After studying this unit, they will be able to provide an overview of the laws concer ning air pollution in the country and their scope a nd limits.

 

3. Legislative Framew ork

 

3.1. Constitution of India

 

The Constitution of India do es not include any specific provision on environ mental pollution generally or air pollution sp ecifically. However, the judiciary has interpreted the fundamental right to life guaranteed unde r Article 21 of the Constitution to include the right to enjoyment of pollution-free air (See, for example, Subhash Kumar v State of Bihar, AIR 1990 SC 420).

 

3.2. Relevant legislation : General Provisions

 

Two of the important envir onmental legislation in India with respect to air pollution are the Air (Prevention and Control of Pollution) Act, 1981 (amended in 1987) and the Environmental (Protection) Act, 1986. Provisions concerning public nuisanc e under tort law, the Indian Penal Code (section 268), the Code of Criminal Procedure, 1898 ( section 133) and the Code of Civil Procedu re, 1908 (section 91) may also be applicable to cases of air pollution. However, the len gth and expense of the judicial proceedings and the difficulty of establishing liability etc. hav e discouraged their application. Since its establi shment under the National Green Tribunal Ac t, 2010, the National Green Tribunal (NGT) has adjudicated cases concerning air pollution in t he exercise of its original as well as appellate jurisdiction.

 

3.2.1. Air (Prevention and Control of Pollution) Act, 1981

 

One of the decisions taken at the United Nations Conference on the Hum an Environment 1972 (or the Stockholm Con ference) was to take appropriate measures to pr eserve air quality and control air pollution. In order to implement this decision, the Ministry of Environment and Forests, Government of India (MoEF) enacted the Air (Prevention and Control of Pollution) Act, 1981 (the Ai r Act) in exercise of the power vested in it by A rticle 253 of the Constitution of India.

 

The primary objective of th e Air Act is to prevent, control and abate air pollution or ‘the presence in the atmosphere of any air pollutant’. An ‘air pollutant’ is define d in section 2(a) of the Act to mean:

 

any solid, liquid or gaseous substance (including noise) present in t he atmosphere in such concentration as may be or tend to be injurious to human bein gs or other living creatures or plants or property or environment.

 

The Central Pollution Contr ol Board (CPCB) and the State Pollution Control Boards (SPCB), established under the Water (Prevention and Control of Pollution) Act, 1974 , are responsible for prevention and control of air pollution. In performance of its function to lay down air quality standards (section 16 (2)(h)), the CPCB has notified the National Am bient Air Quality Standards, 2009 for industrial, residential, rural and other areas, and ecolo gically sensitive areas. Similarly, one of the functions of the SPCB is to lay down, in consultation with the CPCB, and having regard to the air quality standards laid down by the CPCB, standards for:

 

(i) emission of ai r pollutants from industrial plants and auto mobiles into the atmosphere; or

 

(ii) discharge of any air pollutant into the atmosphere from any othe r source (but not a ship or an aircraft) (section 17(1)(g)).

 

3.2.2. Environment (Prote ction) Act, 1986

 

Like the Air Act empowers the SPCBs to lay down standards for emission /discharge of air pollutants into the atmos phere, under the Environment (Protection) A ct, the Central Government, through the MoEF, may take measures to protect and improve the environment. This includes laying dow n emission/discharge standards for air pollut ants, air quality standards for various areas and purposes, maximum allowable limits of con centration of air pollutants for different areas, etc. This has led to the inclusion of certain standards in the Environment (Protection) Rules, 1986, which take precedence over the stan dards laid down under the Air Act. However,, in case an offence is punishable under both the Acts, the Air Act will apply.

 

In exercise of its power to ta ke measures to protect and improve the environ ment, the Central Government, through the MoEF, has issued the EIA notification of 2006, w hich requires that the impact of the propose d project on air (among other aspects) must be taken into consideration. Similarly, the Central Government has declared certain areas as eco-sensitive zones and restricted activities resulting in noise pollution and air pollution in such areas.

 

4. Specific Causes of Air Pollution: Legislation and Judicial Decisions

 

This section highlights the relevant statutory provisions and judicial deci sions concerning certain specific causes of air pollution.

 

4.1. Industrial pollution

 

Under section 19 of the Air Act, the State Government has the power to notify certain areas within the State as air pollution control area(s) after consultation with the SPCB. The use of non-approved fuel(s) or appliance(s) and/or the burning of any material (which is not a fuel) in such areas may be prohibi ted if it may cause or is likely to cause air pollution.

 

Previous consent of the SPCB is required in order to establish or operate an industrial plant in an air pollution control area. The SPCB shall either grant or refuse to grant consent within a period of four months from the date of receipt of the application. The dec ision shall be in writing and the SPCB is re quired to record reasons for its decision. The c onsent is granted subject to compliance with certain conditions, such as installation and opera tion of specified control equipment. If the conditions subject to which consent is granted are not fulfilled, the SPCB may cancel the conse nt but after providing a reasonable opportunity to be heard.

 

Further, an industrial plant o perating in an air pollution control area cannot discharge any air pollutant in excess of the st andards laid down by the SPCB. The Air Act inter alia penalizes emission of air pollutants in the air pollution control area(s) in excess of t he standards laid down by the SPCB with imprisonment and/or fine (section 22). A person may also be restrained from emitting a n air pollutant in an air pollution control are a (section 22A). However, the SPCB does no t have the power to impose the penalty or restra in a potential air polluter unilaterally; it has to make a complaint/application before a court, which will take cognizance of the same in a ccordance with the rules of criminal procedure (sections 22A & 37). But the Air Act does e mpower the SPCB to direct the closure, prohibition or regulation of any industry, operation o r process, or stop or regulate supply of electricity, water or any other service (section 31A).

 

The Supreme Court and High Courts have considered the effects of indust rial pollution on human health and/or the en vironment in a number of cases. In MC Mehta v Union of India and Others (Taj Trapezium case), (1997) 2 SCC 353: AIR 1997 SC 734, t he petitioner was concerned about the effects of air pollution on the Taj Mahal in Agra. A number of sources, including foundries, chemi cal/hazardous industries and the Mathura refinery, brick kilns, vehicular traffic and generator sets, were contributing to the air pollution. The Supreme Court applied the precautionary pr inciple, that is, environmental measures must a nticipate, prevent and attack the causes of environmental degradation. The burden of proof is o n the industry to show that its operation with the aid of coke/coal is environmentally be nign. The other observations/directions of the Court include:

 

The emissions gene rated by the coke/coal consuming industries are air pollutants and have damaging effecct on the Taj and the people living in the TTZ.

 

The atmospheric pollution in the TTZ has to be eliminated at any co st. Not even one per cent chance can be taken when human life and the preservation of a prestigious monument is involv ed.

 

The identified industries shall change over to natural gas as an industrial-fuel.

 

The industries, whi ch cannot obtain natural gas connections, shall stop functioning with the aid of coke/ coal in the TTZ. Such industries may relocate.

 

4.2. Vehicular pollution

 

The increasing number of vehicles plying on the roads, both public trans port and private vehicles, are a major source of air pollution in India. While gasoline-run vehicles emit carbon monoxide (CO), hydrocarb ons (HC) and lead (Pb), diesel vehicles are res ponsible for the release of suspended particulate matter (SPM) and sulphur dioxide (SO2).

 

The Air Act empowers the SPCBs to lay down standards for emission of air pollutants from automobiles in consultation with the CPCB (section 17(1)(g)). This has led to the Standard for Emission of Smoke, Va pour, etc. from Motor Vehicles. In order to en sure compliance with these standards, the State Government is required to give the necessar y instructions to the vehicle registration auth ority under the Motor Vehicles Act, 1989 (MVA) (section 20). In addition, the MVA empow ers the Central Government to prescribe emission standards for vehicles and to frame rules to regulate the construction, equipment and maintenance of motor vehicles in relation to the emission of smoke, visible vapour, sparks, ashes, grit or oil. The Central Motor Vehicles Rules, 1989 prescribes nationwide emission levels for old and new, diesel and petrol engine vehicles, which are identical to the emission stan dards for motor vehicles under the Environm ent (Protection) Rules.

 

In addition, or as an alternattive, to the command-and-control approach pres cribed by the Air Act and the Environment (Protection) Act, the government is also usi ng market-based instruments, such as polluti on and road taxes, in order to reduce and/or pre vent air pollution resulting from vehicles.

 

During the late 1980s and 1990s, Mr MC Mehta, a lawyer, filed severa l public interest litigations before the Suprem e Court with respect to vehicular pollution. This led the Court to pass a number of orders, inte r alia, relating to:

  • Mandatory use of ca talytic converters for specific types of vehicles;
  • Introduction and use of unleaded petrol for motor vehicles;
  • Conversion of vehicles from the use of petrol/diesel to Compressed Natural Gas (CNG);
  • Setting-up of a timeframe for the gradual phasing out and banning of old commercial/transpo rt vehicles from Delhi roads;
  • Conformity of certain vehicles, depending upon date of registrationn in the National Capital Region, to Euro-I and Euro-II norms.

 

On 10 February 2014, the Supreme Court acknowledged air pollution as a serious concern with severe public health consequences and issued notices to the Central go vernment and the state governments of Delhi, Haryana, Rajasthan and Uttar Pradesh on actions such as uniform Bharat Stage IV standards n ation-wide and tighter emissions standards, effective gap between diesel and CNG prices, lowe r taxes on buses, immediate introduction of dail y health alerts on air quality, uniform vehicle tax measures across NCR, effective increase in parking pricing and enforcement to cut car usage.

 

4.3.Noise pollution

 

The definition of ‘pollutant’ in the Air Act includes noise (sections 2(a)). The sources of noise pollution in India include microphones and loudspeakers used in religious ceremonies and public meetings, electric and air horns used in buses and trucks, fireworks.

 

The Environment (Protection) Rules empower the Central Government to p rovide maximum allowable noise limits for different areas. Accordingly, the MoEF has laid do wn Ambient Air Quality Standards in respect of Noise (Schedule III). The Central Government has also Notified the Noise Pollution (Regulation and Control) Rules, 2000 (amen ded in 2010) for ‘regulation and control of noise producing and generating sources’. The Rules specify Ambient Air Quality Standa rds in Respect of Noise for industrial, commercial, residential or silence areas/zones. Some of the other important features are:

 

The use of loud spe akers/public address system and sound produci ng instruments is subject to written permission.

 

The permissible noi se level at the boundary of a public place or a pri vate place, where a noise source is used, is prescribed.

 

The use of horns, so und emitting construction equipment and burstin g of firecrackers is prohibited in sile nce zones or during night time (i.e. between 10.00 pm and 6.00 am) in residential areas.

 

The Environment (Protectio n) Rules also include noise standards for fire-cra ckers, noise level standards for coal mines, as well as noise limits for automobiles and domesti c appliances and construction equipment at t he manufacturing stage and for generator sets r un with petrol or kerosene or diesel. Any violation of a rule issued under the Environment (Pr otection) Act is a punishable offence (section 12). Provisions concerning noise pollution are also included in local municipal laws and state-level police laws.

 

The issue of noise pollution has formed the subject matter of a number of cases before the Supreme Court of India as well as High Courts. In In re Noise Pollution– I mplementation of Laws for Restricting Use of Loudspeakers and High Volume Producing Souund Systems with Forum, Prevention of Envir onment and Sound Pollution v Union of India, (2005) 5 SCC 733, the Supreme Court observed:

 

…Any one who wishes to live with peace, comfort and quiet within his house has a right to prevent the noise as pollutant reaching him. No one can claim a right to create noise even in his o wn premises which would travel beyond his pre cincts and cause nuisance to neighbo urs and others…If any one increases his volum e of speech and that too with the assistance of artificial devices so as to com pulsorily expose unwilling persons to hear a noise raised to unpleasant and obnoxious levels, then the person speaking is violating the right of others to a peaceful, comfortable and pollution free, life g uaranteed by Article 21.

 

The Court then issued a nu mber of directions, which include the division of firecrackers into light-emitting and sound-e mitting categories. The Court also imposed a c omplete ban on bursting sound-emitting firecrackers and beating of drum or tom-tom or flo w of trumpet or beat or sound of any instrum ent of use of any sound amplifier between 10.00 pm and 6.00 am. In addition, the Court directe d the State Government to:

  • Seize loudspeakers and amplifiers making noise beyond permissible limit
  • Specify ambient air quality standards in different areas
  • Add a chapter in textbooks regarding ill-effects of noise pollution

 

4.4. Smoking

 

Cigarette smoke is also one of the causes of air pollution. The Cigarettes and Other Tobacco Products (Prohibition of Ad vertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 read with the Prohibition of Smoking in Public Places Rules, 2008 prohibits smoking in public places (where the public has access and includes workplaces, shopping malls and cinema halls) and open places that are visi ted by the public (such as open auditoriums, stadiums, railways stations and bus stops). However, hotels with more than 30 rooms, restau rants with more than 30 seats and airports are allowed to have a separate smoking area or spa ce.

 

4.5.Open burning of waste

 

The improper disposal of different types of waste (including municipal sol id waste, plastic waste, hospital waste, etc.) generated in urban areas is a major problem and the illegal burning of such waste contr ibutes to air pollution. Different types of waste are governed by different rules framed by the MoEF in exercise of the power conferr ed on it by the Environment (Protection) A ct. The Plastic Waste (Management & Handli ng) Rules, 2011, prohibit the open burning of plastic waste. Further, in response to a petitio n alleging illegal burning of plastic, rubber a nd related waste, which releases deadly dioxin s and furans, in various villages in north a nd north-west Delhi, the National Green Trib unal imposed a nationwide ban on ‘unregulated open burning of plastic/rubber or such otheer articles’ on 12 December 2013. The Draft Municipal Solid Waste (Management & Handling) Rules, 2013 also prohibit the open burnin g of municipal solid waste.

 

5. Summary

 

The extent and effects of air pollution on public health and the envir onment are well recognised in India. A numb er of legal measures have been introduced at thee Central level as well as within states, either in exercise of the powers conferred by the appl icable legislation or as a response to directions issued by the Supreme Court or High Courts. However, the command-and-control appro ach adopted by the existing environmental le gislation and the inadequacy of some of the e mission standards undermines their ability to arrest the problem. Further, while some of the measures contribute to alleviating the problem, their implementation is not always satisfactory. Nevertheless, concerned memb ers of the public continue to increase awar eness about the adverse effects of different activities on air pollution. They are also ex erting pressure on the government, either through lobbying or judicial proceedings, to impr ove the air quality.

 

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Weblinks

 

1. Greenspan Bell, Ru th, et al. “Clearing the Air: How Delhi Broke the Logjam on Air
Quality Reforms.” Environment 46, no. 3 (2004): 24-39 , available at http://www.indiaenv ironmentportal.org.in/files/Clearing%20the%20a ir.pdf.

2. Greenstone, Michael et al, “Lower Pollution, Longer Lives: Life Exp ectancy Gains if India Reduced Particulate Matter Pollution.” Economic and Political Weekly 50, no.8 (2015): 40-46, available at http://www.epw.in/system/files/SA_L_8_210215_Michael_Greenstone_0.pdf.

3. Rosencranz, Armin and Jackson, Michael. “The Delhi Pollution Ca se: The Supreme Court of India and t he Limits of Judicial Power.” Columbia Journal o f Environmental Law 28 (2003): 223 -254.

4. Veron, Rene. “Rem aking urban environments: the political ecology o f air pollution in Delhi.” Environment and Planning A 38 (2006): 2093-2109, available at http://isites.harvard. edu/fs/docs/icb.topic543017.files/Speaking%20Like%20a%20Sta te/Required/Veron.p df.