Welcome To The Presentation.....

Presented by: আরণ্য�ক (৭৫-১০৬)

The Environment Conservation Act, 1995 & Rules,1997 : An Appraisal

Major features of

the Environmental Conservation

Act (1995)

and

the Environmental Conservation

Rules (1997)

Environment Conservation Act (1995)

Assistance from law enforcing agencies Polluters pay principle Formulation of environmental guidelines Claim for compensation by affected people Penalties for violation of project approval conditions Offences committed by proponents and action against

proponents Cognizance of offences and claim for compensation Power to make rules

Environmental Conservation Rules (1997)

Declaration of ECA Complaints by community to DG against non- compliance of

project approval conditions Power to collect samples ECC procedures with specified time limit Screening of both public and private projects Review of EIS’s No objection certificate from Local Government Appeal by proponents against order or directions from DOE Determination of environmental standards Fees for Environmental Clearance Certificate process

Weak Points of the Act’95 & Rules’97

Absence of International commitment in the Act:

In the Act, there is no mention of country’s obligation under

International law regarding ratification of many international

instruments on Environment conservation.

The Smoking and Tobacco Products (control) Act, 2005 in where

there is a specific mention of an international convention in

which Bangladesh is a party that is Framework Convention

on Tobacco Control (FCTC).

No constitutional obligation referred in the Act In the Act there is also no mention about state’s

obligation to conserve the environment as extended meaning of right to life is right to safe and healthy environment [ BELA v. Bangladesh & Others, 7 MLR (HC) (2002) 157 ].

In the Wildlife (conservation and safety) Act, 2012 , there is a specific mention about state’s obligation under Article 18A of the Constitution, about conservation and safety of wildlife of Bangladesh.

Frequent use of Non-Obstante Clause

Non-obstante clause is very common in our

contemporary legislation. There are many laws which

deal with conservation of environment. There are many

conflicting provisions among them. Lack of common

vision is absent in our present legal set up regarding

conservation of environment. Frequent use of such

clause will vitiate the object of all laws.

Lack of inquisitorial role

The whole functions of this institution is acquisatorial not inquisatoral

Lack of Independence

There is no specific provisions about appointment, tenure, remuneration and retirement or removal of all of the above are important for the independence of this institution.

No scale of qualification

No particular conditions or prerequisites to be affirmed before appointment of DG, Officers and Employees

Violation of rule of law

This Act conferred unlimited and unfettered powers of the DG. Conferment of such unlimited and unfettered powers to such Government authority or executive authority is violation of the first principle of rule of law.

Declaration of ECAPre-requirement of Govt.’s satisfactionNo standard measurement Allowing pollutionNo certain time for taking measure

the states shall apply every precautionary approach to protect environment (Principle 15 of Rio Declaration, 1992)

National interest???

Military infrastructure in CHT region is an evidence of hill destruction

In M. Farooque v. Bangladesh (49 DLR (AD) 1997, p.1: the legality of an experimental structural project of the huge Flood Action Plan (FAP 20) in Bangladesh was questioned on this point of national interest.

For ‘so called’ inevitable national interest, restriction on wetland may be relaxed!!!!

Compensation for environmental damage

How it will be determined???

Information to DG......

Only affected or likely to be affected person can inform the DG. Ignorance of proper knowledge and environment

consciousness.

Public hearing

No obligation of taking public hearing and no mention of impact of public hearing.Principle 10 of Rio Declaration, 1992:

Participation of concerned peopleOpportunity of every individual in making decision

Lack of operational guideline

Various operational rules for effective implementation of the Policy and Act would require complementary and detailed operational rules, many of which have not yet been formulated.

No specification of time to serve notice

A notice is to be given to the industry prior under Section 11(3) to entry but does not specify a minimum period of notice.

No clarification of continued non-compliance

The issue of frequency of fine to be imposed in case of continued non-compliance is not clear from ECA’95 & ECR’97.

Limiting the discretionary power of Judges

(Under Section-15)

Determination of maximum limit of fine.

Environment Clearance Certificate (ECC)

It is yet unclear what happens if DOE is unable to meet the timetable to granting the clearance certificate.

The Regulation do not specify the documentation required for renewal of the ECC.

No objection certificate of the local authority(Under Rule-7)

No guideline to follow No procedure for public participation and

hearing system

Environment Impact Assessment Inadequate to ensure environment sustainability at

the project level let alone promote environmental considerations at the strategic level.

Institutional capacityPublic participationNo specific guideline for non-industrial project (to

review & conduct assessment)No suggestion of alternatives (absence of Strategic

Environmental Assessment [SEA])

Environmental Quality Standard ( EQS)

The discharge standards fixed in the ECR’97 for industries are less stringent compare to the developed countries. Sugar {Rule 13 schedule 12 no.(B)}

Textile {Rule 13 schedule 12 no.(B)}

The Environmental Quality Standards (EQS) have been fixed with a view to promote & encourage industrialization.

Recommendations.......

Removal of ambiguities & lacunas in legal provisions.

Identification of functional & operational overlaping in laws & institutions.

Bottom up investigations to ascertain the success & failure of the laws.

Provisions for accountability of MoEF & DoE. No concern about natural disasters. Reflections of customs & traditions in the legislation.

Necessary amendment and/or enactment of laws, both substantive and procedural, to be made in phases either on sectoral or environmental issue basis. Legal improvement and capability of institutions involved in various sectors to be strengthened with detailed rules, sanctions and accountability.

The principle of ‘sustainable development’ require legal recognition.

People’s participation in environmental decision making and managing common or public properties must be ensured and protected by law.

‘Mobile Court’ can be delegated some powers to implement the conservation of environment relating laws.

Environmental education for all.

The EnD