Pollution control: Amendments to Water Act is a greenwashing attempt

The Union Ministry of Environment, Forest and Climate Change (MoEF&CC) proposed amendments to several environmental laws in July 2022, including the Water (Prevention and Control of Pollution) Act, 1974. The amendments aimed to reduce the burden of compliance and structuring funds, among others. 

The amendments proposed decriminalising environmental violations by bringing in stiffer penalties instead of imprisonment. The rationale was “to weed out the fear of imprisonment” for simple infractions, according to MoEF&CC. 

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Many environmental activists and lawyers argued against this move, as criminal proceedings are one of the few deterrents threatening violators. On the other hand, some environmental lawyers spoke for decriminalisation, as even with the criminal provisions, not many cases are registered under these acts. 

Two questions loom in this context. Considering that these amendments are passed, how will this impact governance and compliance? And secondly, will the new funds set up under the Act lead to the restoration of the damaged environment and improvement in the quality of waterbodies? 

Polluter pays should not become pay to pollute

The good news here is that the laws are being amended. The Water Act, in its current form, was passed in 1974. There have been no major amendments recently in the Act, apart from minor revisions in Water Act rules and two minor modifications in sections 78 and 88. 

This is striking since the country has seen rapid changes in urbanisation and industrialisation, and resultant pollution loads, over the past few decades. In contrast, Environmental Impact Assessment (EIA) 2006 has had 67 amendments to date.

It is also interesting to note that the proposed amendments are, in part, trying to undo the 1988 amendments that brought in stringent penalties like an increase in fines and imprisonment under section 41 of the Water Act. 

Since then, the quality of Indian waterbodies has drastically declined due to unfettered urbanisation and development. Many waterbodies have been lost or have shrunk considerably due to encroachment and pollution-induced eutrophication. 

Now, the question is, has the increase in fines, as proposed in the amendments, increased the cost of non-compliance over the cost of compliance? Have these new amendments raised the stakes so high that even polluters with enormous resources will be deterred from polluting due to high fines?

Although fines have increased, they are not high enough to deter polluters who have resources at their disposal, according to environmental lawyers. The upper limit for the penalties specified in the amendments is Rs 5 crore. It is also unclear how the penalties will be calculated as the revisions have not established a formula. 

The amendments have listed a set of factors, such as the population and the area impacted by the violation, the frequency and duration of the violation, etc, that must be considered for assessing the penalty. However, considering these factors alone may serve merely as compensation and not as a punitive deterrent. 

One way to ensure that the compensations have a punitive element is to consider the industry’s or establishment’s profitability, which violates the law. Comments from the public and policy professionals in response to the environmental amendments pointed out this lacuna and proposed alternatives. 

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Think tank Vidhi Centre for Legal Policy has proposed a three-tier model to assess the penalty amount.

It considers the history of violation, unlawful gains from the Act of pollution, and pollution clean-up cost for calculating the penalty. Thus, the proposed penalty has components of environmental compensation and punitive deterrents in addition to statutory penalties, which are prescribed by the laws. 

While reconsidering penalties is important, another point is that penalties must not become an excuse to pollute.

“These amendments mean that pollute and pay principle has effectively become pay and pollute principle. And that is why it is important that imprisonment must be a possibility at least for extreme and egregious cases,” noted an academician and legal policy scholar. 

Amendments must ensure transparency, not create more black boxes

One way these amendments can directly contribute to improving water quality is through remediation funds. The amendments have proposed creating a water pollution remediation fund from the penalties collected from the violators. 

While a part of the funds can be used for the purpose of compensation of affected parties, the rest is intended for restoration of the damaged environment, which in this case would be degraded water bodies. This then begs the question — how will these funds be utilised for restoring the environment? 

To understand this, let us look at the fate of funds previously collected from polluters for violations under the Water Act/AAir (Prevention and Control of Pollution) Act, 1981 and Environment Protection Act, 1986.

The penalties collected by the state pollution control boards under the water and air act are remitted to an account maintained by the boards. 

An RTI reply has revealed that no penalties have been collected under the Water Act for two years, from 2020-2022, in Kerala. This correlates with National Crime Records Bureau (NCRB) data, which shows that no cases have been filed under the Water Act over the past two years in the state. 

This is surprising, as this means that no violations of the Water Act have been reported over two years. This raises concerns about the state of enforcement and monitoring by the Pollution Control Boards (PCB) in the country. 

Assuming that in the future, enforcement and compliance improve with penalties collected as a water pollution remediation fund, can’t this be used to create water treatment infrastructure?

Not really. “We did raise this point of using the money for setting up common effluent treatment plants in some places,” said an environmental engineer from the Kerala Pollution Control Board.  

“However, the problem is that we as regulators cannot involve ourselves in the construction of sewage treatment plants and common effluent treatment plants. That is to be done by the district administration and state government,” the engineer added.  

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Earlier reports by the Planning commission and a recent one by the Centre for Policy Research also point towards the Pollution Control Board’s lack of autonomy in decisions regarding expenditure. The additional problem of conflict of interest arising from PCBs becoming implementing agencies while being regulators themselves means there is a lack of clarity on how the funds are being utilised. 

This lack of clarity often translates to funds remaining unutilised. The environment relief fund under the Public Liability Insurance Act, 1991 has a corpus of Rs 810 crore lying unutilised. Similarly, Rs 410 crore collected as Goa Iron Ore Permanent Fund (GIOPF) is also untouched. 

It is clear that what is needed is not new funds but a mechanism to ensure proper utilisation of the collected funds. If the amendments are to remain true to their stated intent, then the creation of more funds will not necessarily streamline fund management.

Way forward is institutional reforms over greenwashed laws 

Amendments are powerful tools to update laws to reflect the country’s changing social, economic, political, and environmental realities. But the current amendments to the Water Act are doing little to fulfil the objectives of the Act. 

While the ministry has specified the purpose of these amendments to remove the fear of imprisonment, in effect, these amendments make these laws greenwashed versions of their former self.

What is required to improve water bodies in the country is a focus on improving the enforcement and monitoring capabilities of the board.

Previous academic studies and studies by organizations such as Delhi-based non-profit Centre for Science and Environment and think tank Centre for Policy Research have already shown how the lack of personnel and resources affects the board’s functioning. What is essential is the institutional strengthening of PCBs and local governments. 

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As stated by a legal policy scholar, “If systemic weaknesses associated with the governance structure are not addressed, there is not going to be any benefit from any amendments. Because if they are not going to be implemented, what are the points of these amendments?”. 

India needs a robust monitoring and enforcement system that can detect and arrest pollution at the source.

So rather than creating inscrutable new black boxes and watered-down legislations, amendments must ensure strong, transparent, and accountable mechanisms that strengthen the policy and help it achieve its objectives.

Sruthi Pillai is a research scholar at the Centre for Technology Alternatives for Rural Areas, Indian Institute of technology, Bombay. She wrote this as part of the Smitu Kothari Fellowship by Centre for Financial Accountability

Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth

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