Having evolved rapidly, in India environment law is a relatively new and challenging field. The term “Environmental law” is wide encompassing the entire gamut of statutes, treaties, conventions, regulations and policies aimed at protecting the ecology as well as preventing the degradation of natural resources. In the recent past, environmental law has become a devise for promoting “sustainable development”. Policy concepts such as the polluter pays principle, precautionary principle, public participation, environmental justice, et al have influenced several of India’s environmental law reforms, past and present. Additionally, environmental law has begun to be perceived as an integral and critical tool of environmental management, and rightly so. With damage to environment proving to be a major threat worldwide, scope of environmental law in promoting “development without destruction” is immense. As a natural corollary, today there is a demand for professionals who are willing to bring a turnaround in this area through their sheer effort. Given that the discipline is fairly new and still evolving, the gestation period can be long. Also be prepared to expend mental and physical energies in order to gain a foothold in this field.
Emergence Of Environmental Jurisprudence
In India, environmental jurisprudence has often been an uneasy mixture of variety of factors. Dichotomies like willingness to protect environment and lack of environmental awareness; tremendous legislative efforts and poor enforcement; gross violation of basic human rights and intense protest by stakeholders, paint a confusing picture of environmental law in India. The judiciary assumed a pro-active role in 1980s, and adopted an innovative approach by developing several procedural remedies accompanying the “environmental right”. Since then development of environmental jurisprudence in India has been hugely influenced by some of the most innovative judgments passed by the Apex Court. From 1980 to 2000, the Supreme Court dealt with a phenomenal variety of environmental problems and contributed significantly to the evolution of environmental jurisprudence principles in the country.
The seminal role played by environmental lawyers, activists, and NGOs in initiating the public interest litigation (PIL) in the field of environmental law has been phenomenal. In particular, contribution of M.C. Mehta, the lone environmental crusader post mid 1980s and through the 1990s, has been immense. This activism led to establishment of the following enduring principles for generations to come:
Undoubtedly the above list is not exhaustive and represents a fraction of environmental cases that have reached the Courts. There are more environmental issues in India which are yet to be included in the domain of PIL. Experts point out that climate change litigation is one such untouched area.
Environmental Litigation refers to practice of lawyers who actively take up the cause of environment protection and not merely act on behalf of violators. It involves enforcement of laws related to air, water and land pollution; conservation of wildlife; protection of environmentally protected areas; poaching and other related offences. While in the early years of environmental litigation, environmental lawyers typically represented NGOs and State Governments, today they are also representing leading companies in power and infrastructure sectors with regard to their environmental pre-positioning and strategy.
The mechanics of environmental litigation in India are explained by Veera Kaul Singh, Advocate-on-Record, (Supreme Court) & Ex-Director, Centre for Environmental Law, WWF-India, “Environmental litigation is effective at the Supreme Court and High Courts level since majority of cases are pursued as PILs. The District Courts tell a different story with high pendency of cases. In addition to District Courts, the High Courts and the Supreme Court, other fora of environmental litigation have emerged over the years. These include the newly constituted National Green Tribunal, National Environmental Appellate Authority, Central Empowered Committee. Interestingly, the Pollution Control Boards (PCBs), specifically PCBs of Maharashtra, West Bengal and Gujarat, are increasingly finding economic instruments like Bank Guarantees et al more effective than fling cases, which are time and money consuming.” This perhaps explains why PIL and environment related litigations have of late been on a steady decline.
It is widely felt that Environmental litigation in India is still not fully developed and that is because not enough importance is given to the fact that the practice of environmental law requires specialized knowledge and training, which lawyers dealing in other areas cannot do justice to. In the absence of an organized environmental law practice in India, generalist lawyers tend to take up environmental cases. Lawyers in this area face quite a few challenges, and thus need to be realistic about what lies ahead. To begin with, the opponents in environmental matters/cases are invariably corporates and/or government- both powerful and influential. Secondly, the judiciary, in particular the lower judiciary, is not fully equipped and trained to appreciate the gravity of the environmental issues. Lastly, the public opinion is not very conducive towards this branch of practice as environmental lawyers are often perceived to being opposed to development activities.
Practice Of Environmental Law: Broadening Horizons
With infrastructure, manufacturing and real estate sectors emerging as the key growth areas for India, the “environmental agenda” has undergone a dramatic change. Consequently, the practice of Environmental law is no longer confined to environmental litigation. It now encompasses corporate environmental issues ranging from impact assessment and clearance of projects; building consensus with key stake holders in large projects; and addressing international environmental issues focussing on climate change and carbon credits. In particular, assessing environmental and social impacts prior to setting up operations and obtaining environmental approval from the authorities is now mandatory in most project categories. Further, increased foreign investment in the country has led to increased scrutiny of environmental liabilities, past and current, associated with property transactions. Most of all, the increasing desire of India Inc. to conform to world class standards has meant that established Indian companies are beginning to promote sustainability initiatives as a means of improving their global brand and reputation.
Sudhir Mishra, leading environmental lawyer and a Senior Consultant with Fox Mandal, opines, “The subject of environmental law is going to gain more importance in coming years. The reason is that there is a direct connection between infrastructure growth and the rule and application of environmental laws. As and when the country will focus on promoting more infrastructure, conflict situations with regard to environmental laws will arise and a consequent need for environmental lawyers to interpret and define the environmental strategies of the corporate sector.”
An environmental lawyer, therefore, needs to analyse public policy, and understand the economics and science behind environmental protection. Environmental lawyers also have a critical role in imparting environmental law training to enforcement agencies, NGOs, and communities. Traditionally, the opportunities in this field have been with NGOs and Central and State Government bodies. Now-a-days, industrial establishments engage environmental lawyers to help them deal with legal and statutory clearances related to the environment. Similarly, corporate houses have also begun to seek advise on the entire gamut of environmental lawyering, including impact assessment, identifying environmental issues, dispute resolution etc. Options have also opened up in international environmental protection organisations like the WWF, Nature Conservancy, Sierra Club, Greenpeace. Essentially, these organizations work towards conserving biological diversity, ensuring sustainable use of renewable natural resources, and reducing of pollution and wasteful consumption.
Young lawyers interested in this area can also consider stints with NGOs which are doing credible work in conservation, sustainable development and related areas. As Veera Kaul Singh points out, “Environmental Law has emerged as an important area of law and apart from litigation, working with NGOs and research centres is also a viable option today.” For instance, MC Mehta Environmental Foundation is now synonymous with protection and conservation of natural resources by creating awareness among lawyers, scientists, academicians and students through training, seminars, workshops and other grass roots level activities. Similarly, the Centre for Science and Environment (CSE) has done noteworthy work by way of researching, lobbying and communicating the urgency of sustainable development. It has successfully raised concerns, participated in seeking answers and – more importantly –transformed these into policy through research and publications. Environmental Law Institute (ELI) is another NGO which has been playing an active role in shaping environmental law, policy, and management. It delivers impartial analysis to opinion makers, (including government, business leaders, academicians, environmental lawyers, and journalists) and advances practical solutions to environmental challenges through publications and policy research.
As far as law firms are concerned, traditionally the firms in India have lacked a strong environmental law practice. This scenario is now gradually changing with several law firms doing substantial work in infrastructure and power projects, both of which require addressing environment related issues. Some firms have begun to engage environmental law specialists as consultants in order to help them provide specialised advise in these matters.
In a nutshell, the future is promising as well as challenging for young lawyers who want to take up environmental law as a career. With the growth of country’s infrastructure and related sectors continuing, there are bound to be conflict situations with regard to environmental laws. Consequently, there will be a greater need for environmental lawyers to interpret and define the environmental strategies of the corporate sector. Similarly, litigation on environmental issues has flourished in India for more than three decades. Specifically, in the last decade High Courts and the Supreme Court have been faced with resolving disputes between corporate interests and environment protection. Sudhir Mishra advises, “If one wants to practice in environmental laws; then in the initial years one should take the exposure of litigation side as well as corporate side. This is because the world of environmental law involves both these fields. If you want to deal with issues connected with PILs, conflict issues with PCBs etc., then environmental litigation comes into play. And if you are looking at environmental impact assessment, environmental clearances etc, that comes under the domain of corporate environmental law”.
Richa Kachhwaha is Managing Editor at Live Law and you can follow her on Twitter.
*Note: This article had appeared earlier in Bar & Bench.