Civil Liability Tribunal for Environmental Damage

National Green Tribunal Bill that has been envisaged as a single tier Tribunal which is proposed to sit at 5 places initially so far as the powers of the Tribunal are concerned, these shall have the same powers irrespective of their location. Among other things the time frame of approaching the Tribunal is highly confusing and it has no power to stop damage to environment before it occurs.

Why should this Tribunal not have the power to act for the protection of environment, cancel environmental clearances if necessary and to provide incentives to individuals of civil society who are working as eyes and ears of nature and wildlife instead of penalizing them as is the case as of now? Why should it not have the power to issue contempt of court notices.

The 29 member Parliamentary Standing Committee on Science and Technology, Environment and Forests headed by Dr. T. Subbarami Reddy (Indian National Congress) submitted its report in late November, 2009 and had suggested 12 changes in the Bill of which the government has accepted ten and rejected two. This Parliamentary Standing Committee was constituted on 31st August, 2009. The committee presented its report on the Bill to the parliament on 24th November, 2009. The parliamentary committee errs in letting the Tribunal deal with only cases of civil nature excluding environmental crimes of criminal nature.

As per the report “The Committee feels that it would be in the interest of fairness if one year period to bar members of the tribunal from being employed by a company that appeared before them in the tribunal be extended to two years.” This is not sufficient; members of the Tribunal should be banned from taking assignments with the beneficiary company.

It is quite problematic that the Green Tribunal Bill only deals with the point sources of pollution ignoring non-point sources of pollution and fails to make companies criminally liable for their acts of omission and commission such as Bhopal's industrial disaster or any nuclear accident. The Bill does not have enough teeth to deal with corporate crimes among other things. This Bill comes in response to the 186th Report of Law Commission of India on the Proposal to Constitute Environmental Courts in September 2003. This report had noted, "the National Environmental Appellate Authority (NEAA) constituted under the NEAA Act, 1997, for the limited purpose of providing a forum to review the administrative decisions on Environment Impact Assessment, had very little work. It appears that since the year 2000, no Judicial Member has been appointed. So far as the National Environmental Tribunal (NET) Act, 1995 is concerned, the legislation has yet to be notified despite the expiry of eight years. Since it was enacted by Parliament, the Tribunal under the Act is yet to be constituted. Thus, these two Tribunals are non-functional and remain only on paper." The Green Tribunal Bill is meant to replace NEAA Act of 1997 and NET Act of 1995. Broadly, there are problems like restrictions on who can approach the Tribunal, appointment of experts, limiting the period of accountability, implicit threat to petitioners and exclusion of non-point sources of pollution.

Among the recommendations accepted by the government are notifying the tribunal for the Centre and all States and Union Territories simultaneously, parity between number of judicial and expert members on the tribunal. Another recommendation of the Parliamentary committee that the government has accepted is ensuring a balance between expert members and judicial members while taking a decision; to this end it had suggested that the number of expert members not exceed that of judicial members in a bench or sitting. The Cabinet Committee on Economic Affairs (CCEA) has not accepted the recommendation that every amendment to Schedule I of the Bill be voted by Parliament. The Parliamentary Committee has rightly argued that vesting the “such an overriding power in the Ministry undermines the supremacy of Parliament.” It had therefore recommended that “any basic change from the concept of the Bill should be done only through an amendment passed by Parliament and not by notification.” By not accepting this sane recommendation, the CCEA has once again belittled the significance Parliament and parliamentary committees. The power of subordinate legislation has consistently been misused by the CCEA despite the fact that institutional accountability of Bhopal and Kaiga like disasters rests with them. Civil Society groups support this recommendation of the committee.

Private companies who want to do business with India have been seeking a liability law that protects them. Foreign companies wanting to supply nuclear reactors and other equipment have been pressing India for the speedy passage of this crucial Bill. Indian government is required to make some changes in its Atomic Energy Act as well. In such a context, the report of the investigative commission appointed by US President Jimmy Carter immediately following the accident must be studied by the drafters of Green Tribunal Bill and the Civil Nuclear Liability Bill. President Jimmy Carter had appointed a 12-member commission which submitted its Report of the President's Commission on The Accident at Three Mile Island-The Need for Change: The Legacy of TMI in October 1979. It is advisable to learn from the blunders of the past.

The National Green Tribunal Bill and the Nuclear Liability Bill must take note of the environmental hazards from the nuclear facilities and potential nuclear accidents and incorporate stringent criminal and civil liability provisions taking lessons from worst accident at a civilian nuclear power plant in Three Mile Island (TMI) occurred on March 28, 1979 in US and the Chernobyl disaster, a nuclear reactor accident that occurred on 26 April 1986 at the Chernobyl Nuclear Power Plant in Ukraine.

This nuclear accident led to a cessation of new nuclear plant construction in the US. Indian government and the parliament must take lessons from these tragedies and accidents to avoid legislative and future judicial disasters through these Bills which does not have the power to prevent Three Mile Island, Bhopal, Chernobyl & Kaiga like accidents. These Bills must make special provision for transnational corporations and 64 heavily polluting industries in the Red category according to the Central Pollution Control Board. Parliamentary deliberations in countries like Canada and Germany on liability and nuclear energy issues in particular must be factored in before admitting any Bills under the influence from FICCI and other vested interests in supreme public interest.

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