Abstract
India’s Environment is in a poor state. Even its sacred river, the Ganga, is plagued with over-pollution. Some actions were taken since the 1980s but none were entirely successful. It will be argued in this article that looking at the incentive structure laid down by environmental regulation could explain most of the failure while also offering some insights on how to improve things. More especially private enforcement will appear as an option to the failures of public enforcement.
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Notes
- 1.
Quoted by Anthony Acciavatti 2015, p. 18.
- 2.
Swami Paramarthananda 1996, pp. 2–6, p. 3.
- 3.
Central Pollution Control Board 2013.
- 4.
Actually, figures are different from one source to another. For the world bank, it is 600 million, for the Central Pollution Control Board, only 438 million (op cit).
- 5.
- 6.
360 millions of people in 1951 to 1210 millions in 2011 with an average growth rate of more 20% per decade.
- 7.
Which leads to an increase in water demand and quite often, the building of dams and new irrigations canals. According to a report from the International Water Management Institute (Amarasinghe et al. 2007), the production of water intensive crops is expected to grow by 80% between 2000 and 2050.
- 8.
Nehru’s purpose was to transform India from an agricultural country to an industrial one following a quite naive conception of economic development. Of course, no concerns regarding the resulting pollution emerged. Nowadays, 52% of the labor force is still employed in the agricultural sector.
- 9.
Which became a “water machine” transformed by and transforming the basin.
- 10.
Markandya and Murty 2000, p 1. Actually, the intention is not rebirth but the release from the cycle of birth and rebirth and being released into the Ganga could help for that.
- 11.
Shukla 2013.
- 12.
Other reports are giving the figure of 764 (https://nmcg.nic.in/pdf/Pollution%20Assessment.pdf).
- 13.
Pandey and Singh 2015.
- 14.
World bank figures (http://www.worldbank.org/en/news/feature/2015/03/23/india-the-national-ganga-river-basin-project). Nevertheless, it is extremely difficult to understand this figure: is it regarding a volume? A dangerosity? A mass? This question is all the more important than it explains why Ganga Actions Plans focused much more on the problem of sewage than other problems.
- 15.
McKenzie and Ray 2004.
- 16.
Asthana and Shukla 2014, p. 121.
- 17.
Total coliforms organisms per 100 ml 500 or less; PH between 6.5 and 8.5; dissolved oxygen of 5 mg/l or more; Biochemical oxygen demand of 3 mg/l or less (Central pollution control board). It is possible to note that heavy metals concentrations are not taken into account which is of course a major flaw in this definition.
- 18.
Like the Kali river which is now very polluted; it will then be possible to wonder if this is not an adverse effect of the GAPs.
- 19.
Since 75% of the pollution load was untreated municipally sewage and 88% of this untreated municipally sewage came from 25 major cities, it appeared logical to build sewage treatment capacity.
- 20.
Marakandya and Murty 2000, p. 3.
- 21.
Ganga is in the top 10 of the most polluted rivers on earth.
- 22.
Through the international bank for reconstruction and development (IBRD) – which is the formal name of the world bank – and the international development association (IDA).
- 23.
- 24.
Ibid.
- 25.
The difference with the 4000 million is the results of tributaries and towns. Once again, it is quite difficult to obtain methodologies that were used to obtain these data. For the whole India, the total wastewater general for major cities and cities is estimated to 38,250 million liters per day with a treatment capacity of 11,787 million liters per day (Control of urban pollution series (CUPS/70/2009–2010).
- 26.
Performance Audit Report 2011–2012.
- 27.
Because marginal social costs are higher than marginal private costs.
- 28.
Colopy 2012, p. 27.
- 29.
- 30.
Asthana and Shukla 2014, p. 100.
- 31.
402 is the figure appearing in Astana and Shukla 2014, p. 102. The figure is the same given by National Geographic 2013, which nevertheless mentioned that 70 had been shuttered down. A recent figure give the number of 354 (http://uppcb.com/inventory2010/5_kanpur_nagar.pdf). The situation is nevertheless quite problematic since these tanneries are operated by non Hindus (and mostly Muslims) so that it is necessary to remain extremely careful regarding actions and figures.
- 32.
Asthana and Shukla 2014, p. 85.
- 33.
The productivity of irrigated lands in India is around 2.5 tons/ha while rainfed lands reach only 0.5 tons/ha.
- 34.
They contribute to irrigation for 10% to 30% according to some estimates.
- 35.
Ministry of Environment and Forest. 2009, p. 107.
- 36.
- 37.
Biswas et al. 2009, p. 131.
- 38.
World Bankdata, http://data.worldbank.org/indicator/SP.POP.GROW.
- 39.
See the World Bank data : http://data.worldbank.org/country/india. The national population policy in 2000 recognized an unmet need for contraception.
- 40.
- 41.
- 42.
Bhagat 2011, pp. 10–12.
- 43.
For consumption needs.
- 44.
Through the development of markets (both for production and for consumption).
- 45.
Gupta and Deshpande 2014, pp. 1216–1224.
- 46.
McKenzie and Ray 2004.
- 47.
Which are expected to double by 2050 according to some studies, http://www.iwmi.cgiar.org/Publications/IWMI_Research_Reports/PDF/PUB123/RR123.pdf, p. 9.
- 48.
The Ministry of Environment and forest 2009, noted that “There is a strong bias towards adding physical infrastructure rather than providing financially and environmentally sustainable services”. The same diagnostic appears Asthana and Shukla 2014, p. 105: “the demand for augmenting water supplies is so pressing that sewage automatically occupies a lesser priority” which simply reflects, once again, an incentive problem to find a solution.
- 49.
Op cit, p. 4.
- 50.
Ministry of Environment and Forest 2009, p. 107.
- 51.
Biswas et al. 2009, op cit, p. 161.
- 52.
See also the figures in http://www.iwmi.cgiar.org/Publications/IWMI_Research_Reports/PDF/PUB123/RR123.pdf, p. 2.
- 53.
http://www.iwmi.cgiar.org/Publications/IWMI_Research_Reports/PDF/PUB123/RR123.pdf, p. 7. Indeed over the last 20 years, the increase in net irrigated areas comes from groundwater for 84% and only 16% from canals.
- 54.
Asthana and Shukla 2014, p. 90.
- 55.
For example, Baldwin et al. 2012.
- 56.
This is the famous coasean solution. The problem is not to solve all externalities, just inefficient ones considering the costs implied to solve them.
- 57.
For example, Kathleen Segerson 1988, pp. 87–98.
- 58.
For some problems, see Dixit 2007. These alternatives mode of governance are often disregarded despite their efficacy. See also Ellickson 1988.
- 59.
- 60.
This is the traditional pigovian solution for internalizing externalities.
- 61.
“Little or no financial incentive exists for businesses to exceed their control targets, and both technology-based and performance-based standards discourage adoption of new technologies” (Stavins 2001, p. 2).
- 62.
“when properly designed and implemented, market-based instruments allow any desired level of pollution clean-up to be realized at the lowest overall cost to society, by providing incentives for the greatest reduction in pollution by those firms that can achieve these reductions most cheaply” (Stavins 2001, p. 2).
- 63.
See for example OECD 2008.
- 64.
Because the practice in question might not be efficient. Regarding water, many are considering that dry toilets are way better from an environmental point of view.
- 65.
If an only if transaction costs are also taken into account.
- 66.
Murty et al. 1999, p. 43.
- 67.
- 68.
In that they want the water to be clean but without doing anything for that.
- 69.
More severely, one author noted: “Complaints that things “on paper” are not carried out in ground realities can be heard today in casual conversation in any Indian city or village” (Alley 2002, pp. 164–165).
- 70.
See for example Markandya and Murty 2000, especially chapter one with the presentation of major river clean up programmes (for the Thames, the Rhine and the Danube).
- 71.
Gargan 1992.
- 72.
Meta 2009, p. 33.
- 73.
‘The Water (Prevention and Control of Pollution) Act, 1974, clause 16 (1).
- 74.
Sub-clauses (1) and (2) of clause 3 of The Water (Prevention and Control of Pollution) Act, 1974.
- 75.
- 76.
Article 246 of the Constitution.
- 77.
Indeed, this article is included in part IV which is dealing with “directive principles of state policy”. It is then not enforceable as such but could be used when interpreting some legislative dispositions. This has been made clear by article 37: “The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”
- 78.
1974 Water Act, section 19.
- 79.
Asthana and Shukla 2014, p. 183.
- 80.
According to the 1974 Water Act, clause 4.
- 81.
1974 Water Act, section 5 (3).
- 82.
1974 Water Act, section 17 (1)(k).
- 83.
Section 25 of the Water Pollution and Prevention Act of 1974.
- 84.
Section 33(A) of the Water Pollution and Prevention Act of 1974.
- 85.
- 86.
OECD 2006, p. 16.
- 87.
For a detail evolution of the financing of the political life, see Gowda and Sridharan 2012, pp. 226 et seq. See also the Background Paper on Political Finance and Law Commission Recommandations.
- 88.
- 89.
Kapur and Vaishnav 2011, paper 276.
- 90.
And they have been leading to many inefficiencies: “As the Ganga Pollution Cases suggest, the Central and State Pollution Control Boards created under the Water Act were not thoroughly performing their regulatory functions. In an atmosphere of loose monitoring, industries were allowed to slip in their compliance to environmental regulations and court orders” (Alley 2002, p. 173).
- 91.
Gupta and Priyadarshini 2003, pp. 9–26.
- 92.
1 paise = 1% of a rupee.
- 93.
- 94.
Rajaram and Das 2008, pp. 56–69.
- 95.
Alley 2002, p. 161.
- 96.
- 97.
http://www.cpcb.nic.in/Industry_Specific_Standards.php. All indian regulations can be downloaded in a single document: http://www.cpcb.nic.in/NewItem_19_PollutionControlLaw.pdf.
- 98.
The Environment (Protection) Rules, 1986, Section 3, subsection 2.
- 99.
Quite recently the regulation was reshaped for thermal plans to include an output dimension.
- 100.
The Water (Prevention and Control of Pollution) Cess Act, 1997, Subsection 2A of Section 3.
- 101.
Gupta et al. 1989.
- 102.
The Water (Prevention and Control of Pollution) Cess Act, 1997, Section 16.
- 103.
Section 6.
- 104.
Alley 2002, p. 174. The author adds “while it would be difficult to prove the truth of any of these allegations, it is worth listening to them to understand the various interpretations citizens provide about the successes generated through institutional disjunctures”.
- 105.
These provisions were the result of the Water (Prevention and Control of pollution Amendment) Act of 1988.
- 106.
- 107.
Alley 2002, p. 175.
- 108.
Water (Prevention and Control of Pollution) Act, 1974, section 25, subsection (4) (a) (iii).
- 109.
OECD 2006, p. 16.
- 110.
Water (Prevention and Control of Pollution) Act, 1974, section 25, subsection (4) (b).
- 111.
Central Pollution Control Board 2013.
- 112.
Central Pollution Control Board 2013, pp. 43–45.
- 113.
Most of them are reducing the BOD and COD regarding the outlet. One is Varanasi is succeeding is having an inlet of BOD that is superior to the inlet.
- 114.
Which makes wonder the meaning of “independent”.
- 115.
The framework is presented in detail in a document made available online : http://www.moef.nic.in/sites/default/files/ngrba/NGRBA_Framework.pdf. The document is 233 pages and it is often quite obscure. The purpose of this article is not to enter into the full details of it.
- 116.
For an overview of the structure before the launch of the NGRBA, see Alley 2002, chap. 8.
- 117.
This situation could also explain why solid waste pollution did not really attract much attention. After all, if sewage treatments imply big infrastructure and a huge flow of money, it is not the case for structures dealing with solid waste; it is to be expected that with the raise in the money required to deal with solid waste, incentives will lead to a change in that matter.
- 118.
This solution appeared unfortunately quite often regarding loans made to “developing countries” to insure their development. A detail presentation of this problem can be found in almost any Easterly books.
- 119.
Alley 2002, p. 260, noted: “It is also possible that industries were the first to set this precedent for behavior, especially for the practice of paying off government officials to avoid compliance to regulations and procedures. Whoever started it, the practice now locks together the interests of industrialists and government regulatory officials and creates a nexus so strong that the most stringent court orders cannot break it. In fact, as this case shows, court orders may strengthen that nexus by giving it the impetus for collecting fees that allows noncompliance”.
- 120.
Power failure are sometimes reported but it is getting better and better. In Kanpur, a journalist report: “The electricity supply is continuous as there is a separate feeder available but only the educated few bring bodies here” (http://timesofindia.indiatimes.com/city/kanpur/No-takers-for-electric-crematoriums/articleshow/45994961.cms) which mean that indeed power failures have to be taken into account but also that culture is really important. See also Asthana and Shukla 2014, p. 103.
- 121.
Singh 2015.
- 122.
- 123.
For example Jayashree Nandi, Electric crematoriums should be shut.
- 124.
For example Sharma 2007, p. 47.
- 125.
And culture is believed to be the main reason for open defecation according to Coffey (Coffey 2014).
- 126.
- 127.
For a detailed analysis, see Kapur 2013.
- 128.
Kapur 2013, p. 15.
- 129.
Alley 2002, pp. 160–161.
- 130.
Ministry of Environment and Forest, Report of the Task Force to Evaluate Market Based Instruments for Industrial Pollution Abatement, 1997.
- 131.
- 132.
This absence of consideration for “social justice” was criticized when the NWP was released.
- 133.
Asthana and Shukla 2014, p. 169.
- 134.
- 135.
- 136.
- 137.
Some obligations also exist concerning public authorities and how they should store information and documents (chapter II of the right to information act).
- 138.
48 h if the information is concerning the life or liberty of a person.
- 139.
- 140.
- 141.
- 142.
Through the National Green Tribunal Act, http://www.greentribunal.gov.in/Writereaddata/Downloads/NGT-fin.pdf. The National green tribunal developed its own website: http://www.greentribunal.gov.in/.
- 143.
National environment tribunal act.
- 144.
National environment appellate authority act.
- 145.
National Green Tribunal Act, preamble.
- 146.
The question remains regarding the way to interpret the “in consultation with”.
- 147.
“No application for adjudication of dispute under this section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose” (Chapitre III, 14 (3)).
- 148.
Using other tools than Public interest litigation.
- 149.
In State of Uttaranchal v Balwant Singh Chaufal and Ors 2010 3 SCC 402, the supreme court held that: “The Courts’ directions have immensely benefited marginalised sections of the society in a number of cases. It has also helped in protection and preservation of ecology, environment, forests, marine life, wildlife and so on. The court’s directions to some extent have helped in maintaining probity and transparency in the public life”. It is then doubtful that it will not allow the NGT to follow the same path.
- 150.
http://www.thehindu.com/news/national/green-tribunal-does-not-have-powers-to-act-suo-motu-says-govt/article5118106.ece; for example Suo Moto Application n°56 of 2013. Nevertheless, this suo moto is linked to PIL. Without an effective procedure to insure the same results, it is doubtful that the NGT will not continue to use this power.
- 151.
The solution presented here are not very different from the logic presented by Steven Shavell (Shavell 1993, pp. 255–287).
- 152.
- 153.
COM(93)47fin Commission Communication to the Council and European Parliament on remedying environmental damage.
- 154.
Law Commission of India 2003, p. 10.
- 155.
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Lanneau, R. (2017). Incentives Matter for Depolluting Rivers: The Case of the Ganga. In: Mathis, K., Huber, B. (eds) Environmental Law and Economics. Economic Analysis of Law in European Legal Scholarship, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-50932-7_10
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