Ahmad Rafay Alam
The state of environmental regulation in Pakistan needs immediate attention. The World Bank published its strategic environment assessment of Pakistan in 2006. Its disclosures are startling. In Pakistan, environmental degradation is responsible for an estimated 45 million cases of respiratory diseases, 30,000 premature infant deaths and US$ 6bn in economic losses every year. The government of Pakistan, meanwhile, has disowned the report. The control over and stability of the environment are not thought of as important issues. This must change.
The basic legal document from which environmental regulation stems is the Pakistan Environment Protection Act of 1997. It creates the National Environmental Protection Council, a high-level body that’s responsible for things like approving national policy and setting basic environmental standards (called National Environmental Quality Standards or NEQs). It creates the Environment Protection Agency and gives it the power to enforce NEQs. Environmental Protection Agencies are also envisioned as the frontline environmental regulators at the provincial level. The Act also creates Environmental Tribunals to deal with circumstances where someone feels aggrieved by the actions of the EPA.
So far so good, but the system as set up doesn’t seem to be working. One can allocate responsibility with the Environmental Protection Council, which is supposed to meet twice a year, but which failed to meet even once between 2001 and 2005. Exhortations to “raise awareness” about the environment and common and obvious to just about everyone. They need not be made again here. Let us look towards other ideas for reform.
To begin with, the Federal EPA should be made totally independent. Currently, it is subservient to Ministry of Environment and the federal government. The DG of the EPA serves on terms and conditions agreed to by the federal government, his technical staff are appointed by them and there is even an advisory committee to “assist” the DG “in the discharge of his functions. . . .” On paper, there’s nothing wrong with this, but in practice it means that the EPA’s role is often circumscribed when the “official” approval has been given to someone or some project. For instance, if the government believes that this country’s energy future is secured by the coal fields of Thar, then it will be next to impossible for the federal EPA to fulfil its role in requiring best practices and facilitating sustainable development. As long as the Federal EPA is not fully independent, it cannot effectively take action against government sanctioned or backed projects. And as our government begins to come up with wild solutions to our problems, an independent body should exist that makes sure we don’t poison ourselves with pollution in the process.
Before I continue, let me make one brief clarification. Much time is spent debating the apparent conflict between development and progress on the one hand, and the restraints imposed by environmental regulation of business and industry on the other. Thankfully, our environmental legislation is not caught up in this specious debate. Nowhere does the legislation prohibit development. The only thing the Pakistan Environment Protection Act requires from a potential polluter is for them not to externalize the cost of their actions. When an industry pollutes as part of its production process, it’s fairly normal for it to forget about the cost of cleaning up the pollution. This cost is never factored into the cost of production. It is “externalized” and the eventual burden of the clean-up is thrust onto the shoulders of government that uses public funds – our money – to do the job. The purpose of our law is to impose fines on polluters that reflect the cost of cleaning up their waste. By enforcing such a fine and by calculating it correctly, our law simply forces polluters to take into account the cost of pollution as part of their process. The rest is left for the market and each individual industry to decide whether it can continue to bear this new cost of clean-up, whether it should invest in technology that will reduce its emissions and, therefore, this fine, or whether it should pack up and go into some other business.
It is suggested that the federal EPA be made financially independent by allowing it to impose and collect fines for violating NEQs and other environmental standards. If the EPA were more like the SECP, which pays for its expenses from the fines it imposes and collects, it would have teeth and would be taken seriously. At the moment, it is understaffed and finds even simple enforcement difficult. Also, only a small allocation is required to finance four laboratories in each provincial capital. These laboratories are crucial and necessary in enforcing the law and NEQs as they are the means to provide flawless and incontrovertible evidence of the nature and quantity of pollution being emitted by each violator. And more manpower can mean EPA officials need not fear for their life when they go out to seal polluting industries.
It is suggested that the role of the provincial EPA be clarified. At the moment, it’s difficult to tell where the role of the provincial government’s minister on the environment ends and where the jurisdiction of the provincial EPAs begins. It is suggested that the provincial EPAs be made answerable to the federal EPA alone and de-link it from the control that is exercised over it by the provincial government. Again, there is nothing wrong per-se with the provincial governments controlling the provincial EPAs, it’s just that theoretically, one likes to keep the judge, jailer and executioner separate from one another. At the moment, the provincial EPAs often carry out the commands of the provincial environmental protection departments. In practice this means government sanctioned or sponsored projects rarely get examined and made more sustainable or environmentally friendly.
One of the most glaring legal lacunas in the law is the lack of connection between the Environment Protection Act, 1997 and the local government legislation of 2001. Each district of Pakistan has an environment officer to carry out the responsibility of enforcing environmental laws, but this DO(E) is (quite often a) member of the DMG and is an agent, again, of the province or, at the very least, the district. He is not an independent environmental regulator. The reason this has happened is because the PEPA of 1997 is envisions a two-tier hierarchy in Pakistani governance (the federal and provincial levels) whereas the local government ordinance creates a third tier of governance at the local level. No one has yet sat down with a fine toothed comb and resolved how the provisions of the EPA can be integrated into a local government set-up. This needs to be done immediately.
These are not cosmetic suggestions. Each one of the recommendations made above requires amendments made in the law. This is a task for parliament. Parliamentarians need to be made aware of the great benefit environmental regulation can bring to them and their constituents. At the moment, on account of environmental degradation, we are suffering annually a catastrophe of the magnitude of the October 2005 earthquake.
A catastrophe like this cannot be treated by cosmetic efforts. Stop the junkets and conferences. Serious legislative initiative needs to be taken to save this country from itself.
The writer is an advocate of the high court and a member of the adjunct faculty at LUMS. He has an interest in urban planning. Email: email@example.com