AIR POLLUTION LAWS AND ENVIRONMENT

AIR POLLUTION LAWS AND ENVIRONMENT <!--[if gte mso 10]> AIR POLLUTION LAWS AND ENVIRONMENT By Rehan Rauf, Advocate, Lahore Introduction There are four well-known elements of universe such as air, water, soil and fire. These elements are not only the elements but are blessings of God Almighty. Human life cannot exist without air particularly. To retain life on the planet it is necessary that air must be free of pollutant elements. In modern times, especially, in developing countries air pollution has become a great threat to existence of life. In developing countries specially Pakistan, there is a simmering problem of air pollution, turning irremediable day by day. There are various sources of air pollution such as industrial emissions, vehicular pollution, open incineration of garbage and thermal power generation etc. Industrial emissions have become a major area of concern in developing country. We are unaware that we are inhaling polluted air directly in our lungs, which includes soot, smoke, dust, hazardous gases and radioactive substances dangerous to life and its existence. The rapid and unplanned urban growth and its attachments including old vehicles emitting smoke has led to deterioration air quality. The major towns in Pakistan have become themselves an environmental problem. At National, International and Regional level various laws have been made prohibiting air pollution, to achieve National Environmental Quality Standards (NEQS). Pakistan is a party and signatory to the International Laws relating to prohibition of air pollution. It even has made Special Law relating to environmental matters known as Pakistan Environmental Protection Act, 1997. Under PEPA, various institutions and Environmental Protection Agencies have been established with view to diffuse issues relating to environments, particularly air pollution. Special laws have been made and various agencies are established, aiming to harness the problems but availing very little. Constitutional Reference Unpolluted Air is the Fundamental Right of every citizen of Pakistan. And this fundamental right contained in Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan. Article 9 interpreted in Shehla Zia's case and Court declared that every citizen has the right to unpolluted environment and clean atmosphere and court decided that right to life means right to particular quality of life. General Laws. Following are few general laws relating to prohibition of Air Pollution:-- (I) Section 33-Q of The Factories Act, 1934 allows the Provincial Governments to establish rules for factories whose operation exposes person to serious risk of bodily injury, poisoning, or disease. (II) Pakistan Penal Code, 1860 has two Sections dealing with Air-pollution. Section 268 deals with Public Nuisance and section 278 imposes a fine of Rs. 1500 on any person, who voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of other person in general. (III) Other laws. Following are other general laws on prohibition of Air-pollution. (i) Motor Vehicles Ordinance, 1965. (ii) Motor Vehicles Rules, 1969. (iii) The Punjab Prohibition of Smoking in Cinema Houses Ordinance, 1960. Special Laws Special law, which prohibits Air-Pollution in excess of the National Environmental Quality Standards, is Pakistan Environmental Protection Act, 1997 (PEPA). Its following provisions deal in this regard:-- (I) Section 2(iii) of PEPA defines 'Air Pollutant' as "any substance that causes pollution of air and includes soot, smoke, dust particles. Odor, light, electro-magnetic, radiation, heat, fumes, combustion exhaust, exhaust gases, noxious gases, hazardous substances and radioactive substances". (II) Section 11, of PEPA describes that " No Person shall discharge or emit or allow to discharge or emission of any effluent or waste or air pollutant or noise in an amount, concentration or level which is in excess of the National Environmental Quality Standards. (III) Section 15 declares (1) subject to the provisions of this Act and the Rules and Regulations made there under, no person shall operate a motor vehicle from which air pollutants or noise are being emitted in an amount, concentration or level which is in excess of the National Environmental Quality Standards, or where applicable the standards established under clause (g) of subsection (1) of section 6. (2) For ensuring compliance with the standards mentioned in subsection (1), the Federal Agency may direct that any motor vehicle or class of vehicles shall install such pollution control devices or other equipment or use such fuels or undergo such maintenance or testing as may be prescribed. (3) Where a direction has been issued by the Federal Agency under subsection (2) In respect of any motor vehicles or class of motor vehicles, no person shall operate any such vehicle till such direction has been complied with. Relevant National Case-Laws The case laws relating to prohibition of Air Pollution are as under: (I) Writ Petition No. 9297 of 1991, United Welfare Association Lahore, against Lahore Development Authority In 1991, United Welfare Association Lahore filed a Writ Petition in the Lahore High Court, against Lahore Development Authority and the proprietors of some asphalt plants. The intervention of the Court was sought for getting certain asphalt plants removed from their sites in Lahore on account of serious health hazard they were posing for the residents. Dr. Justice Nasim Hassan Shah comments on this case. "The Anxiety felt by the Court hearing this complaint is manifest from the order it passed on 15th October, 1991. Herein after noticing the contention of the petitioner it not only called upon the Lahore Development Authority to answer the allegations contained on the petition but also requested a renowned environmentalist namely Dr. Parvez Hassan, Advocate to visit the area "to verify the complaint made and then suggest to the court the measures to be adopted". Dr. Parvez Hassan visited the area and reported to the Lahore High Court that:-- The air-borne pollutants, from the operational activity of the plant, are disperses over a large area.Aand that these pollutants were emitting toxic substances like sulpher dioxide, nitrogen oxides, hetrocylic compounds and hydrocarbons besides colossal quantities of air borne fine dust emitted through the crush unloading at the site and during its processing at the plant. Dr. Parvez Hassan recommended to the Court that: The continued operation of these plants is inconsistent with the rights of the adjoining residential areas to a clean and healthy environment. The residents are continually exposed to the obnoxious fumes and the potential health hazards unleashed by these asphalt plant. These should be removed from the site and relocated in areas where there is no danger to the environment. Even at the relocated sites, activities of the plant should be monitored with a view to minimize the impact of their environmental degradation. As a result of this report, the Director-General, LDA passed order for the shifting of the asphalt plants. (ii) Pakistan Chest Foundation and others vs. Government of Pakistan, 1997 CLC 1379 In this case the petitioner's case was that the Pakistan Television Corporation and Pakistan Broadcasting Corporation are regularly advertising different brands of cigarettes in the country for and on behalf the various Tobacco Companies through alluring commercial, to promote and increase the sale of cigarettes in the country. The petitioner sought a direction from the Court that these two organizations be restrained from promoting tobacco products and endangering human life. Addressing the issue of locus standi the Lahore High Court held that a public interest litigation can be initiated by a public spirited person who may feel the wrong done to him and others or it may be initiated on or on behalf of a voluntary organization or association which have dedicated themselves to work for and protect the rights of the people on particular fields. Such persons, bodies or associations cannot term as unconnected person with the causes involved. The High Court relied upon the Shehla Zia's case, which had explained the scope of "life" as envisaged in Article 9 of the Constitution of Pakistan. It held that by applying the principle of law as enunciated in Shehla Zia case to the facts and circumstance of the present case, the citizens of this country and particularly the younger generation are entitled for protection of law particularly from being exposed to the hazards of cigarette smoking. A direction was issued by the High Court, banning the cigarette advertisement after a period of three years on Pakistan Television Corporation and Pakistan Broadcasting Corporation before this period the advertisements shall not show the actual act of smoking and the same is to be followed by a proper warning. (iii) Abdul Qayyum vs. DG, EPA, 1999 PLR 640 The petitioner, in this case filed a writ petition against the Environmental Protection Agency (EPA) because of noise and other emissions from the industrial units in their residential area. The petitioners have approached the EPA several times to control the pollution by utilizing their power under PEPA but EPA failed to do so. The Court while disposing of the petition held that the provisions of the PEPA do show that the same are comprehensive and the agencies and authorities created under the Act have also given the powers to lay down the necessary standards as also to enforce the same by invoking penal provisions in accordance with law. While the EPA in its comments has claimed that it has recommended shifting of industries, it is failing to prosecute the offender in the event of its reaching the conclusion that the discharges and emissions are not lawful or more than prescribed. Therefore, the court issued a mandamus direction to the EPA to deal with the matter in accordance with the provisions of the PEPA. (iv) Anjum Irfan v. LDA and others, PLD 2002 Lahore 555 In February, 2001 the Lahore High Court appointed Dr. Parvez Hassan as the amicus curiae to assist the court in the Writ Petition, Anjum Irfan v. LDA and others. Dr. Parvez Hassan filed certain proposals for controlling Vehicular and other Pollution in Lahore. And, on 14th June, 2002 the Lahore High Court in its detailed judgment, citing the Shehla Zia's case, directed the Government to frame rules and regulations to ensure a strict implementation of the Pakistan Environmental Protection Act, 1997, to combat the menace of Air, Water and Noise Pollution. The Court suggested that new industries must be compelled to install devices used for checking and controlling pollution. The court further suggested various measures for combating pollution which included efficient utilization of solar energy, more implantation of trees, introducing electric railcars, the role of the media in creating awareness among the masses and the proper coordination between the concerned departments. (v) Pollution of Environment caused by Smoke Emitting Vehicle, Traffic Muddle H.R. No.4-K of 1992, 1996 SCMR 543, the Supreme Court passed interim order for taking effective and remedial measures in order to streamline the process of checking as a first step in eliminating the air and noise pollution from Karachi. In order to streamline the process of checking as first step in eliminating the pollution caused by the smoke emitting vehicles, the following interim order was passed by the Supreme Court:-- (a) A minimum of two mobile checking per week per district for, at least 2-1/2 hours' duration should be arranged in terms of the earlier order, which is being practiced. Henceforth the Honorary Magistrate appointed by the Provincial Government with the approval of the Chief Justice, High Court of Sindh, be associated with the checking team and if S.T.Ms are not available, the honorary magistrate shall try and dispose of summary cases at the time of checking. (b) The monthly schedule of the mobile checking shall be issued by the S.T.M. or any person authorized by the Commissioner without mentioning the checking location, which shall be decided by the checking team at the time of starting the checking on that day. (c) A weekly report of such checking shall be issued by the S.T.M./Honorary Magistrate to the C.P.L.C., Central Reporting Cell, which shall compile the same and submit a consolidated report with comments and suggestions to the Assistant Registrar, Supreme Court Karachi after every three months. (d) A report shows that M.T.C. Government vehicles including Police vehicle and certain "marked" private transport vehicles are not challaned. This discrimination should end and all vehicles irrespective of their owner/driver should be brought to book in case they violate the law. On query what is meant by "marked" transport private vehicle it was disclosed that these vehicle bear a particular mark, inscription, insignia or certain words which are understood by certain persons involved with the traffic checking and they just allow them to pass without checking that they belong to influential persons. This is a deplorable attitude. The authorities concerned are directed to check vehicles irrespective of fact whether they are marked or not, but if this policy of not challaning marked vehicle persists, the representative of C.P.L.C. associated with the checking team should note down the number of such vehicle and report it to the C.P.L.C. reporting center which shall forward it to the Assistant Registrar, Supreme Court, Karachi. (e) Motor vehicle inspection Procedure should be totally overhauled and every week, D.I.G., shall obtain the particular of such vehicles to which fitness certificates have been issued by Motor Vehicle Rules. And forward them to C.P.L.C., Central Reporting Cell that shall submit with comments to the Assistant Registrar, Supreme Court Karachi, along with the quarterly reports. As regards noise pollution following interim order is passed:-- (i) As required by the Provincial Motor Vehicles Ordinances the concerned authorities should ensure that the motorcycle rickshaws are not allowed to ply without silencers. It has been pointed out that there has been a practice in Karachi that the Silencers are not fitted in the motorcycle rickshaws. Such practice, however, cannot override the provisions of the law, particularly rules 155 and 158 of the Motor Vehicles Rules, 1969. In the existing circumstance, all the persons owning or plying motorcycle rickshaws should be given one month's time to get the silencers fitted in their 'motor cycle rickshaws. A wide publicity should be made through press, radio and television. Such notices should be displayed at public places. After expiry of one-month action shall be taken against motorcycles rickshaws plying without silencers. (ii) Many vehicles are found with fitted pressure horns or multi-tone horns giving unduly harsh shrill loud or alarming voice. Rule 154 of the Motor Vehicles Rules, 1969 prohibits fitting of such horns. The practice seems to be that such vehicles are challaned and pressure horns are disconnected or seized by the police. However, in order to make it more effective whenever any authority seizes such horns, it should deposit it with Central Nizarat situated opposite Civic Center, Karachi. (vi) Shah Mehmood v. Additional Session Judge, 1998 P.Cr.L.J 1987 The Lahore -High Court ordered to remove diesel engine operated "Chaki" in a crowded population without obtaining a license. The court further held that the petitioner had not legal right to cause discomfort and health problems to inhabitants of the locality for earning his livelihood even such like small units could not be permitted to operate in residential area. (vii) Islam Hussain v. City District Government and others, 2007 CLC 530 In this case petitioner prayed that direction be issued to City District Government for taking immediate action against noise/smoke pollution caused by vehicles in the city as well as removal of illegal bus-stand etc. right to enjoy an unpolluted atmosphere and breath clean air was a fundamental right of every citizen of the country wherever he might be which was guaranteed by Constitution under its Article 9, being a right to life. Deputy Inspector- General of Police (Traffic) was directed by the High Court to ensure that no smoke emitting vehicle or causing noise pollution should ply in the city and to take action against those vehicles which did not have any plate in accordance with section 115 of Provincial Motor Vehicles Ordinance, 1965. Deputy Inspector-General of Police (Traffic) would have full authority to impound any vehicle/rickshaw which was found to ply in the city while emitting smoke and noise. (viii) Mansoor Ali Shah v. Government of the Pun jab, PLD 2007 Lahore 403 In this case petitioners asserted that air pollution caused by vehicular emissions had severely affected human life, causing various diseases to citizens; that under Rule 163 of Provincial Motor Vehicles Rules, 1969, the owner of vehicle was required by law to properly maintain vehicle so that it did not cause damage or annoyance to any other person or property or endanger safety of any other user of road and was to be fitted with efficient appliance for the purpose of preventing emission of sparks or grit etc; that Regional Transport Authority was issuing Fitness Certificates to transport vehicles which did not meet required standards and that respondents were to be directed to act in accordance with law so as to arrest growing problem of Air-pollution. Court constituted a Commission to study and analyze the increasing problem of vehicular air pollution and formulate a solution. Commission accomplished task assigned to it and its recommendations had thoroughly been examined, by Federal as well as Provincial Government besides other stake-holders. Pakistan had signed certain international treaties for protection of ozone layer and environment. Besides international treaties, perseverance and protection of dignity of man was fundamental right of citizens which was guaranteed under Article 14 of the Constitution. Article 9 of the Constitution protected life of citizens and where life of a citizen was degraded, quality of life was adversely affected and health hazards were created affecting large number of people, the same amounted to deprivation of life which was prohibited by Articles 9 and 14 of the Constitution. International Laws There are also international laws, which prohibit air pollution, and these laws contain measures to control and reduce air Pollution in excess of the National Environmental Quality Standards. Following are few International laws in this regard. (i) Kyoto Protocol (ii) Import and Export Policy 2007 (iii) Others. International Leading Case on Air Pollution Following is the International leading case-Law on air Pollution. 1937 Trail Smelter Case (TRAIL) CASE NUMBER: 128 CASE MNEMONIC: TRAIL CASE NAME: Trail Smelter Case/1937 1. The Issue The Consolidated Mining and Smelting Company Limited of Canada operated a zinc and lead smelter along the Columbia River at Trail, British Columbia about 10 miles north of the international boundary with the State of Washington. In the period between 1925 and 1935, the U.S. Government objected to the Canadian Government that sulfur dioxide emissions from the operation were causing damage to the Columbia River valley in a 30 mile stretch from the international boundary to Kettle Falls, Washington. The two governments resorted twice to legal arbitration, once from 1928 to 1931 and again from 1935 to 1941, in an attempt to resolve the dispute. The outcome of each decision involved some payment by the Canadian Government for damages caused to the State of Washington. The latter decision also prescribed a set of operational guidelines under which the smelter at Trail should conclude its operations for at least a year-and-a-half. The main concern of the United States was that the smelter's sulfur dioxide emissions were harming the land and the trees of the Columbia River Valley which were used for logging, farming, and cattle grazing; the three industries crucial to the area. The main species affected were yellow pines, Douglas firs, larch, and cedar. Affected harvests included alfalfa, wheat, and oats. 2. Description In 1896, a smelter located in Trail, British Columbia, began operating under American ownership. However, in 1906, the Consolidated Mining and Smelting Company of Canada, Ltd. bought the smelter plant in Trail. This company expanded the plant in size and in turn in its capacity to smelt zinc and lead ores. However, in 1925 and in 1927, two large, 400-foot smoke stacks were built. There was a resulting increase in the amount of sulfur emitted into the air. Within that same time period the amount of sulfur released from the plant on a monthly basis almost doubled from what it had been in 1924. The amount of sulfur released in 1924 was about 4,700 tons per month. But in 1927, the amount had risen to 9,000 tons per month. These Inc. reassess continued because this smelting operation of zinc and lead had become one of the largest in North America. Finally, the effects of these harmful amounts of sulfur being released were noticed in the State of Washington. The effects were noticeable because for every ton of sulfur released into the air there are two tons of sulfur dioxide created. It was this increase in sulfur dioxide that was detected through the rains. In the period between 1928 and 1935, the Government of the United States filed complaints with the Government of Canada that sulfur dioxide emissions from the Trail smelter had damaged the Columbia River Valley. On August 7, 1928, the United States and Canada (IJC-UC) referred the issue to the International Joint Commission for settlement. The IJC -UC decided on February 28, 1931 that the Trail smelter should limit its sulfur dioxide emissions and that Canada should pay the United States US$350,000 as Compensation for damages. Despite the IJC-UC decision, the conditions at the Trail smelter did not improve. Consequently, by February, 1933 the U.S. Government was refiled complaints to the Canadian Government about the situation at the smelter. These set of complaints led to an emissions convention, which was signed by the two parties on April 15, 1935. The Convention called for the creation of a Tribunal to determine the answers to four questions: 1. Had damage been done to Washington State by the smelter since January 1, 1932? 2. If the smelter was found to have done damage, should it be made to refrain from doing so in the future? 3. Should the smelter operate under any restrictions? 4. Should any compensation be paid in light of the answers to questions 2 and 3? After both the Canadian and U.S. Governments presented their evidence to the Tribunal in January of 1938, the Tribunal informed the governments on April 16, 1938 that it had a final decision on Question 1, but required more time to answer the other 3 questions. It also asked that the smelting operation at Trail have restrictions placed on it to study the effects of its sulfur dioxide emissions. The two governments agreed to the trial restrictions (1938-1940). As for the Tribunal's decision on question 1, it was determined that the Government of Canada should pay the United States US $ 78,000 for damage that the Trail Smelter had done to the State of Washington from 1932 to October 1, 1937.This compensation was primarily for damage done to land along the Columbia River valley in the United States. The Tribunal decided that the United States had not displayed enough evidence for damage to livestock or businesses in Washington State from the operation of the Trail Smelter. Following the trial restrictions, the Tribunal gave its answer to the final 3 questions on March 11, 1941. It had decided that the Trail Smelter should refrain from causing any future damage to the State of Washington from its sulfur dioxide emissions. To ensure this, it mandated that the smelter maintain equipment to measure the wind velocity and direction, turbulence, atmospheric pressure, barometric 'pressure, and sulfur dioxide concentrations at Trail. Readings from these instruments were to be used by the smelter to keep its sulfur dioxide emissions at or below levels determined by the Tribunal. Moreover, copies of the readings were to be supplied to both governments monthly so that they could see the smelter's compliance. If the smelter could not keep to the prescribed sulfur dioxide levels, then the Tribunal and the Canadian Government could award compensation to the United States as determined. Despite the U.S. Government's contention that the emissions from Trail damaged the land, livestock, and businesses in almost 140,000 acres along the Columbia River valley in northern. Washington State, the Tribunal only found that real damage had been done to the unlearned forest land and cleared farmland along the Columbia River. In November of 1949, the U.S. Secretary of State wrote a note to the Canadian Ambassador to the United States to offer to refund to the Canadian Government US $ 8,828.19 of the money that the Canadian Government had paid to the United States as compensation for damages caused by operation of the Trail smelter. This money was what was left over from the US $428,179.51 that the Canadian Government had paid as damages after the U.S. Government had paid off all of the claims of individual property owners in Washington State against the Trail Smelter. The Canadian Government accepted this refund in January of 1950. The Trail Smelter is still in operation today. Camino Limited of Vancouver, who uses the smelter to refine lead, zinc, silver, gold, bismuth, cadmium, and indium own it. Camino employs 125 individuals at the site. Regional Laws Following are the Regional Laws relating to the prohibition of Air Pollution ' (i) SAARC (ii) ESPOO Convention (iii) Others Islamic concept Islam a religion of peace and brotherhood also prohibits environmental pollution in strong terms. Any deliberate damage to natural environment and resources is kind of corruption which is forbidden by Islam. The man is the trustee of God on earth. People should be made to realize that the conservation of the environment is a religious duty demanded by God. Sura Al-Qasa, Verse No. 77 tells, "Do good, even God has done well for you good, and do not pursue corruption in the earth, verily God does not love corruptors. Conclusion To sum it up, I must say that we strongly need to faceand solve environmental issues particularly Air Pollution otherwise it will cause damage to human life and will become threat for the existence of human life. As Mr. David R. Downes says; "When natural environment is damaged and contaminated to the extent that it threatens life, health, food, shelter and minimum work standard, it also becomes a threat to established human Rights."