Environmental justice

2017 CLD 772 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 16, 22 & 23Constitution of Pakistan, Art. 10AFundamental right to fair trial and due process of lawNature and scope of such rightEnvironmental justiceStrict LiabilityPrecautionary principlePrecautionary actions in cases of environmental harm

While due process and the right to a fair trial were embedded in Art. 10A of the Constitution, the objective of such Constitutional protection was to achieve justice and in cases of strict liability, where damage to the environment was irreversible and permanent, immediate action was fortified in order to prevent irreparable damage

In such cases it was necessary to take precautionary measures, which did not immolate or infringe the right to fair trial or due process, but simply ensured that a harm or hazard did not continue during the time spent in due process.

2015 PLD 522 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Arts. 2A, 9 & 14Punjab Environmental Protection Act (XXXIV of 1997), Ss.5 & 12Environmental justiceScopeEnvironment and its protectionIntegral to the right to life and dignity

Environmental justice rested on right to life (Art. 9 of the Constitution), meaning a right to a healthier and cleaner environment

Environmental justice was an amalgam of the constitutional principles of democracy, equality, social, economic and political justice guaranteed under the Objectives Resolution, the fundamental right to life, liberty and human dignity (Art.14 of the Constitution) which included the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra-generational equity and public trust doctrine

Environment and its protection were central in the scheme of constitutional rights

Right to environment that was not harmful to the health or well-being of the people and an environment that protected the present and future generations was an essential part of political and social justice and even more integral to the right to life and dignity under our Constitution.

2015 PLD 522 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 5, 8, 12 & PreambleConstitution of Pakistan. Arts.9, 14 & 199Public interest litigationEnvironmental justiceRegulatory capture, theory of applicabilitySignal Free Corridor Project ("Project") proposed and initiated by Lahore Development Authority ("LDA")Constitutionality and legalityEnvironmental Impact Assessment

Provincial Environmental Protection Agency ("EPA") and its Director General working as delegates of the Provincial Government

Effect

Mockery of environmental justice and fraud on the rights of the people

Contention of petitioners that Provincial Environmental Protection Agency ("EPA"), in its current form was not operating as an autonomous agency but as an attached department of the Provincial Government; that Director General of "EPA" hurriedly granted the Environmental Impact Assessment ("EIA") approval for the project in question, where after the Lahore Development Authority ("LDA") mobilized the works and illegally commenced the construction of the project

Validity

Provincial Environmental Protection Agency ("EPA"), in its current form, was operating as a delegate of the Provincial Government, and functioning as a government agency rather than an independent environmental regulator

Any regulator, which was controlled and dictated by the parties it regulated (in the present case the Provincial Government), was in fact under regulatory capture and its decisions and approvals had no credence, legal value or moral authority and amounted to fraud on the rights of the people and a mockery of environmental justice

Section 5 of Punjab Environmental Protection Act, 1997, stated that EPA shall be headed by the Director General, implying that there were other members that constituted the said Agency, but in fact, presently EPA was one person i.e., the Director General (DG)

Current Director General, EPA, was a serving civil servant appointed through promotion to the post of Director General

Post of Director General, EPA, was not a cadre post and could not be filled through promotion, besides a person who was already an employee of the Provincial Government could not be appointed to head a statutory regulator, which under the law was to grant approval of projects proposed by the Provincial Government

Environmental Impact Assessment ("EIA") approval for the project in question proposed by LDA, an Authority headed by the Provincial Chief Minister and controlled by other members of the Provincial Government could not possibly be refused by the Director General, EPA, who was himself a grade 20 employee of the same government, which also controlled his appointment and transfer

Provincial Environmental Protection Agency ("EPA"), in such circumstances could not perform its assigned role under Punjab Environmental Protection Act, 1997, hence, the entire exercise of EIA approval was a sham unless and until, the post of Director General, EPA, was filled through an open and transparent recruitment process keeping in view the required qualifications for the post

Impugned approval of Director General, EPA for the project in question was a result of dictation and non-application of mind and hence bad in law

High Court set aside the Environmental Impact Assessment (EIA) approval for the project in question and struck down the initiation of the said project by LDA as being unconstitutional

Constitutional petition was allowed accordingly.

2015 PLD 522 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 5, 8, 12 & Preamble

Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, Reglns. 10(5), 11

Constitution of Pakistan, Arts.9, 14 & 199

Public interest litigation

Environmental justice

Signal Free Corridor Project ("Project") proposed and initiated by Lahore Development Authority ("LDA")

Constitutionality and legality

Environmental Impact Assessment (EIA)

Even though the Lahore Development Authority ("LDA") had submitted an Environmental Impact Assessment (EIA) for approval with the Provincial Environmental Protection Agency (EPA), it did not think it important to wait for the approval before commencing the project in question

Environmental Impact Assessment (EIA) was prepared and submitted in the present case as a routine requirement and not for any meaningful feedback

Provincial Environmental Protection Agency (EPA) was under an obligation to either confirm that the EIA was complete for purposes of initiation of the review process, or require the proponent to submit additional information or return the EIA to the proponent for revision clearly listing the points requiring further study and discussion

Provincial Environmental Protection Agency (EPA) had to pass a speaking order explaining the option exercised by it

No such order has been passed in the present case

Environmental Impact Assessment (EIA) approval passed by the Provincial Environmental Protection Agency (EPA) in the present case did not refer to or address a single objection raised by the public during public participation

Cosmetic public participation exercise conducted by the EPA amounted to playing a fraud on the people

Under the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, the exercise of public participation required EPA to solicit the views of other concerned government agencies which included departments, attached departments, development authorities, local authority, company or a body corporate established or controlled by the Government

No such exercise was undertaken in the present case

Section 5(6) of the Punjab Environmental Protection Act, 1997, provided that for the assistance of the EPA in the discharge of its functions, the Government shall establish Advisory Committees for various sectors and appoint as members, eminent representatives of the relevant sector, educational institutions, research institutes and non-governmental organizations

No such Advisory Committee had so far been established by the Government with regard to the project in question

Regulation 11(2) of Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, mandated that the EPA was to consult a Committee of Experts constituted for the purpose and may also solicit the views of the sectoral Advisory Committees constituted by the Government

However in the present case no such Committee of Experts was constituted

Approval for the project in question was granted by the DG, EPA, in contravention of Regln.11(4) of the Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations, 2000, as he did not consider the comments of the public and the government agencies received during the public hearing, the report of the committee of experts, and the report of the sectoral advisory committee

High Court struck down the initiation of the Signal Free Corridor Project by LDA as being unconstitutional and set-aside the Environmental Impact Assessment (EIA) approval for the project by declaring that the same was granted by DG, EPA, in violation of the right to life, dignity of the citizenry besides being offensive to environmental justice and due process protected under Arts.4 & 10A of the Constitution

High Court directed the National Accountability Bureau (NAB) to initiate an inquiry against the Director General, Provincial Environmental Protection Agency (EPA) for failing to comply with the law and to account for the loss of public money

Constitutional petition was allowed accordingly.