Environmental Legal Framework And Tourism Industry

Published Date: 02 Nov 2017

Abstract

In the present scenario tourism is the fastest and largest growing economic sector in the world. The social, cultural and economic existence of people is affected by the balance between the tourism industry and the environment. Hence, if, unplanned tourism can result in social, cultural, and economic disturbance and can have an annihilating effect on frail environments. The legal frameworks, guidelines, policies, rules and regulations provided by various national and international organizations are adequate or not? This is a question which needs to be analyzed and answered accordingly. This paper deals with the various regulations regarding the environment such as the environmental protection act, 1986, the environment protection rules 1986, the national environmental tribunal act, 1995, the National Environment Appellate Authority Act 1997, the United Nations conventions on environment etc…

The paper also prescribes the strict implementation and enforcement procedures for the various legislations mentioned above. This paper further deals with the distinguishing features of the various Acts/laws of countries which are famous for their tourism industry and does a comparative analysis with the relative laws in India and how some changes in the existing environmental laws of India can boost the tourism industry and make it flourish. The paper also provides a model to adopt such regulations and procedures which would assuage the destruction due to unplanned tourism.

It is our hope that this paper will enlighten the generation of the problems regarding unplanned tourism. It will also prescribe ways to assuage it.

Introduction

Environmental concern was rooted in India from time immemorial. Earlier it was there as customs and traditions. But now, with India’s economic development, propelled by rapid industrial growth and urbanization is causing severe environmental problems that has local, regional and global significance. India has an elaborate legal framework with over two hundred laws relating to environmental protection and primary institutions responsible for the formulation and enforcement of environmental acts and rules include the Ministry of Environment and Forests (MOEF), the Central Pollution Control Board (CPCB), State Departments of Environment, State Pollution Control Boards (SPCBs) and Municipal Corporations. Still, how far are these laws applicable? The environmental legal framework is not so adequate to meet the challenges we are facing today.

Key challenge to the inadequacy of the environmental legal framework is the lack of civil administrative authority that limits the effectiveness of pollution control board’s enforcement efforts and leads to over –reliance on the judiciary for enforcement. Moreover filing criminal cases against violators in trial courts or reacting to Public Interest Litigation is a time consuming, unpredictable and ineffective enforcement mechanism. The legal framework also gets ineffective due to dual line of command of administrative directions as well as from the state government create problem. Moreover there is lack of human resource as there is severe staff shortage due to absence of norms for staffing structure by central government. Also there is insufficient coordination between CPCBs and SPCBs.

CURRENT SITUATION AND KEY CHALLENGES

3.1. Legal Enforcement Authority

Most of compliance monitoring and enforcement is done by SPCBs. The few direct enforcement actions taken by the CPCB are generally done by the zonal offices. Under the Water Act, the Air Act and the EPA, the pollution control boards have the authority to issue and revoke consents to operate, require self-monitoring and reporting, conduct sampling, inspect facilities, require corrective action and prescribe compliance schedules. The enforcement powers include emergency measures of disconnecting water or power supply and facility closure, which are widely used in some states3. According to the Hazardous Wastes (Management and Handling) Rules of 1989, SPCBs can, with CPCB approval, impose administrative fines for any violation of those rules. Maharashtra is one of the very few states which have used this provision to impose penalties for unauthorized storage of hazardous waste. Other sanctions (fines and imprisonment) must be pursued under the criminal authority of the courts. The EPA stipulates steeper penalties than the Water Act and the Air Act but at the same time defers to them (Section 24 of the EPA) in cases where the same type of violations is covered under the EPA and the other law. In addition, criminal cases brought by SPCBs are difficult to prosecute, have a low conviction

rate (although that varies greatly between the states), and consume precious government resources and time.

All three laws also include provisions for citizens to bring legal actions. Citizens must provide the Central Government with 60 days advance notice of their intention to file a complaint to give the government an opportunity to take remedial action. Under the public interest litigation process, the Supreme Court of India and the High Courts have relaxed standing and other procedural requirements so that citizens may file suits by a simple letter without the use of a lawyer, and appear before "green benches" (specially assigned judges).

The 186th Report of India’s Law Commission (September 2003) recommended the establishment of environmental tribunals with exclusive jurisdiction with regard to environmental cases. The Report stated that environment courts must be established to reduce the pressure and burden on the High Court and the Supreme Court. Such environmental tribunals would exercise all powers of a civil court in its original jurisdiction. They would also have appellate judicial powers against orders passed by the concerned authorities under the Water Act, the Air Act, the EPA, and other environment related acts. At the national level, there would be a National Environmental Tribunal, with corresponding tribunals at the state level.

The proposal is still under consideration of the Government.

Key Challenge

The lack of civil administrative authority (particularly, to impose administrative fines) limits the

effectiveness of PCBs’ enforcement efforts and leads to over-reliance on the judiciary for enforcement. Filing criminal cases against violators in trial courts or reacting to PILs is a time-consuming, unpredictable and ineffective enforcement mechanism.

3.2. Institutional Arrangements and Capacity Building

SPCBs have primary enforcement authority in the states, while the CPCB performs the same

functions for union territories. The SPCBs have further delegated some enforcement responsibilities to their regional and sub-regional offices. The CPCB’s role is to provide technical assistance and guidance to the SPCBs and to coordinate activities among the states. In addition, the CPCB exercises general oversight and, if a State Board fails to comply with a CPCB direction, may temporarily assume SPCB functions. There is also an issue to coordination between SPCBs and other state-level government agencies that have some environment-related responsibilities, including departments of transport (with respect to mobile source pollution), of urban development (municipal waste), of industries (siting of industrial facilities), etc. At present, such interagency collaboration is very weak.

Dual Line of Command. SPCBs receive administrative directions and some funding from their state governments. This dual line of command with the CPCB can create problems, since at times the CPCB’s proposed actions are not effectively implemented due to a state government’s inaction or indifference. With the exception of the National Water Quality Assessment Authority, there is no formal institutional mechanism for interagency coordination on formulating and implementing environmental regulations. The interagency task forces and working groups established from time to time to tackle specific environmental issues do not adequately address long-term coordination on environmental management and enforcement.

According to the assessment, the SPCBs are interested in strengthening coordination with CPCB and other states through a communication network, and annual action planning efforts.

Human Resources. This rapid assessment identified human and institutional capacity limitations at both the central and state levels. The human resources structure in most SPCBs is heavily dominated by non-technical staff. For example, in the Andhra Pradesh PCB, there are only 88 technical staff out of the total of 355 (25 percent), resulting in a situation where one technical person is required to monitor 100 polluting installations. Among the professionals, there are mostly engineers, with very few legal or policy experts. In an extreme case, the Arunachal State PCB has no staff of its own and is run by the personnel of the State Department of Environment and Forests. The vacancy ratio is as high as 65% at the SPCB of Karnataka, 54% in Punjab, 46% in Goa, and 43% in Andhra Pradesh (Planning Commission, 2001-2002). Often SPCBs hire contract employees (e.g., in Manipur, Sikkim, Kerala, Madhya Pradesh) who do not get standard civil service benefits and, therefore, have low work motivation. Part of the reason for such severe staff shortages is that the Central Government has not laid down any norms for determining the staffing structure of the State Boards in terms of the share of technical staff or the coverage of pollution units. The pay scales for PCB staff also vary greatly across the states. While financial resources are often a constraint in filling the vacancies (see below), in many states where PCBs

are doing well financially (e.g., Maharashtra, Uttar Pradesh, Tamil Nadu) they cannot get approvals from the respective state governments to hire more staff. Frequent change of chairmen has also hampered the work of PCBs: for example, the Uttar Pradesh PCB has changed 24 chairmen in the last 24 years (Gupta and Priyandarshini, 2003).

Finally, the low level of professional training contributes to the lack of institutional capacity. There is no formal procedural or technical training in any SPCB. Neither are there minimum training requirements specified by the Central Board. Less than one percent of the total SPCB expenditure goes to staff training. These issues are addressed in detail in the U.S. EPA report "Environmental Compliance and Enforcement

Training Institutions in India and Training Recommendations"(2005).

Financial Resources. The staff costs and compliance monitoring and enforcement activities of

SPCBs are funded by grants from the state governments, very limited program-based allocations from the central budget and, for the most part, by revenues from the water cess (80 percent of the total cess collected in the state is reimbursed to the respective SPCB), administrative fees for consent processing and laboratory analysis services (different rates apply in different states), as well as funds forfeited through bank guarantee programs (where those exist).

There are vast variations in the financial positions of SPCBs: some of them are heavily dependent on state government funding while others rely on their own resources. Some SPCBs like those of Maharashtra, Karnataka, and Uttar Pradesh have large own resources and even surpluses (due to the high revenues from the water cess). On the other hand, PCBs of states like Kerala and Jammu and Kashmir receive over 80 percent of their funding in government grants (Planning Commission, 2001-2002). Even those few SPCBs that are self-sufficient are faced with spending restrictions imposed by the state governments.

The expenditure patterns are also quite different from state to state. In most states, a major share of the budget (60-70 percent on average) is allocated to administrative expenses, primarily salaries. Due to the shortage of funds, the PCBs lack adequate infrastructure (monitoring equipment, laboratories, etc.) to execute their responsibilities. An example of this is the Bihar PCB that does not have a single laboratory to test effluent samples (Gupta and Priyadarshini, 2003).

Key Challenges

• There is insufficient coordination between the CPCB and SPCBs due to the double subordination of SPCBs (and the administrative influence of state governments) as well as to the lack of comprehensive standard compliance and enforcement policies and procedures.

• Significant human and technical capacity constraints are an obvious factor that impacts effective execution of all compliance and enforcement functions at the central, state and local levels.

• In the absence of strong political will to address environmental challenges, funding limitations

remain a significant challenge facing all environmental institutions. The variations in the

financial status and sources of funding of the PCBs lead to horizontally inequitable treatment of

the regulated community. An over-dependence on fees can also lead to mixed incentives and

priorities for staff.

(NO PROPER POWER IN HANDS OF COURT FOR CRIME IN CASE OF ENVIRONMENTAL CHALLANGE )

PIL PROCEDURE…. SO MAKES ACTIONS SLOW.

Solution:

For the purposeful implementation of EIA regulation, the ministry is rethinking on its

commitment by updating policy guidelines, simplifying the procedural aspects and placing measures to strengthen the role of regulatory agencies. This effort also requires better monitoring support and availability of environmental expertise. On understanding the weaknesses and

challenges in the Indian system, there are certain suggestions for improvements in the Indian EIA practice to facilitate greater rigour in analysis, appraisal, monitoring and enforcement to achieve broader objective of protecting the environment.

1. Increase the accountability of the EIA experts

Certification of consultants is deemed necessary so that only licensed agencies should

accomplish EIA. Authorship should be specified in the EIA reports with the intention that project

developer or consultants should feel responsible and each piece of information could be traced

back to its original source (Fearnside, 1994). IA professionals should not only explicitly mention

all assumptions and limitations of the analysis but also present their findings in comprehensive

and easy to understand format so that decision makers can judge both pros and cons of the

upcoming activity.

2. Manage baseline data properly

One of uncertainties in the EIA prediction is due to lack of reliable and accurate data.

Therefore, it is suggested to organize a common database exclusively where all relevant agencies

may pool in the data and this data could be made available to the project proponents on request.

This data may be charged and money collected from this source may be utilized in upgrading the

data bank.

3. Improve monitoring and implementation

The EMPs should clearly suggest mitigation, monitoring and institutional measures to

eliminate, compensate, or reduce impacts to acceptable levels during construction as well as

operation phase of an activity. Implementation of EMP must ensure effectiveness of mitigation

measures and also detect the need for any corrective action. Continuous monitoring and

assessment of the system, public participation and simplified administrative procedures are

obligatory to facilitate the adequate implementation. Good environmental monitoring practices

not only establish a baseline data of the region but also increase understanding of cause–effect

relationship between an activity and environmental changes and checks accuracy of an EIA

prediction, thereby increasing knowledge base for better EIA of the future projects.

4. Focus on SSIs

Concept of industrial estate should be promoted for SSIs. Grouping of these units in an

industrial estate should be done considering regional aspects such as carrying capacity, optimal

utilization of natural resources, utilization of waste from one unit as resource to another and

establishment of common waste treatment plants (Singhal and Kapoor, 2002).

5. Integrate environmental concerns into plans and policies

There is a need to improve the role of local planning agencies in the EIA process. To

incorporate environmental concerns into plans and policies, Mc Donald and Brown (1995)

have illustrated certain ways: (i) Local strategic plans—determining the form of future

developments that can take place in an area taking cumulative impacts and carrying capacity

in account; (ii) Zoning schemes—addressing specific landuse patterns, permitted and

prohibited in the area, as set out in local plan; (iii) Sub-divisional plans—setting layouts of

future settlement pattern while conserving natural areas such as watercourse, riparian habitats,

agricultural land, etc.

6. Capacity building of stakeholders

It is very essential to spot major stakeholders involved in EIA system. While preparing the

technical and procedural guidance material needs of all the stakeholders should be considered to

indicate the roles and duties of each of them. Effective public involvement in the process brings

forth wide range of social, cultural and emotional concerns, to establish terms of reference of

scoping, which may be deemed out side the scope of EIA. It would make decision socially

acceptable. In addition, it is necessary to sensitise, inform and train stakes to make them

understand the significance of EIA process. Capacity building of regulatory agencies in terms of

staff, technical expertise and monitoring facilities is also recommended. Making inter

organization coordination more smooth would facilitate information sharing process. It is also

required to develop disciplinary expertise to mainstream the cumulative impact assessment and

SEA at plan and policy levels.

Tourism Industry in India

Tourism industry of India is one of the biggest factors today that contributes to Indian economy. This tourism has also created havoc in the environment and the natural ecosystem. Thus the new concept of eco-tourism has evolved. But eco-tourism whether a new trend or a new catch phrase?

Whlie eco-tourism implies environmentally responsible tourism, eco-tourism itself has become an unsustainable practice. It is a threat to wildlife, environmental degradation, habitat fragmentation etc. The weak environmental framework of India is being unable to curb this new era of environmental degradation.

Eco tourism is causing environmental degradation in such a way that not only we are losing our flora and fauna but the entire habitat. Some of the major problems related the tourism industry in India are :

Tourist do ill legal trading and transportation of flora and fauna causing destruction of the habitat in which this unnatural habitation is done. There is no proper Indian law, neither proper legal framework to put a check to this.

The core zone, buffer zone etc. demarcation in biosphere reserves, national parks etc. are done; yet the demarcation has no proper legal binding and also there is no strict punishment for violating those.

There is no proper legal framework that restricts construction of hotels, resorts, resturants etc. in restricted areas neither there is proper demarcation for this.

These are major problems while there are several other problems caused by tourism industry for e.g Infringement of Human rights.

Solution:

A summary of suggestions on how to move ahead:

§ Process & Protocol activities for Adaptation and Mitigation

In order to assess the need for and best practices to adaptation and mitigation,

both global and location-specifi c research and evaluation activities are

required, e.g. projecting current and future climate change impacts; assessing

vulnerabilities including climate-related hazards (for effective decisions for climate

risk management), evaluating resilience and adaptive capacity; and evaluating

current and future adaptation and mitigation activities, including possible new

opportunities that may arise from climate change

Capacity building

There is a need to build the capacity for adaptation and mitigation in response

to climate change across government bodies and tourism institutions and

organisations at national, regional and destination level. To this end, outreach

and communications efforts such as this current publication and the associated

seminar series, including the 1st International Capacity Building Seminar on

Climate Change and Tourism, are viewed as the fi rst steps in building capacity in

developing countries and small island developing states where climate change is

likely to impact, and be impacted by, tourism.

§ Addressing Gaps in Knowledge

There are large gaps in the knowledge base in the fi eld of climate change and

tourism, as identifi ed in this document and others (e.g. Scott et al 2008, Hall

2008). A research agenda is developing and needs to be intensifi ed, in order to

support evidenced-based practical decision-making. This agenda should include

assessment of uncertainties in climate change projections themselves, as well as

socio-economic uncertainties within the tourism sector.

§ Reducing ‘Hotspot’ Vulnerability

Certain regions and destinations are especially vulnerable to the impacts of

climate change on their tourist industry, because tourism is so vital to their

economic viability, and/or because the impacts from climate change are especially

signifi cant. To this end, reducing the vulnerability of the ‘hotspots’ through short

and medium term adaptation and mitigation strategies is imperative, for example

small island states at high risk of disruption from sea level rises and increases in

tropical storm activity (London 2004) and activity-specifi c destinations requiring

a particular climatic environment, such as winter-sports locations (Wilbanks et al

2007), should be a priority for future program of work.

§ Innovation Strategies

Climate change adaptation and mitigation occurs at a number of different scales

of governance and organisation. Tourism fi rms themselves have a major role to

play in adaptation to climate change as part of systems of innovation. The notion

of adaptation as a form of innovation that is understandable in the context of

tourism business practice has not been well articulated, but it is an essential

component of understanding the capacities of destinations to adapt and respond

to the challenges of climate change (Hall 2007). Much of the focus of climate

change adaptation is on technical responses to climate change. However, the

development and transfer of innovative technology is only a small element of what

constitutes innovative tourism business practice (Hall & Williams 2008). Research

on innovation in tourism and similar service fi rms indicate that there are a range of

other measures that fi rms can adopt to respond to external stimuli and stresses,

such as those brought about directly and indirectly by climate change, in order

to survive and, ideally, maintain or even increase profi t margins (ibid). Innovating

at all the various levels of tourism will bring greater potential returns and enhance

the likelihood of survival; it will also contribute to the resilience of the destination

as whole. As Baumol (2002: 1) noted, innovative activity is "[…] mandatory, a lifeand-

death matter for the fi rm and innovation has replaced price as the name of

the game in a number of important industries." Moreover the ability to innovate

represents a capacity to adapt and attract new markets in light of the turbulence

that climate change is anticipated to bring to tourism patterns and fl ows.

§ Effective Policy Implementation

The need for sustainable tourism within a context of climate change, and for the

necessary policy, legal and fi nancial frameworks to support such development are

apparent. However, the processes of establishing any sustainable tourism policy,

and identifi cation of successes and barriers of implementation are less clear; the

implementation of sustainable tourism policy in general is particularly weak (UNEP

1996, Engels 2003, Mycoo 2006, Dodds 2007, Simpson 2007, Simpson 2008b).

In the specifi c case of climate change, research conducted in the Mediterranean

by Dodds and Kelman (2008) identifi ed six policy suggestions for adapting in

tourism industries:

§ enacting effective control systems to ensure that policies are

implemented and monitored;

§ improving education and awareness on climate change and

its potential impacts; placing sustainable tourism and climate

change within broader policy frameworks (i.e. ‘mainstreaming’);

§ implementing economic incentives to encourage adjustment

Strategies.

Conclusion

The various problems related to environment along with the remedies are clearly established in this paper. The SWOT analysis indicates various factors which effect and help the procedural work related to environment. The fact that the adequacy of legal framework is in question the conclusion derived through this paper is that we have come a long way in terms of the legal statutes however the implementation procedure and the various conflicts need to be dealt with immediate effect in order to sustain a healthy tourism economy along with flourishing environment.

SHREYA SINGH (9450753154)

[email protected]

NISHITH UPADHYAYA