III. INTEGRATION MEASURES AND THEIR EFFECTIVENESS
A. Legislative instruments
The Constitution of the Kingdom of Nepal, 2047 Bikram Sambat (1990) proclaims: "The State shall give priority to the protection of the environment and also to the prevention of its further damage due to physical development activities by increasing the awareness of the general public about environmental cleanliness, and the State shall also make arrangements for the special protection of rare wildlife, the forests and the vegetation" (Ministry of Law, Justice and Parliamentary Affairs, 1990a). Similarly, the Constitution has made it mandatory for the government to seek ratification by a two-thirds majority of Parliament of any treaty or agreement that involves sharing of the natural resources of Nepal and has significant, serious or long-term implications for the country (Ministry of Law, Justice and Parliamentary Affairs, 1990b).
Consistent with the initiatives of that time and the then existing policy of government intervention, including actual management of important economic activities, a number of legislative instruments were introduced with environmental implications, including such legislative instruments as: the Private Forest Nationalization Act, 1956; the Lands Act, 1965; the Forest Protection Act, 1956; the Ancient Monuments Protection Act, 1956; the Wild Life Protection Act, 1957; the Aquatic Species Protection Act, 1961; the Malaria Eradication Act, 1965; the Contagious Diseases Act, 1965; the Forest Protection (Special Arrangements) Act, 1967; the Plant Protection Act, 1972; the National Parks and Wildlife Conservation Act, 1973; the King Mahendra Trust for Nature Conservation Act, 1982; the Soil Conservation and Watershed Management Act, 1982; and the Solid Waste Management and Resource Mobilization Act, 1986. Those Acts are all examples of the initiatives taken to empower the government to either man age natural resources or to regulate them so that they become consistent with State policies. A full list of those instruments is presented in annex II to this chapter.
In September 1996, Parliament passed the Environment Protection Bill, 1996, the long-awaited umbrella legislation on the environment. The Ministry of Population and Environment is currently involved in preparing the regulations necessary for the implementation of the new Act. Similarly, a unified Consumer Protection Bill has been tabled in Parliament.
Notwithstanding the lack, until recently, of specially designed and unified legal instruments to comprehensively address environmental and consumer protection issues, there are some 69 different Acts (annex II to this chapter) which directly or indirectly provide the basis for regulating and enforcing various environmental protection measures, and for safeguarding the interest of general consumers. Each of the Act is supplemented by corresponding regulations. While it would be too exhaustive to highlight the provisions of each of the legislative measure, some of the major provisions of the all-embracing type of umbrella legislation, that is, the Environment Protection Act (EPA), 1997, are presented below.
In view of the scattered nature of the existing Acts and their inadequacy for meeting the needs of the overall environmental problems in Nepal, the need for an umbrella Act has been felt for some time. Following approval by Parliament, the Act received Royal Assent and is expected to become effective immediately after publication in the official Gazette.
The objective of the EPA is to recognize the interdependence between development activities and the environment, and to maintain a clean and healthy environment by minimizing, as far as possible, the impacts of environmental degradation on humans, animal and plant species, and their physical surroundings. The EPA provides the much needed legal basis for the authorities concerned to require an IEE or EIA for all projects with potentially negative impacts on the environment. With the enforcement of the Act, it will not be possible to implement such projects without the approval of the authorities concerned. While the responsibility to conduct an initial environmental examination is left to individual implementing agencies, all cases requiring an EIA must be referred to the Ministry of Population and Environment. The ministry can make use of outside expertise for reviewing EIA reports when deciding whether or not to approve a proposal. The implementing agencies can then approve a project with the proviso that the proponent adopt the necessary preventive or mitigatory measures as indicated by the EIA.
A highly significant contribution by the Act is the provision of a legal basis for the authorities to fix and enforce pollution standards. Thus far, in the absence of a legal framework, no significant progress has been made, either in setting such standards or in enforcing them.
The EPA empowers the authorities concerned to impose restrictions on all activities and equipment which are found to have any significant adverse effect on the environment. It makes provision for appointing environment inspectors with the authority to inspect, examine and recommend measures for adoption by clients. It gives the government the authority to declare specific areas of amenity value, habitats of rare species, biotic diversity, and places of historic and cultural significance as environmentally protected areas. The EPA also has entrusted the agencies concerned with the preservation of national heritage sites, including those listed as world heritage sites. Another distinguishing feature of the EPA is the establishment of an environment protection fund to be mobilized for environmental protection, pollution control and heritage preservation.
The Act states that the existing Environment Protection Council is constituted under it, and thus provides a legal validity to the Council. It also provides a legal framework for the adoption of the national and two sectoral EIA guidelines that have already been approved. Similar guidelines are under preparation for a number of other key sectors.
The Act makes provision for rebates and facilities to any industry, commercial activity and technological innovation resulting in a positive impact on the environment. Provision has also been made for compensating affected parties in cases of damage caused by pollution, noise, heat or waste in contravention to the Act, with the backing of supporting regulations. Fines and penalties have been specified for violators of the Act.
In brief, it is clear that the EPA is a short and well documented umbrella legislation, appropriate to the current situation in Nepal. It covers the essential aspects related to environmental protection: (a) the requirement for IEEs and EIAs; (b) inspections; (c) the provision of authority to establish protected areas; (d) testing facilities; (e) the establishment of a fund; (f) the establishment of the necessary administrative mechanism; (g) the establishment of EPC; (h) penalties for violations of the Act; and (i) the authority to enforce guidelines and standards. The Act is flexible, leaving some substantive aspects open, with the most important being inspections. According to the Act, the Ministry of Population and Environment can delegate the function of inspections to experts outside the ministry. It is not yet clear what types of arrangements will be instituted under the upcoming regulations. There are two viewpoints in that regard: (a) the centralization of the function within the Ministry of Population and Environment; and (b) decentralization to the respective agencies, with the Ministry of Population and Environment retaining an overall supervisory role. At present, the consensus within the Ministry of Population and Environment appears to favour option (a).