II. ENVIRONMENTAL IMPLICATIONS OF UNSUSTAINABLE DEVELOPMENT

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H. Environmental legislation

Proper legislation is required for providing a legal framework that will permit the effective implementation of various fiscal and policy measures by the various institutions, with the objective of ensuring the large-scale adoption of supportive measures for improving the environment. The 1973 Constitution of Pakistan included "environmental protection and ecology" in its concurrent legislative list (item 24). The provinces have the ability to legislate in that respect. However, the primary responsibility lies with the national government to take the lead in introducing environmental protection measures that can be integrated into the provincial laws.

The Pakistan Environmental Protection Ordinance (Environment Ordinance) was promulgated in 1983. Prior to that Ordinance a more ambitious draft Ordinance had been prepared and released in 1977 (Hussain, P., 1987), but the political events in that year relegated environmental protection to a secondary position. The priority was again regained in 1983 in the shape of less comprehensive legislation. Since that time environmental issues have continued to be given prominence in public action, both at the governmental and non- governmental levels. Many NGOs that are active in the field are attracting international donor interest. The last administration consolidated its institutional position by appointing a minister with sole responsibility for the environment. But despite those advances, the political will to implement controls does not appear to have developed in a commensurate manner. To date, the legislative powers that are available and utilized do not reflect the stated current concern for environmental matters.

The government of NWFP has prepared a draft environmental Act which, at present, is under review by the line departments and other agencies. The Act has emerged through active public participation in a workshop on environmental legislation as well as through the key recommendations of SPCS. A Provincial Environmental Protection Council was established with a mandate to look after issues related to the environment; it I headed by the Chief Minister which gives it effective representation at the ministerial level. Public participation is also ensured through representation of NGOs and the industrial and agriculture sectors on the Council. The first meeting of the Provincial Environmental Protection Council was held in May 1996.

The Environmental Ordinance is widely regarded as an umbrella statutory tool for dealing with environmental matters. There is a great deal of other federal and provincial legislation already in existence, all of which relates to pollution control and the preservation of natural resources. Much of that other legislation dates back many years but could be adapted for regulating present day activities. The existing laws cover the areas of: land use, forests, wildlife, range land management, irrigation, sanitation, erosion, fisheries, minerals, groundwater, rivers and marine waters, noise and vehicular pollution. To protect areas of outstanding natural interest, national parks and nature reserves are being established in NWFP. Many statutes, laws and rules exist which allow considerable freedom of action under statutory law, if the need arises. There is an obvious need to consolidate the various aspects of national resources and environmental protection under a common statute to overcome the current fragmented situation. In doing so, the following issues need to be considered:

• The preservation of surface water;
• The preservation of groundwater quality and current extraction rates;
• The preservation of air quality;
• Control and safe disposal of solid, toxic, hazardous and medical waste;
• Requirements and guidelines for EIAs;
• Requirements for environmental contingency planning;
• Licensing of industrial pollution discharges;
• The storage, handling and transportation of chemicals, including agrochemicals, with provisions for on-site inspection and vehicular transport by land, air, rail and inland waterways;
• The storage of explosives and handling of radioactive emissions; and the storage and handling of restrictive wastes of IRNUM and agriculture;
• Imports, sales and use of pesticides and fertilizers;
• The preservation of biodiversity, forests, fisheries and the sustainable use of rangeland;
• Land-use planning for urban and rural areas;
• Protecting the cultural heritage;
• The use of lead in petrol;
• Occupational safety;
• Noise;
• Food safety and human health.

This Ordinance, intended "to provide for the protection, conservation, rehabilitation and improvement of the environment, for the prevention and control of pollution, (and) the promotion of sustainable development", comprises 34 sections. The important features are that:

• The Ordinance covers the whole of Pakistan, including Exclusive Economic Zone which covers territorial waters and the maritime zone under the Act of 1976, air and land (including motor vehicular and noise pollution), handling of hazardous substances and conservation of biodiversity;
• Comprehensive definitions of "the environment", "adverse environmental effect", "biodiversity", the concept of "sustainable development" and other definitions are given in section 2 of the Ordinance;
• Sections 3 and 4 make it clear that the Pakistan Environmental Protection Council is to approve national environmental policies within the framework of a national conservation strategy as may be approved by the federal government from time to time. The establishment of the Pakistan Environmental Protection Agency, its functions and powers are covered by sections 5, 6 and 7;
• The establishment of Provincial Environmental Protection Agencies is given statutory cover in Section 8;
• Provincial Sustainable Development Funds have been established under sections 9 and 10 to provide financial assistance to suitable projects;
• The prohibition of discharges or emissions in excess of the National Environmental Quality Standards (NEQS) or other standards established by the Pakistan Environmental Protection Agency where ambient conditions so require;
• The federal government has been empowered to levy a pollution charge on persons not complying with NEQS;
• A two-stage environmental screening process has been introduced in section 12 for proposed projects, involving the filing of either an IEE or, for projects likely to cause any adverse environmental effects, a comprehensive EIA;
• Imports of hazardous waste have been prohibited according to section 13, while the handling of hazardous substances is covered in section 14;
• The Pakistan Environmental Protection Agency has been empowered to direct that motor vehicle owners install such pollution control devices or use such fuels or undergo such maintenance or testing as may be prescribed, to ensure compliance with NEQS;
• The Pakistan Environmental Protection Agency and the Provincial Environmental Protection Agencies have been empowered to issue an EPO under section 16 to deal with any actual or potential adverse environmental effect in violation of the provisions of the Ordinance;
• Environmental Tribunals have been constituted with exclusive jurisdiction to try serious offences under the Ordinance (section 20). Minor offences related to pollution by motor vehicles, and the violation of rules and regulations etc. will be tried by Environmental Magistrates under sections 21 and 24;
• An aggrieved person is able to file a complaint with the Environmental Tribunal after giving 30 days notice to the federal or provincial agency concerned;
• Penalties (fines) have been enhanced where necessary. The Environmental Tribunal and the Environmental Magistrates have been empowered to award compensation for losses/damages. The Environmental Tribunal may also recover monetary benefits from offenders;
• Under sections 31, 32 and 33, the federal government is empowered to make rules and regulations and amend the schedule.

The draft Act prepared by the Planning, Environment and Development Department, with assistance from IUCN, is expected to be approved by the provincial legislature in the near future. The Act comprises nine chapters spread over 52 sections. The important features of the act are that:

• The declared objectives of the Act include the protection, conservation and management of the environment, and the promotion of sustainable development;
• The guiding principles of the Act include the doctrine that the government, as the holder of public trust, is responsible for the proper management of the environment on behalf of present and future generations;
• The environmental rights of citizens have been specified to include the right to a healthy environment, the right of access to information concerning the environment, the right of participation in decisions that affect the environment, the right to an investigation of an alleged offence under the Act, the right of employees to protection against victimization in cases where they file a report or complaint regarding contravention of the Act and the right to initiate legal action regarding failure to comply with the Act;
• An NWFP Environmental Council has been constituted to establish and ensure the implementation of comprehensive provincial environmental policies within the framework of the National Conservation Strategy, the SPCS draft of which is ready;
• An NWFP Fund for Sustainable Development has been established for providing grants to NGOs etc., as well as to government agencies which form partnerships or joint ventures with the private sector;
• SPCS is to be prepared every five years through, inter-alia, SPCS roundtable discussions on key themes and key sectors, as well as district and urban area roundtable discussions;
• A new environmental profile of NWFP will be prepared every five years, with annual updates in the interim years;
• Resource management plans in respect of important natural resources will be prepared/revised every 10 years, or earlier if so required;
• The provincial EPA has been given statutory cover;
• A two-stage environmental screening process has been introduced for proposed projects that involve filing either an IEE or, for projects likely to cause any adverse environmental effects, a comprehensive EIA;
• Carrying out IEEs or EIAs of all government policies, plans and programmes has been made mandatory;
• Discharges or emissions in excess of NEQS or other standards established by EPA have been prohibited;
• The government has been empowered to levy a pollution charge on persons not complying with NEQS;
• The handling of hazardous substances has been prohibited except under license;
• All local Urban Councils are required to submit a waste management plan to the government within two years;
• Littering has been prohibited and a proper mode/manner of waste disposal has been specified;
• EPA has been empowered to direct owners of motor vehicles to install such pollution control devices or use such fuels or undergo such maintenance or testing as may be prescribed;
• EPA has been empowered to issue an EPO for dealing with any actual or potential adverse environmental effect resulting from any violation of the provisions of the Act;
• Strict restrictions on buildings and the use of land and public water have been laid down for areas specified in the Schedule;
• Environmental Tribunals have been constituted with exclusive jurisdiction to try serious offences under the Act. Minor offences related to littering, pollution by motor vehicles and violation of rules and regulations etc. will be tried by Environmental Magistrates;
• The Environmental Tribunal and Environmental Magistrates have been empowered to award compensation for losses/damages. The Environmental Tribunal may also recover monetary benefits from offenders.

At present, it is too early to suggest any improvements to the Act.

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