Advocating and Enforcing Air Quality Standards in Nepal
Ram Charitra Sah
The air pollution in Nepal is severe in terms of particulate matter, although not serious in terms of gaseous pollutants in most of the urban areas but it is increasing and hence needs immediate response to tackle it. To successfully advocate for and enforce any environmental controls, an integration of science and law is necessary. Moreover, timely and effective participatory action have been found to be useful in achieving the desired level of changes in environmental issues, and lessons from such interventions could be passed on to and replicated in other countries. Advocating for and enforcing environmental legal and scientific issues requires great patience and continuous and tireless efforts to bring desired changes. There is a need for independent, public-minded scientists and lawyers who will help responsible government authorities with the effective execution of their statutory duties, as well as subsequent monitoring.
Key words: Environmental Quality Standard, PIL, Advocacy,
Enforcement, Public Hearing, People Participation
1. The Existing Air Pollution Scenario and Role of Civil Society
Nepal in general does not have an air pollution problem but has very acute air pollution problems in most of its urban centers, including industrial cities such as Kathmandu, Biratnagar, and Pokhara. Among these ours capital Kathmandu’s condition is the worst. The values of both air pollutants TSP and PM10 in Nepal’s three major cities are higher than the WHO guideline values. The values of gaseous pollutants are below the WHO guidelines and standard values but are increasing.
More specifically, Nepal’s urban areas are more polluted with respect to both indoor and outdoor air pollution, whereas more than half of rural population inhabited by 85 percent of the total population, especially women and children that are are exposed to very high indoor air pollution by using biomass fuels in their traditional cooking stoves inside poorly vented kitchens. These stoves account for approximately 78 percent of the state’s biomass-based energy sources.
A study conducted by the World Bank on mortality and morbidity due to PM10 levels in 1990 estimated that Katmandu’s PM10 pollution resulted in 84 cases of excess mortality, 506 cases of chronic bronchitis, 4,847 cases of bronchitis in children, and 18,863 asthma attacks per year. Overall, Katmandu’s residents experienced more than 1.5 million respiratory symptom days per year. Estimated health damage costs due to poor air quality were NRs. 210 (US$4.4 million) million a year (URBAIR 1996).
As the amount of air pollution increases, Nepal’s government has not taken the steps necessary to implement its control measures. The environmental-friendly decisions made by the government in the past¾like the ban of two-stroke petrol engines and the phasing out of the most polluting 20-year-old vehicles from the Kathmandu Valley¾have never been fully implemented. The role of civil society in pollution reduction is crucial. The Forum for Protection of Public Interest (PRO PUBLIC), along with other groups like LEADERS Nepal and ENPHO, is an active representative of civil society and has been advocating for the country`s better air quality.
2. Organizational Profile
Pro Public is a non-profit, nonsectarian, nonpolitical, and nongovernmental organization committed to helping the public interest. Founded in 1991 by a group of environmentalists, women`s rights activists, consumer activists, lawyers, journalists, engineers, and economists, the organization has earned the public’s respect by consistently pursuing people`s rights through research, advocacy, and public interest litigation (PIL). Pro Public is a pioneering organization in the institutionalization of PIL in Nepal.
Nepalese people’s basic rights are guaranteed through social, economic, environmental and political justice.
Pro Public plays the role of a social change agent and empowers the Nepalese people through research, advocacy, capacity building, PIL, collaboration, partnership, and networking.
The forum has four primary objectives: to act as watchdog and increase government and private sector accountability; conduct research aimed at solving contemporary public interest issues; and enhance the capacities of local and grassroots organizations through training seminars, workshops, and information dissemination.
2.3 Focus areas
The forum has been working in good governance, environmental justice, gender justice, economic justice, and consumer rights protection areas.
Pro Public is working to protect the public interest in the above sectors and has a close relationship with several donor agencies that share its interests, more than 15 international and national organizations in all, specifically in the area of public welfare . So far, Pro Public has worked with different major donor agencies: The Asia Foundation (TAF), Swiss Development Cooperation (SDC), Ford Foundation (FF), UNIFEM, and IUCN etc. Forum has more than 50 fulltime employees under different programs. Most of them work on a project-by-project basis. Pro Public has been airing a weekly good governance radio program, the objective being to ensure an effective, fair, accountable, and transparent governance by empowering grass roots organizations. Motivated by the radio program, people in 74 out of 75 Nepalese districts spontaneously formed 2,042 "Radio Listeners` Clubs" by the end of October 2003 to carry out good governance activities at the local level, and formally registered under Pro Public. This network thus enables Pro Public to reach the grass roots level more effectively. The forum also remains equally active¾in the absence of any funding agencies¾in ensuring social, political, economic, and environmental justice for the people.
With its prime focus on environmental conservation, the forum is constantly working on almost all sectors of environmental management, including pollution and, more specifically, public health and good governance issues, notably promoting self-motivation towards public causes and on the appeal of public interest. Moreover, the forum has been playing a crucial role in the development of environment-related policies through active participation and providing early expert suggestions, comments, and memorandums to the concerned stakeholders.
In the area of air pollution control, Pro Public has done incredible work so far. Some of the landmark positive court decisions as well as environmental-friendly results of our advocacy, research, and public interest litigations program are illustrated in the following sections.
3. Venue of Public Interest Litigation and Public Participations in Nepalese Laws
There is room for the PIL and public participation, as guaranteed by Nepalese Constitution 1990 and several other laws. Article 88 of the Nepalese constitution on the Jurisdiction of the Supreme Court states:
(1) Any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground, and extraordinary power shall rest with Supreme Court to declare that law as void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with the Constitution.
And Article 88(2) declares: The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution, for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective, or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern, have the extraordinary power to issue necessary and appropriate orders to enforce such rights or settle the dispute.
For these purposes, the Supreme Court may, with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto (Nepalese Constitution 1990).
Nepal`s firm commitment to the goal of environmental protection can be explicitly seen from these constitutional provisions. Under the directive principles of Nepal’s 1990 constitution, it is written that the state "shall adopt a policy to utilize the natural resources of the country in the national interest and in a fruitful manner." Furthermore, the state "shall give priority attention to conserving the environment of the country and also prevent adverse impact on the environment, which may be caused as a result of the implementation of physical development activities, through the mechanism of creating public awareness towards the quality of environment and shall make special arrangements for the conservation of rare animal species forests and the vegetation of the country" [Article 26(4)] (NBS 1998).
In addition, the Forest Protection Act 1993, National Park and Wildlife Act 1970, Water Resource Act 1992, Local Self Governance Act 1999, Environmental Protection Act (EPA 1997) and Environmental Protection Regulation (EPR 1997) ensure public participation as well as collaborative efforts for the sustainable management of resources for the public benefits. For example, public participation, or consultation through public hearing, should be carried out while performing the initial environmental examination (IEE) and environmental impact assessment (EIA) required for any kind of developmental project¾depending upon its scale (EPR 1997)¾by the proponents.
4. Steps of Public Interest Litigation (PIL) Adopted In Nepal
The PIL practices in Nepal normally follow the following strategic steps.
4.1 Research and Issue Identification
Different levels of research have been conducted in order to reach the grass-roots level and identify issues to be raised or that have been brought to our attention, either by affected local peoples or communications media (electronic or print). The Staff Attorneys will research legal aspects of issues-related acts, regulations, and various courts decisions (national and international), whereas staff scientists will conduct primary research and also use various studies, reports, scientific research, and data from various sources on possible environmental impacts, mitigation measures, control measures, and alternatives. The government study is also very important for us since at least we can say to the government “this particular evidence came from your study and you have to take a suitable course of action to control it.”
But the availability of such information from the government and donor communities is very limited. This is one of the big challenges and sources of dispute with the government: the lack of transparency in information sharing and decisionmaking. This is against of our constitutional right to demand and receive information on any matter of public importance (Nepalese Constitution 1990 (Article 16)). The scientific and technical reports of each issues will be prepared in advance and used when advocacy letters are written, or produced as evidence in front of different level of courts or concerned government authorities to ensure environmental justice for the public. In this way, the science and scientific inputs play a very important role in legal strategies to protect Nepal’s environment. A high degree of attention will be paid during issue identification and even more so during client characterization. The issue identification and client characterization will usually be guided by the greater public concerns. Community interests always outweigh individual interests.
4.2. Advocacy and Follow-up
The PIL starts it`s building and case maturation processes through research-based advocacy letters integrating both legal and scientific information related to the subject at hand. After sending the advocacy letter, a rigorous follow-up of these letters is carried out through phone calls, personal visits, personal meetings and/or interacting with the concerned authorities. It used to be very difficult to get a response from the pertinent government and nongovernmental organizations, but with increasing environmental concerns and awareness of them, the number of responses received from all such parties is increasing. Still, government responses are relatively less frequent than responses from local affected peoples, NGOs, CBOs, and local bodies.
Though Nepal’s judicial mechanism has shown a significant increase in awareness of and sensitivity to the need for environmental protection, the desired positive results in favor of public interest have not been fully realized. This is basically due to lack of infrastructures, and lack of effective implementation and monitoring of court decisions.
Because working one’s way through Nepal’s legal system can be a lengthy process, the judicial mechanism of Nepal has made mediation an option in order to save people from the cumbersome process of getting final justice through court cases. Though there are few who practice the mediation mechanism, it has been deemed necessary to include in the PIL cycle (Fig.1). This may be a future strategy for enhancing dispute resolution, as well as for reducing the pressure on the judicial system.
Mediation is nothing more than a facilitated negotiation between the parties with the help of a neutral third-party mediator. Environmental mediation is a relatively new instrument for the collaborative solution of conflicts over projects that have an environmental impact. Where possible, all the parties affected by the project enter a series of voluntary negotiations to work out a common solution. Indeed, in the best of mediations, the parties will come out with a result that satisfies both of their interests and needs in ways that could never be achieved in court. Moreover, it can provide all participants a greater sense of satisfaction because of their active involvement. Most important, mediation promotes cooperation and develops a greater understanding of the interests of the other parties.
4.3.1 A New Model of Environmental Mediation
Environmental disputes are a unique breed. They are not particularly well-suited for judicial determination because they are so technically complicated and incredibly expensive to try. Nor are they as readily susceptible to the standard meditation with a retired judge, particularly one not well versed in modern environmental law and mediation theory. So what is to be done with them (the disputes, not the judges)?
Our proposed Environmental Mediation Team consists of (a) a trained and experienced mediator, (b) a neutral environmental attorney with expertise in the legal area of dispute, and (c) a neutral environmental expert with expertise in the technical issues in dispute. This potent team has many advantages over single person mediation, and can accomplish much more at less cost.
4.4. Case Filing, Pleading, and Decision
The case filing is usually used as a last resort for assuring environmental justice and it, too, is guaranteed by the Nepalese constitution. The case selected to litigate will not start immediately. If our earlier soft advocacy, continuous follow-up, interactions, ultimatum with the concerned stakeholders do not work to the degree desired, we are compelled to go for lawsuits through the involvement of affected peoples. These suits are mostly against concerned government authorities, institutions, and departments directly responsible for raised issues including individual and private parties. Then, after several hearings, pleadings will go on and on, but usually we will be able to get positive results. This in itself is a very challenging job in Nepal. Fortunately, the integration of science and legal strategies has resulted in increased numbers of positive decisions, but the implementation of all these positive courts decisions poses another very big challenge in the PIL cases. These challenges will be reduced through having an independent monitoring mechanism equipped with required manpower and utilities. This mechanism can periodically monitor and report on the execution of the court decision.
4.5. Implementation & Monitoring
This part is very weak in Nepal’s PIL history and needs immediate attention and supports. Sometimes the court’s decision takes several years to reach the opponents. Once there, no one will follow-up on the decisions. Instigators of such cases will definitely check on the implementation of decisions and report to the concerned stakeholders, as much energy and labor have been invested in achieving the positive decisions.
To serve these specific purposes, the Supreme Court of Nepal recently formed a special monitoring cell as a result of the pressure created and input provided by organization like Pro Public. This cell will be monitoring all the court decisions that are in place and hopefully will prove a strict authority to ensure follow-up on the court orders that favor of the environment and public interest. This unit needs additional training, infrastructure, and manpower.
For monitoring of court decisions or other legal compliance, an independent third-party monitoring system compulsorily represented by the civil society, or organizations working on their behalf, has been proposed. As some of the monitoring programs at project level are being carried out by several organizations like LEADER Nepal, ENPHO, and NESS, ESPS/DANDA`s six monitoring stations that are setup for the air pollution monitoring will not serve the purpose fully. Such monitoring requires a separate organization that can monitor and report continuously rather than sporadically on a project-by-project basis. Pro Public also initiated citizen monitoring of industrial effluent standards and could extend its scope to include monitoring and reporting on the environmental quality standard, including air quality, provided that it will get sufficient financial and technical assistance. The cooperation with civil society and the concerned government and nongovernmental parties will need to be kept intact for smooth functioning.
4.6. Contempt of Court
As the implementation part of the positive courts decisions are, comparatively, not very compelling to them, the opponents enjoy avoiding the implementation of court decisions and the environment’s conditions and/or other issue raised in the petitions, and thus they remains unchanged even after the court present its final judgment. In such situations, we also look for a contempt of court ruling in order to enforce the court orders that are already in place and to ensure the court’s prestige remains intact, too. For example, Pro Public has filled a contempt-of-court in the case of the Sri Distillery, which continues to pollute the river and air even after the court ordered the distillery to control its output. The result is awaited and hence it is not wise to predict its success. But, of course, our assumption is that it will result in an even tighter decision that will facilitate compliance with the court’s decision.
5. Challenges of the PIL in Nepal
There are several challenges to be surmounted in order to bring changes aimed for by PIL up to the desired level .
5.1 Receptiveness of the court
The court receptiveness to PIL depends on the issue raised, its grievances, and the articulation behind them. However, the receptiveness of the court is increasing, along with the courts’ awareness, as illustrated by more than a decade of PIL successes in Nepal.
There are great costs involved in making success stories out of PIL cases that bring desired changes in environmental conditions. The organizations involved in this sector in the South Asian countries and worldwide are limited and having a hard time surviving. Basically they are NGOs: nonprofit organizations hardly funded by any national or multinational banks. So they have to either rely on their own scarce resource or wait for funding from a like-minded funding agencies usually international level NGOs or dissolve themselves.
5.3 Longer Procedures Versus Continuation of Individual Involved
Pro Public has had a very hard time in the past. A case filed for ensuring safe drinking water for all¾ probably the first PIL case of its kind¾took about 12 years (1989-2001) before getting the final verdict. So it had required several lawyers and expert’s time and a lot of other resources, efforts, and energy, etc. So it is very hard to retain a PIL lawyers¾as well as public devotee’s such as an independent scientist¾without any private interests. Pro Public lawyers felt proud of their colleagues, as they tirelessly pleaded the case. This longer duration might have been because it was the first such PIL case, the democracy restoration movement was new, and the court lacked sensitivity to environmental issues. So the judges` sensitivity training on environmental and natural resource management, gender issues, and other current issues was carried out simultaneously, primarily by Pro Public as well as others. Such training should be continued to make the judicial system aware of the changing scenarios that result from globalization and trade liberalization, and the subsequent impact on the human environment.
5.4 Lack of Execution and Monitoring
Looking on the inconsistency of execution of court decisions and subsequent monitoring by the concerned authorities, Pro Public has taken the initiative to monitor the execution of courts order at the field level. There is need for a special unit to monitor the execution part of decision. Recently, the Supreme Court established a monitoring unit and called for training, infrastructure, and financial support. As a pioneering PIL institution, the strengthening of Pro Public to make it a monitoring program is necessary and urgent.
6. Difficulties Overcome
These difficulties and challenges can be narrowed down by Pro Public if sufficient funds are raised, or through the assistance of like-minded international communities. The capacity to train technical and legal staff is essential to coping with the challenges ahead. The incorporation of public-minded lawyers and scientists is essential to overcoming most of the challenges and bringing significant changes. The institutionalization of a mediation mechanism will definitely reduce the chances of escalating disputes by resolving them in their early stage. The development of an independent organization or the strengthening of a capable NGO that has in-house legal and scientific resources is required for the monitoring and reporting that will enhance the execution of a court order.
7. Lessons Learned in PIL Sectors in Nepal
The following two examples illustrate the success that have come from advocating and enforcing air quality standards in Nepal and offer lessons that can be replicated in other parts of the globe.
7.1 Campaign Program for Safer Medical Waste Management (Alternative Vs Incinerator)
Medical waste management is a serious problem for the Kathmandu valley, which is similar to other big cities. In order to manage this problem, the concerned authority imported an incinerator technology before approval of the EIA, as required per EPA. The program was conceived on the basis of least public participation in the public hearing process during the EIA of the Medical Waste Management Project of Kathmandu Valley. The EIA document has been opened for comment. Pro Public, which has been monitoring this greater-public health concern, has sent its comments with reference to unsuitability of technology and location.
Pro Public believes that the pollution should be managed by environment-friendly technologies, not by pollution-prone technology. For example, there are several Asian countries in which incineration is being widely used and promoted by different donor agencies to treat municipal waste¾including medical waste¾regardless of its constituents. This incinerator technology burns everything, thus forfeiting resources that could be gained from recovery, recycling, and reuse, thereby creating a financial burden for hosting communities and institutions, as well as adding to the environmental pollution just by changing a biological problem to a chemical one. Once the waste¾which includes a lot of biological and plastic material¾is burned, it releases various kinds of toxic chemicals like Dioxin and Furan¾known human carcinogens¾into the environment.
So, Pro Public has completed an educational campaign program for safer medical waste management in Nepal. The program includes production of an educational pamphlet in the local language, an essay competition among medical students on medical waste management, an impact survey of incinerator use, and, finally, a one-day workshop program accommodating affected people voice. Through this program, the operation of an incinerator installed in the heart of the Kathmandu Valley, a densely populated area, was stopped and people were saved from being exposed to those toxic chemicals that have an intergenerational mutagenic impact. The success of this campaign encourages all the concerned parties to think about the right to information and the necessity of real public participation in decision making. These results were achieved thanks to the timely submission of comments from Pro Public, which had to overcome the lack of protocol for sending comments on such reports. Of course, such reports are out of reach of the general public for which they are opened; availability is restricted and the reports are written in English. The issues were widely disseminated through different media and program outcomes were widely circulated among all concerned.
7.2. Environmental Quality Standard (EQS) Case
Even four years after the Ministry of Population and Environment (MOPE) was established in 1995, the necessity of setting up the environmental quality standards (EQS) for the betterment of the environment was not understood by the concerned ministry, despite its statutory duty to set them. It has been felt that, for the betterment of the environment as a whole, there should be some short of measurements and standardization. With the aim of controlling overall environmental degradation by helping the government to fulfill its statutory duty of setting EQS as per the EPA 1997 and EPR 1997, Pro Public filed a case against MOPE to compel it to fulfill its duty to set the EQS required for environmental conservation by its July 1999 deadline. The ministry was to set standards in several arenas, including air, water, and noise quality, as well as industrial effluent (Article 15, EPR 1997).
After more than two years of continuous efforts, on November 2001, the Supreme Court of Nepal issued orders to set standards for the air, water, and noise quality as well as other required standards, per MOPE’s statutory duty. As a result, we now have National Ambient Air Quality Standards (NAAQS 2003) as of July 4, 2003, Water Quality and Noise Quality Standards has yet to be set up. In addition we have nine individual industry’s effluent standards, and one generic standard. The standards of common treatment plants as well as the sampling methods, analysis methods for the environmental pollutants, etc. are in place. There is an urgent need for effective implementation, so Pro Public also filed a case on August 26, 2003 for the recruitment of an environment inspector (EI), which is required for the effective implementation and monitoring of environmental related activities, standards, and other mitigation measures outlined in the environment management plan of the EIA reports.
A very interesting aspect of setting up the current comprehensive NAAQS 2003 is that, based on this case, MOPE has hired a team of consultants from the Institute of Engineering (IOE) Nepal to propose the EQS. These proposed standards were not prepared with least expert consultation as well as less extensive study of the required environmental conditions usually required for the setting of standards. So being a proponent of the case and wanting to assist in the development of these standards, Pro Public organized an interactive meeting titled the “Proposed Environment Quality Standards, its Shortcomings and Improvement Possibility developed by MOPE, 20th November 2001”.
Various sector experts, scientists, academicians, and lawyers, as well as representatives of various organizations working on different aspects of the environment, participated in the program. We initially reviewed the proposed standards and also collected a lot of suggestions, comments, and possibilities for improvements and finally submitted them to the MOPE for inclusion. As a result, we got more comprehensive NAAQS than the consulting teams had proposed. For example, the parameters for benzene were not included in the proposed standards, though it was found in concentrations several times greater than the WHO guidelines in the prevailing air of the Kathmandu Valley; ultimately, standards for benzene were included. There is also a categorization of pollutants with respect to time of exposure, and a fixed limit for these; both were included after our intervention. This illustrates the benefits and importance of public participation in resolving environmental issues in Nepal as well as NGO efforts to make government responsible through creative and timely support; this lesson could be replicated in other parts of the globe.
There are several other cases carried out by Pro Public for the betterment of air quality like air pollution cases such as pollution from Indian, Japanese, and Korean vehicles import case based on self certification; and brick industry pollution cases.
Enacting the development of an effective compliance mechanism for EQS is essential for the betterment of the environment. Participatory and collaborative approaches will results sustainable development, which can be achieved through transparency in information sharing and decision making. There is a need for third-party monitoring, and independent, public-minded NGOs/private companies that are equipped with the necessary legal and technical expertise, as well as in-house monitoring mechanisms. Thus, strengthening such organizations is a must for advocacy and enforcement of law, act, and regulations for the betterment of the environment and people at large.
1. URBAIR, October 1996, Kathmandu Valley Report, p 52).
2. NBS, 1998, A Compendium on Environment Statistics, Nepal, p10
3. 1997, Environment Protection Act (EPA) and Environment Protection Regulation (EPR), Chapter 2, Article 2 (2).
4. 1990, Nepalese Constitution
5. Several Writ Petition related documents of Pro Public