Law Watch: writer is Assistant Professor of Law, Premier University, Chittagong. Liability regime for protecting environment Liability regime for protecting environmentEnvironmental protection becomes a matter of urgency rather than a matter of acceptability. Therefore, in a mature environmental regulatory system, legislations develop a liability regime for those who by their activities cause environmental harm. Bangladesh adopted environmental law, the Environment Conservation Act (ECA) 1995 which aims at providing for conservation of the environment, improvement of the environmental standards and the control and mitigation of environmental pollution. To fulfill these objectives, the Act establishes a liability regime for environmental damage. A liability clause, by making the potential polluters pay for restoration or compensation of the damage they caused, plays a deterring role in matter of the activities that affect environment. Types of liability addressed by this Act The ECA covers different situations, each one governed by a different liability scheme. The Act applies strict liability where, due to an accident or other unforeseen incident, the discharge of any environmental pollutant occurs or likely to occur in excess of the limit prescribed by the rules (s.9). The Act hits fault-based liability for direct or indirect injury to the environment (s.7). These are the two phases of civil liability. Section 16 provides for the fault-based criminal liability of a company vicariously on its owner, director, manager, secretary or agent of the company. It describes another case of vicarious criminal liability for the owner of a vehicle emitting smoke or gas injurious to health or environment (s.6). Besides, section 15 specifies certain situations, the violation or non-compliance of which hits criminal liability imposing punishment for these offences which may include imprisonment or fine or both. Enforcement mechanism For carrying out the purposes of the ECA 1995, there is a Department of Environment (DoE) under the authority of the Director General who is vested with the power of oversee the implementation of the Act. The Environment Court Act, 2010 provides for the establishment of Environment Court and a Special Magistrate’s Court in each district to dispose of environment related cases. Both types of courts are competent to impose penalty for offences under any environmental law, to confiscate an equipment or a transport used in the commission of such offence or an article or other thing involved with the offence, and to pass order or decree for compensation in appropriate cases. Issues of concern In Bangladesh, despite having laws emphasising on making the polluters accountable and liable for the ecological damage they cause, the ultimate truth is that it is very difficult to implement the liability provisions against them. In addition to some practical problems inherently associated with implementing liability provisions, there are some other factors prevalent exclusively in Bangladesh impeding the enforcement of these provisions. We have separate environmental courts, but they cannot receive environmental cases except through the DoE unless a general person succeeds in satisfying the Court that the DoE has not duly acted upon his complaint within 60 days from lodging it. Where widespread corruption prevails everywhere in Bangladesh, the consequences of giving sole authority to the DoE for filing cases before the court are easily inferable. Besides, the responsibles of DoE are exempted from any civil or criminal liability for an act done in ‘good faith’. This allows the DoE or its officials to make delay in filing suit or to take any action depriving common people of any remedy under the guise of ‘good faith’ as the term is not defined in the Act. So, these factors surely can vitiate the environmental courts’ main purpose to enforce liability provisions against the polluter. Lack of inter-sectoral coordination among the different bodies (DoE, Environment and Forests Ministry, line Ministries) assigned for implementing the environmental laws, absence of regular monitoring of the inspection activities, polluter-politicians nexus, culture of impunity, lack of public awareness etc. are also some of the prime reasons for not holding the perpetrators accountable. But that should not be the condition. Bangladesh Constitution recently incorporated right to environment by adding art.18A which obligated the state to work for the protection and improvement of the environment. So, the government should think about the issue with utmost importance. Considering the cause-factors of its failure, the government should reassess the current environment pollution management policy with redefining the objectives and mechanisms (legal, institutional). A comprehensive and integrated strategy to be designed for coordinated action at the policy and program level which includes strong monitoring system, public education on environmental rights, self regulation and coordination of the bodies responsible for implementing the laws, etc. Moreover, access to courts on environmental issues must be easy and flexible as mere having law is not enough to protect our environment until and unless a setting supportive to reach the court for the purpose of seeking remedy against the offence is ensured to the common people. The
Posted on: Mon, 19 Aug 2013 07:53:43 +0000