National Environmental Act - Sri Lanka PDF

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National Environmental ActAmendments National Environmental Act No 48 of 1980  National Environmental Act (Amendment) No 56 of 1988  National Environmental Act (Amendment) No 53 of 2000Purpose of the ActSri Lanka India Bangladesh National Environmental (Amendment) Act No 53 of 2000The Environment...

Description

National Environmental Act

Amendments  National Environmental Act No 48 of 1980  National Environmental Act (Amendment) No 56 of 1988  National Environmental Act (Amendment) No 53 of 2000

Purpose of the Act Sri Lanka India Bangladesh National Environmental (Amendment) Act The Environment (Protection) Act No. 29 Environmental Conservation Act of 1995 No 53 of 2000 of 1986  

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to establish a central environmental authority to make Provision with respect to the powers, functions and duties of that authority to make provision for the protection, management and enhancement of the environment to make provision for regulation, maintenance and control of the quality of environment. to make provisions for the prevention, abatement and control of pollution.

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To the protection and improvement of  environment To the prevention of hazards to human beings, other living creatures, plants and property. 

To provide improvement standards.

for of

conservation, environmental

Control and mitigate the pollution of the environment.

[the Act said to be pollution oriented] Environment conservation rules of 1997  Ecological critical areas  Vehicular pollution  EIA  Environmental quality standards  Industrial waste.

Section

Description

Other jurisdictions

Definition

Environment” means the physical factors of the surroundings of human beings including the land, soil, water, atmosphere, climate, sound, odours, tastes and the biological factors of animals and plants of every description. (Sec 33)

Establishment of Central Environmental Authority (Sec 2 – part 2)

Although up to that time there were several state agencies which had jurisdiction over environmental matters, there was no state authority which specifically dealt with environmental matters per se. CEA avoided such gaps.

environment" includes water, air and land and the interrelationship which exists among and between water, air and land, and human beings, other living creatures, plants, microorganism and property (INDIA) Pakistan Pakistan Environmental protection council

Powers functions and duties of CEA ( Sec 10) 

To administer the provisions and regulations.

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To recommend to the minister on policies and criteria.

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Various functions relating to prevention of pollution and protection of environment

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To monitor new projects and evaluate their assessment

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To publish reports and information

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To require any local authority to comply with the recommendations

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To carry out researches and studies.

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To establish and maintain a link with other countries and international organizations with respect to environmental protection and management.

Pakistan environmental protection agency Provincial environmental protection agency Provincial Sustainable fund

 Establishment of Environmental Council (Sec 7(1) – part 2)

To provide education and information to the public.

The functions/powers of the Council shall be – ( Sec 7(3)) (a) generally to advise the Authority on matters pertaining to its responsibilities, powers, duties and functions ; and (b) to advise the Authority on any matters referred to the Council by the Authority. [this is merely an advisory body which does not have powers to enforce its recommendations] Appointment to the council 1988 amendment – sec 7(1) (v)Seven members to represent interests of voluntary agencies in the field of environment. (w)Two members from among persons with adequate expertise or experience in environmental protection and management.

District Environmental Agencies (Sec 9) Environmental management (part 4) o Land use

[It enhances the public participation and participation of the civil societies.] CEA is empowered to appoint such agency for each administrative district. CEA shall delegate powers to the district agencies. Purpose  To formulate policies and schemes with regard the rational use and exploitation and management of the natural resources. 

They must be formulated in consultation with the environmental council.

Chapter 3 PREVENTION, CONTROL, AND ABATEMENT OF ENVIRONMENTAL POLLUTION

and managemen t o Natural resources o Fisheries and aquatic resources. o Wild life o Forestry o Soil conservatio n

Land use management and scheme (Sec 15 &16) Provide rational system of acquisition, utilization and disposition of land and its resources.

Coordinate actions of the state government Plan and execute national programmes to combat pollution.

Encourage prudent use and conservation of land resources. [this upholds sustainable development] Natural resource management and conservation ( Sec 17) 

Management and conservation if natural resources in order to obtain optimum benefits

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To preserve the same for future generation

[PTD and Inter-generational equity are upheld] Management policy for fisheries and aquatic resources (Sec 18 &19) rational exploitation of fisheries and aquatic resources within the territorial waters of Sri Lanka, or within its exclusive economic zone, or within its inland waters Encourage citizen participation to maintain and enhance the optimum and continuous productivity of such waters. Management policy for wildlife (Sec 20) Rational exploitation and conservation of wildlife resources. Encourage citizen participation in such activities.

Laid on procedures for handling of hazardous substances. Take measures to prevent accidents which may cause environmental pollution. Restrict the areas in which industries may operate

Management policy for forestry (Sec 21) 

rational exploitation of forest resources

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Regulation of the marketing of threatened forest resources.

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Conservation of threatened species of flora.

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Encouragement of citizen participation.

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keep the country’s forest resources at maximum productivity at all times

Management policy on soil conservation.(Sec 22) Recommend soil conservation programmes. Identification and protection of critical watershed areas.  Encouragement of scientific farming technique. 

Physical and biological means of soil conservation.

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Short term, and long term research and technology for effective soil conservation.

[ensure precautionary principle and sustainable development] Environmental protection (part

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License is required for the prescribed activities publish in the gazette by the Minister. (Sec 23 A(1))

The EPA is an agency of the United States federal

4 A) – introduced under 1988 amendment and amended in 2000.

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Mandatory requirement to obtain the license for prescribed activity (Sec 23 A (2)) and otherwise shall be guilty of an offence. (Sec 23 A (3)).

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Issue of license (Sec 23 B) Valid for a specific period, it can be renewable.

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Suspension or cancellation of license (Sec 23D)

If any person violates any of the terms, standards and conditions of the license. 

Appeals against refusal of licence (Sec 23E)

Appeal must be in writing Within 30 days of the notification of the cancellation of the license To the secretary of the Ministry.  Prescribed activities for EPL underGazette Notification No 1533/16 dated 25.01.2008. Part A     

Oil refineries Batik industries where 10 more workers are employed Tanneries Power looms having 25 or more machines Abattoirs

government whose mission is to protect human and environmental health.

The agency conducts environmental assessment, research, and education. It has the responsibility of maintaining and enforcing national standards under a variety of environmental laws, in consultation with state, tribal, and local governments.

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All hatcheries or poultry farms having 2,500 or more birds or piggery, cattle, goats farms having animals 50 or more Hotels, guest houses, rest houses having 20 or more rooms Hostels and similar dwelling places where occupancy level is exceeding 200 or more.

Part B  Batik industries where less than 10 workers are employed  Power looms having less than 25 machines  Garment industries where 25 or more workers and less than 200 workers per shift are employed  Poultry farms have 250 or more and less than 2,500 birds or piggery, cattle, goats farms having animals 5 or more and less than 50  Hostels and similar dwelling places where occupancy level of 25 or more boarders and less than 200 boarders. Part c      

Definition (Sec 33) 1980 Act

Manufacturing of candles where 10 or more workers are employed Rice mills having dry process operations Tile and brick kilns Residential hotels, guest houses, rest houses with 05 or more and less than 20 rooms. Vehicle repairing or garages Carpentry workshops which use multipurpose carpentry machine or wood based industries where more than 5 workers and less than 25 workers are employed.

pollution” means any direct or indirect alternation of the physical, thermal, chemical, biological, or radioactive properties of any part of the environment by the discharge, emission, or the

Environmental quality (part 4 B) 1988 amendment

deposit of wastes so as to affect any beneficial use adversely or to cause a condition which is hazardous or potentially hazardous to public health, safety, or welfare, or to animals, birds, wildlife, aquatic life, or to plants of every description. Pollution of inland waters (23G, 23H) Pollution of atmosphere (23J, 23K) Pollution of soil(23M, 23N) Noise pollution(23P, 23Q, 23R) Removal of litter(23S, 23T, 23U) Discharge of oil into inland waters(23V) Violation of any provision of the Act or regulation gazetted under the Act is a criminal offence. A person found guilty of the offence shall be required to take corrective measures to prevent damages to the environment.

Approval of projects (part 4 C)

EIA - the gazette No 772/22 of 24th June 1993 

Approval for prescribed projects (Sec 23 AA)

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the duty of all projects approving agencies to require the project proponent to obtain an initial environmental examination report or an environmental impact assessment report as required by the project approving agency relating to such project. (Sec 23 BB)

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A notice shall be published in one newspaper each in all three languages notifying the place and time at which such a report shall be available for inspection by the public to make its comments. (Sec 23BB (2))- (under 2000 amendment).

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The report shall be deemed to be a public document for the purposes of

sections 74 and 76 of the Evidence Ordinance and shall be open for inspection by the public. (Sec 23BB (5)) – (2000 amendment) [enhance access to public] 

Appeal to theSecretary to theMinistry of theMinister (Sec 23 DD)

Case Law – EPL 1. GUNARATNE v. THE HOMAGAMA PRADESHIYA SABHA AND OTHERS (Granting EPL under part c) Facts: An application by the petitioner to establish a Saw Mill was recommended by the Technical Officer of the Pradeshiya Sabha but the Central Environmental Authority (CEA) refused to approve the application without adducing any reasons. The petitioner appealed to the Minister who directed the officers of the CEA to consider the application on its merits. The CEA wrote to the Pradeshiya Sabha that it had no objection subject to the following conditions. 1. Noise should not exceed 55 decibels prescribed under the Environmental Act. 2. The operation should not be conducted between 6.00 p.m. and 6.00 a.m. 3. A report from the Ceylon Institute for Scientific and Industrial Research (CISIR) regarding compliance with conditions relating to noise levels should be obtained. 4. Saw dust and other dust particles should not be a hindrance to the members of the community living in the vicinity. The letter of CEA was considered by the Pradeshiya Sabha at a meeting and unanimously approved provided an Environmental Protection Licence was obtained before commencement of operations. The decision of the Pradeshiya Sabha was communicated to the petitioner laying down the conditions laid down by the CEA and a further set of 7 conditions prescribed by the Pradeshiya Sabha. The petitioner then began preparations. However while preparations were going on the petitioner received a letter from the Chairman of the Pradeshiya Sabha informing him that the CEA had informed it of its decision not to recommend the petitioner’s industry and that the Pradeshiya Sabha had requested clarification from the CEA. The petitioner was directed to temporarily suspend preparations. An application was made to

the Supreme Court for infringement of Fundamental Rights and a settlement was about to be entered when the 7th to 10th respondents intervened and objected to the settlement. Held – The stage at which the complaint was made was the site clearance stage. It is the stage at which an industrialist is granted or refused permission to begin preparation for setting up his operations. Obtaining permission at that stage does not constitute the granting of a licence. A petitioner who receives a favourable response to a site clearing application must comply with the terms and conditions upon which such clearance is granted. No operations can commence until the petitioner has obtained a licence issued under Part IV A of the National Environmental Act, No. 47 of 1980 as amended by Act, No. 56 of 1988. The Central Environmental Authority and delegate institutions like the PradeshiyaSabha should hear neighbourhood objections, inform the industrialist of the objections, hear the views of the industrialist, and after weighing the evidence in the light of the submissions made by both sides, decide for reasons stated in writing and no other, that the licence will be granted or refused. The decision and reasons should be communicated to the industrialist and the persons who raised objections. Per Amerasinghe, J. "Publicity, transparency and fairness are essential if the goal of sustainable development is to be achieved. In the matter before us, none of these elements were present.

2. Jayawardena v Akmemana PradeshiyaSabha (1998) 1SLR 316 Facts:

The petitioner sought permission for setting up metal crushing operation on a land, some 25 meters away from the first taken on lease by his son. CEA inspected the land and granted permission. The petitioner submitted an application to the PradeshiyaSabha for an Environmental Protection License and paid the prescribed inspection fees. After the site was inspected an Environmental Protection License was issued to the petitioner.However, some of the residents handed over a petition against the operation and on this, the Environment officers of the PradeshiyaSabha carried out a site inspection. They found the petitioner had commenced operations without obtaining a Trade License 1 which was one of the conditions.Further the conditions for minimizing noise and dust pollution had not been 1If you are setting up a new business, you may be required to obtain a trade license under the regulations of the CMC.

complied with. Thus, the Commissioner of Local Government had after inspection advised against the issue of an Environmental Protection License. The Akmeemana Pradeshiya Sabha was exercising power, duties and functions of the Central Environmental Authority under delegation, in terms of section 26 of the National Environmental Act. (Delegation of powers, duties and functions)

Held: emission of dust and noise from the metal crushing operation was lawful if only such operation was licenced. A licence was issued to the petitioner but it was subject to specified conditions. A person who does not comply with the conditions of a licence, acts as if he had no licence. Therefore the petitioner’s occupation, business or enterprise was unlawful in terms of section 23A read with section 23B of the National Environmental Act. petitioner acted in violation of the conditions subject to which he was permitted to carry on operations and the Authority was entitled to cancel the licence. the AkmeemanaPradeshiyaSabha and its Chairman were entitled to use the powers given to them by section 23D of the National Environmental Act (suspension or cancellation of licenses) and the proviso to Regulation 10 of the National Environmental (Protection & Quality) Regulations No. 1 of 1990 to forthwith issue an order cancelling the licence rather than affording the petitioner an opportunity of showing cause why the licence should not be cancelled. allegation that the PradeshiyaSabha failed to act in accordance with the law and were acting in arbitrary capricious and mala fide manner at the instigation of the 3rd respondent Minister fails.5. The allegation that the authority was moved by the political ulterior consideration of ill will to the petitioner and his family to cancel the licence cannot be sustained.

3. Singalanka Standard Chemicals Ltd v Thalangama Appuhamilage Sirisena and Others Facts: Facts reveal that the Petitioner’s factory commenced operations in 1984 after obtaining the approval of the governmental authorities including the Central Environmental Authority, with an initial investment of nearly 50 million rupees and had been engaged in the manufacture of Aluminium Sulphate popularly known as Alum for more than 11 years. On a complaint made to the effect that the emissions/discharge from the said factory, constituted a public nuisance the learned Magistrate of Homagama ordered the closure of the factory under public nuisance. Issue:

The issue in the preliminary stage was whether the jurisdiction of the Magistrate can make orders under Chapter IX of the Code of Criminal Procedure Act has been ousted by the provisions of the National Environment Act. Held: In this case decision concludes with the observation “where a statute creates a special remedy to the resolution of a certain class of disputes the statute takes away the jurisdiction of the ordinary courts in respect of such matters would become irrelevant in the case of an act of public nuisance causing environmental hazards andthus the jurisdiction of the Magistrate’s Court to proceed under Chapter IX of the Criminal Procedure Code in the case of an act of public nuisance is not ousted by the provisions of the National Environmental Act”

4. Keangnam Enterprises Ltd. V Abeysinghe and Others Facts: The Petitioner-Company had established a metal quarry, a metal crusher and a premix plant at a site taken on lease for developing and rehabilitating the Ambepussa-Dambulla-Anuradhapura road: The Informant-Respondents 'complained of a public nuisance created by the Petitioner-Company. The Magistrate granted an injunction restraining the operation of the quarry under section 104(1} of the Code and also entered a conditional order under section 98(1) of the Code for the removal of the public nuisance caused by the quarry Held: The Magistrate had jurisdiction to make the orders complained of under Chapter IX of the Code of Criminal Procedure Act, No. 15 of 1979 because at the time the quarrying was commenced and the matter was heard the Petitioner-Company had not obtained an Environmental Protection Licence from the Central Environmental Authority as required by section 23A of the National Environmental Act No. 47 of 1980 as amended by Act No. 56 of 1988. The PradeshiyaSabhas permission to have and ma...