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Amending environmental laws: Need of the hour  

28 Mar 2021

By Yumiko Perera    The National Environmental Act (NEA) was promulgated more than 40 years ago as a solution to tackle the surge in harm done to the environment, but substantive amendments to the Act have not been made in over two decades. Public awareness and government leadership provide reasons to hope that the NEA, with its proposed new clauses, would serve its purpose, hopefully, better than it has over the last few decades.    While measures are underway to amend the NEA which has not been amended in a considerable period of time, the Ministry of Environment recently revealed that 42 new clauses would be introduced to the Act as a means of giving it stronger legal force.    Regarding the amendment of the NEA, in a discussion held at the Ministry of Environment recently, Environment Minister Mahinda Amaraweera highlighted that the provisions which are currently in place did not suffice for environmental protection, especially given the state of destruction the environment is facing today.    Speaking briefly with The Sunday Morning, the Minister Amaraweera noted: “Not only are the laws outdated, especially when it comes to today's context, but the Act also hasn't been amended in 20 years. It is high time for it to be amended, and new laws to be put in place of the old ones.”    Speaking with The Sunday Morning, Secretary to the Ministry of Environment Dr. Anil Jasinghe shed light on the new clauses proposed. “In the present NEA, there isn’t even a definition available for wetlands. Wetlands have not been mentioned in the Act at all. One of the new clauses proposed for the NEA is regarding wetlands, and certain regulations will be added as well.”    Highlighting that the Ministry plans on employing the “polluter pays” principle, especially concerning industrial effluents, Dr. Jasinghe said: “The payments would depend on the scale of pollution that they create. A delay fine is also proposed concerning environmental protection licenses (EPL) in situations where EPLs are not being renewed in time.”    Speaking about how the fine for most offences started at Rs. 10,000, Dr. Jasinghe mentioned that an array of new fines would be introduced through the new clauses and that there would be a significant hike in the price range as well.    Extended producer responsibility is another policy that has been proposed in the new clauses, especially with regard to plastic and polythene production, thereby shifting the responsibility of post-consumer disposal from municipalities back to the producers.  “We are planning on introducing Strategic Environmental Impact Assessment (SEIA), which is based on the Government’s strategy for development, along with clauses regarding environment rehabilitation as well,” added Dr. Jasinghe.    Renowned environmental lawyer, Dr. Jagath Gunawardena, speaking with The Sunday Morning, shared: “The NEA hasn’t been amended for nearly three decades. We need to amend it to incorporate a provision that would effectively weigh the present-day issues and future challenges. Not only do we need to bring in new management tools into the Act and also make sure that we have more effective countermeasures against pollution, we have to think futuristically and bring in planning tools also into the process. Planning tools such as Strategic Environment Assessment is something we have been discussing for over a decade.”    “There are two types of tools, one is the planning tool and the other is the management tool. The management tool that the NEA has been using for nearly three decades is the EPL, and in 2008, they introduced another tool that is linked to this called the waste handling licence (Waste Generation and Waste Handling License). When it comes to the waste handling licence scheme, there are gaps in the law that prevents it from being more effective and efficient in operation, so we need to bring that to the landscape of the law.”    Emphasising that the rate of the fines did not suffice in today’s context, Dr. Jagath Gunawardena said: “A person who releases different kinds of effluents into the environment, should be given different types of charges, which is called the polluter-based principle. Those who intend to release/send waste material into the environment, should pay for what they are setting out into the environment. The environment is the common property of all. I feel like this is a management tool which would help make the system more efficient.”    “We have all been relying on the Environmental Impact Assessment as the planning tool, I feel that SEIA, which is a macro planning tool, should also be brought into this. Although we have been discussing this for more than a decade, since the amendment has not come yet, it has not been given legal effect or power.”    Noting that the checks and balances system in the country itself remains quite hazy, emphasising the importance of the effective and efficient implementation of the law, Dr. Gunawardena said: “A person who violates an EPL or a waste handling license should be forced to stop all operations until the person complies with the requirement, by bringing miscreants to book, effectively. A person who gets approval for a project through a SEIA and tries to have their way should also be stopped until the person complies with the approval conditions, or they should be forced to pay for losses to the environment. Someone who pollutes the environment wouldn't just have to pay the fine, they would also have to pay for the clean-up too.”


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