delhi- cng decision

7/27/2019 Delhi- CNG Decision

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Economic and Political Weekly April 22, 20061584

Delhi has made surprising strides toward improving its airquality. The data collected by the Central Pollution ControlBoard (CPCB) suggest that levels of suspended particles,

an indicator for respiratory health, have at least stabilised and

possibly even fallen [World Bank and Central Pollution ControlBoard 2005]. Despite popular resistance and widespread protestsin 2001, when all public transport-related commercial vehicleswere ordered to convert to compressed natural gas (CNG), residentsof Delhi today approve of the results. In a survey conducted priorto the November 2003 state elections, it was noted that theimprovement in air quality was one of the main achievementsof the ruling Congress government for Delhi, and quite likelya factor that contributed to the re-election of the incumbentgovernment [Anon 2003].

Although elected politicians now claim credit for air qualityimprovements, Delhis dramatic evolution from the worlds fourth-most polluted city is more often attributed to decisions of the

Supreme Court, which is constitutionally an adjudicator, not anenvironmental policy-maker. The critics have argued not onlythat the court overstepped its bounds, but also that it dictatedpolicies that were inefficient. The 2003 India Infrastructure

Report, published by the 3iNetwork, contends,

mandatory conversion to CNG by all vehicles is not necessarily

the most efficient way to bring down emission levels. Other options

could have been consideredThe decision on the appropriate

technology should have ideally been made by the executive using

a body of experts [3iNetwork 2003].

These are not academic arguments or theoretical debates butreal concerns, as the high courts for other cities in India are

considering similar reforms and other countries are watchingIndias experience. That alone makes it urgent to understandwhether the Supreme Court in fact improperly assertedauthority to make environmental policy decisions. In thispaper we examine the role of the Supreme Court and thegovernment by looking at the process by which air pollutionpolicies evolved in Delhi.

Our examination leads us to the following conclusions. Al-though the Supreme Court played a central role in the welcomedchanges, especially the conversion of all commercial vehiclesto CNG, it was not the source of most of the policies. The courtsimportant contribution was to push the government in two sig-nificant ways: to implement existing policies and to develop new

policies. In our view, the court did not exceed the traditional roleof a common law court, and in fact acted in some ways like courtsin the western democracies that force governments to implementenacted laws.

The court did, however, prod the government at critical pointsto get past partisan politics and bureaucratic logjams, and itprovided a form of protective cover that allowed the governmentto avoid taking direct responsibility for implementing controversialpolicies.

The executive branch of the government was the chiefdriver of the policy-making process, as distinct from policyimplementation. Although it vacillated in implementing its ownpolicies to curb air pollution in Delhi, the government was clearlythe policy-maker. It did this directly, through its various centraland state-level ministries, and indirectly, through statutorycommittees it was asked by the Supreme Court to set up underSection 3(3) of the Environment (Protection) Act of 1986.

The process of policy-making to reduce air pollution, involvingthe state, statutory committees, and the court, continues eventoday and appears to be an effective driver of change. Until thestate steps up and directly assumes its responsibilities, and aslong as the existing process is transparent and participatory, theexisting process may be the only viable way to achieve policyreform.

How It All Began

The Supreme Courts involvement in policies to curb air pollutionin Delhi began with public interest litigation brought to the courtby M C Mehta in December 1985. Concerned about rising levels

of air pollution and the governments apparent lack of interestin dealing with it, Mehta petitioned the court to direct governmentministries and departments to implement the Air Act of 1981in Delhi.

The Air Act gave the government authority to take action.Specifically, the Air Act contains authority for CPCB to laydown standards for the quality of air, to advise the centralgovernment on any matter concerning the improvement of thequality of air and the prevention, control, or abatement of airpollution, and to perform such other functions as may beprescribed. In 1986, in response to Mehtas petition, the SupremeCourt directed the Delhi administration to file an affidavit speci-fying the steps it had taken to reduce air pollution.

Who Changed Delhis Air?Although there is general public approval of the improvements in Delhis air quality in recent

years, the process by which this change was brought about has been criticised. A commonperception is that air quality policies were prescribed by the Supreme Court, and not by

an institution with the mandate for making environmental policy. A careful review of the

policy process in Delhi suggests otherwise. We find that the government wasintimately involved in policy-making and that the main role of the Supreme Court was to

force the government to implement previously announced policies. A good understanding ofwhat happened is essential, as the Delhi experience for instituting change has become a

model for other Indian cities as well as neighbouring countries.

URVASHI NARAIN, RUTH GREENSPAN BELL


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Quite likely as a result of the courts involvement, the Delhiadministration and the central government started to pay attentionto the problem of air pollution. Some have asserted that the Delhiadministration and the central government took steps to curbpollution on their own initiative, without the courts order. Ina July 2003 interview, Dilip Biswas, then chairman of CPCB,said that the central government set vehicular standards in 1990on its own initiative. Given the timing, however, and thecorrespondence between the court and the government at this

time, it is highly likely that the courts involvement was aprecipitating factor.

Several new environmental laws were enacted, as were policiesto curtail tailpipe emissions from vehicles and move pollutingindustries from Delhi. However, these policies were rarelyimplemented, and those that were can be characterised as largelypiecemeal. There was no evidence of a comprehensive plan totackle the growing problem of air pollution.

The new legislation included the 1986 Environment (Protec-tion) Act, an amendment to the Air Act in 1987, the MotorVehicles Act of 1988, and the Central Motor Vehicle Rules of1989. The latter two specifically added authority to set standardsfor vehicular emissions for manufacturers and users. As a result,

in 1990 vehicular exhaust emissions standards were set, imposingsome obligations on owners to maintain clean-running vehicles[Agarwal et al1996]. Ambient air quality standards were alsoprescribed for Delhi by the ministry of environment and forests(MoEF) (The Statesman, Calcutta, January 2, 1991). Finally, acommittee was set up in April 1991 under H B Mathur, of theIndian Institute of Technology in Delhi, to recommend vehicularmass emissions standards for 1995 and 2000 [Anon 1996]. Thestandards were to replace a voluntary programme in whichmanufacturers self-certified their vehicles performance (TheSentinel, May 31, 1989).

In late 1987, the Delhi administration began a campaign toeducate residents about air pollution and encourage them to have

their vehicles voluntarily checked for emissions (The Times ofIndia, September 21, 1988). Also at this time, the Delhi trafficpolice announced its first crackdown on polluting vehicles,especially diesel vehicles (Indian Express, February 24, 1988).Mathur found that the Delhi traffic police prosecuted 2.5 timesmore vehicles in 1988 than in 1987. His study also found thatdespite these efforts, the level of pollution far exceeded safelimits. Then, in 1989, the central government raised thepenalty on vehicle-owners guilty of breaking the pollution lawto Rs 1,000. However, the state transport authority for Delhiwas unable to enforce the penalty and cited a lack of servicestations with equipment to measure vehicular exhaust (TheSentinel, May 31, 1989).

Starting in the late 1980s, the Delhi administration also beganto consider the impacts of industrial pollution. In 1988, theadministration identified firms in Delhi that were causing pol-lution and promised to relocate them to new industrial areas (TheTimes of India, February 28, 1988). About a year later, theadministration announced a policy that would allow only cleansmall industries with low power requirements to operate in thecity (Indian Express, November 25, 1989). To the best of ourknowledge, this policy was never implemented. In 1990, thecentral government approved the second master plan for Delhi.It identified category H industries those that were large andassociated with hazardous emissions that needed to be movedout of Delhi within three years that is, by 1993.

Court Pushes Harder

Nevertheless, pollution continued to rise. Possibly respondingto this, in early 1991, the court asked MoEF to set up the firstof what turned out to be three statutorily based committeescharged with devising policies to curb air pollution in Delhi.Authority to do so derives from the Environment Protection Act,which allows the central government to constitute anauthorityfor the purpose of exercising and performing

much of [its] powers and functions, including the power toissue direction. By asking for the establishment of suchcommittees, whose sole purpose was to devise policies to curbair pollution, the court signalled that the government should paymore attention to air pollution and indicated its own need fortechnical experts.

The first of these committees was constituted in March 1991,when in an extended judgment the court asked counsel to comeforward with useful deliberations so that something concretecould finally emerge. This committee came to be known as theSaikia Committee, after its chairman, former justice K N Saikia,who had recently retired from the Supreme Court. Other membersof the committee were M C Mehta, the chairman of CPCB, and

a representative of the automakers. The court directed the com-mittee to (i) assess technologies available for vehicular pollutioncontrol; (ii) assess low-cost alternatives for operating vehiclesat reduced pollution levels in metropolitan areas and make specificrecommendations for implementing these alternatives; and(iii) make recommendations on how vehicular pollution couldbe reduced in both the near term and the long run.

One of the Saikia Committees first recommendations was tophase out leaded petrol in Delhi by April 1992 [Saikia Committeeon Vehicular Pollution 1991]. As if to demonstrate why a firmerhand was needed in these matters, MoEF argued against the leadphase-out policy before the committee [Saikia Committee onVehicular Pollution 1991] even though in late 1989 the agency

itself had announced a plan to introduce unleaded petrol(The Times of India, December 31, 1989).

The committee also recommended CNG as an alternativevehicular fuel for three reasons: it polluted less, cost less, andwas more widely available than petrol or diesel. Official discus-sion about the use of CNG in transportation had begun as earlyas 1988, when a World Bank study urged the Indian governmentto use natural gas for transportation, and the Oil and Natural GasCommission tested CNG in its own vehicles, with encouragingresults (Hindustan Times, February 28, 1988). In September1994, Parliament passed the Motor Vehicles Amendment Act topromote the use of alternative fuels, such as batteries, solar power,and CNG. Motorists using these alternative fuels were not re-

quired to obtain permits from the state transport authorities and,for a specified period, were allowed to determine their ownfreight, fares, and hours of operation.

These incentives were meant to encourage commercial vehicleoperators to switch to alternative fuels. The Delhi governmentalso announced its intention to promote the use of CNG as analternative fuel by opening more CNG outlets and possiblysubsidising the cost of CNG conversion kits [Anon 1994b]. Onthe suggestion of the Saikia Committee that CNG be used as analternative fuel, in early 1995 the Supreme Court ordered thatall government cars switch to CNG or install catalytic convertersand use unleaded fuel (Indian Express, February 4, 1995). Despitethis flurry of activity, most of which originated with the


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1998 instead of 2000. Three other measures were announced:all vehicles fitted with two-stroke engines were to be banned,use of propane in three-wheelers was to be made mandatorybeginning in April 1997, and all diesel vehicles were to befitted with diesel converters (Business and Political Observer,January 20, 1997). None of these policies had been mentionedin the affidavit, and none were ever implemented.

The central government promulgated emissions standards for2000 in March 1977. The minister of MoEF announced that

certain polluting buses would be retired from Delhis roads(Hindustan Times, February 22, 1997). In January 1977, the Delhiadministration announced that it would impound or heavily finepolluting heavy motor vehicles entering Delhi (The Times of

India, January 17, 1997). These policies were later shot downby the law ministry on the grounds that giving the Delhi transportdepartment the power to impound polluting vehicles wouldcircumvent the Motor Vehicles Act (Statesman, April 13, 1997).

The one part of the affidavit that became a working policydirective from the Delhi administration dealt with phasing outold vehicles and encouraging the use of CNG. In August 1997,the lieutenant governor of Delhi issued instructions to the statetransport commissioner for the retirement of old vehicles and

technological advancement of the new fleet, pursuant to Section20 of the Air Act 1981. The new fleet of three-wheelers wouldinclude some vehicles operating on alternative fuels, and the fleetof taxis would move to alternative fuels only (electricity, battery,CNG, LPG, propane and solar power). There was no mentionof trying to convert the bus fleet to alternative fuels. In all cases,the newer vehicles would meet higher emissions standards.

In a now-familiar pattern, the Delhi government first respondedto pressure from the Supreme Court and in October 1997 developeda policy to phase out old vehicles and encourage the use of CNG.But with elections looming, it withdrew this policy in February1998. Once again the Supreme Court stepped in and forced theDelhi government to act on the policy it had announced.

Central government: In December 1997, a year after the Dhingraaffidavit, MoEF issued the White Paper on Pollution in Delhiwith an Action Plan Ministry of Environment and Forestry1997]. The white paper was the culmination of a series of meetingswith concerned government agencies, NGOs, experts and citi-zens. It proposed policies to curb not only vehicular pollutionin Delhi but also all types of pollution, thus going beyond thepollution control strategy suggested by Kiran Dhingra in heraffidavit.

In the white paper, the ministry listed measures and a timetablefor controlling vehicular and industrial pollution about 90 percent of Delhis pollution. Like Dhingras affidavit, the whitepaper called for phasing out old vehicles (including buses more

than five years old), possibly phasing out two-stroke two- andthree-wheelers, preventing the overloading of buses and trucks,improving traffic flow, building a bypass around Delhi, buildinga mass rapid transport system, improving the quality of fuel, andintroducing CNG buses.

Measures for controlling vehicular pollution addressed in-usevehicles, traffic management, and fuel quality and types. Thewhite paper also discussed the need for further delegation ofstatutory powers to functionaries of the Delhi government to carryout enforcement for example, checks to detect vehicles notcomplying with emissions norms.

In January 1998, soon after the release of the white paper andseemingly also in response to the Dhingra affidavit, the Supreme

Court directed the central government to set up a third statutorycommittee the Environment Pollution (Prevention and Control)Authority (EPCA). According to Harish Salve, who acted asamicus curiae to advise the court in the Delhi litigation, EPCAwas set up directly in response to government complaints thatthe Supreme Court was exceeding its authority by making policydecisions. EPCA was asked to monitor the progress of the whitepaper, develop new policies to curb vehicular air pollution, andserve as a fact-finding body for the court. EPCA was empowered

to direct (a) closure, prohibition, or regulation of any industry,operation, or process; (b) stoppage or regulation of supply ofelectricity, water, or any other service; (c) the establishment ofprocedures and specifications to prevent environmental acci-dents, and to ensure safe handling of hazardous substances; and(d) the fitting of vehicles with the proper pollution controlequipment and the accurate calibration of these instruments toensure proper emissions testing (Business Standard,February 14,1998). But the role that EPCA eventually played went wellbeyond these responsibilities.

MoEF issued an order constituting EPCA and nominated BhureLal as its chairman (hence EPCA is also called the Bhure LalCommittee) and Dhingra as one of its members. EPCA held its

first meeting on February 26, 1998, and met once a week there-after. It submitted progress reports to MoEF and the SupremeCourt at regular intervals as well as specific reports on mattersreferred to it by the court.

In its very first progress report, EPCA (1998a) suggestedadditional pollution policies that built on the action plans of theDelhi administration and MoEF but were bolder and more specific.Rather than just encouraging the use of clean fuels, EPCAproposed to switch all taxis and autos to a clean fuel, ban alleight-year old buses except those on clean fuel, and graduallymove the entire bus fleet to a single fuel CNG. EPCA did notdefine what it considered clean fuel, however.

EPCA concluded that pollution control measures already

undertaken by the government were limited in their effect becauseof the number of old vehicles and the rapid increase in newvehicles. EPCA expressed concern about the lack of actionbyimplementing departments and the need to focus on effectivemeasures to have an impact in the short run.

In its first report, EPCA listed measures from the white paperand the Dhingra affidavit on which there had been no progress:(a) ban on commercial vehicles more than 15 years old (to havebeen implemented by April 1, 1998); (b) setting up of automatedfacilities for inspection and maintenance of vehicles; (c) formu-lation of incentive schemes for registration of autos and taxiswith clean fuel; (d) ban on alteration of vehicles by replacingpetrol engines with diesel engines (to have been implemented by

December 31, 1997); (e) restriction on driving goods vehiclesduring daytime (to have been implemented by December 31,1997); (f) expansion of premixed oil dispensers to 50 per cent(to have been implemented by June 1997); and (g) ban on supplyof loose 2T oil at petrol stations and service garages (to havebeen implemented by December 1, 1997).

From the minutes of the first report, it appears that EPCAbelieved that more drastic measures were needed, including theuse of CNG, and that the conversion of vehicles could take placewithout significant additional cost to owners. Any additionalcosts could be met through state subsidies.

EPCAs plan was converted into a mandate by the SupremeCourt on July 28, 1998. Progress over the next four years was


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uneven. CNG fuelling stations, parts, and buses were sometimesunavailable. Key players were reluctant. When bus operators whohad not converted to CNG were not allowed to operate, the publicstaged strikes and protests. And various high-level commissionsand committees made last-minute efforts to head off the SupremeCourts orders. The court refused to reconsider its basic decision,however, and by December 2002, all diesel city buses andcommercial vehicles had converted to CNG.

Conclusion

Most critics of the Supreme Courts role in phasing in CNGhave focused on its order dated July 28, 1998. This is the principalpiece of evidence that the court was engaged in activities thatwent beyond its judicial mandate and appropriate role in Indianpolitical life.

Our review of the record shows that the policies ordered bythe court, including those of July 28, were in fact suggested byEPCA, a representative body of the central government. Further-more, EPCAs policy recommendations either derived from orbuilt directly on policies formulated and announced by the Delhigovernment and by MoEF.

The court forced the government to carry through its announcedpolicies when the government retreated or wavered. But ourextensive review of the process of policy evolution finds littleevidence that court devised the policies themselves.

The pattern observed in Delhi in which the agencies of electedgovernment announce policies, then withdraw them until forcedby the court to implement them suggests that the road will besimilarly rocky for the eight other Indian cities that seek to addresstheir urban air quality and look to the Delhi experience forguidance: Ahmedabad, Kanpur, Lucknow, Pune, Sholapur,Hyderabad, Chennai and Bangalore. The Supreme Court proveditself to be sufficiently above the day-to-day pressure ofpolitics that it could stand firm on the remedies recommended

to it by EPCA, and at the same time it made some reasonable,short-term adjustments to adapt to various realities during thedifficult transition to CNG. This combination of steadfastnessand adaptability helped ease a complicated political and economicshift. It is currently unknown whether the high courts forthose cities are capable of playing the same role as the Indian

Supreme Court did for Delhi, or what the path of that policyprocess will be.

Email: [email protected]

[This article is part of a larger project undertaken jointly by Resources forthe Future and Jawaharlal Nehru University to understand the process andpolicies by which Delhi improved its air quality. Details of the project canbe found at www.rff.org/clearingtheair, including a more detailed versionof this article. The authors are very grateful for the research support provided

by Aaron Severn and Nicholas Burger and the time many people in Delhispent speaking with us and providing us with information.]

References

3iNetwork (2003): India Infrastructure Report 2003, Oxford UniversityPress, New Delhi.

Agarwal, Anil, Anju Sharma and Anumita RoyChowdhury (1996): SlowMurder: The Deadly Story of Vehicular Pollution in India, Centre forScience and the Environment, New Delhi.

Anon (1992): Masked Oxygen,Down to Earth, August 31, 2002, Societyfor Environmental Communications, New Delhi.

(1994a): Cops Compensated, Down to Earth, January 15, Society forEnvironmental Communications, New Delhi.

(1994b): Fair Air on CNG, Down to Earth, June 30, Society forEnvironmental Communications, New Delhi.

(1995): Tax on Fly Ash, Down to Earth, January 31, Society forEnvironmental Communications, New Delhi.

(1996): Smog Inc,Down to Earth, November 15, Society for EnvironmentalCommunications, New Delhi.

(2003): Poll Posturing, Down to Earth, November 15, Society forEnvironmental Communications, New Delhi.

Environment Pollution (Prevention and Control) Authority (1998a): FirstProgress Report (March-June) submitted to the Supreme Court of India.

(1998b): Third Progress Report (October-December 1998) submitted tothe Supreme Court of India.

(2001): Eleventh Progress Report (January-May 2001) submitted to theSupreme Court of India, June.

Kiran Dhingra Affidavit (1996): Affidavit Filed on Behalf of the Governmentof the National Capital Territory of Delhi with the Supreme Court ofIndia, November 18.

Ministry of Environment and Forestry (1997): White Paper on Pollution in

Delhi with an Action Plan, http://envfor.nic.in/divisions/cpoll/delpolln.html.

Saikia Committee on Vehicular Pollution (1991): Fourth Bi-Monthly Report(submitted to the Supreme Court of India), November.

World Bank and Central Pollution Control Board (2005): For a Breath ofFresh Air: Ten Years of Progress and Challenges in Urban Air Quality

Management in India (19932002), June, World Bank, New Delhi.

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