The Parliament enacted the Environment Protection Act, 2076 (2019) (the “Act”) on July 19th, 2019. As a result, the earlier Environment Protection Act, 2053 (1997) (the “1997, Act”) is now repealed.
1. Applicability and Scope
One of the main features of the Act in contrast to the 1997 Act, is that it mandates several compliances to Project Developers while developing a Proposal of a Project, to ensure that the implementation of the Project does not harm the environment.
The Act has also redefined certain terms so that the definitions are more comprehensive. For instance, “Pollution” has been redefined so as to include waste, chemical, heat, sound, electronic, electronic magnet or radioactive radiation that significantly degrade, damage the environment or harm the beneficial or useful purpose of the environment by changing the environment directly or indirectly.
Further, the Act explicitly authorizes the Government of Nepal to set standards to reduce and regulate emission, hazardous waste, Pollution emitted by vehicles, equipment, industries, hotels, restaurants and other institutions or activities. As opposed to the 1997, Act, the Act regulates manufacturing and distribution of harmful substances. “Harmful substances” is defined to include harmful waste transported through the borders, harmful substances as per the Basel Convention, 1989, explosives that harm the environment and human health, product that are flammable, perpetually lasting or corrosive in nature and leftover of the raw material that has been processed for the first time. The Act also addresses the concern of climate change and control of greenhouse gasses and other gasses which was not addressed under the 1997 Act. In addition to this, it envisages provisions pertaining to carbon trading, protection of national heritage sites, mountains and hills and waste management, there by widening the scope of regulatory regime in Nepal.
2. Regulating Authorities
The Regulating Authorities under the Act include the following authorities:
3. Compliance that Project Developer Needs to Adhere to
The 1997 Act, mandated a project developer to only comply with Initial Environment Examination and Environmental Impact Assessment. As per the present Act, a Project Developer needs to comply with the following compliances while developing a Project:
3.1. Environmental Study Report – is to be prepared prior to initiation of the Proposal, depending on the Proposal, and includes the following:
The Environment Protection Rules 2054 (the “Rules”), lays down the terms and conditions that needs to be entailed in the report. It mandates mentioning the budget, social and economic impact, cultural and physical impact, chemical and biological impact the project is likely to have.
If the Environmental Study Report does not confer with the criteria laid down in the Act, then the Project Developer will not be allowed to submit a report up till a maximum time period of 5 (five) years. If a Proposal is implemented without a Summary Environmental Study Report, or any act is done contrary to such an approved report, then a fine up to Rs. 5,00,000 (In words Nepalese Rupees Five Lakh Rupees )will be levied. If a Proposal is implemented without an Initial Environmental Report or any act is done contrary to such an approved report, then fine up to Rs.10,00,000 (In words Nepalese Rupees Ten Lakh Rupees) will be levied.
3.2. Environmental Management Plan – stating all probable solutions which will be adopted by the Project Developer to safeguard the environment and measures already undertaken by him has to be submitted. If a safeguard adopted by the Project Developer is appearing to be futile, the Project Developer will be asked to adopt a different safety measure.
3.3. Environmental Assessment Report- has to be submitted after two years of initiation of the Proposal. This report has to entailing the impact of the project on the environment and efforts undertaken to mitigate such impacts.
If a Proposal is implemented without an Environmental Impact Assessment then fine up to Rs. 50,00,000 (In words Nepalese Rupees Fifty Lakh Rupees) will be levied.
3.4. Supplementary Environmental Impact Assessment – is required to be done in some Proposals which have already done environmental impact assessment once and are involved in activities capacity building and modification of the Proposal.
4. Environmental Fund
The Act prescribes formation of an Environmental Fund in order to protect the environment, control Pollution, protect national heritage and maintain quality of air and water. Prior, permission from the Government of Nepal or the Ministry of Forests and Environment is required to make any payment in the environmental fund. Environmental Fund will constitute amounts received from the following authorities:
5. Carbon Trading
Unlike the 1997 Act, designed to combat carbon emissions, the Act empowers the Government of Nepal to engage in carbon trading with foreign government and institutions. The concept of carbon trading originated in Kyoto Protocol, 1997 (the “Kyoto Protocol”), according to which, each country has a cap on the amount of carbon they are allowed to release. Nepal ratified the Kyoto Protocol on December 14th, 2005. As per the Kyoto Protocol, countries that have a high carbon emission can purchase the right to release more carbon from the countries that have lower carbon emission.
6. Responsibility of the Government
Among other things the Act attributes responsibility to the Government of Nepal to:
7. Prohibitions under the Act
Certain activities are prohibited under the Act including:
8. Complaint Mechanism
Unlike the 1997, Act, the Act envisages an elaborate complain mechanism. Anyone can make a complaint to the Regulating Authorities about someone who is in violation or may violate the provisions under the Act. Upon investigation if the concerned person is found to be guilty he will have to pay reasonable compensation to the aggrieved person.
Anyone aggrieved by the decision taken by the Regulating Authorities in context to the fine levied under the Act, can file an appeal within thirty five days to-
Anyone aggrieved by the decision taken by the Regulating Authority in context to compensation can file an appeal within thirty five days to the High Court.
9. Punishment under the Act
The maximum limit for fine under the 1997 Act was Rs. 100,000 (In words Nepalese Rupees One Lakh) but under the present Act, this threshold has increased. In addition to what has already been stated hereinabove, there are different punishments prescribed for different offences, such as:
New rules facilitating the Act is yet to be enacted. Since there are no new rules, the Rules, under the earlier Act, 1997 would be applicable.