Summary: The creation of environmental protection legislations signifies an attempt by states to address the issues of environmental degradation and carve a path to sustainable development. However, by highlighting the judgement of the US Supreme Court in Sackett v FCAB and the Forest Conservation Amendment Act in India, the author argues that there has been an attempt at subversion of environmental protection by curtailing applicability provisions and subjugating the stated legislative aims to other considerations and policy objectives.

Introduction

The concept of sustainable development has focused on balancing the needs of the current generation while protecting natural resources for use by future generations. However, the issue of where to draw this line between addressing the needs of the present generation and the requirements of future generations has continued to bother the state authorities.

The tussle between providing for the needs, while preventing the slide into greed, is evident in the creation of multiple statutes specifying limits of human activities and their subsequent dilution through efforts of interest groups. In this article, the author discusses the interpretation of ‘applicability provisions’ in the context of the Sackett ruling in the US (“Sackett”)  and the Forest (Conservation) Amendment Bill in India ( “FCAB”). The author seeks to demonstrate that there has been an attempt to reduce the scope of environmental protection legislations by subjugating the stated legislative aims to other considerations and policy objectives.  

The paper is divided into three parts. First, the author provides a description of the Sackett judgment and the controversial FCAB provisions. Second, the similarities between them are analysed to provide the basis for observing the commonalities between their interpretations of applicability provisions. Finally, the author argues that both these instances represent a deceitful alteration of the statute, a violation of clear legislative intent and an attempt to give precedence to arbitrarily determined auxiliary policy concerns.

Understanding Sackett and FCAB

Sackett deals with the interpretation of the phrase “waters of the US”, as mentioned in the Clean Water Act (hereinafter “CWA”) in the US. In this case, the appellants were charged with a heavy fine for filling dirt (classified as a pollutant) in a water source on their property. This water source which fed into Priest Lake was classified as a navigable intrastate lake. The Court, claiming to uphold the Congressional intent, held that the CWA only applied to certain relatively permanent bodies of water connected to traditional interstate navigable waters and to wetlands that are as a practical matter indistinguishable from those waters. It struck down the ‘significant nexus test’ (an expansive test which was employed by the Environmental Protection Agency to determine the ambit of “waters of the US”), arguing that if Congress wanted all wetlands to fall within it, the wording of the CWA would have been different. This significant nexus test was premised on employing open-ended ecological factors to determine whether the addition of pollutants to a particular water body would adversely affect navigable interstate waters. There were two main justifications offered by the Supreme Court for adopting such a reading –

1. preserving federalism by allowing States to exercise control over pollution control and planning measures instead of the Environmental Protection Agency. 
2. protecting property owners from exorbitant and arbitrary fines, given that the scope of protected waters was unclear. 

Hence, in the US, the judiciary has reduced the scope of applicability of the CWA by refusing recognition to the significant nexus standard. A similar reduction of the scope of environmental protection legislation can be seen in India with the FCAB. The FCAB was necessitated by new challenges in the international environmental protection regime. It is premised on achieving objectives like Net Zero Emissions by 2070, maintaining/enhancing the forest carbon stock, increasing the forest cover for the creation of additional carbon sinks and enhancing forest-based economic, social and environmental benefits. Despite these lofty aims, the FCAB has two types of problems:

I. Exclusionary Issues – The FCAB seeks to exclude

1. land that was not notified as a forest in a government record on or after October 25, 1980;
2. land that was converted from forest to non-forest use on or before December 12, 1996;
3. forest land within 100 kilometres of the international border, the LoC or LAC which is proposed to be used for the construction of “strategic linear projects of national importance and concerning national security”; and
4. forest land not exceeding five hectares which is proposed to be used for defence-related projects in “left wing extremism affected areas”.

II. Permissive Issues – The Bill allows activities like the establishment of zoos, safaris, ecotourism facilities and “any other like purposes” that the Central Government may specify in forest areas.

Comparing Sackett and FCAB

The author believes that at least two crucial similarities can be observed from the above description of the Sackett ruling and the FCAB provisions.

First, they purport to further their interpretation of the original legislative intent behind the statutes. This legislative intent is purported as the ultimate goal, and thus sought to be religiously adhered to. In Sackett, by considering the wording of the statute, the judges claimed that Congress only intended to extend the provisions of the CWA to wetlands that formed an indistinguishable part of the waters of the US. Similarly, the FCAB was portrayed as an advancement of the original aims behind the Forest Conservation Act, 1980 (hereinafter “FCA”) (addressing deforestation as well as the resulting ecological imbalance and environmental deterioration), given the global developments in the field of environmental protection.

Second, both Sackett (a judicial interpretation) and the FCAB (a supplementary legislative interpretation), ultimately reduce the scope of applicability of the environmental protection statutes. As opposed to the earlier interpretation of the “waters of the US” based on the application of the significant nexus test, the current interpretation severely restricts the applicability of the CWA to those specified permanent waterbodies that form an indistinguishable part of the navigable interstate waters. The FCAB, by introducing multiple exempted areas as mentioned in the previous section, reduces the extent of applicability of the FCA.

An Exercise in Deceitful Alteration

These substantial similarities between the Sackett ruling and the FCAB noted above with regard to their aims, methodologies, and results, enable us to make some crucial observations about the trend in environmental rule-making in the US and India.

In the US, the crucial legislative aims underlying the CWA were the reduction of water pollution and the preservation of biodiversity. However, the Sackett ruling, despite its stated focus on originalism and protection of legislative intent, makes no mention of these aims. Instead, it prioritises other policy objectives like federalism and the protection of property owners’ rights to reduce the scope of the CWA. Despite the fact that the significant nexus test has been extremely effective in reducing water pollution, the Sackett ruling discredits the test for its potential to violate ancillary policy concerns like federalism and property rights. There seems to be a substitution of explicit legislative aims with alternate judicially determined objectives in order to limit the applicability of the protective CWA statute. This is illustrative of a deceitful alteration and violation of clear legislative intent accompanied by deference to alternate policy objectives.

In the case of FCAB, though the bill purports to adapt the objectives of the FCA to recent global developments, the impact of its provisions could not be further from these objectives. The bill, by excluding land that has not been ‘notified’ as a forest in a government record (even though it may have been identified and ‘recorded’ as one by state governments), adopts a limited and ineffective approach to the protection of forested areas. The interpretation adopted by the FCAB leaves it in direct contravention of the Supreme Court of India’s (“SCI”) judgment in T. N. Godavarman Thirumulpad v. UoI. In this judgment, the SCI, while foregrounding the legislative aims underlying the FCA, held that the word ‘forest’ must be given its dictionary meaning to ensure meaningful and expansive protection. The mere fact that forested lands had multiple classifications or varied ownership models must not impact the applicability of FCA protections. The SCI also halted all non-forest activities taking place within forests effective from the date of judgment, i.e., December 12, 1996, due to lack of approval from the Central government. The FCAB, by excluding forests that had been converted to non-forest use on or before this date, again seeks to eliminate the expansive protections conferred by the SCI in Godavarman.

The new exclusionary provisions adopted for the pursuance of defence and anti-terrorism objectives, apart from conferring overly broad discretion on the government, are likely to have a catastrophic effect on the most densely forested and ecologically sensitive region of the country – the Northeast. An exclusionary zone of 100 kilometres for defence-related projects effectively means that the entire North-eastern region will be excluded from the FCA protections. This is a most ludicrous and inequitable result, since the region of the country with the most forest cover and ecologically sensitive zones has been excluded from the ambit of an environment protection statute.

The original FCA classified non-forest purposes as cultivation activities and “any purpose other than reforestation”. However, the FCAB exempts activities like setting up zoos, safaris and ecotourism facilities from the ambit of non-forest purposes. What this effectively means is that, from a position where reserved and protected forests could not be used for any purpose other than reforestation, it is now possible to set up massive commercial tourist attractions. The problem is further compounded by provisions that confer unbridled discretion on the government to specify any such exemptions to a non-forest use (Section 5(II)(viii) of FCAB).

Akin to the observations made about Sackett, there is a subjugation of the explicit original legislative intent to alternate ancillary policy objectives like defence, national security and promotion of tourism.

Conclusion

An analysis of the substantial similarities between the Sackett ruling and the FCAB provisions indicates that there has been a trend towards altering and violating the legislative intent, coupled with subjugating it to arbitrarily determined alternate policy objectives. Given the importance of applicability provisions in environmental protection statutes, this trend spells doom for our aspiration for a sustainable future.

Kanishk Srinivas is a third-year student at NLSIU, Bangalore, and an analyst for LAOT.

[Ed Note: This article has been edited by Sukrut Khandekar and published by Harshitha Adari from the Student Editorial Board.]