Nepal's Supreme Court Uses Judicial Activism to Fight Pollution

By Deepak Gajurel

KATHMANDU, NEPAL, December 10, 2004 (ENS) - The Supreme Court of Nepal is cracking down on pollution in the Kathmandu Valley and across the country in a string of decisions in favor of public health and a clean environment. In case after case, the top court is ruling in favor of public interest advocates and against polluters.

On Wednesday, the Supreme Court ordered the Ministry of Population and Environment to carry out investigation into the manufacture and use of polythene bags to ascertain whether they pose hazards to human health and the environment.

Two of the many Kathmandu residents exposed to pollutants in the air, land and water (Photo credit unknown)

A division bench of Justices Anoop Raj Sharma and Bal Ram K.C. issued the order.

The judges also ordered the ministry to carry out scientific research with the assistance of the Department of Chemistry, Tribhuvan University; Royal Nepal Academy of Science and Technology; representatives of municipalities in the Kathmandu Valley; and the Federation of the Polythene Bag Producers.

The court has set mid-July 2005 as the deadline for completing the investigation and submitting the report.

The order came in response to public interest litigation filed by advocate Santosh Kumar Mahato. The petitioner accused the government authorities, including the Prime Minister's Office and Cabinet, of allowing the illegal production of polythene bags.

Plastic bags are proliferating in Kathmandu, worrying environmentalists and judges alike. (Photo credit unknown)

Though the Ministry of Environment and Population has already banned production of polythene bags under 20 microns thickness, the petitioner has sought a ban on all types of polythene bags.

The petitioner claimed skin diseases and various types of cancer could result from the use of polythene bags. He also alleged that the authorities, including those in different municipalities in the Valley, did not do enough to check the extensive use of polythene bags or prevent deterioration of the environment.

The Local Self-Governance Act 1998 and Kathmandu Valley Development Authority Act 1988 has empowered the authorities to regulate the environmental situation of the Valley, but they remain at a loss as to how to control the increasing pollution here.

The Supreme Court last August directed His Majesty's Government of Nepal to impose a pollution tax on every liter of petrol and diesel purchased in Kathmandu Valley. The tax of 50 paisa, half a Nepali rupee (US$0.01) per liter will be invested for the conservation of the Valley's environment.

Supreme Court Justice Ram Nagina Singh (Photo courtesy Supreme Court of Nepal)

The verdict came in a public interest litigation case filed by advocate Bhoj Raj Ayir, who urged the court to order the government to start collecting the pollution levy on petrol and diesel.

"The government could collect around Rs. 40 million annually from this levy which could be used for air pollution control measures," Ayir says.

Traffic clogs many of the streets in Kathmandu. (Photo credit unknown)

In a bid to legally curb the growing pollution in the Kathmandu Valley, the Supreme Court earlier this year asked the government to appoint environmental inspectors.

The Supreme Court issued a directive to the Ministry of Population and Environment and other government authorities to appoint environment inspectors (EIs) as provided under the Environment Protection Act 1996.

The court issued this order in response to a writ petition filed by the Pro Public, a nongovernmental organization in another public interest litigation case.

Pleading on behalf of Pro Public, advocates Sushil Bahadur Karki and Raju Prasad Chapagain sought the top court's order to appoint the environmental inspectors to protect the environment. "The legal provisions have been flouted by not appointing the environmental inspectors," they said, adding, "Without EIs, there are no authorities to monitor public health."

The environmental inspectors have the duty to inspect the decibels of sound and pollution levels of air and water to ensure they do not exceed the limits specified by the Environment Protection Act.

Taking air, water and noise pollution seriously, for the past two years Nepal's Supreme Court has given priority to public interest litigation cases.

For instance, in a March 2003 verdict, the top court ordered Bhrikuty Paper and Pulp Mill to install a treatment plant and other equipment to control water and air pollution. The mill is located on the bank of Narayani River adjoining Royal Chitwan National Park, a UNESCO's World Heritage Site.

In a September 2003 ruling, the Supreme Court ordered the Kathmandu Metropolis and Lalitpur Sub-Metropolis to stop dumping solid waste on the bank of the Bagmati River.

These cities have been dumping their solid waste in that area since 2000. The Supreme Court ruled that dumping of solid waste on the river bank is arbitrary and unconstitutional and ordered the relevant government agencies to manage the Kathmandu Valley's solid waste in full compliance with existing law and in an environmentally friendly manner.

The court under writ jurisdiction for the first time in its history called experts to provide their expert opinion on the matter of environmental pollution.

The bowl shaped Kathmandu Valley traps air pollution. (Photo credit unknown)

The more than 200,000 aging motor vehicles on Kathmandu's roads were blamed for the pollution. Many motor vehicles are polluting motorcycles.

Battery powered clean three-wheelers have become popular, but these are costly. Despite government subsidies, there are not enough electric three-wheelers to meet public transport needs.

Dust from construction activity and hundreds of brick kilns also contributes to the air pollution. A decade ago, authorities began moving the brick kilns away from populated areas, but the results are not encouraging. Hundreds of brick kilns are still operating within the Valley.

Their time before the apex court is yet to come.