Reflections on the Environmental and Other Fallouts of COVID-19

Author(s): Sanjay Sen

COVID-19 – Environmental Benefit or Not?

The extensive global lockdowns imposed to contain the COVID-19 outbreak had some evident environmental benefits. For several weeks, WhatsApp messages were inundated with reports and photos of wildlife sightings in numerous cities and towns all over the world. There was a lot of talk about clear skies, bright stars, and such other things. But, in my opinion, all of this will pass quickly, and I believe that our environmental awareness and passion will fade once we resume our lives following the pandemic. After the effects of COVID-19 have subsided, I believe a more aggressive form of economic activity will emerge. These economic activities will be fueled not just by an individual’s desire to start a business and earn a living, but also by different government economic stimulus packages that have been announced or are expected to be announced in the near future.

Certain government announcements made during the lockdown may not be to the liking of environmentalists or environmentally conscious individuals.  The government has issued a notification that now allows transportation and use of coal without the requirement of washing. ¹ Previously, this was not permitted, but the government has now relaxed the rules to help power producers, as coal washing increases its price. Unwashed coal with ash concentration of 34% and higher can now be transported and used. India’s emissions will rise as a result of this relaxation.

Another announcement made during the COVID-19 pandemic was the opening of coal mining to the private sector. While there may be financial reasons for doing so, burning fossil fuels is contrary to current international trends and India’s treaty obligations. As a result, substantial mining in this area by private firms would almost certainly have a negative long-term impact on the environment. Existing mines owned by Coal India Limited (CIL) can now be transferred to private companies for more effective mining, eliminating the need to open new mines. It is also possible to privatise CIL subsidiaries. Once private money is invested in mines, it will be difficult to reverse the trend, and we will be forced to come up with new ways to limit the negative environmental impact, which will be ineffective and is likely to be opposed by the private sector investors. What is the message – are we encouraging coal-based industry for which we are now seeking private investments? Where will this privately owned coal be burned?

This has been observed in relation to the requirements for flue gas de-sulphurization (FGD) in power plants. Although the original deadline for installing FGD to regulate sulphur dioxide (SO2) emissions was two years from the Ministry of Environment, Forests and Climate Change (MoEF) notification in 2015, the timeline has been extended several times since then. According to the current report, most power generators will miss the 2022 deadline. It has also been linked to the challenge of reducing nitrogen oxide emissions, which is now experiencing significant delays. While there may be legitimate reasons why power plants are reluctant to higher CapEx owing to FGD, and this is caught in regulatory processes, Environment Clearances (ECs) issued before 2015 in many cases, while recognising the need for FGDs, did not insist on the same. They said that adequate land for FGD, not the FGD itself, should be available. The Ministry of Environment and Forestry (MOEF) and the Pollution Control Boards (PCBs) did not insist on FGDs and appropriate emission standards. This is an institutional failing for which for which all of us will pay.

The potential dilution of the Environmental Impact Assessment Notification, 2006 (EIA Notification, 2006), is another COVID-related environmental incursion. According to press reports, the criteria are now more “investor-friendly,” in line with the government’s slogan of “ease of doing business in India.” How can the health of citizens and the nation be endangered – and be relaxed – in order to facilitate “investments”? Certain rights and concerns are not negotiable. The environment is undoubtedly one of them.

I believe there were notifications issued during the pandemic exempting public hearings for road construction and specific types of projects, such as irrigation, roadways, and so on. These developments are concerning, and they have the potential to be exploited — resulting in irreversible harm and detriment.

Role of Institutions during National Emergencies

Institutions have a significant role in a society with constitutional democracy founded on the rule of law, not only in normal times but also in times of national emergency. While many of us have been complaining about the perceived failure of the Supreme Court of India to deal effectively with the migrant crisis when the Court was first approached in March 2020, no significant analysis or examination of other institutions has been conducted. Social scientists define institutionalisation as the process of developing and changing rules and procedures that influence a set of human interactions. It is usually regarded as an ongoing process in a liberal democracy.

From a legal perspective, when COVID-19 occurred, policymakers broadly looked at two laws available for handling the pandemic:

1. The Epidemic Disease Act, 1897 is a 123-year-old legislation with just four provisions that only allows States to inspect people travelling by railway, ships and segregate suspects in hospitals or temporary accommodation. I am not aware of the status of the draft bill by the Ministry of Health and Family Welfare to replace the 1897 Act, namely the Public Health (Prevention, Control and Management of Epidemics, Bioterrorism and Disaster) Bill.

2. We also have the Disaster Management Act of 2005, in addition to the Epidemic Disease Act of 1897. The Disaster Management Act of 2005 is newer legislation, and under this the Disaster Management Guidelines were published in 2008. A National Disaster Management Plan for 2019 is also available, which is extremely comprehensive. This Act has a top-down three-tier approach at the Central, State and District level. The lockdowns and various other orders/ notifications were primarily issued by the Central Government under this Act. However, many State Governments have also invoked the powers under the 1897 Act. Some states also have their own Disaster Management Act.

As of yesterday, June 2, 2020, the Central and State responses to COVID-19 have resulted in the following: the Centre has issued 746 notifications, while the States have issued (all together) 4297 notifications, according to the PRS Legislative Research website. Most of these are in the nature of clarifications or addendums. The point that I am trying to make here is that our approach has elements of adhocism and uncertainty. The fact that we have to produce public notifications, clarifications, and addendums on a regular basis not only reveals a lack of institutional maturity, but it also has the potential to cause significant stress at all levels of administration. Apart from confusing residents and their business, it has perplexed public and private administrators, including hospitals, quarantine facilities, transporters, sabzi mandi, and other essential service providers, such as the district administration. The entire process appears to be chaotic to everyone. Such whispers can be heard all around the country. As a result, compliance is low, and accountability is difficult to establish.

However, this is not solely an Indian issue. Similar problems have occurred in most developed countries of the world, including the United States and the United Kingdom. Even countries like France, Spain, and Italy in Western Europe have had a poor institutional response to the pandemic. However, countries such as South Korea, Singapore, Germany, and even Vietnam (according to some) have handled the problem well. New Zealand and Australia appear to have performed admirably as well. There may be a lesson here for us that we need to take into account from an institutional standpoint. We must learn to establish processes rather than making decisions based on intuition — the consequences are high, and mistakes are often compounded. It will lead to incorrect decisions and failed coverups unless the data, no matter how damaging, is honestly disclosed.

Now, let me draw your attention to the role of an organisation, which according to my understanding has not delivered during the pandemic, i.e. the National Human Rights Commission (NHRC) and the State Human Rights Commissions (SHRCs). The role of these Commissions during the current pandemic needs closer inquiry. If you go to the website of NHRC (as on today, i.e. June 03, 2020), the notices that have gone out will demonstrate the level of institutional response that a national body like the NHRC has provided. One of the earliest notifications relating to COVID-19 was issued on April 4, 2020, where the Commission asked the Centre to make arrangements for mentally ill people roaming on the streets during the COVID-19 lockdown. The concern was that these mentally ill people should not become easy carriers of the deadly virus. I say when was the State put to notice that mentally ill people should be looked after and not be left alone, to their own peril?

I ask myself as to what were the notifications and follow up steps taken when migrants started leaving the various cities and towns, who were not only potential carriers of the virus, but also victims of extreme hardship and human rights sufferings. A review of the various notifications will show that in May 2020 after the Visakhapatnam gas leak (Vizag gas leak) which was noticed by the NHRC, they issued a show cause to the Chief Secretary of Maharashtra and Deputy Magistrate, Aurangabad to explain the mowing down of 16 migrants on a railway track. This was followed up by another notice to the Delhi Chief Secretary and the Union Health Secretary on the death of Delhi Police Constable due to the negligence of the hospital. Then notice was again issued to the Maharashtra Chief Secretary on allegations of wrong interpretation of the order of Supreme Court about releasing prisoners after random testing at Arthur Road Jail, which found 103 prisoners to be COVID positive including 26 staff members. Another notice was issued to Maharashtra on the same day when a woman walking on foot from Maharashtra to Madhya Pradesh delivered a baby on the road. Notices were also issued to Uttar Pradesh and other states where migrants have died during their attempted walk home. A review of all the notifications and follow up steps will give you a flavour of our institutional response to a crisis, which is more often driven by adhoc anecdotal reporting in newspapers and other places without any inquiry, study and / or a meaningful plan on how to address a massive human rights crisis in a comprehensive manner. In most of the notices, it will be seen that NHRC is seeking explanation after the event (of death) has happened, like a legal post-mortem. At the same time, the railways have been spared when there are reports of several deaths while migrants were in transit.

Apart from NHRC, there are other institutions and their roles need to be examined in detail. The role of the Indian Medical Council, and Indian Council for Medical Research – in terms of their ability to discharge their role as regulators for hospitals and other medical practitioners and also on the management of the virus. This kind of study should be done by independent experts, but we will need to identify the areas that require examination.

An interesting article in the Mint has highlighted the inadequacies of India’s university system in dealing with COVID pandemic. The point that was made in that article was that at a time when world universities have been at the forefront of the battle against coronavirus, Indian universities are nowhere to be seen. The article speaks of universities role not only in the field of medical science (for creation of vaccine) but also in relation to building the epidemiological model for the spread of the virus. Special mention is made about Imperial College in London and Peaking University in China. Professor Dinesh Singh, former vice-chancellor of the University of Delhi is quoted to have said that no statistician, no mathematician is trying to create a model in India for the spread of the disease. All of the models are coming from abroad. The article further elaborates on the apathy towards institutes of higher learning that has resulted in lower research output compared to China. The article highlights that university finances particularly those which are State-funded are said to be badly managed. It points out that 34% faculty position in higher educational institutions under the Central Government are lying vacant and 27% under the State Government are also lying vacant – as per data presented to the Parliament in December 2019.

While all of us discuss COVID-19 and related issues, there is something that is killing us every day and has not had any serious governmental attention since 1968. I am referring to the presence of pesticides in our food. Till now, we continue to have the Insecticide Act, 1968 with all its inadequacies. While several articles, journals etc. have been written about the high pesticide content in our food, the institutions that manage this subject have failed us over the years. The Pesticide Management Bill, 2020, was introduced by the Minister for Agriculture and Farmers Welfare on March 23, 2020. We hope that this will be able to give some relief to us and our children because while COVID and its medical effect for the community (at large) may last for six months to a year as per global estimates, access to food without pesticide is a far more important subject with long-term repercussions, which requires determined institutional delivery.

There are other institutions like the Bar Councils – both at the national level and at the state level, National Green Tribunal (NGT) and Sector Regulators – Insurance, Telecom, Air Planes & Airports. All have them had a role to play in managing their sectors during the crisis. Some of the issues – those relating economic and health will require a medium-term (3 to 5 years) planning. Here too, an institutional audit is necessary – to ask the right questions and see the gaps. 

Ethical Obligations Should Guide Institutions During A Crisis

While the role of the government and institutions in dealing with a crisis is open for questioning, we must remember that at all times (during a crisis or otherwise) one needs to build systems and procedures having ethical obligations. An expert committee in the US while defining the Standard of Care during a crisis (post-Joplin) said –  when demand for resources exceeds what is available, the cornerstone of all coordination and integration in such times have to be based on the foundation of ethical obligation – the rules do not change when resources are scarce.² Protection of human rights through a responsive and predictable institutional mechanism (during a crisis or otherwise) is an important part of liberal democracy.

All views expressed are personal