Who Is Responsible When Pollution Causes Illness And Death?

Air pollution is something we are living with every single day, despite the terrifying research and statistics coming out about the effect on our health. The toxic air in our country could be linked to the early deaths of almost 1,10,000 deaths of children in 2016, according to a World Health Organisation (WHO) report. Children under the age of five account for about 1,00,000 of the total child deaths in India. The gender divide shows that girls under the age of five years accounted for 54% of the deaths, and boys in the same age bracket were at 46%.

The WHO assessment which was released earlier this year states that 14 out of the 20 most polluted cities in the world are in India. While we do have a national plan to clean the air of the 100 most polluted cities in India, but it is yet to be finalized and implemented.

In the interim, the citizens suffer the consequences of the lax controls on pollution levels. Should there be legal culpability with the state when the pollution levels go off the charts? Do citizens who suffer ill health due to high toxicity and pollution be eligible for legal redressal? And what can governments do to reduce the levels of toxins in our air?

Clean air is a fundamental right as enshrined by the constitution. It's the job of the state to fulfill the fundamental rights of each citizen. - Ronak Sutaria

In Paris, a court is hearing a case filed by a mother and daughter who are suing the state for the damage caused to their health by air pollution. This is a first of its kind case in Paris. The mother and daughter are suing the state for 160,000 euros in the administrative court of Montreuil in the east of Paris.

In France over 50 people are suing the French state in similar cases.

Says Ronak Sutaria, Founder & CEO, Respirer Living Sciences Pvt. Ltd, “This is an absolutely valid and correct demand. The state IS culpable for pollution-related ailments and citizens CAN and SHOULD be compensated for the damages. Clean air is a fundamental right as enshrined by the constitution. It's the job of the state to fulfill the fundamental rights of each citizen.”

According to Shweta Narayan, Co-ordinator, Healthy Energy Initiative – India, “As citizens, we have a constitutionally guaranteed right to clean air, clean water, clean environment and the right to healthy life. It is the state’s obligation to provide us the circumstances necessary to allow a healthy life.”

In India, there have been prior incidents of the courts taking cognizance of the damage to health caused by pollution. Says Sutaria, “There are few but far cases of compensation levied by NGT or the courts to residents. The most recent case is of Graphite India in Bangalore which was fined Rs. 50 Lakhs and finally asked to shut down on April 2.

The other high-profile case was, of course, Sterlite Copper in Chennai (which led to the unfortunate deaths by police firing of those who were protesting against pollution).”

Narayan speaks about other instances in India. She says, “We do have pollution protection laws in place in that prioritizes public health. Under the Environment Protection laws, there are two popularly recognized principles - Polluter Pays principle, which puts the onus on the polluter to pay for the cleanup of the environment and can be extended to even pay for damages to health caused (though the health damages bit has not been widely tested) by their actions. As in the case of Rajasthan in the 1990s. The second is the Precautionary Principle, for example in the case of the Vellore Citizens Forum in 1999, where the polluters are incumbent to prevent unwarranted exposure to pollutants they release.

As citizens, we have a constitutionally guaranteed right to clean air, clean water, clean environment and the right to healthy life. - Shweta Narayan

After these two instances, back in the 1990s, in 2018, the National Green Tribunal (NGT) ordered the Coal and Environment Ministry to assess and report violations in Chhattisgarh, where they did find violations and for the first time ever the health cost of these violations had been noted and compensation was ordered for the damage caused.”

Sutaria points out a case from a province in China. “Local governments in China have been fabricating environmental reports, helping companies to conceal illegal dumping and deceiving central-government inspectors, according to a report by the country's central environment ministry... Shanxi province has fined polluters about 24 million yuan (US$3.5 million) and set out to resolve 1,463 violations of environmental regulations. The ministry called these "positive results". Hunan province has ordered 4,326 companies to change their practices, and has handed out 80 million yuan in fines."

According to the just-released report, “Gaining a rapid win against air pollution: How India can make use of China’s experience,” authored by BCAA China and Climate Trends India, “Air pollution is believed to be one of key causes of death in India. The Global Burden of Disease study in 2017 concluded that premature deaths related to exposure to PM 2.5 in India were the second highest in the world. In 2017, 1.24 million deaths in India were attributable to air pollution - which accounts for 12.5% of the total number of deaths in the year. In Delhi, poor quality air irreversibly damages the lungs of 2.2 million residents - or 50% of its children.

Says Narayan, “While you are entitled to compensation for the loss of crop, loss of production due to pollution, there is little precedent with regards to compensation for loss of health and there is also the question of how does one go about it, and who will pay? No doctor will put down pollution as a cause in their medical diagnosis letters, even though they might recognize and acknowledge the health impact informally. There is a huge gap between what the Constitution guarantees you and what can be executed.”

When we talk about the pollution it is almost in a vacuum without understanding that it impacts people and there have to be provisions made for mitigating those impacts alongside reducing pollution. In our urban planning too, we completely miss the health impact assessment of projects before we undertake them. - Shweta Narayan

In London, the family of a nine-year-old girl who died from asthma had her family apply from a fresh inquest into her death. Their contention is that her death could be related to levels of air pollution which had crossed permissible limits. She lived in an area which is a pollution hotspot with pollution levels breaching permissible limits regularly. The seizure that caused her death happened during one such spike in pollution levels. The battle was to have air pollution being mentioned as the cause of death. Interestingly enough, air pollution has never officially been recorded as the cause of death either directly or in a contributory manner on a death certificate.

The health costs of air pollution have caused massive losses to the Indian economy. A study by the World Bank and the Institute for Health Metrics and Evaluation found that India’s labour losses due to air pollution stood at about $55.39 billion, or about 0.84% of its GDP in 2013. The World Bank report also revealed that air pollution cost Delhi and Mumbai as much as $10.66 billion in 2015, which is equivalent to 0.71% of India’s GDP of that year.

Indian citizens’ awareness and public scrutiny of air pollution are also rising. A survey showed that 81% of people in India claimed to be extremely or very concerned about air pollution. Public protests demanding that air pollution be considered a key issue that needs to be addressed have also started, and the discourse is at a point where there is significant awareness amongst the urban class on the existence of the problem, even though the solutions are yet being discussed.”

China and India with their populations face similar challenges when it came to tackling air pollution. India is now entering the implementation stage of the National Clean Air Programme, put in place in January 2019. This is an ambitious plan, aiming to reduce particulate pollution by 20 to 30 percent over 102 cities, in the coming five years. To quote Dr. Gufran Beig, Project Director, SAFAR, Indian Institute of Tropical Meteorology, “The NCAP program has given us a strong platform to deal firmly with air pollution. Since air pollution does not recognize boundaries and may travel distances through transport processes, a consolidated mitigation approach by coordinating across cities and regions is required. Creating awareness among people and strong enforcement of agreed control measures holds the key to effective air quality management.”

To quote Prof Sachidanand Tripathi of the Indian Institute of Technology, Kanpur, and a member of the Steering Committee for the NCAP, “There is already an apex committee in place for overall guidance to the program and an implementation committee that has all relevant agencies including the State Pollution Control Board as members. A knowledge network has been formed with half a dozen technical institutions, 12 IITs, national labs and universities to work with state pollution control boards across 20 states on technical issues pertaining to city-specific interventions and action plans under the NCAP. This is a very positive development for NCAP towards achieving its targets in a timely fashion.”

I strongly feel that the state needs to penalize the repeat pollution offenders and that the fines need to directly go in improving the health of the most vulnerable and affected citizens. - Ronak Sutaria

Says Narayan, “Even the latest policy, the National Clean Air Program (NCAP) talks about reducing pollution by 2030 but what we are not talking about is the health impact on those who will be suffering the consequences of this pollution in the interim, what is the provision to care for them in terms of medical support, health care, subsidized treatment, etc. When we talk about the pollution it is almost in a vacuum without understanding that it impacts people and there have to be provisions made for mitigating those impacts alongside reducing pollution. In our urban planning too, we completely miss the health impact assessment of projects before we undertake them. For example, not health impact assessment is ever done for roads or highways or even flyovers. How much emission increase would such decisions cause, how would that be mitigated, how many people would be affected, what strategies of management and prevention should be in place, who will pay the cost? None of this is ever discussed and the only factors to consider are how many jobs such projects would create and that would eventually bring development. Transportation seems to primarily factor in expanding roads and highways and that too for private vehicles, there is no emphasis on developing accessible, affordable and convenient public transport.”

The issues India faces are similar to what China faced when the government in China issued the National Clean Air Action Plan (2013-17). This was an ambitious plan by the Chinese government, at the highest political level, which focused on getting China to improve their air quality in five years to the level that had taken Europe and US decades to achieve. China managed to do this without slowing down economic growth and reduced particulate matter by 22 percent across China, and the city of Beijing and its surroundings, which often went off the charts with its pollution levels, saw a 40 percent improvement in the quality of its air.

Says Sutaria, “I strongly feel that the state needs to penalize the repeat pollution offenders and that the fines need to directly go in improving the health of the most vulnerable and affected citizens. A framework needs to be developed by which this can be effectively done on a monthly basis and that the affected citizens get compensated in a very timely manner for the health damages they endure due to air pollution.”

The BCAA and Climate Trends report suggests India could learn from China’s experience in the following key areas to improve the quality of air. Firstly, they recommend a strong political commitment at the top level of decision making to work towards improving air quality. They state that a well-designed science-based policy-making towards developing emission inventory, data monitoring, air quality modeling, source apportionment and cost-benefit analysis to create action plans. To implement targets of air quality programs designed with consideration towards regional air shed, a systematic air quality monitoring network, which is strongly supervised and enforced, and finally, developing the green economy, and reducing the consumption of coal.

How effective will the NCAP remain to be seen, but the fact remains that it is perhaps the first tentative step towards acknowledging the enormity of the problem confronting us. And we can only hope these won’t end up being too little, too late.

Kiran Manral is the Ideas Editor at SheThePeople.TV