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22 Nov 2024 : The Hindu Editorial

Editorial 1: India needs an environmental health regulatory agency

Context

Having such an agency in India, which it currently lacks, would look at the interlinked issues of climate, environment, health and the economy in a holistic way.

 

Introduction

The 2024 Conference of Parties (COP 29) ends in Baku, Azerbaijan today. As a global voice for developing countries, India will push for ambitious climate mitigation financing from developed nations. At the same time, pollutants in our air, water and land continue to pose grave health risks. According to the Emissions Gap Report 2024 from the United Nations Environment Programme, India has seen over 6% more greenhouse gas emissions than the previous year. These two examples show that India is at a critical juncture in its environmental and public health journey.

  • As a nation, India continues to experience rapid economic growth, so the interdependencies between climate, environment, health, and the economy are undeniable but capacities to address these issues holistically are limited.
  • It is time for India to establish an environmental health regulatory agency (EHRA),
    •  which could lead to more comprehensive and cohesive environmental governance that focuses simultaneously on pollution control and health risk mitigation.

 

The urgency of integration

  • Environmental health challenges in India: There are profound and immediate environmental health challenges to address in India.
    • Numerous epidemiological studies conducted across multiple States and rural and urban populations have uncovered the detrimental health effects of exposure to air, water and soil pollutants, which include a wide range of non-communicable diseases.
    • For example, exposure to air pollution, PM2.5 in particular, is now known to be associated with respiratory, cardiovascular and metabolic diseases, pregnancy outcomes, child growth and development and even mental health disorders.
    • This poses risks to the most vulnerable populations, such as children, the elderly, and financially poor groups.
  • India’s environmental governance model: Building on efforts of the Central Pollution Control Board (CPCB) and the Ministry of Environment, Forest and Climate Change (MoEFCC), India’s current environmental governance model needs to be more integrated with health.
    • The CPCB focuses on pollution control,
    • The MoEFCC handles broader environmental policies, and
    • The Ministry of Health and Family Welfare (MoHFW) undertakes integrated disease surveillance and management.
    • There is a disconnect between environmental monitoring, health impact assessments, and emissions control, given little to no data flow across these Ministries.
  • Proposed solution – Environmental Health Regulatory Agency (EHRA): A centralised agency such as an EHRA could integrate environmental and health data, allowing policymakers to track, regulate, and mitigate these impacts effectively, with much-needed inter-disciplinarity.
  • Global best practices: There are examples to inspire us:
    • the U.S. Environmental Protection Agency (EPA),
    • Germany’s Federal Environment Agency (UBA), and
    • Japan’s Ministry of the Environment (MOE)
    • Provide robust frameworks that bridge environmental management with public health protection.
  • The EPA’s approach: It  covers a lot of ground — it regulates air and water quality, manages waste, and controls toxic substances while relying on integrated science assessments that include health together with vigorous enforcement.
    • Germany’s UBA focuses on environmental policy, managing air, water and waste regulations while championing sustainable energy and climate initiatives.
    • Japan’s MOE tackles pollution, chemical safety, and ecosystem protection.
    • It collaborates with health and science agencies to monitor environmental health, enforce pollution controls, and address urban pollution and radiation issues.
  • Integration of environment and health: The explicit integration of environment and health is part of the routine operational framework at these global agencies.
    • Having an agency such as an EHRA in place could help India formulate a unified response to all types of pollution,
    • advocate cumulative accountability mechanisms and
    • collaborate with international bodies to negotiate for and adopt best practices that simultaneously address health and environment.

 

A data-driven, evidence-based framework

  • Importance of reliable data for effective regulation: Effective regulation is built upon reliable and context-specific data. In this context, significant global funding is invested in environmental health effects research to establish a robust evidence base for policies.
    • Even though organisations such as the Indian Council of Medical Research (ICMR)
      • provide essential support for environmental health research,
      • their impact is somewhat limited without a central body to bring together and translate this data into practical policies.
  • Role of EHRA in Science-Driven regulatory framework: An EHRA would enable India to
    • adopt an evidence-informed and science-driven regulatory framework,
    • commissioning studies specific to the nation’s unique environmental health challenges, such as poor air quality, vector-borne diseases, effects of persistent organic chemicals and heavy metal exposures in the context of changing land-use patterns and the consequences of climate change on health systems.
    • Integrating health impact assessments (HIAs) into all significant projects, such as
      • urban development and infrastructure planning,
      • would allow decision-makers to understand and mitigate health risks before they escalate.

 

Economic Growth and Environmental Health

  • Contrary to concerns that environmental regulation may impede economic growth,
    • an EHRA could promote sustainable practices that drive innovation, create green jobs, and support long-term financial resilience.
    • For instance, the U.S. EPA has shown that its presence and work do not hinder economic growth but spur investments in renewable energy, sustainable agriculture, and pollution prevention while also increasing life expectancy.
  • Aligning economic policies with environmental health: India’s economic trajectory need not be at odds with environmental health.
    • An incentivised energy transition and public health campaigns around environmental health could encourage enterprises to transition to cleaner technologies.
    • An EHRA can develop policy instruments that will help the nation align environmental health objectives with economic policies, which in turn would promote sustainable development that benefits the environment, public health, and the economy at the same time.

 

Public Involvement in Environmental Health Initiatives

  • Involving the public is essential for the success of environmental health initiatives.
  • In India, an EHRA could be critical in educating citizens on environmental health risks and empowering communities to advocate cleaner air, water, and healthier living conditions.
  • Citizen initiatives and the role of non-governmental organisations are pivotal, given the need for accountability to start bottom-up, from the local bodies and panchayat levels.
  • The role of communicators and journalists is crucial in highlighting and supporting these initiatives.

 

Aligning with Global Commitments

  • India has signed the Paris Agreement and has committed to the Sustainable Development Goals.
  • An EHRA would be instrumental in helping India meet these commitments by aligning national policies with global standards.
  • It would also contribute to collective efforts to tackle climate and health challenges including addressing transboundary issues.

 

Regional Variations in Environmental Health

  • Environmental health issues vary significantly across India’s regions, so we must move from a one-size-fits-all approach and localise interventions.
  • An EHRA could work closely with State and municipal governments to ensure the development and enforcement of policies that are tailored to environmental solutions for the unique needs of each area.
  • By developing a granular national platform for monitoring and accountability,
    • India could track health outcomes in detail, leading to more effective and timely responses to local needs

 

Way Forward: Building accountability

  • Establishing an EHRA in India would not be without challenges, from bureaucratic inertia to resistance from industry stakeholders wary of regulation.
  • However, clear frameworks for inter-ministerial coordination, measurable objectives, and cross-sectoral cooperation could help overcome these barriers.
  • An EHRA should be operationally independent, guided by scientific expertise, and empowered to enforce policies that prioritise public health.

 

Conclusion

India’s recent successes in meeting renewable energy targets highlight the nation’s capacity for ambitious, systemic change. An EHRA could build on these achievements to strengthen India’s governance of its environmental health crisis by framing pollution control as both a public health imperative and an economic opportunity. India's establishment of an Environmental Health Regulatory Agency (EHRA) is essential for addressing pollution's dual impact on public health and economic growth, fostering sustainable, integrated solutions.

Editorial 2: A bilateral investment treaty with a ‘bit’ of change

Context

Despite some departures, the India-UAE bilateral investment treaty establishes a continuity of India’s investment treaty practice

 

Introduction

The bilateral investment treaty (BIT) between India and the United Arab Emirates (UAE) which was signed earlier this year was recently made public. This BIT, which will replace the 2014 India-UAE investment treaty, is critical. It reveals India’s latest investment treaty practice and might elucidate India’s ongoing negotiations with the United Kingdom and the European Union. A typical BIT should accomplish two objectives. First, it should balance the competing goals of investment protection and the state’s sovereign right to regulate. Second, it should contain unambiguous provisions to reduce the discretion of investor-state dispute settlement (ISDS) tribunals.

 

Departures from the Model

  • Adoption of the Model BIT in India (2015): India adopted a Model Bilateral Investment Treaty (BIT) in 2015.
    • It has barely managed to sign a handful of BITs based on this model.
  • Departure of India-UAE BIT from the Model BIT: The India-UAE BIT departs from the Model BIT on some significant issues.

 

Exhaustion of Local Remedies

  • It provides that a foreign investor must exhaust local remedies for at least three years before bringing an ISDS claim.
  • This period in the Model BIT and subsequent BITs that India signed with countries such as Belarus and Kyrgyzstan is five years.
  • Several countries lament that five years is too long.
  • Given the overstretched Indian judicial system, it is unlikely that a foreign investor’s legal dispute with the state would be resolved in five years.
  • It seems India has taken these concerns on board and softened its stand.
  • This gives foreign investors quicker access to ISDS, thus, bringing the pendulum somewhat back to the pole of investment protection.
  • A shorter waiting period to invoke ISDS does not mean that India is exposing itself to treaty claims, as asserted by some.
  • The function of investment treaties is to safeguard foreign investment from sovereign regulatory abuse.
  • As long as India does not indulge in regulatory abuse it need not worry about ISDS claims.

 

Definition of Investment

  • The definition of investment in the India-UAE BIT states that for an enterprise to qualify as an investment, and thus be eligible for treaty protection, it should possess key economic characteristics such as a commitment of capital, profit expectation, and risk assumption.
  • The criterion that the investment should, in addition, be significant for the development of the host state, which is present in the Model BIT, has been done away with.
  • This is a welcome development clarifying the jurisdictional question.
  • Several ISDS tribunals have held that proving foreign investment is significant for the development of the host state, is an inherently value-laden exercise.
  • Thus, by removing this subjective element from the definition of investment, India and the UAE have reduced arbitral discretion.
  • At any rate, when a lawfully created enterprise satisfies other key economic investment characteristics, it is presumably significant for the host state’s development.

 

Greater clarity

  • Article 4 of the India-UAE BIT: Article 4 addresses the ‘treatment of investments.’
    • It specifically lists instances when state action will amount to a treaty violation, such as:
      • Denial of justice.
      • Fundamental breach of due process in dealing with investment.
  • Comparison with the Model BIT: These grounds are also mentioned in the Model BIT.
    • However, in the Model BIT, these grounds are linked to Customary International Law (CIL).
    • In Article 4 of the India-UAE BIT, there is no reference to CIL.
  • Implications of omitting CIL: The content of CIL concerning various aspects of foreign investment is not settled.
    • A reference to CIL in the treaty, as numerous ISDS cases show, gives excessive discretion to tribunals.
  • Benefits of the India-UAE BIT approach: By omitting CIL, Article 4 provides greater clarity for states and investors.
    • It also curbs arbitral discretion, reducing uncertainties in dispute resolution.

 

A Continuity of India’s Investment Treaty Practice

  • The India-UAE BIT establishes a continuity of India’s investment treaty practice.
  • The India-UAE BIT, like the Model, does not contain the most favoured nation (MFN) provision, which is a core non-discrimination standard in international economic relations.
  • State action on taxation is outside the scope of the India-UAE BIT.
  • A foreign investor cannot challenge tax measures even if they are abusive.
  • This maximises the state’s regulatory power at the cost of investment protection.
  • Article 14.6(i) of the India-UAE BIT bars the jurisdiction of an ISDS tribunal to review the ‘merits’ of a domestic court decision.
  • Arguably, ‘merits’ means that ISDS tribunals should not act as a court of appeal.
  • However, ‘merits’ can also have an alternative interpretation.
  • Since the investor will bring an ISDS claim on the same issue adjudicated by the domestic court, the state can plausibly argue that the case is on the ‘merits’ of the domestic court decision.
  • This might impede the tribunal’s ability to hear the case.

 

Departures from the Model BIT

  • On some issues, the India-UAE BIT goes beyond the Model.
  • It specifically disallows third-party funding.
  • ISDS is unavailable if an allegation of fraud or corruption is made against the investor

 

Conclusion

One does not know whether the departures from the Model BIT signify India’s change of heart or are specific to the UAE. Developed countries would be pleased with India’s softening of the five-year domestic litigation requirement. However, they would remain concerned about India’s continued stand of excluding MFN and taxation issues from the BIT’s ambit.