AJK

Azad Jammu and Kashmir

BAP

Biodiversity Action Plan

EIA

Environmental Impact Assessment

EIS

Environmental Impact Statement

EPA

Environmental Protection Agency

EUAD

Environment and Urban Affair Department

HBP

Hagler Bailly Pakistan (Pvt.) Ltd.

IEE

Initial Environmental Examination

IUCN

The World Conservation Union (Formerly the International Union for the Conservation of Nature and Natural Resources)

KPT

Karachi Port Trust

MTR

Mid Term Review

NEQS

National Environmental Quality Standards

NCS

(Pakistan) National Conservation Strategy

NGO

Non-Governmental Organization

NWFP

North-West Frontier Province

PEPC

Pakistan Environmental Protection Council

SDPI

Sustainable Development Policy Institute

TOR

Terms of Reference

Introduction

1. Background

The Pakistan National Conservation Strategy (NCS) is the primary document designed to encourage sustainable development, conserve natural resources, and improve efficiency in the use and management of resources. The formal implementation of the NCS started after its approval by the federal cabinet in March 1992, although some measures were already under way in 1991, with allocations in the federal budget. Based on an extensive consultation process, 68 specific programs in 14 core theme areas were identified. Long-term goals and results expected by the year 2001 were set for each core theme area.

A committee was formed in 1998 to make arrangements to undertake a mid-term review (MTR) of the NCS. The goal of the MTR is to enable the stakeholders (government, civil society and supporting institutions) to assess the current status of NCS implementation and to take necessary steps for mid-course corrections. The World Conservation Union (IUCN) is the executing agency for the MTR.

The specific objectives of the MTR are to:

1. Assess the progress achieved in the implementation of the NCS since its adoption, taking into account all the factors influencing the implementation

2. Analyze and collate lessons learnt so far, draw conclusions, and formulate recommendations for making the NCS a holistic and integrated strategic guideline for sustainable development in Pakistan.

The NCS review committee identified 13 specific tasks for achieving these goals. One of these tasks entails reviewing legislation changes pertaining to the NCS. Hagler Bailly Pakistan (Pvt.) Ltd. (HBP) was engaged by IUCN-Pakistan to conduct this study, which is presented in this report.

2. Scope of Work

In its review and analysis of changes in Pakistan’s environmental legislation and their impact on sustainable development, Hagler Bailly was guided by the following TORs:

• Review and analyze legislative changes/revisions at the federal/provincial level influenced by NCS

• Review and analyze the participation of various sectors (e.g., private, corporate, NGOs, etc.) in the process of legislative changes

• Review and analyze the economic instruments/regulations embedded in the policy/legislation changes

• Review and analyze the role of different agencies such as EPAs in the legislative process and its implications for NCS implementation

• Review and compare the status of agencies like EPAs in the implementation of legislative reforms

• Review and analyze the government’s track record of ensuring compliance/enforcement of legislation with implications for, or as a result of, NCS implementation

• Review and analyze economic incentives/benefits that were predicted or promised as a result of legislative changes/revisions

• Review the impact of legislative changes/revisions at the community level, e.g., have the common property rights been defined and how do they affect communities?

The scope of work was modified as discussed in Section 1.3 below.

3. Methodology

The methodology HBP adopted for this study is briefly outlined below:

1. Finalization of the TORs

The NCS was reviewed at the beginning of the study to identify the areas in which legislative changes may have taken place. A meeting was held with the MTR Coordinator to discuss the TORs. It was decided that the study would focus on the Pakistan Environmental Act, 1997, as the primary instrument for partially implementing the NCS, rather than on the full scope of review and analyses of federal and provincial legal instruments contemplated in the TOR.

2. Identification of Regulatory Developments Expected in the NCS

All regulatory developments envisaged in the NCS were identified. This information was found in Chapters 7 (Issues and Opportunities in the Primary Sectors), 8 (Issues and Opportunities in the Secondary and Tertiary Sectors) and 10 (Action Agenda and Implementation Strategy) of the NCS document.

3. Identification of Legislative Changes

Legislative developments in the 14 core areas of the NCS were identified. The sources of information included:
• Gazette of Pakistan, 1992-1999
• IUCN libraries at Islamabad and Karachi
• SDPI library
• HBP Archives
• Pakistan Environmental Protection Agency
• The NCS Unit
• Other resource persons

 

4. Review of Legislative Changes

Pertinent federal and provincial laws were reviewed to:

• Identify specific changes in laws and regulations and analyze the implications of changes on the goals of the NCS.

• Identify economic instruments embedded in the laws and regulations and analyze their significance and implications on achieving the goals set in the NCS.

• Review the role of various government agencies in implementation of the legislative reforms as intended in the laws and regulations

 

5. Discussions with Selected Stakeholders

Discussions were held with selected stakeholders, focusing on:

The role of the NCS in legislative developments: how, and at what stages, the Strategy’s provisions were taken into account and incorporated in the legislative changes

How, and at what stage, the various sectors (government, private, and corporate bodies, NGOs, etc.) participated in the legislative changes

• The economic instruments embedded in the legislative changes

• The roles envisaged in the laws and regulations for various government agencies

• The extent of the government’s success in ensuring compliance with and enforcing legislation with implications for, or as a result of, NCS implementation.

6. Preparation of Final Report

The findings of the study were compiled in the form of this report.

4. Contributors to the Report and Acknowledgements

The report has been prepared by Hidayat Hasan, senior analyst in HBP’s Environmental Programs unit. The following persons reviewed the draft of the report and provided valuable comments:

• Mr. Vaqar Zakaria, Managing Director, HBP

• Mr. Jawad Hassan, Environmental Lawyer, Associate, Hassan & Hassan (Advocates)

HBP also thanks the following personnel in IUCN-Pakistan and the NCS cell in the Ministry of Environment for providing assistance in identifying resource persons, locating literature, and providing valuable suggestions during this study:

• Dr. Asif Ali Zaidi, Head, Islamabad Office, IUCN-Pakistan

• Mr. Mohammad Rafiq, Head of Program, IUCN-Pakistan

• Ms. Nabila Makhdoom, Assistant Coordinator, Environmental Law Program, IUCN-Pakistan

• Ms. Maheen Zehra, NCS Coordinator

Critical information was obtained through discussions with the following persons:

• Mr. Asif Shuja Khan, Director General, Pakistan Environmental Protection Agency

• Mr. Zia-ul-Islam, Director (I), Pakistan Environmental Protection Agency

• Mr. Jawed Ali Khan, Director (PEPC), Ministry of Environment, Local Government and Rural Development

• Ms. Rashida Dohad, Asia Foundation, Islamabad

• Mr. Anjum Javed Khan, Attorney at Law, AJK Law Associates, Lahore

The support provided by the resource persons at the following libraries is also greatly appreciated:

• IUCN, Islamabad

• SDPI, Islamabad

• HBP, Islamabad

Editorial services at HBP were provided by:

• Ms. Kiren Khan

• Ms. Rumina Iftikhar.

 

5. Organization of the Report

Following this section, Section 2 (Regulatory Developments Envisaged in the NCS) reviews the NCS document to identify all the regulatory support that was expected from the government for the implementation of the NCS programs. Similarly, the economic incentives and the requirements for defining of common property rights are also discussed.

Section 3 (Development of Environmental Regulations and Policies, 1992-1999) discusses the laws, regulations and policies developed during the period 1992-1999 pertaining to environment.

Section 4 (Review of Regulatory Development) discusses the regulatory instruments developed during 1992-1999 in the context of NCS.

Regulatory Developments Envisaged in the NCS

1. The Pakistan National Conservation Strategy

The Pakistan NCS is a broad-based policy statement aimed at achieving environmentally sustainable economic and social development in Pakistan. The three overriding objectives of the NCS are:

• Conservation of natural resources,

• Sustainable development, and

• Improved efficiency in the use and management of resources.

Three operating principles are identified to achieve these objectives. These are:

• Greater public participation in development and environmental management,

• A merging of environment and economics decision-making, and

• Lasting improvements in the quality of life.

The NCS was developed over a nine-year period (1983-1992) through the collaborative efforts of the IUCN and the Government of Pakistan. The NCS development process included extensive consultation with thousands of experts, interested individuals, communities, NGOs, and government agencies. The final product, according to several observers, is outstanding, in terms of both comprehensiveness and quality.

The NCS sets out the basic guidelines for an integrated effort aimed at protecting the environment and natural resources of the country. This broad framework provides a comprehensive point of reference for all agencies, departments, private sector companies, financial institutions, and donor agencies for undertaking systematic efforts to bring about an effective change for sustainable development.

The NCS has three main parts:

Part 1, Pakistan and the Environment, provides the context of the document. A comprehensive discussion on the state of the environment in Pakistan is followed by discussions on resource use, existing institutions, policies, instruments and environment-related programs.

Part 2, Elements of National Conservation Strategy, starts by defining the basic objectives and principles of the NCS as discussed earlier in this section. This is followed by a comprehensive discussion of issues and opportunities in the primary sectors (agriculture, forest management, rangeland rehabilitation, livestock management, water resources, marine and coastal resource management, fisheries, wildlife and their ecosystem, and mineral resources). After this, the issues and opportunities in the secondary and tertiary sectors (energy, industrial development, human settlement, pollution control, recreation and tourism) are presented, followed by a discussion on supporting programs (population, education, communications, research and technology, women in development, training and environmental information systems).

Part 3, Implementation Arrangements, provides the action agenda and implementation strategy. The NCS has 14 program areas for priority implementation. These are:

1. Maintaining soils in croplands

2. Increasing irrigation efficiency

3. Protecting watersheds

4. Supporting forestry and plantations

5. Restoring rangelands and improving livestock

6. Protecting water bodies and sustaining fisheries

7. Conserving biodiversity

8. Increasing energy efficiency

9. Developing and deploying renewables

Preventing/abating pollution

1. Managing urban wastes

2. Supporting institutions for common resources

3. Integrating population and environment programs

4. Preserving the cultural heritage.

Within the 14 program areas, 68 specific programs have been identified. For each program, the long-term goals, and expected outputs and physical investments required within the first 10 years of implementation have been identified. The NCS proposes a seven-level strategy for implementation. The seven levels are federal and provincial leadership, departmental responsibility, district coordination, community participation, individual action, corporate tasks, and government and NGO support. The required government and institutional development, the role of community organizations, and the financial support required for the implementation of the NCS have also been discussed in this part.

2. Regulatory Instruments Required for NCS Implementation

The specific roles of governments, communities, individuals, and businesses in the implementation of the NCS are discussed in Section 10.5 of the NCS document and are shown in matrix form in Table 10.1 of the document. It is expected that, of the 68 programs, 22 will require development of new regulatory instruments. It is further believed that for 5 of the programs, the development of regulatory instruments will be a critical task. Exhibit 2.1 lists the tasks for which regulatory instruments are expected to be developed.

In addition to these, some regulatory measures are also identified in the section on issues and opportunities (Chapters 7 and 8). These measures are:

• Revise forestry legislation and forest policy directives to meet essential ecological requirements, taking into consideration the socioeconomic realities

• Introduce new legislation to protect habitats in the non-protected parts of the countryside, protect particular species, and ensure that the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) is implemented

• Provide alternative disposal methods, backed by regulations preventing the discharge of industrial effluents into municipal sewers.

The government is expected to provide support by offering economic incentives and defining common property rights. Regulatory changes may also be required to provide these two instruments. The programs requiring economic instruments and those for which common property rights have to be defined are shown in Exhibit 2.2 and Exhibit 2.3, respectively.

Development of Environmental Regulations and Policies, 1992-1999

The following laws, which were enacted in Pakistan and Azad Jammu and Kashmir (AJK) between 1992 and 1999, directly or indirectly influence environmental management in the country:

1. Karachi Port Trust (Amendment) Ordinance, 1994

2. Sindh Cultural Heritage (Preservation) Act, 1994

3. National Fund for Cultural Heritage Act, 1994

4. Agricultural Pesticides (Second Amendment) Ordinance, 1995

5. AJK Environmental Protection Act, 1996

6. The Pakistan Environmental Protection Act, 1997 (Act XXXIV of 1997)

Between 1992 and 1999, a number of other laws were also drafted and considered for enactment at federal and provincial levels. Legislative work on some of these did not proceed for various reasons, which included lack of support from stakeholders. A list of laws and regulations drafted during this period that were not enacted is presented below. The list, though not comprehensive, includes all major legislative efforts. Work on some of the following is still in progress.

1. The Margallah Hills (Management, Protection and Conservation of Ecology and Environment) Act, 1995

2. The Islamabad Environmental Improvement (Protection and Conservation of Green Areas) Act, 1995

3. North West Frontier Province (NWFP) Environmental Act, 1995

4. Punjab Environmental Protection Act, 1996

5. Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 1996

6. Model Provincial Wildlife Law, 1998

7. NWFP Forestry Act, 1998

8. NWFP Cultural Heritage (Protection and Promotion) Ordinance, 1999

9. Federal Environmental Rules and Regulations, 1999

10. AJK Forestry Act, 2000

Three policy documents were also produced during 1992-1999 that have a significant impact on environmental legislation. These are:

1. Landuse and Social Forestry Policy for AJK, November 1997

2. NWFP Forest Policy

3. Biodiversity Action Plan.

This section briefly describes all the documents mentioned above.

1. Environmental Laws Enacted between 1992 and 1999

1. Karachi Port Trust (Amendment) Ordinance, 1994

The Karachi Port Trust (Amendment) Ordinance, 1994 is a federal act that amends the Karachi Port Trust Act, 1886 (Bombay Act VI of 1886). Articles 2-28 of the Ordinance amend various sections in the Karachi Port Trust Act, 1886, and add new sections pertaining to administration, operation and management of the Karachi Port. Through Article 29 of the Karachi Port Trust (Amendment) Ordinance, 1994, a new section, Section 90, has been inserted in the Karachi Port Trust Act, 1886. Section 90 has the following provisions:

1. The Board of Trustees, Karachi Port Trust (KPT), is responsible for ensuring that the marine environment within the Karachi Port’s limit remains free from pollution.

2. Discharge of pollutants including waste, oil, radioactive material, hazardous material, bilge discharge from tankers and vessels is prohibited within the limits of the Karachi Port.

3. Anyone violating the above clauses may be asked to pay a fine of up to Rs. 10 million in addition to bearing the cleaning cost.




2. Sindh Cultural Heritage (Preservation) Act, 1994

The Sindh provincial assembly passed the Sindh Cultural Heritage (Preservation) Act in February 1994 to "preserve and protect ancient places and objects of architectural, historical, archeological, artistic, ethnological, anthropological and national interest in the province of Sindh." The main features of the Act are:

• The Government of Sindh is empowered to declare any premises of historical, cultural or architectural value to be protected heritage.

• The owner of any protected heritage can enter into an agreement with the Government through which a) the government can make arrangements for the preservation and maintenance of the heritage; b) the rights of the owner to destroy, remove alter or deface the heritage are restricted; and c) the public is given access to the heritage.

• If the Government feels that a protected heritage is in danger of being destroyed, injured or allowed to fall into decay, it is empowered to acquire the protected heritage under the provisions of the Land Acquisition Act, 1894.

• The destruction of a protected heritage by any person, including the owner, is punishable with fine, imprisonment or both




3. National Fund for Cultural Heritage Act, 1994

Under this act, the National Fund for Cultural Heritage was established for "conservation and preservation of Pakistan’s national heritage and its proper maintenance." The fund can be used to promote the conservation and preservation of Pakistan’s national heritage through various means, which include financial and technical assistance, and creating awareness in the public about the importance of appreciating and preserving the archeological, architectural, historical and cultural heritage of Pakistan. The fund can be financed through grants from federal and provincial governments, aid and assistance from national and international agencies, and contributions from private organizations and individuals.

4. Agricultural Pesticides (Second Amendment) Ordinance, 1995

The Agricultural Pesticides (Second Amendment) Ordinance, 1995 is a federal act that amends the Agricultural Pesticides Ordinance, 1971. Under the amendment, the penalties for selling, importing, manufacturing and formulating unregistered brands of pesticides have been drastically increased. For example, for certain violations, the penalty has been increased from Rs. 25,000 to Rs. 1.0 million.

5. AJK Environmental Protection Act, 1996

The AJK Environmental Protection Act, 1996 provides for "the control of pollution and preservation of living environment."

6. The Pakistan Environmental Protection Act, 1997 (Act XXXIV of 1997)

The Pakistan Environmental Protection Act, 1997 provides for "the protection, conservation, rehabilitation and improvement of the environment, for the prevention and control of pollution and promotion of sustainable development." The Act is discussed in detail in Section 4.

2. Draft Environmental Laws and Regulations—1992 to 1999

1. Margallah Hills (Management, Protection and Conservation of Ecology and Environment) Act, 1995

This proposed law is designed to "provide for the management, protection and conservation of the ecology and environment of the Margallah Hills." The key features of this law are as follows:

• The jurisdiction of the Act extends to the Margallah Hills National Park and the areas adjacent to it in Punjab and NWFP.

• The concept of environmental zoning has been proposed to control anthropogenic activities and land use within the Margallah Hills.

• The flora and fauna of the Margallah Hills have been accorded protection against exploitation.

• Constructing new buildings, changing land use, altering landscape, using or modifying public waters and undertaking industrial activities for purposes inconsistent with the objectives of this Act is expressly prohibited.

• A Management Plan designed to meet specific conservation objectives of the Margallah Hills is required to be prepared after every five years.

This Act was drafted by IUCN-Pakistan’s Legal Panel, at the request of the Ministry of Environment. Though it was presented to the government in 1995, so far, no further action has taken place.

2. The Islamabad Environmental Improvement (Protection and Conservation of Green Areas) Act, 1995

This Act was proposed to:

• Prevent the existing green areas in the Islamabad Capital Territory from being used for purposes other than those for which they are reserved.

• Ensure that at least 20 percent of the total area of any new scheme is reserved for the development of green areas.

For the purpose of this Act, "green areas" means land in the Islamabad Master Plan, or other schemes, reserved exclusively for parks, playgrounds, forests, nurseries, vegetative cover, green belts, and open spaces on which no construction is planned.

The Act was also drafted by IUCN-Pakistan’s Legal Panel at the request of the Ministry of Environment. Though it was presented to the government in 1995, so far, no further action has taken place.

3. NWFP Environment Act, 1995

The NWFP Environmental Protection Act was proposed in 1995 to remove the deficiencies in the existing Pakistan Environmental Protection Ordinance, 1983 as applicable to NWFP. The Act was drafted by IUCN-Pakistan’s Legal Panel at the request of the Government of NWFP. Because work on a more comprehensive environmental law (the present Pakistan Environmental Protection Act, 1997) was already in progress at the federal level, a separate NWFP Environmental Protection Act was considered redundant.

4. Punjab Environmental Protection Act, 1996

The Punjab Environmental Protection Act was proposed in 1996 to remove the deficiencies in the then Pakistan Environmental Protection Ordinance, 1983 as applicable to the province of Punjab. The Act was drafted by a team of lawyers from Australia and Pakistan at the request of the Government of Punjab. As work on a more comprehensive environmental law (the present Pakistan Environmental Protection Act, 1997) was already in progress at the federal level, a separate Punjab Environmental Protection Act was considered redundant. However, according to one of the authors of the Act, the Government of Punjab has not completely ruled out the possibility of enacting this law.

5. Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 1996

The Balochistan Wildlife (Protection, Preservation, Conservation and Management) Act, 1996 was proposed by the Forest and Wildlife Department, Government of Balochistan to replace the existing Balochistan Wildlife Protection Act, 1974. The proposed law differs significantly from the existing law in the following aspects:

1. An area can be declared a "National Park" only if it is the property of the government or if the government has proprietary rights over it.

2. The public is ensured access to the national park for recreation, education and research purposes.

3. A new category of protected area, "private game reserves," has been introduced. These are private lands that have been dedicated by their owners for protecting and conserving wildlife, in the same manner as the state-owned game reserves. Within the limits of the private game reserve, the owners of the land exercise the same powers as are exercisable by an officer appointed by the government in the game reserve.




6. Model Provincial Wildlife Law

This model law was drafted by Jennifer Mohamed Katerere in 1998 for IUCN-Pakistan. The law was designed to serve as a model for provincial wildlife protection laws. Although the draft is very comprehensive, it was not generally accepted by the stakeholders.

7. NWFP Forestry Act, 1999

The NWFP Forestry Act was drafted in 1998 by Mr. Zahid Hamid for the Government of NWFP. The act provides for the protection, conservation and sustainable development of forests in the NWFP. It is currently in the public consultation process and the draft of the act has been circulated among the various stakeholders and interested persons for their comments. This process is likely to complete in March 2000 and will be followed by the redrafting and enactment process.

8. NWFP Cultural Heritage (Protection and Promotion) Ordinance, 1999

Two federal laws, the Antiquities Act, 1975 and the National Fund for Cultural Heritage Act, 1994 (see Section 3.1.3), provide protection to all sites and objects of significant cultural heritage in NWFP. The NWFP Cultural Heritage (Protection and Promotion) Ordinance, 1999 is designed to extend this protection to other important places and objects of "historical, cultural, religious, architectural, archeological, artistic, ethnological and anthropological significance."

The scope and nature of this law is similar to the Sindh Cultural Heritage (Preservation) Act, 1994. The notable differences are:

1. Alteration, renovation, or destruction of a cultural heritage; construction activities within 60 meters of a cultural heritage site; and trade of a cultural heritage object has been explicitly prohibited.

2. Development authorities and local bodies are forbidden to approve any plan affecting cultural heritage without prior permission of the Committee of Experts formed under this ordinance.

3. The use of protected heritage sites for advertisement purposes (such as putting up neon signs and billboards), or installing telephone and power cables and television antennas, is prohibited.

4. Contravention of the provisions of this ordinance by any person is punishable with a fine of up to Rs. 5 million, imprisonment for three years, or both.

5. If there are reasonable grounds to believe that a person has committed an offence under any provision of this ordinance, the Director of Archeology and Museums, Government of NWFP is empowered to arrest him.

6. An "NWFP Cultural Heritage Authority" is proposed to be established under the chairmanship of the provincial Chief Minister to undertake measures for the preservation of cultural heritage in NWFP, as mandated by this ordinance.

7. A fund, to be known as "Sarhad Fund for the Development and Preservation of Cultural Heritage," will be established with seed money of Rs. 50 million. It will be used to fund projects for the promotion and conservation of cultural heritage.

The draft of the ordinance has been approved by the provincial cabinet and now awaits the approval of the governor of the province.

9. Federal Environmental Rules and Regulations

Certain rules and regulations have been drafted by the Pakistan Environmental Protection Agency to implement the requirements of the Pakistan Environmental Protection Act, 1997. These include:

1. Pakistan Environmental Protection Agency (Certification of Environmental Laboratories) Regulations, 1999

2. Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations, 1999

3. Environmental Samples Rules, 1999

4. Pollution Charge for Industry (Calculation and Collection) Rules, 1998

5. Provincial Sustainable Development Fund Board (Procedure) Rules, 1998

6. Provincial Sustainable Development Fund Board (Utilization) Rules, 1998

7. National Environmental Quality Standards (Self-Monitoring and Reporting by Industry) Rules, 1998

8. Hazardous Substances Rules, 1999

9. Environmental Tribunal Rules, 1999

The status of the above as of February 2000 is given below:

• The Pakistan Environmental Protection Agency (Certification of Environmental Laboratories) Regulations are being printed.

• The Pakistan Environmental Protection Agency (Review of IEE and EIA) Regulations are being reviewed by the Ministry of Law.

• Stakeholder consultations on the Environmental Samples Rules, the Pollution Charge for Industry (Calculation and Collection) Rules, the Provincial Sustainable Development Fund Board (Procedure) Rules, the Provincial Sustainable Development Fund Board (Utilization) Rules, and the National Environmental Quality Standards (Self-Monitoring and Reporting by Industry) Rules are complete and these will be submitted to the Ministry of Law for vetting soon.

• The Hazardous Substances Rules have been circulated to stakeholders for comments.

• The Environmental Tribunal Rules will be developed by the Ministry of Law.

These rules are further discussed in Section 4.

10. AJK Forestry Act, 2000

The AJK Forestry Act, 2000 is based on the NWFP Forestry Act, 1998.

11. Policy Documents

1. Landuse and Social Forestry Policy for AJK

The Landuse and Social Forestry Policy for AJK was developed by IUCN-Pakistan in 1997 as part of the Government of AJK’s Northern Resources Management Project.

2. NWFP Forest Policy

The NWFP Forest Policy was developed after a consultative process involving government, local communities, NGOs, and other interested parties. The NWFP Forestry Act, 1998 was drafted to meet the requirements of the policy.

3. Biodiversity Action Plan

As a party to the Convention on Biological Diversity, Pakistan is required to undertake measures to protect biodiversity in the country. More specifically, it is required to commission a country study on biological diversity, prepare a national conservation strategy, and chalk out a plan of action. The Biodiversity Action Plan (BAP) was developed in 1998 to meet all three of these requirements. The plan was discussed and formally adopted in a meeting of the Pakistan Environmental Protection Council in August 1999.

In the previous section, the development of environmental legislation between 1992 and 1999 has been reviewed. During this period, a number of new laws were enacted and important amendments made in existing laws. Several other environmental laws were also drafted, some of which are still under consideration for enactment. Work on the remaining laws was either abandoned or put off indefinitely.

In this section, the environmental laws developed between 1992-1999 for prevention and abatement of pollution are discussed in the context of the NCS. Here, NCS is seen both as a product—goals, issues, opportunities, programs and implementation arrangements—and as a process—consensus building and the mobilization of a constituency of support. Prevention and abatement of pollution is the only program area of the NCS where significant legislative development has taken place and has culminated in enactment of law. The following discussion is expected to provide insight into how the NCS has influenced the environmental legislative process. The discussion is organized as follows:

• Background gives a brief background of the legislative development, including the description of legislation prior to 1992.

• Legislative Development describes the key features of new environmental laws and the amendments to existing laws described in the previous section. Various articles of the law, such as enabling (or basic) articles, environmental quality (or anti-pollution) articles and resource conservation (or resource management) articles are discussed. Economic instruments embedded in the laws and definitions of community rights such as common property rights are also discussed in this subsection.

• Development Process describes the process through which the law was developed. The participation of various sectors in the process of legislative changes is also discussed.

• Institutional Role in Implementation describes the current status of implementation of the legislation and the role of various government agencies in the development and implementation of the law.

1. Background

Statutes in the Indian Subcontinent dating as far back as the nineteenth century have recognized environmental pollution as an undesirable act and proposed punitive actions against it. However, the first attempt to draft an enabling law to address environmental pollution in the country was made in 1977. The effort culminated in the promulgation of the Pakistan Environmental Protection Ordinance, 1983. Originally, far more comprehensive legislation was proposed than the Ordinance. However, after consideration by several governmental agencies, it was decided that a modest beginning would be made by introducing only the Environmental Impact Statement (EIS) as the central point of environmental protection efforts in Pakistan. Thus, even when the Pakistan Environmental Protection Ordinance, 1983 was promulgated, it was known that amendments would be required in the future to address all areas of environmental concern.

After the approval of the NCS, an immediate need to improve upon the Pakistan Environmental Protection Ordinance, 1983 was felt. The Ordinance was considered deficient in the following specific areas:

• Soil contamination, marine pollution, noise pollution, vehicular pollution, handling of hazardous substances and conservation of biodiversity were not adequately addressed.

• Several terms including "environment," "adverse environment affect," "sustainable development," "project" and "biodiversity" were not comprehensively defined.

• The legal status of the provincial environmental protection agencies was not defined.

• The environmental assessment procedure and the type of development projects to which the assessment requirements applied were not clear.

In 1993, the Environment and Urban Affair Division (EUAD) requested IUCN-Pakistan to propose revisions in the 1983 Ordinance. IUCN-Pakistan accepted the challenge and formed a three-member legal panel to draft a new law. The initial draft was produced in 1993. It was revised several times in consultation with various stakeholders. The federal cabinet approved the legislation in early 1996. It was promulgated in February 1997 as an ordinance and, after approval from the parliament, enacted in December 1997.

In 1993, 10 years after the promulgation of the 1983 Ordinance, the Pakistan Environmental Protection Agency (Pak-EPA) was established under Section 6(d) of the Pakistan Environmental Protection Ordinance, 1983. The same year, on August 24, the National Environmental Quality Standards (NEQS) were established by the Pakistan Environmental Protection Council (PEPC). The notification for NEQS stated that compliance with the NEQS was mandatory for any industry commencing operations after July 1, 1994. For industries that were in operation on August 31, 1993 or were to go into operation before July 1, 1994, the effective deadline for compliance with the NEQS was set as July 1, 1996.

Between 1994 and 1996, efforts were also made to draft provincial environmental protection laws. These, however, did not result in any enactment of law, mainly to allow the federal act to develop first.

2. Legislative Development

The Pakistan Environmental Protection Act, 1997 is the primary legislative tool for prevention and abatement of pollution in the country. It can be argued that the entire Act primarily addresses ‘brown issues’—environmental issues relating to industrial emission development—and ignores ‘green issues’—ie, issues such as conservation of biodiversity, forests and marine resources. The key features of the Act that relate to prevention and protection of pollution are the following:

• The Act provides for protection, conservation, rehabilitation and improvement of the environment, for prevention and control of pollution, and for promotion of sustainable development (Preamble to the Act).

• The jurisdiction of the Act extends to the whole of Pakistan and its territorial waters, the Exclusive Economic Zone and ‘historic waters.’

• All pollution related terms used in the Act have been clearly defined to ensure their consistent use. The terms defined include environment, pollution, air pollution, discharge, effluent and noise.

• It has been clearly stated that the Pakistan Environmental Protection Council (PEPC) is to approve national environmental policies within the framework of a national conservation strategy.

• The NEQS requires the approval of the PEPC.

• Functions of the Pak-EPA include:

• Preparation, revision and establishment of the NEQS;

• Enforcement of the NEQS;

• Establishment of ambient air quality standards;

• Establishment of systems and procedures for surveys, surveillance, monitoring, measurement, examination, investigation, research, inspection and audit, to prevent and control pollution, and to estimate the costs of cleaning up pollution and rehabilitating the environment in various sectors;

• Taking measures to promote research and the development of science and technology that may contribute to the prevention of pollution, protection of the environment; and

• Encouraging the formation and working of NGOs and community-based organizations to prevent and control pollution.

• Provincial EPAs have been given statutory cover. Provincial EPAs can exercise powers delegated to them by the respective provincial governments or the Pak-EPA.

• Provincial Sustainable Development Funds have been established to provide financial assistance to suitable projects, including projects for the prevention and control of pollution.

• Discharges or emissions in excess of the NEQS, or other standards established by Pak-EPA where ambient conditions so require, have been prohibited.

• The federal government has been empowered to levy a pollution charge on persons not complying with the NEQS.

• An environmental assessment process has been introduced for proposed development projects. This involves filing of either an Initial Environmental Examination (IEE) or, for projects likely to have an adverse environmental effect, a comprehensive EIA, with the federal government. The EIA or IEE should establish that the project will not cause any adverse environmental effect before the project can be approved.

• Operation of a motor vehicle from which gaseous emission or noise exceeds the NEQS, or other standards established by Pak-EPA where ambient conditions so require, have been prohibited. To ensure compliance with the NEQS, the Pak-EPA has been empowered to direct that pollution control devices be installed in motor vehicles or fuels specified by Pak-EPA be used in them or specified maintenance or testing be carried out on them.

• Pak-EPA and the provincial EPAs have been empowered to issue an Environmental Protection Order to deal with an actual or potential adverse environmental effect following a violation of the provisions of the Act. This may include immediate stoppage of pollution, installation of pollution control devices and action for disposal of waste and restoration of environment.

• Penalties have been imposed on contravention of the provisions of the Act that relate to NEQS, environmental assessment and environmental protection orders.

• Environmental Tribunals have been constituted with exclusive jurisdiction to try serious offences under the Act. Minor offences relating to pollution by motor vehicles, littering and waste disposal and violation of rules and regulations, etc., are to be tried by Environmental Magistrates. The Environmental Tribunals and the Environmental Magistrates have been authorized to award compensation for losses or damages. The Environmental Tribunals have also been given the power to recover from the offender monetary benefits obtained by him as a result of the offence.

Although, the Pakistan Environmental Protection Act, 1997 is applicable to the marine environment in the jurisdiction of Pakistan, it does not contain any explicit reference to pollution of the sea. As discussed in Section 3.1.1, the Karachi Port Trust (Amendment) Ordinance, 1994 makes the Board of Trustees, Karachi Port Trust (KPT) responsible for ensuring that the marine environment within the limits of Karachi Port remains free of pollution. It also prohibits discharge of pollutants from shipping vessels within the limits of the Karachi Port and imposes heavy fines on violation of this provision.

Rules and regulations required to implement the provisions of the Pakistan Environmental Protection Act, 1997 have been drafted by Pak-EPA (see Section 3.2.9). Two key sets of rules for pollution prevention are the Pollution Charge for Industry (Calculation and Collection) Rules, 1998 and the National Environmental Quality Standards (Self-Monitoring and Reporting by Industry) Rules, 1998.

In the context of the NCS, all seven programs in the program area "Preventing/Abating Pollution" rely on the availability of economic incentives, and, with one exception, also rely on regulatory measures for implementation (see Exhibits 2.1 and 2.2). The extent to which the Pakistan Environmental Protection Act, 1997 and its supporting rules and regulations provide the required regulatory support for prevention and abatement of pollution is discussed below. Regulatory support could be in the form of direct legal tools, such as prohibition of certain acts, or economic incentives imbedded in the law.

1. Shifting industry composition towards environmentally benign processes and products: Although, the imposition of a pollution charge can encourage installation of industries with environmentally benign processes and products, no direct incentives for such a move has been provided in the legislation. It is unlikely that the NCS goal of inducing 10 percent of forthcoming industry to adopt environmentally safe products and processes could be achieved by the year 2001.

2. Integrating clean, low-waste technology in new large manufacturing units: The regulatory control provided by the Pakistan Environmental Protection Act, 1997 will be sufficient to provide the initial thrust towards installation of clean low-waste technologies in new industries. The scientific execution of the environmental assessment process, proper technical assessment by the EPAs, and effective post-commissioning monitoring are key factors in implementation of this program.

3. Retrofitting of pollution abatement in existing formal industry: Effective imposition of the NEQS and pollution charges will encourage the retrofitting program. However, the Act neither defines the concept of "best available control technology" nor makes any provisions for it. As the law stands, all industries, new or existing, have to meet the same emission standards.

4. Collection and treatment of wastes of urban small industries: No explicit provisions for this program are made in Act. Since it will be difficult for small non-formal industries to initiate a self-monitoring and reporting program, it is extremely unlikely that the Act will by itself provide any impetus for starting a collective waste collection and treatment system. A separate initiative is needed to provide economic incentives for the small-scale industries to start such a program. Legal cover for such a program may have to be provided by amendment in the Act or through regulations under the Act.

5. Refineries upgrading programs: No regulatory measures or economic incentives have been provided to refineries to introduce processes to produce low-leaded fuel.

6. Vehicle tune-up and related programs: The National Energy Conservation Centre (ENERCON) has started a vehicular tune-up program. A similar program is also operational in Peshawar. However, no vehicular emission standards for pollutants other than carbon monoxide (CO) have been prescribed by the EPA.

7. Establishment of compressed natural gas (CNG) stations: As of February 2000, a total of 64 CNG stations are operating in the country and another 62 are under construction. Thus, the NCS goal of setting-up 75 CNG stations in the country by the year 2001 has been achieved.

The Pakistan Environmental Protection Act, 1997 gives strong punitive powers to the government but fails to provide any economic or other incentives to industries and other concerns for improvement of environmental performance. The punitive measures in the Act include:

• Powers given to the government to investigate an alleged violation of the Act’s provisions (Section 7(f)), and to enter a premises for inspection, investigation and taking samples and confiscation of any article (Section 7(g), 7(h) and (j));

• Strong penalties for polluting (Section 17);

• Establishment of environmental tribunals for trying offences under the Act (Section 20);

• Appointment of environmental magistrates for trying offences under the Act (Section 24);

The Act fails to provide economic or other incentives to motivate industries or other concerns to take measure for pollution control, such as installation of pollution control equipment. Section 6(2)(d) defines it an optional function of the Pak-EPA to "recommend to the Federal Government the adoption of financial and fiscal programs, schemes or measures for achieving environmental objectives and goals and the purposes of this Act, including (i) incentives, prizes awards, subsidies, tax exemptions, rebates and depreciation allowances; and (ii) taxes, duties, cesses and other levies."

In summary, in certain areas of pollution prevention and abatement, the existing regulations still fail to provide the necessary regulatory support to the NCS programs. Additional regulations in the following areas would certainly assist in improving the implementation of NCS programs:

1. The concept of ‘Best Available Contr