The Supreme Court has sought a detailed report from the Environmental Protection Agency (EPA) of Khyber Pakhtunkhwa (KP) regarding the measures adopted by stone crushing plants operating in the province to ensure compliance with environmental codes and safe distance as it ordered the closure of stone crushing plants.
"It is also pointed out that there are 900 other stone-crushing plants operating in the province of Khyber Pakhtunkhwa. Let the provincial EPA carry out a detailed report regarding their environmental compliance and safe distance and submit their detailed report in this regard to this court before the next date of hearing," a three-judge bench of the top court directed on Friday, adding, "In case the EPA finds that the said plants do not meet the NEQS or the safe distance requirement under the rules, the EPA is free to take action against the said plants in accordance with the law."
The directions were contained in a nine-page written order authored by Justice Mansoor Ali Shah, as he heard a Constitution petition challenging the vires of Rule 2(c) and Schedule-IV of the Khyber Pakhtunkhwa Power Crushers (Installation, Operation and Regulations) Rules, 2020 ("Rules") to the extent they are ultra vires Sections 7 and 19 of the Khyber Pakhtunkhwa Power Crushers (Installation, Operation and Regulations) Act, 2020 ("Act") as well as fundamental rights including Articles 9, 23, 24, and 25 of the Constitution.
Justice Shah led a three-judge bench of the apex court that last heard the matter on July 11. The detailed order for it did not surface until Friday, July 26, 2024.
The written order noted that the National Environmental Quality Standards (NEQS) were originally passed in 1993 and last updated in 2010. It noted that neither the federal (before the passage of the 18th Amendment) nor the provincial governments have made any efforts to update the standards.
"It is crucial to highlight that by limiting both the quality and quantity of anthropogenic pollutants in the environment, the NEQS serve as crucial frameworks which facilitate the transition towards a sustainable future. These standards do not only ensure the preservation of ecosystems and protection of public health through preventive measures but also play a significant role in fostering climate resilient development mechanisms by encouraging sustainable production processes in industries," it read, adding, "Therefore, the federal government, as well as the provincial governments, are directed to update the NEQS within a period of three months from today and submit their updated/revised NEQS before this court."
Further hearings on these matters are expected to be held in the first week of November when reports of the provincial governments regarding updating/revising of the NEQS, as well as the report on the environmental status of the 900 stone crushing plants are supposed to be presented.
The order further noted that the submissions made by the counsel for power crushers were not satisfactory and that the report's findings have gone un-rebutted, particularly on the the violation of the NEQS.
"Learned Advocate General for KP supported the report of the commission and also urged the court to shut down these plants unless they comply with the NEQS," the order read.
"To protect the human life and health of the residents of the area, who have been subjected to these plants for a number of years, the court has directed the KP Environmental Protection Agency (EPA) to shut down and seal the operations of three stone crushing plants immediately," the court directed. However, the respondent owners of the said plants can be allowed to re-operationalise their plants provided they make an appropriate application to this court satisfying it that they now comply with the requirements of the NEQS, which the court, after verifying this fact through a technical expert, may allow.
Local police have been asked to assist EPA in carrying out the court's order to shut down the stone-crushing plants immediately. The court directed to send a copy of its order to the KP Inspector General of Police for immediate compliance. The KP Advocate General was directed to submit a compliance report to the court within a week.
Protection of the environment also emerges from the right to dignity which is inviolable and such protection is an inalienable right and perhaps more fundamental than the other rights
Environmental crisis and fundamental rights
"It is important to underscore that environmental crisis pervades our lives. An overwhelming scientific consensus warns us that human-induced climate change is leading to rising sea levels, extreme weather events, and public health disasters," it said.
"Despite over 30 years of international agreements, global carbon dioxide emissions rose 70% between 1990 and 2021. Biodiversity is collapsing at an unprecedented rate; one million animal and plant species face complete destruction within decades, because of human activities," it lamented.
Notwithstanding the extensive domestic regulation, the court noted that global standards for air, land, and water pollution remain stubbornly high. "It is in this perspective of environmental constitutionalism and Islamic environmentalism that we approach the current issue."
The court also noted that environmental constitutionalism, as a concept, also finds its ideological roots within Islamic environmentalism as environment and climate change have a strong linkage with our religion.
"Approaching environmental constitutionalism through the lens of religion and spirituality can indeed be a powerful tool," the court held.
"Over the years, Pakistan's superior courts have expanded the scope of fundamental rights and judicially interpreted the text of the constitutional fundamental right to life (Article 9), which has been popularly dubbed as the right to a clean and healthy environment," it said.
Subsequently, it said the courts had recognised the right to dignity (Article 14) in the Imrana Tiwana and Asghar Leghari cases, that the protection of the environment also emerges from the right to dignity which is inviolable and such protection is an inalienable right and perhaps more fundamental than the other rights.
It is in this context that the right to life and dignity, when read with constitutional principles of democracy, equality, social, economic and political justice, include within their ambit and commitment the international environmental principles of sustainable development, precautionary principle, environmental impact assessment, inter and intra generational equity and public trust doctrine. This protection of the environment is also accorded in other international legal instruments, which Pakistan has ratified, including the most recent United Nations General Assembly Resolution, which recognised that everyone, everywhere, has the right to a clean and healthy environment, the order stated.
The order states that a copy of the order should be dispatched to all the Chief Secretaries of the four provinces and the Chief Commissioner, ICT, for compliance regarding updating/revising the NEQS.