DELHI, India – As north India reels under ‘severe’ levels of air pollution for the fourth day in a row, the government has appointed a former Petroleum Ministry bureaucrat to chair a new national Commission For Air Quality – hastily set up by a presidential decree just 10 days ago.

Dr M.M. Kutty, former head of India’s Ministry of Petroleum and Natural Gas, took over as chair of the new Commission on Friday, a day when official monitors reported PM2.5 levels in Delhi as high as 953, almost 100 times more polluted than WHO’s guidelines for 24-hour particulate pollution levels.

Delhi and adjoining areas are now regularly seeing PM2.5 cross 500 micrograms per cubic metre – more than 50 times the WHO-recommended 24-hour standards – as seasonal crop stubble fires continue to burn in neighboring rural states of Punjab, Haryana, Rajasthan and Uttar Pradesh.

NASA researcher Dr Pawan Gupta tweeted on Monday that there have been more fires in Punjab in the last two months, than any other September and October in 9 years, with the exception of 2016.

Adding to the pollution mix are seasonal weather conditions -falling temperature and stagnant winds – and open wood or biomass-burning fires to heat homes. Things could get even worse in coming days and weeks if Delhi’s residents also begin setting off firecrackers that are a traditional part of the late autumn festival of lights, Diwali.

#AirQuality #PM2.5 #AQI forecasts for the next 72 hours for #India by @NASAEarthData #GEOS, the wind will be pushing lots of #smoke over #MadhyaPradesh #Maharashtra and #Gujrat @jksmith34 @SERVIRGlobal @iccialtopenburn @LetMeBreathe_In @WRIIndia @CareForAirIndia @ashimmitra pic.twitter.com/4vStLSiVZi

— Pawan Gupta (@pawanpgupta) November 8, 2020

New Ordinance For An Old Problem?

The new commission actually does something significant in terms of Indian law. It replaces the 22-year-old Supreme Court-empowered Environment Pollution (Prevention and Control) Authority (EPCA), with a formal government body responsible to the central government of Prime Minister Narendra Modi.

As such, it represents the most explicit action yet by Modi to address the threat of India’s air pollution to public health – even though the Prime Minister continues to avoid the issue in his public statements.

Although air quality experts have welcomed the creation of the new Commission, they said that the notable lack of government urgency to act in the face of another mounting air pollution crisis remains disappointing.

“A new commission, with full-time members, representation from the Centre and states, and dedicated staff is a step in the right direction,” Shibani Ghosh, public interest lawyer and Fellow at the Centre of Policy Research, told Health Policy Watch. “It could address concerns of intermittent focus on air quality, institutional capacity constraints and lack of bureaucratic coordination.”

“What the ordinance has done is replace the EPCA and the multiple other task forces with a single new commission with full-time staff, representatives from the central and state governments and significant powers,” explained Dr Santosh Harish, who specialises in energy and environment policy and air quality governance. “This could help address some of the issues in bureaucratic coordination across agencies in this region.

“However, all the major actions needed for improved air quality – tackling industrial or power plant emissions more effectively, finding a long-term solution to stubble burning, improving waste management – involve increased political willingness to impose costs on polluters. Neither the ordinance or the commission seem to solve that problem,” he added.

Quality Of Commission Members Will Be Decisive

In the absence of greater leadership from the prime minister, what will be critical to the effectiveness of this 18-member commission is the dynamism and accountability of its appointed members.

Alongside Kutty, other members are a mix of retired and serving bureaucrats and non-profits, with few technocrats or scientific experts on the new panel. This leads environmentalists to worry that the new commission may end up as yet another body of file-pushing officials.

Those named so far include: Arvind Nautiyal, a mid-level Joint Secretary in the Ministry of Environment; Dr K J Ramesh, former head of the Indian Meteorological Department; Professor Mukesh Khare of Indian Institute of Technology-Delhi; Dr Ajay Mathur of The Energy Research Institute and Ashish Dhawan of the Air Pollution Action Group as NGO representatives.

The new commission also includes representatives from Punjab, Haryana, Uttar Pradesh and Rajasthan – which contribute to the seasonal air pollution with their crop-burning practices.

But other key stakeholders, like the Health Ministry, the Agriculture Ministry, the Rural Development Ministry and the Labour Ministry all seem to have been left out, at least for the moment.

It remains to be seen how the new commission might set measurable, time-bound goals and outcomes that could make a difference in the air pollution emissions – as well as being accountable to such targets.

If tackled systematically, these would include urban and rural measures, from shifting energy and transport policies to cleaner modes and sources to weaning farmers off of rice subsidies that leave crop residues which are easiest burned – to other, more nutritious indigenous grains and legumes that could be composted or managed more sustainably.

“A lot depends on how this commission will get constituted and the rules that are issued to enable its function,” Ghosh commented. She added: “Unless competing interests are heard and decided in a deliberative manner and the Commission is held accountable to ambitious but achievable targets for improved air quality, not much will change on the ground.”

Supreme Court Declares: No Smog in Delhi – Easier Said Than Done

Modi’s announcement of the new air quality commission followed weeks of Supreme Court pressures on his government in September and October. His government promulgated an Ordinance (which acts as law when Parliament is not in session) that brought this commission into existence via a gazette notification.

The gazette notification – all five chapters and 26 sections of it – is fairly detailed and was likely in the works for some time.

The move to act, observers say, could have been prompted by any number of factors besides the Supreme Court. Those may have included US President Donald Trump’s denunciation of India’s “filthy air” in a pre-election debate, or growing public awareness of the health impacts of poor air quality, particularly during the pandemic. The gazette itself acknowledges that the number of petitions and litigations on environmental issues is skyrocketing across India’s judicial system.

On Friday, the country’s Supreme Court continued to be active on the issue. It directed the federal government to ensure that there is no smog in Delhi and neighboring areas following heightened alarm over the health hazard it poses during the coronavirus crisis, Bar and Bench reported.

The judges were responding to senior advocate Vikas Singh, representing one of the petitioners in court, who said the condition in Delhi was akin to a “public health emergency” and that “drastic measures need to be taken” to tackle the air pollution.

Environment Pollution Control Authority Dissolved by New Law

The Supreme-Court EPCA, which operated for 22 years, has meanwhile been dissolved with the publication of the new law.

The Government’s legal notification creating the new commission stated: “It is now considered necessary to have a statutory authority with appropriate powers and charged with the duty of taking comprehensive measures to tackle air pollution on a war footing and powers to coordinate with relevant states and the central government.

“The quality of air remains a cause of concern on account of the absence of a statutory mechanism for vigorous implementation of measures put in place.”

The government notice said the new body represents a “self-regulated, democratically monitored mechanism for tackling air pollution” that will lead to better “coordination, research, identification and resolution of problems surrounding the air quality index”. It is hoped this will do away with “limited and ad hoc measures.”

The commission will be empowered to direct orders to control air pollution and take cognizance of complaints. It will also have the authority to set new parameters for curbing emissions, as well as levying fines to violators. Pollution offences can invite a jail term of up to 5 years and penalties of up to $135,000, Section 14 of the new notification states.

Law Conceived Hastily – Commission Lacks Statutory Powers

Other questions revolve around why the new ordinance was so hurriedly issued by government fiat, rather than as a bill to be voted on by both houses when Parliament was in session.

“The haste in setting up this commission without any scope for public comment does not bode well for the professed objectives of increased public participation mentioned multiple times in the preambular text in the ordinance,” Harish said. “This is a missed opportunity at thinking through how to operationalise airshed level management.”

Experts are also annoyed at the way air pollution is being treated as a problem only in Delhi and its surrounding areas. Ritwick Dutta, an environmental lawyer, said:

“Unless the Central Government sets up similar committees in other polluted regions of the Country, it violates the right to equality under Article 14 of the Constitution and discriminates against those who are not in the NCR. Clearly, there are equally if not more polluted regions which are beyond the NCR.”

“There is disproportionate representation from agencies and ministries which are responsible for the problem,” Dutta said. “As it is currently constituted, the new Commission is neither a representative nor independent body to deal with the issue of air pollution.”

Dutta added: “The Commission has been given power similar to the one conferred on EPCA. EPCA in its 22 years rarely exercised its statutory powers and had become an advisory body to the Supreme Court. The same situation is likely to take place with regard to the new Commission.”

Still Missing – Accountability to Measurable Goals

What happens if air quality remains at the current hazardous levels in the Indo-Gangetic Plains by next winter, or even the year after?

“We certainly don’t want to be stuck with another EPCA-like authority for the next 22 years which will be as ineffective in bringing down pollution on the public payroll,” said Anita Bhargava, co-founder of Care for Air, a clean air non-profit.

In short, while on paper it might seem as if the Commission is empowered with legal and financial resources – its real power and its own accountability to measurable goals remains to be seen.

a few hours ago – #smoke #smoke #smoke covering #Punjab #Delhi #UttarPradesh #MadhyaPradesh as seen by #VIIRS on #NOAA20, magenta and red color show smoke detection by @AerosolWatch @NOAASatellites @LetMeBreathe_In @NASAEarth @CBhattacharji @CareForAirIndia @CCACoalition @BZgeo pic.twitter.com/mxV7jqF0GU

— Pawan Gupta (@pawanpgupta) November 7, 2020

Bhargava added: “Any responsible government should already have been at work to find some real solutions to this gigantic problem that is causing more disease, disability and death than war, terror and several communicable and non-communicable diseases put together.”

There are solutions. The problem of massive stubble burning can be solved by zero-till farming. There are new rapid composting technologies, like the Pusa decomposer. Farmers should be discouraged from growing the wrong crop in the wrong state at the wrong time of the year – like water-intensive rice in water-scarce northern states such as Punjab.

But in light of the legacy so far, environmentalists fear that the commision may lack the real authority to act, and could still end up becoming yet another body adding to an already long list: “Between the Supreme Court, EPCA, National Green Tribunal (NGT), Central Pollution Control Board (CPCB) and State Pollution Control Board (SPCB) no one is clear as to what needs to be done,” Ritwick Dutta said.

Until the creation of this Commission, only the Indian judiciary has made any significant attempt at tackling the problem of pollution, whether through banning fireworks or crop-stubble burning, or the well-intentioned but misdirected order to install smog towers, a clear case of judicial overreach. But it isn’t really the job of judges to make public policy and enforce laws. It is the job of legislators and the executive.

“We still need to see measurable goals set, and timebound, real outcomes from this Commission. And of course, transparency and accountability,” Bhargav summarised.

Jyoti Pande Lavakare is the author of “Breathing Here is Injurious to your Health: The Human Cost of Air Pollution” published by Hachette and available on pre-order.

Image Credits: Pawan Gupta, Mike Bloomberg, DYFI Delhi Twitter, Chetan Bhattacharji / Care for Air, Wikimedia Commons: Prami.ap90.