Citizen vs. Union Ministry of Environment, Forest and Climate Change

(8) Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wild life and other matters of public importance. *In Supreme Court under Art.32 of the Constitution; * In High Court under Art.226 of the Constitution; 

I _________

as a public spirited individual and concerned citizen of the Union of India.

_______ …Petitioner

 VERSUS

Parties

MEMO OF PARTIES

Union Ministries of Environment, Forest and Climate Change. 

Title: Fallible Approach of allowing first and then trying to avoid/ban the plastic carry bags, wraps, disposables in  the ‘downstream’. 

PRAYER:

It is most respectfully prayed that the honorable court may consider:

1. Facts of the case

Approach of banning, the stage in which regulations and bans are being imposed is questionable and plausibly needs a course correction.  

The current approach of banning or bringing about awareness being pursued by various state and central authorities is focused on  the downstream  i.e., after the release of the raw material by the heavy polymer industries or importers  to the producers into the plastic bag/ wraps making market, and by individual states like Himalayan states alone would not suffice.

Also a nationwide uniform approach on plastic bags/ wraps necessary and essential for the ease of efficiently enforcement, This mosaic spread and sporadic approach of banning in some states and allowing in others is grossly ineffective. 

Instead of preventing the menace 'early on' at its inception, a protracted, impractical and circuitous approach is being taken by waiting till the said plastic accessories reach the end user or just before that.

2. Question(s) of Law

Where as a more effective preventive approach of restricting at the very sources of raw intermediary production is available,  the sources are which are relatively very few in number as opposed to the downstream stakeholders(users of LDPE OR LLDPE OR SIMILAR INTERMEDIARY to make plastic bags, multi-layer wraps, disposables etc.). 

Why a glaringly ineffective, circuitous approach of 'awareness creation' and banning after release of  the said products is being pursued? 

Why a 'restriction'  LDPE OR LLDPE OR SIMILAR INTERMEDIARY sale at the source of intermediary(polymer  heavy industrial plants / importers) for the purpose of plastic bags/multi-layer wraps cannot  be enacted proactively for public good and avoid a plethora of problems environmental, and public health problems (artifacts on reports hazardous incidents, as-is waste management in-capabilities provided as annexures)?

What is the intent behind letting it happen and then trying to prevent it, encouraging the curative or reactionary approach to the problem,  ignoring the preventive and proactive approach? 

3. Grounds

The background and current state of affairs w.r.t plastic bag production and usage: 
LDPE OR LLDPE OR SIMILAR INTERMEDIARY is a specialized derivative that is processed by a relatively  fewer large scale polymer plants and importers. Which in-turn goes into hundreds of injection molding, blow-plast units which produce millions plastic carry bags/wraps and disposables like plates spoons and cups, multi layer wraps, further it further reaches lakhs of  retailers who either  sell these products to the general consumers or give them away as complimentary or accessory to their merchandise sales. Having seen the disastrous effects on environment and public health some states especially eco-sensitive Himalayan belt and tourism based states have come forward to ban plastic bags and wraps for retail purposes within their jurisdictions. They have been actively investing in creating awareness among retailers and end consumers to avoid plastic bag usage as much and switch over to jute or other forms of bags. Merchandise packing plastic film wraps, and merchandise carrying bags, disposable glasses, plates, spoons and cups and similar products / accessories the dumping of which is causing colossal environmental damage due to their non-biodegradable,  nature and derivative long term and immediate public health and safety hazards(inundations etc.).

Whereas the enforcement of avoidance or ban of plastic bags/wraps has been a subject of state they have been trying hard to impose it downstream and being successful in varying degrees. But given the mosaic of their territories, it is easier for miscreants or the uninformed to sneak in the forbidden item from one state to another. Also some states may be proactive some could defer in initiating the ban, meanwhile the irrecoverable collateral damage to the environment will have been done.

The polymer industry(makers and /or importers) can be regulated to make sure they don't produce excess or sell  LDPE OR LLDPE OR SIMILAR INTERMEDIARY for this exclusive purpose, can be subject to further restrictions by the Central Govt. agencies and restrict the use of LDPE OR LLDPE OR SIMILAR INTERMEDIARY exclusive for this purpose that would  create environmental Hazard and public health and safety hazard, undermining tourism potential of the many sensitive historic, and scenic sites of India. It is said that tourism anywhere thrives on first impressions and repeat visitors, due to the general filth around, open stagnant drains clogged with plastic carry bags, wraps and disposables the despicable imagery that sets in the minds of first time visitors to India will not only choose not to return to visit the other parts of the diverse heritage and nature rich India but may also not recommend to prospective fellow travelers from the lands they come (domestic or foreign tourists). 

Therefore instead of creating awareness and call for bans once released into public domain it is wiser, sensible and easier to regulate the few LDPE OR LLDPE OR SIMILAR INTERMEDIARY sources (polymer processing heavy industries or importers) and prevent them from supplying the raw material to that downstream of plastic bag/wrap makers etc. 

The prevention of supply of LDPE OR LLDPE OR SIMILAR INTERMEDIARY source for the production can be easily monitored and controlled by the Central Govt. run Pollution Control Board or equivalent as the primary producers or importers are already in touch with such agencies with regards to their existing clearances and regulations. 

Restricting the sale/production of the intermediary LDPE OR LLDPE OR SIMILAR INTERMEDIARY based on the said target products and not 'free for all'. 

Any residual plastic that misses the radar of recycling in the soil of India which is primarily an agricultural economy can adversely affect the quality of agricultural products and the future of an aspiring organic farming industry. given the lack of maturity, processes, resources and  awareness among various waste handling stakeholders.

There can be a host of alternative bio-degradable products which can be deployed for the purpose from  labor intensive sectors like jute  sector for re-usable, washable, biodegradable bags, from tribal regions and forest produce especially for disposable plates, cups, a model that can include those indigenous industries in our growth a.k.a consumption story, a local model local needs, rather than blindly rolling out alien models which evolved from different set of conditions.

The status quo may seem comfortable and any change for good will be met with resistance, unfortunately quite often our systems and think tanks are stirred only when bulk deaths or disasters occur and are consumed in the inertia of day to day living . A proactive stepping out of comfort zone occasional can save many a disaster and associated costs. A Nation's life span is much more than that of a party's or company's and policies should not be made to cater to immediate gains and  appeasing of a few stakeholders but ought to be designed by a very long overall winning approach to all stakeholders in the long term, keeping in view the future to come, time scale of the order of decades if not for centuries especially for a Nation of India's market size and astronomical transaction volumes.

Quite often the developed world takes with initiatives in their smaller markets and population densities, lesser transaction volumes, sets the standards  we tend to follow as there is precedent and advantages like  no re-invention of wheel, etc. Sometimes we can and have to  design models and practices that suite our markets and populations. Time to set the precedents and raise the bar higher than international standards.

Shifting the onus to “raw material manufacturing heavy industries” raw intermediary suppliers, from solely on plastic bag producers under “extended producer responsibility”. Central and State agencies to take up periodic macro and micro audits of sold raw material and ensure it is not utilized for the production of plastic carry bags, wraps and disposables.

Analogous situation: 

The situation is akin to a hypothetical scenario allowing unrestricted sale and availability, sale of tobacco for all age groups and then running a 'call back drive' from the under-aged consumers to return their stock   in-exchange  for food items. this is the analogous situation the way we are handling the menace, first letting it happen or percolate and then trying to retrieve which is a Utopian and near impossible task (than has the risk of being reversible any time, that is people and entities can revert back to old habits).

We all know a stitch in time saves nine. A spark put out now, is wild fire averted later. A discharge or leakage  of a dangerous effluent into river stopped in the upstream prevents the pollution of  the rest of entire length,  and volume of the  river and negative impact on dependent ecosystems downstream.  

India being a populous nation, distributed across her territory has to live in tandem with nature but not by antagonizing environment, by and large by culture Indian nationals are eco-sensitive and would appreciate this move embrace this change for good. By moving on to door delivery e-tailing from brick and mortar Shopping-bag-Retailing Indian consumer is already setting a low carbon foot and eco-friendly shopping example to the world. Retailers have proactively come up with 'door delivery' to facilitate the consumers to save their effort and the merchandise-carrying hassles.

Annexure I: LDPE OR LLDPE OR SIMILAR INTERMEDIARY usage data, for the said purpose data, (producers, importers, tonnage), data from heavy polymer industries and importers

Annexure II: Downstream Initiatives: GOs of various Govts., media reports, campaign reports and costs.

Annexure III Disaster Evidence and Costs Dossier: 

Till date in India where root causes traced to plastic bags/ bags, Ministry of Urban Development, Ministry of Health & Family Welfare. 

Cost of Safety. Inundation and flooding due to drain clogging. Loss of life and limb.

Colossal Cost of Public health disasters, mosquito breeding grounds due water clogging, retention. 

Huge Cost of Loss of Opportunity: Due to unhygienic conditions partly ascribed to ubiquitous plastic bags and dumping there is overall loss of image, fear of sight of filth, catching contagious diseases that prevents domestic and international tourism and there by local employment of youth.

Annexure IV: The thickness ranges, purpose and recycling process efficiency/costs, maturity levels of various stakeholders.  

As-is recycling practice: %ge of overall national, Audit of Sold raw tonnage, vs. actual Recycled (for the said purpose). Gap to be explained. How much is going to land fill, seas and open-air incineration and the associated carbon-footprint.

As of 2011 only 6.9% is being recycled as per figures published by MOEFCC.nic.in website.
only 9,250 TPD of plastic waste collected and recycled out of the 1,33,760 tonnes of plastic waste per day. Raises the pertinent questions What is happening to the rest? Is it going into the sea? Or landfills or air after being burnt in the open?

At this rate to reach near 50% we would take at this pace at least 10-20 years. Meanwhile the consumption increases so does plastic waste, cumulatively, making the targets a perpetual Tantalus cup.

Inability to Manage Waste, recycle often cited as the only root cause of failure but not avoidance of such environmentally hazardous materials in the first place; but with the given literacy, education and awareness levels 'responsible consuming' and source separation it is a nebulous task to fix things in the downstream. The pace of proliferation of such hazardous materials is faster than the pace with which awareness and 'responsible consuming' can be done. Even in technologically mature societies, with lower volumes(transactions populations) there has been change resistance and learning curve.  If the intent for cleaner, safer and hygienic India is strong enough, there will be an inclination to take right decisions at needed times as per local conditions. The infrastructure several thousand rural, small town, urban is not adequate and capable of handling this waste. There will be a huge time gap in the run up to that ideal ‘smart solid waste management model’ meanwhile there is indiscriminate dumping into environments cumulatively increasing pile ups. Improper, inefficient and hazardous manual separation in the dumping yards by the unorganized labor their human rights for a healthy work place.  Hence alternative approaches to this menace have to be considered.
Maturity of Municipalities, corporations w.r.t waste management and time lines to ramp up.

Separation Efficiency : Heavy vs. Lighter items (densities)

 4. Averments

Why a centralized approach of preventing LDPE OR LLDPE OR SIMILAR INTERMEDIARY at the source for the purpose of plastic bags, wraps at their very source is not being taken up, why a rather less effective in appropriate decentralized and mosaic type bans and no-bans at state levels is being allowed. 

Why is the prevention at source of raw intermediary polymer plants and importers' angle not being probed or considered even now after despite several state, city govts. banning in their jurisdictions.

Why not a pan-India approach to restrict LDPE OR LLDPE OR SIMILAR INTERMEDIARY at the source of the intermediary and preventing it from going to the production of  said plastic bag/wrap disposable purposes.  

That the present petitioner has not filed any other petition in any High Court or the Supreme Court of India on the subject matter of the present petition.