The legal implications of harming the environment

The $1.49 billion joint venture of India and Bangladesh, the Rampal Power Plant, has generated debates and controversies focused on its detrimental aspects to the world heritage site, the Sundarbans, from the very beginning of the project’s agreement.

Considering that the after-effects projected in studies by Greenpeace, the constitutionality of Rampal Plant can be questioned based on the fundamental principles of state policy mentioned in the supreme law of the republic, as well as on the violations of environmental laws and infringement of fundamental rights derived from the constitution.

Health hazards and right to life

According to a recent Greenpeace study, the Rampal Power Plant would cause at least 6,000 premature deaths and low birth weights of 24,000 babies during its 40-year life.

At the same time, it is more likely to cause other diseases, further exacerbating our problem of air pollution, and cause emission of radioactive dust.

The fly ash contains toxic metals including arsenic, lead, mercury, nickels, vanadium, beryllium, barium, cadmium, chromium, selenium, and radium. These metals are a threat to the environment and the health of future generations to come.

Seen from a legal perspective, the terrifying statistics imply that the project contradicts Article 18(1) of the Constitution, where the state is bound to regard the improvement of public health among its primary duties.

Also, right to life, ensured by Article 32, prohibits any activity that may obstruct anyone from the enjoyment of their absolute right.

Right to life has quite a wide scope and can be defined broadly, as in Dr Mohiuddin Farooque v Bangladesh (1996) 48 DLR (HCD), where the judges expressed that “right to life is not only limited to the protection of life and limb but extends to the protection of health … maintenance and improvement of public health by creating and sustaining conditions congenial to good health.”

Fly ash contains toxic metals including arsenic, lead, and mercury. These metals are a threat to the environment and the health of future generations to come

Futhermore, Article 18A extends that right to “future citizens” who are yet to be born, and the Greenpeace study concludes that to-be-born children are at a high risk of health problems caused by the power-plant.

Discrimination

In the preamble to the Constitution and in Article 27, the state ensures rights of “all citizens,” and further in Article 27 it is directed that all citizens should be equally protected by the law.

However, the inhabitants of the nearby areas of the Rampal site would have their right to a healthy environment disproportionately affected only due to their residence -- and that amounts to discrimination.

Right to life, right to health, and right to security applies all the same for these endangered citizens as does for any other citizen living anywhere in Bangladesh.

Environment

In international investment agreements, an environmental management report has to be made on the overall prospects.

Rampal, due to its unavoidable threat to the Sundarbans, lacked appeal for being funded by many investment organisations except for those in India.

The coal ash bi-products and other wastes are reported to pollute the water and air of the Sundarbans, causing massive change in the bio-diversity -- yet again violating another state policy of the Constitution.

According to Article 18A: “The state shall endeavour to protect and improve the environment and to preserve and safeguard the natural resources, bio-diversity, wetlands, forests, and wild-life for the present and future citizens.”

In 1999, the Bangladesh government classified the Sundarbans as a “reserve forest,” which is a protected wetland under the Ramsar Convention. The construction, when completed, would alter the natural environment. Wetlands would be drastically contaminated with coal dust, inducing changes to natural resources.

Despite being urged several times by UNESCO to reconsider the coal based plant, Bangladesh refused to budge from its position on Rampal.

Now, after being rejected respectively in 2013, 2014, and 2016, UNESCO is making preparations to enlist the Sundarbans as a “World Heritage Site in danger.” Ignoring citizens’ demands is bad governance

Bangladesh should carefully consider the project’s consequences once again, before the harm caused becomes irreversible.

The state cannot steamroll this project into effect against popular consent, especially when it contradicts the Articles of the Constitution with blunt and visible violations of fundamental principles of state policy.

A state should be run by the government in accordance to the Supreme law and determined policies. Overlooking the opinion of the citizens is as undemocratic as it gets.

Raihan Rahman Rafid is a social activist.