Dr. Birsha Ohdedar, Lecturer in Law, University of Essex

India should rewrite outdated, colonial laws and empower local people so that embankments work for communities and nature.

Cyclone Amphan has devastated millions of lives in the Sundarbans, a tidal forest on the shore of the Bay of Bengal. The Sundarbans lies in the southern part of the Ganges Delta, crossing both India and Bangladesh. It is an area of global importance, as the largest mangrove forest on Earth and a significant carbon sink.

Although famous for its biodiversity and ecology, the region is home to 5 million people and one of the most deprived areas. Since 2007, there have been at least 15 major cyclones in the region. On 20 May 2020, Cyclone Amphan made landfall, in the midst of the COVID-19 pandemic.

Beyond disaster relief, ‘rebuilding’ the Sundarbans will be a monumental task – one that cannot repeat past mistakes. It must be attuned to a climate-stressed world where rising sea levels and cyclones will continue to batter the region, which is the largest delta and mangrove forest on earth.

The region has long been in a state of structural dysfunction, bringing great harm and impoverishment to millions. This impoverishment is not a natural state or determined purely by the fragile ecology. Rather, it is the result of human agency, policies, laws and institutions.

Problematic laws and governance

After a disaster several things usually happen. There is a cry for funding,  some (usually inadequate) funding provision, followed by reconstruction. In the Sundarbans, this involves building embankments.

The embankments of the Sundarbans protect the islands where people live and are vital to their safety and livelihoods. When an embankment is breached, saline water enters farmland and food can no longer be grown. A downward spiral often follows, as people move into further marginalised activities (such as collecting prawn seedlings), or migrate under precarious conditions.

Embankment law in the state of West Bengal has not changed much since the colonial era: the Bengal Embankment Act is almost 140 years old. Today this legislation operates in a completely different social and ecological reality.

Colonial laws vest complete power in the state bureaucracy, the Irrigation & Waterways Department (IWD). Under the law, the embankments are government property. The department is the ultimate arbiter of where, when and how embankments are built and maintained. These decisions are life-and-death issues for the people who live in the Sundarbans.

Research has shown a high level of apathy towards development in the region from local government bureaucracy, especially the IWD. The state chooses whether or not to respond, with local people unable to take part in any meaningful sense, in the decisions that govern their lives. For example, studies found that this centralised control was at the heart of poorly built infrastructure and the misuse of resources after Cyclone Aila in 2009.

Decisions about embankments could be democratically controlled, through legislative reforms, by the communities whose lives depend on their maintenance. Communities need to be empowered – both through the provision of resources and legal power – to create an environment where people and nature can thrive together.

Need for different technology

In recent years, a lot of money has been spent on constructing concrete embankments. These embankments are unfit for the surrounding environment. Research has found that concrete structures disrupt the natural ecology of the islands without offering protection when a strong cyclone hits – in 2012 Anurag Danda, then head of the WWF-India’s Sundarbans and climate adaptation programme, said such structures had been washed away twice at the island of Mousuni.

There is also an urgent need to update the science and knowledge embedded in the way embankments are built. The Bengal Embankment Act assumes a fixed distinction between land and water, as the British based the law on the geography of their own rivers.

But in the delta which makes up large parts of eastern India, the border between land and water is constantly changing. Concrete embankments assume a clear demarcation, but this is not possible in the region.

Architects in other parts of South Asia have been researching new ways of designing in flood-prone and coastal areas, which are cognisant of the local ecology, changing climate and social needs. These approaches try to work with water and floods – for example, embracing overflows into land at certain times and places, overturning many centuries of seeing water as a threat. Many experts are now calling for these ideas to be engaged with in the Sundarbans. The state’s role should be to facilitate the interaction of such experts with democratically empowered local populations.

Building a better future

The state government has consistently failed to prioritise coastal planning. It only managed to produce a draft coastal zone map after numerous outcries and orders by the National Green Tribunal, India’s dedicated environmental court. The West Bengal government’s approach to formulating a coastal zone management plan also lacked meaningful public participation.

Recently, the Indian government pushed through a series of reforms that allow more “development” in areas such as the Sundarbans, where mangroves are recognised as a crucial buffer against cyclones and storms in a climate-stressed world. An investigation found that the reforms ignored 90% of public representations made nationwide. This demonstrates how coastal areas have always been ruled from the top down.

There is also widespread flouting of environmental rules to create ‘eco-tourism’ in the region. The badly planned construction of roads, resorts and jetties leads to massive habitat destruction. Moreover, infrastructure for tourism, such as hotels and restaurants, takes priority in the allocation of vital resources like water, with groundwater being diverted from local people and farmland.

Meanwhile, while local people have forestry rights, conservation concerns are often used as an excuse to deny their rights and criminalise their activities.

In 1979, the state carried out a massacre of hundreds of Dalits (people in the lowest group in the Hindu caste system) in Marichjhapi – ostensibly to protect the forest. For decades, interest in the Sundarbans has been limited to protecting tigers or forests, largely at the expense of communities. Recently, a planned relocation of populations in the Sundarbans to create buffer zones has been advocated by some researchers.

The overall approach could be described (to use the words of Nivedita Menon, the professor of political and feminist theory, from a different context) as privileging ‘the environment over people, and development over the environment’.

Mangroves, migration, embankments and eco-tourism will all have some role to play in rebuilding efforts. But, a reframing (and decolonising) of governance and law is long overdue. The rights of residents need to be reflected in law and policy. Ignoring the voices of the suffering has been central to the story of the Sundarbans. It must not be repeated now.

A version of this piece first appeared on thethirdpole.net and is reproduced here with permission and thanks.

Dr Samantha Davey, Lecturer in Law, University of Essex and Prof Karen Hulme, Head of the School of Law, University of Essex

With ongoing concern over the impact of waste on our environment, specifically the threat to marine life from plastic, a new report takes a timely look at our laws and responsibilities relating to litter and the costs to councils of dealing with it.

Dr Samantha Davey and Professor Karen Hulme from the School of Law, are the authors of Litter Law, a new report from CPRE the countryside charity which makes a number of legal and policy recommendations.

The product of three years of research, their report looks at the problem of litter in the context of legal developments since 2016 and the government’s 25 Year Plan to Improve the Environment.

Professor Karen Hulme said:

Litter itself can pose severe dangers to wildlife and deface our community spaces. Consequently, one of the principal questions that we posed was whether there were any gaps in the current anti-littering regime in terms of legal measures to deal with littering, as well as responsibilities for the clearance of litter and other debris. Importantly, we also looked beyond the strict confines of the law to other potential measures to help reduce the incidence of littering.

While welcoming recent government initiatives, such as the 2017 Litter Strategy for England, the new report identifies a range of obstacles to progress on dealing with litter.

Attempts to protect our marine environment from litter are hampered by the lack of clear oversight.

In addition, the way in which litter law has evolved makes it overly-complex; a lack of clarity exists over land ownership and therefore responsibility; councils are exercising their powers in different ways, creating a ‘postcode lottery’ in enforcement; and confusion over responsibilities between different councils and agencies such as Highways England are resulting in action being delayed.

A further contribution to the report, by Professor Shahzad Uddin of Essex Business School, asks if we know the true cost of dealing with litter. His chapter, based on interviews and Freedom of Information requests, paints a picture of significant expenditure by cash-strapped councils, which is still failing to fully address the problem of litter. A survey of eight local authorities across Essex resulted in only one council, Basildon, providing a detailed breakdown of costs.

The authors have called for clarity regarding both the law and the regulation of aquatic litter; an analysis of water-borne litter levels, to inform an updated DEFRA Code of Practice on Litter and Refuse; greater cooperation; and transparency on the costs to councils resulting from litter.

They also suggest councils should provide greater incentives to businesses to take greater responsibility for their own litter and littering around premises, and that the UK learn from initiatives in other countries, such as bottle return schemes.

With the UK government proposing a new national litter campaign, the report also asks if its strategy will make councils and landowners too reliant on volunteers.

Litter Law is a second key contribution to environmental debates in recent weeks from our School of Law. In April, Essex hosted a two-day workshop featuring experts in human rights and climate change, with speakers including two United Nations Special Rapporteurs, past and present, and experts from the World Bank, NASA, our own University and academics based on three continents.

Dr Davey and Professor Hulme were assisted in their research by students from Essex Law Clinic.

This post was first published on the University of Essex website and is reproduced here with permission and thanks.

Birsha Ohdedar, Lecturer in Law at the University of Essex, co-edited a new publication on Designing Law and Policy Towards Managing Plastics in a Circular Economy, a special issue of the Law, Environment and Development (LEAD) Journal.

The edition was co-edited with Dr. Lovleen Bhullar, University of Edinburgh, Prof. Philippe Cullet and Dr. Feja Lesneiwska, SOAS. The publication is available open access, a full compendium or by paper.

In recent years, there has been a global focus on plastics and plastic waste as an object of concern. In a context where the world has produced as much plastic since the beginning of the twenty-first century as in the whole of the twentieth century, warning signs observed by scientists have increasingly led to demands being placed on politicians, enterprises, lawyers and policy makers to come up with initiatives that can address the crisis. It is now recognised that we have reached peak-plastic at a planetary scale.

The legal and regulatory challenges to achieve systemic transformation need to be identified, understood and reimagined to deliver outcomes that can lead to a world that minimises the use of plastics and ensures that no plastic waste ends up in the environment. The contributions in the Special Issue provide a unique global perspective to these discussions on the circular economy. They include contributions from both the Global North (UK, EU specifically) and the Global South (Morocco, Taiwan and Kenya), as well as scientific perspectives of the life-cycle assessment.

While there have been efforts to address the plastic surge in different parts of the world, there is a strong North-South dimension to plastics recently highlighted by the Chinese ban on plastic waste imports. In other parts of the Global South, the issue is not just an environmental one but also one linked to livelihoods. These perspectives remain underexplored in academic and policy literature. Accordingly, the articles in the Special Issue provide an important contribution to fill this critical gap.

The Special Issue arose from a workshop was jointly organised by SOAS, University of London, the University of Essex and the University of Surrey in June 2018.