After the experiment with short term solutions like the odd-even car prohibition in Delhi, it is an appropriate time to look to longer term regulatory options to address the air pollution problem.

Strange and even counterintuitive as it might seem, the United States, the largest of the contributors to the global emissions problem, might offer us some useful lessons.

The stronger regulatory framework of a large and advanced economy like the US is not as unviable for India as some might think. In fact, there could be parallels between our two experiences and the costs of adoption might not be too severe.

Consider this. In 1948, the town of Donora in the state of Pennsylvania experienced a meteorological inversion that was so bad that players at a high school football match could not be seen by the crowds. Fog, particulate matter and other industrial pollutants caused by this inversion was tied to 20 deaths, 400 hospitalisations and, 6000 reports of respiratory symptoms. The problem was very similar to the annual troubles that have come to plague Delhi. And that is why it is worth recalling the Donora event – it is said to have led to the first serious efforts by the US government to regulate air pollution. Since then, over half a century of implementing the US Clean Air Act 1970 has brought down aggregate pollution levels by as much as 70% even as Gross Domestic Product numbers have more than doubled.

As Delhi and large parts of northern India grapple with similar air pollution problems it is important to note that quality regulation is not incompatible with economic growth.

There are perhaps three aspects of the US experience that are worth emphasising as counterpoints to the existing scheme of regulating air pollution in India.

Pollution data

First, regulatory responses to air pollution, whether in India the US or elsewhere, are often founded on what is called risk-based regulation. Regulating risk requires measurable assessments of the dangers that pollution poses to human health, the quality of the environment, the well-being of the economy and so on. The problem is that this causation cannot be so easily established, unlike, say the crime of murder where cause of death is relatively easy to ascertain.

Regulation, as a result, has to be based on the "statistical probability" of risks likely to be caused by higher concentration of substances in the ambient air. And this is what makes dependable measurement of pollution data and reliable scientific studies on the effect of polluting activities on health related issues so important.

Such a credible measurement system as well as systematic studies on health related morbidities has been the bedrock of the United States Clean Air Act 1970. By contrast the Indian statutory framework on air has no clear demands on data generation either at the level of measurement or scientific research to determine the effects of pollution.

This situation has improved to some extent due to programmes such as the National Air Quality Monitoring Programme initiated by the Central Pollution Control Board. However, the measurement of air pollution remains riddled with problems regarding reliability of instruments, the appropriateness of technology, the regularity and quality of measurements and so on. There is also a paucity of scientific studies that link pollution with morbidities specific to Indian conditions.

A developing middle class consensus and intervention by the courts could impose stricter regulations even in the absence of clear data and demonstrably convincing reasons. But it is important to realise that stricter regulations affect important sections of the Indian economy who are not likely to let these restrictions pass without a stiff fight.

Therefore a clear and enforceable regulatory mandate for credible and reliable data is crucial to battle very likely objections to stronger regulations.

Air quality standards

Second, the US regulatory framework elaborates a scheme of “ambient regulation” of air quality which requires national enforcement of specified standards. These standards, determined on the basis of effects of pollutants on human health, are enforced by an independent central agency, the US Environment Protection Agency, or EPA. Most significantly the EPA requires the states, who implement the Act, to adhere to air quality standards set by it by deploying the best available science and technology without being constrained by the costs.

In contrast the primary regulatory approach as specified in India’s Air Act – and even our Motor Vehicles Act – is driven by a system which licences specified industrial activities to pollute within specified standards. Regulation is therefore not pitched at the level of ambient air quality but kicks in when an individual polluter violates the terms of his licence. Logically, this form of licensing of industrial activity should ultimately be governed by a broader concern for the state of ambient air and its impact on human health. However, air quality regulation in India has trained its goals far more on economic costs and benefits of implementing a technology which in turn might explain why ambient air quality concerns relating to stricter emission norms like Euro 6 have not yet been adopted in India.

A matter of right

Lastly, in the USA, the EPA has over the years developed to become a regulator strong enough to set standards and to deliver ambient air quality promised by the Clean Air Act as a matter of right when those standards are breached.

In contrast, the Indian framework has no regulatory agency with the heft to pull together the policies that are currently spread between the states as well as those the ministries of Roads, Environment, Power, Petroleum, Housing and so on.

One could of course point to the Central and State Pollution Control Boards as regulatory analogues but these bodies are less than fully independent in their composition and functioning, inadequately funded, and do not have a track record of quality regulatory outcomes. The weak form of Central Pollution Control Board’s relatively recent attempt at enforcing ambient air quality standards explains this problem.

The National Ambient Air Quality Standards were issued by the Board as a notification under the Air Act 1981 specifying the permissible concentrations of particulate and other dangerous substances in the atmosphere. Though these standards in their current form have been in force since 2009, it is entirely unclear if a duty is cast on the Board to enforce these standards. Consequently as air pollution in Delhi, especially in relation to particulate matter, has far exceeded the specified concentrations it is not clear if the Central or the Delhi Pollution Control Board can impose directions to remedy the situation on the government of Delhi or on polluters determined to be contributing a bulk of the pollution.

The provisions of the Air Act allow the boards to bring criminal prosecutions for non-adherence but the criminal prosecution has not been pursued for quite some time now and non-attainment of standards meets with little legal consequence.

To sum up, a stronger mandate for systematic measurement and impact studies of pollution, an ambient emphasis in regulatory design and a stronger centralised regulator are useful directions to train our attention as we search for the solutions of the future both in Delhi and elsewhere.

Of course, debates in regulatory design will not wish away the complex management of competing economic and political interests that come to bear on the choices of specific programmes for improved air quality, as indeed on potential changes in the regulatory process itself.

However, these are not insignificant concerns which we might want to throw into the cauldron of our troubles as we fashion our way out of the air pollution predicament.

Mathew John is Faculty at the Jindal Global Law School.