PAYING FOR POLLUTION: WHY COURTS, NOT STATUTES, ARE DRIVING PAKISTAN'S ENVIRONMENTAL LAW

Abstract.

This study critically examines the implementation gap in Pakistan’s environmental jurisprudence by exploring the tension between progressive judicial activism and the failure to enforce environmental statutes, notably the Pakistan Environmental Protection Act 1997 (PEPA 1997) and the provincial environmental laws enacted after the Eighteenth Amendment. Over the last three decades, the judiciary has built a visionary body of constitutional jurisprudence, reading a right to a healthy environment into Article 9, applying concepts such as the Polluter Pays Principle, the Precautionary Principle, and Intergenerational Equity, and creating supervisory mechanisms such as continuing mandamus and judicial commissions. This study shows, however, that these judgments have functioned more as normative statements than as an operational standard of administration. Systemic resource deficits, technical incapacity, statutory fines under Section 17 that have not been indexed for inflation, superficial Environmental Impact Assessment (EIA) practice, and non-functional Environmental Tribunals continue to limit the Environmental Protection Agencies (EPAs) severely. Drawing on a comparative analysis with regional frameworks, including the National Green Tribunal in India and the constitutional rights model in South Africa, the paper identifies executive inertia, inter-agency disconnects, evidentiary limitations, and lost institutional memory as the key structural impediments. It proposes reforms to close this gap: reorganising EPAs into independent statutory bodies, replacing fixed statutory fines with dynamic civil administrative penalties, introducing third-party EIA auditing, and adopting explicit damage-assessment formulas grounded in the Polluter Pays Principle.