Delhi In A Chokehold: Air Pollution As A Public Health Emergency

Delhi is in pollution’s ever tightening chokehold, causing catastrophic health harms. India ranks as the second most populated country in the world, and the first in air pollution. Of the World Health Organization’s (WHO’s) top 10 most polluted cities, all but one (Bamenda, Cameroon) are in India. Consider the sheer number of people breathing toxic air.

On November 1, 2019, Delhi’s Environment Pollution (Prevention and Control) Authority (EPCA) declared air pollution a public health emergency. The declaration acknowledged the severe impact of pollution on health. Although it provided for specific measures to ameliorate pollutant levels and to prevent undue human exposure, it did not specifically define “public health emergency,” specify duration, or provide for long-term systemic changes.

While the ongoing crisis in Delhi was born of the externalities of rapid urban and economic development in the context of a shifting climate, it has been abetted by profound failure in political will and coordination within a federal system of divided responsibilities ill-suited to regulating air pollutants. Against this murky backdrop of failed public health and environmental governance, the EPCA has proven to be a bright beacon shining amidst the fog.

Air Pollution And Health

Ambient air pollution is a key risk factor for preventable noncommunicable diseases (NCDs): It kills more than four million people every year globally. Worldwide, air pollution is responsible for 29 percent of all deaths and disease from lung cancer, 17 percent from acute lower respiratory infection, 25 percent from ischaemic heart disease, 43 percent from chronic obstructive pulmonary disease, and 24 percent of all deaths from stroke.

In addition to these direct impacts on individual health outcomes, air pollution causes indirect health harms on other key determinants of individual health. For example, with dangerously high levels of air pollution, people cannot go outside to exercise or cannot perform work during business hours. Every aspect of an individual’s health is affected. 

In Delhi, (see exhibit 1), NCDs attributable to ambient air pollution far exceed the global average, with hundreds of thousands of premature deaths resulting annually across India. The major factors contributing to Delhi’s particulate matter (PM) levels include unpaved roads, ill-regulated industry, an ever-increasing number of road vehicles, the burning of stubble (an unwanted but burdensome remainder of harvest) in the adjacent states of Punjab and Haryana, and firecracker use accompanying annual Diwali celebrations. These activities release PM, the most harmful form of pollutant, in its two major forms: PM10 (the largest, albeit still microscopic), and PM2.5 (smaller but harmful when inhaled).

Exhibit 1: Air pollution in Delhi: National Highway 44 in Delhi on November 3, 2019

Source: Kashish Aneja.

To give a sense of the catastrophe that gripped Delhi in early November, ambient PM was recorded in excess not only of what may be considered safe for inhalation, but also, at times, the very scale used to record its presence. PM10 has been measured at 999 out of a maximum possible 999 micrograms per cubic meter (mpcm) in parts of the Delhi metropolis with, for example, 24-hour averages hovering at 693 mpcm and 288 mpcm for PM10 and PM2.5 on November 2. (In the United States and many other countries, the scale ends at 500). Per the WHO, safe levels of mean PM10 and PM2.5 exposure over 24 hours are, respectively, 50 mpcm, and 25 mpcm.

EPCA’s Declaration

In response to Delhi’s decades-long escalation in air pollution levels, the EPCA was constituted in 1998 pursuant to an India Supreme Court order for preventing excess ambient air pollution in the city. Its recent November 2019 declaration came after a 48-hour period of levels exceeding the most severe tier in the Air Quality Index: five times the standard considered acceptable in India and nearly ten times the standard deemed safe by the WHO.

The EPCA used the November declaration to set out a brief factual summary attributing the high PM levels to firecracker use, stubble burning, and adverse weather. Accompanying the declaration, the EPCA advised schools to minimise outdoor activity and specifically required all construction activities in the city to cease for a week. It also put a temporary stop on certain forms of dirty industry operations and prohibited all firecracker use. All this, came after the EPCA’s earlier declaration in October that provided for a raft of other measures in Delhi and set out a strongly worded demand that Punjab and Haryana states curb stubble burning.

An immediate response, by the government of Delhi, to the declaration came in the form of school closures across the capital. This was followed by the government’s previous implementation of an “odd-even rule” preventing vehicle use on alternate days, depending on whether the last digit of one’s license place is odd or even. The ability and willingness of Delhi’s government to implement other measures provided for by the EPCA remains an open question, but pressure for action has increased. More doubtful still is whether Punjab and Haryana states can solve the complex quandary of stubble burning anytime soon.

While an important step was taken by the EPCA in making the declaration and in ordering specific actions, these were temporary solutions that did not address systemic sources of pollution and arguably placed undue burdens on individuals. The declaration focused on seasonal and transient sources, omitting relatively constant pollutants from vehicle and industry emissions. For example, overuse of private car transportation and quality of road paving are together much greater sources of pollutants than the declaration’s targets. In any emergency, short-term solutions are necessary, but they are insufficient over the long haul.

Moving Forward

What does this still-unfolding series of events say about the role of law and, in particular, innovative judicial remedies in preventing NCDs caused by environmental risk factors—in India and around the world? The creation of the EPCA and its subsequent declaration show that there is a willingness to characterise a crisis of pollution as an emergency in terms that give pre-eminence to its relationship with human health. Accordingly, the EPCA declaration pushed the boundaries of our current understanding of public health emergencies internationally, but the EPCA, in providing its decision, or the Supreme Court of India, in the judgements issued in the days following, could have done more with a detailed definition of “public health emergency” that paved the way for further such action.

The public health emergency declaration, while necessary to address immediate issues and provide impetus for further action, is not sufficient on its own to address this environmental and health catastrophe. First, the full potential of the law is released only with considered legislative and executive action, taken on the basis of detailed scientific advice and extensive public consultation. EPCA actions are, by contrast, reactive and aimed at sources most susceptible to prevention for the immediate protection of public health. For example, the EPCA’s recommendation that people stay indoors and the subsequent closure of schools benefit those middle-class people who live in homes with well-maintained air purifiers. Similarly, an India Supreme Court order, issued in response to the declaration, aimed at causing stubble burning’s immediate cessation was admirable but did not address the economic burden such a ban would impose on farmers or provide for their compensation.

Second, there are also procedural concerns about the representation of affected individuals, in particular those without economic heft, in the formulation of these emergency decrees. Action taken to address a public health emergency is, therefore, best seen as the beginning of a longer process in structural change. It should not become a crutch relied on to avoid hard decisions and a contentious debate.

Third, placing human health at the forefront of an environmental catastrophe has rhetorical advantages. This potential advantage can be seen in India’s recent response to its ongoing pollution problems, in which public health became the principal media frame in the ongoing and contentious air pollution debate. While it is common for matters of environmental health to be framed by economic interests or as an abstract concern for the environment, this declaration shows that shifting the debate onto the terrain of public health centers the problem on human lives, thereby creating a compelling basis for action. This personalization of the political is an important precedent for bridging the silos of environment and health. A related question: Would climate emergency declarations have greater salience if framed as public health emergencies?

Finally, given the increasingly complex interactions among pollution, climate change, and human health, there is growing potential for judicial involvement in preventing immediate harm and overcoming political paralysis. Those pursuing strategic advocacy in response to the harms of pollution, or the effects of environment on human health more generally, can use this public health emergency declaration as precedent in how the judicial and administrative powers may be leveraged through litigation.

Conclusion

The actions taken in Delhi were reactive antipollution measures that do not protect the poorest and do not enact structural change. This focus on treatment over cures and cures over prevention, while necessary during a period of emergency, is shortsighted: With air pollution in Delhi reaching new peaks, solutions must include unconventional and unpopular measures that tackle short- and long-term causes and benefit all residents of the city. Bold governments, a unified center-state front, and an independent, truly empowered agency focused on long-term measures—all are required to respond to a public health emergency.