Air Pollution Writ Petition

Before the Lahore High Court at Lahore

Writ Petition No.

of 2019

1. Leila Alam CNIC 35202-6246889-2 A minor, through her father Ahmad Rafay Alam CNIC 35202-4073007-1 Resident of 90 Upper Mall, Lahore 2. Laiba Siddiqi Daughter of Mohammad Saleem Siddiqi CNIC 42101-7693180-4 Student at the Lahore University of Management Sciences Resident of House F-58, Block B, North Nazimabad, Karachi 3. Mishael Aisha Hyat Ayub CNIC 35202-8742080-6 A minor, through her mother Kamila Hyat CNIC 35202-0176143-8 Resident of House No. 7, Street 3, Shah Jamal, Lahore ……………….Petitioners Versus 1. Punjab Environmental Protection Council Through its Secretary, Secretary, Environment Protection Department, Punjab National Hockey Stadium, Gadaffi Sports Complex Ferozepur Road, Lahore 2. Environmental Protection Agency, Punjab Through its Director General National Hockey Stadium, Gadaffi Sports Complex Ferozepur Road, Lahore 3. Punjab Safe Cities Authority (Lahore) Through its Director General PPIC3 Center, Qurban Lines, Lahore 4. Environment Protection Department Through its Secretary, Secretary, Environment Protection Department, Punjab National Hockey Stadium, Gadaffi Sports Complex Ferozepur Road, Lahore ……………Respondents

Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973

Respectfully submitted: A. Introduction 1. The Petition Through this public interest environment petition, the Petitioner seeks the protection of her health from the adverse environment effects of air pollution and smog and, amongst other things, impugns the Policy and Action Plan for Control, Mitigation, Advisory and Protective Measures in Extreme Weather Conditions of Dense Smog in the Punjab (“Smog Policy & Action Plan”) approved by the Respondent No. 1, the Punjab Environmental Protection Council (“PEPC”) and enforced by the Respondent No. 2, the Environmental Protection Agency, Punjab (“EPA, Punjab”). It is submitted the Smog Policy & Action Plan arbitrarily underreports the severity of ambient air pollution thereby exposing the general public to unacceptable and unsafe levels of air pollution and is therefore violative of the Fundamental Right to a clean and healthy environment. This Honourable Court is requested to take judicial notice of the deteriorating air quality in Punjab and across the North Indian Sub-Continent, which is the environmental context of this petition.

2. The Petitioners 1) The Petitioners are all school and college-going students and residents of Lahore.

They are aware of the severe risk air pollution and smog poses to children. As children are growing, they consume more air per unit of bodyweight than adults.

Impure air can therefore impact the development of all major organ, the brain and can also result in stunting. A WHO report of the health effects of air pollution on children in attached as Annex A/1. And a study conducted by doctors at Children’s Hospital, Lahore for Air Quality Asia on the impacts of air quality on children admitted at their facility is attached as Annex A/2.

2) The Petitioners seek to lead active, healthy lives and, along with their scholastic work, would like to compete in sports and carry out outdoors activities. However, given the high levels of ambient air pollution in the region during the OctoberJanuary winter months, the Petitioners remain anxious of air pollutions levels and are unable to determine whether or not it is healthy or safe to carry out normal outdoor activities.

3) Recreation, sports and activity are fundamental to the growth of healthy, happy and socially interactive individuals. To be deprived of these opportunities due to the high levels of air pollution is to lose the elements of life that are protected by the Fundamental Right to life as expounded by the Honourable Supreme Court of Pakistan in Shehla Zia vs. WAPDA (PLD 1993 Supreme Court 694).

A. Facts 1. Section 3 of the Punjab Environment Protection Act, 1997 (“PEPA”), establishes the PEPC and under Section 4(C) of PEPA, the PEPC has the function and power to approve the Punjab Environmental Quality Standards (“PEQS”). Under Section 6(f) of PEPA, the powers and functions of the EPA, Punjab include the enforcement of PEQS. It is pointed out the present membership of the PEPC was notified on 5 October 2017 (copy of Notification No. SO(GENERAL)EPD/7-26/2013(P) dated 5 October 2017 attached as Annex B) and, under Section 3(2) of PEPA, serves a three (3) year term valid until 4 October 2020.

2. The PEPC approved PEQS for, amongst other things, ambient air in its 1st meeting held on 18 March 2016. A copy of the PEQS for Ambient Air and the minutes of the 1 st meeting of the PEPC are attached as Annex C/1 and C/2. The PEQS for Ambient Air provide for monitoring of nine (9) different air pollutants using specific or recommended methods of measurement. It is submitted that the purpose of ambient air standards is to provide a benchmark of what is acceptable air quality. Ambient air with pollutants in excess of PEQS for Ambient air are unsafe.

3. Under Section 4(b) of PEPA, the PEPC has the function and power to approve “comprehensive Punjab environmental policies…” (emphasis added). Under Section 6(d), the powers and functions of the EPA, Punjab includes taking “all necessary measures for the implementation of the environmental policies approved by the Council.”

4. PEPC approved the Policy and Action Plan for Control, Mitigation, Advisory and Protective Measures in Extreme Weather Conditions of Dense Smog in the Punjab (“Smog Policy & Action Plan”) in its 2nd meeting held on 20 October 2017. A copy of the Smog Policy & Action Plan and the minutes of the 2nd meeting of the PEPC are attached as Annex C/3 and C/4). Annex A of the Smog Policy & Action Plan provide air pollution indices that quantitatively determine potential hazard levels at a given time to trigger a set of specific actions to mitigate the harmful effects of smog at that particular level. Annex B of the Smog Policy & Action Plan clearly delineates measures to mitigate and control occurrences of smog and responsibilities of each department of the Government of Punjab.

5. The air pollution indices referred to in Annex A of the Smog Policy & Action Plan are based on an Air Quality Index (“AQI”). AQI is a uniform color-coded index for reporting and forecasting the most common ambient air pollutants, namely ground level ozone, particle pollution (PM10 and PM2.5), carbon monoxide (CO), nitrogen dioxide (NO2) and sulfur dioxide (SO2). It was developed by the United Stated Environment Protection Agency and is used to inform the public how clean or polluted the air is and how to avoid health effects associated with poor air quality. More information about AQI measurement is attached as Annex C/5. It is pointed out that the common air pollutants reported by AQI include some (but not all) of the air pollutants required to be reported under the PEQS for Ambient Air. It is also pointed out that while AQI is a well-known measure of air pollution, it is not the legally sanctioned means of measuring ambient air quality. Under PEQS, ambient air quality is determined with reference to nine (9) different air pollutants.

6. Vide Order dated 14 November 2017 passed in Writ Petition 34789 of 2016 titled Walid Iqbal vs. Federation of Pakistan (copy attached as Annex C/6), this Honourable

Court was pleased to direct that “daily readings of the air quality monitoring will be uploaded on the website of the Environment Protection Department and efforts shall be made to put real time data on the website at the earliest. This data should be station wise” – referring to the five monitoring stations the EPA, Punjab had admitted were operating at that time in Lahore.

7. The Respondent No. 4, the Environment Protection Department of the Government of Punjab (“EPD”), maintains a website www.epd.gov.pk upon which it places AQI readings of only a few of its monitoring stations. However, this information is not realtime, let alone regularly uploaded on a daily basis. The readings from the EPD website have been collected by the Pakistan Air Quality Initiative and are attached hereto as Annex D/1. A bare perusal thereof reveals (i) the EPD does not maintain daily, let alone real-time air quality information; and (ii) the ambient air is not measured in accordance with the PEQS for Ambient Air as not all nine (9) pollutants are recorded or measured. A copy of the website screenshot taken on 2 November 2019 is attached at Annex D/2. It is pointed out: 1) The website provides for AQI readings, and not readings under PEQS for Ambient Air; 2) The status for the readings for the two stations are consonant with the indices provided in Annex A of the Smog Policy & Action Plan but are at odds with the indices for AQI readings maintained by the USEPA and other environment regulators (reference may be made to Annex C/5 hereto). For example, the status of “Advisory” maintained for the AQI reading of 185 at the Meteorological Department station in Lahore (see screenshot at Annex D/2) is classified as “Satisfactory” on the EPD website but as “Moderately Polluted” in China and India and “Unhealthy” in Singapore, South Korea and the United States of America. For ready reference, a comparison of the status of AQI employed by the US EPA and EPA, Punjab are produced below:

3) The website maintained by the US EPA (https://www.epa.gov/pmcourse/patientexposure-and-air-quality-index#what) prvides the following information about the levels of ambient air pollution measured by AQI as under: Good: Air quality is good and poses little or no risk.

Moderate: Air quality is acceptable; however, there may be some health concern for a small number of unusually sensitive people. While EPA cannot

identify these people, studies indicate that there are people who experience health effects when air quality is in the moderate range.

Unhealthy for Sensitive Groups: When air quality is in this range, people who are in sensitive groups, whether the increased risk is due to medical conditions, exposure conditions, or innate susceptibility, may experience health effects when engaged in outdoor activities. However, exposures to ambient concentrations in this range are not likely to result in effects in the general population. For particle pollution, the sensitive groups include people with heart and lung disease, older adults, children, people with diabetes, and people of lower socio-economic status (SES) A composite measure that is often comprised of a number of indicators, including economic status measured by income, social status measured by education, and work status measured by occupation. Each of these linked factors can influence a population's susceptibility to particle pollution-related health effects (Dutton and Levine, 1989). .

Unhealthy: When air quality is in this range, everyone who is active outdoors may experience effects. Members of sensitive groups are likely to experience more serious effects.

Very Unhealthy: When air quality is in this range, it is expected that there will be widespread effects among the general population and more serious effects in members of sensitive groups.

Hazardous: Air quality in this range triggers health warnings of emergency conditions by media outlets. The entire population is more likely to be affected by serious health effects.

4) The indices approved by the PEPC, and which form the basis of the Smog Policy & Action Plan underreport the severity and status of AQI readings. This underreporting puts children, senior citizens and pregnant women at special risk.

8. As of 30 October 2019, the Respondent No. 4, the Punjab Safe Cities Authority (“PSCA”) has begun broadcast air quality information on the LCD screens installed and operating in Lahore. While the making public of air quality information is in compliance with the Orders of this Court in Writ Petition 34789 of 2016 and generally support the environmental law concept of access to information, the PSCA has employed AQI and the indices prescribed by the Smog Policy & Action Plan and not the PEQS for Ambient Air as the means to broadcast air quality information. As a result, the general public is being given incorrect information about the severity of air pollution, which is a violation of their fundamental right to a clean and healthy environment.

9. The indices provided in Annex A of the Smog Policy & Action Plan, the Smog Policy & Action Plan and the underreporting of the severity of air pollution in Punjab are impugned as unreasonable, arbitrary, irrational, without jurisdiction null and void and merit to be struck down for the following, inter alia, B. Grounds 1. The Smog Policy & Action Plan, including the indices for AQI prescribed in Annex A thereof amounts to a violation of the fundamental rights to life and clean and healthy environment. The range and scale of indices used in the Smog Policy & Action Plan are not consonant with others maintained by other environmental regulators. The range employed by the Smog Policy & Action Plan underreports the severity of air pollution.

High levels of AQI, normally considered hazardous, are classified as satisfactory and the provisions of the Action Plan are never properly followed as a result. As air pollution has extremely detrimental impacts on the health of the Petitioners, the underreporting of the same is dangerous to their health and amounts to a violation of the fundamental right to life and clean and healthy environment. Reliance is placed on Shehla Zia vs. WAPDA (PLD 1993 Supreme Court 694), Secretary, Salt Miners Labor Union, Khewra vs. The Director, Industries & Mineral Department, Punjab (1994 SCMR 2061) and SMC No. 13 of 2009 (PLD 2011 Supreme Court 619).

2. The Smog Policy & Action Plan, including the indices for AQI prescribed in Annex A thereof are unreasonable, irrational, without jurisdiction, null and void. In this regard, it is submitted: 1) The PEPC was not fully prepared, nor was in quorum, when it approved the Smog Policy & Action Plan in its 2nd Meeting held on 20 October 2017. Notice of the 2nd meeting of the PEPC was issued on 18 October 2018 (copy attached as Annex E/1), and while the agenda did list the “Prevention of Smog Policy”, the working paper attached thereto did not contain a copy of the document. In other words, the members of the PEPC were given two-days notice to prepare for a discussion.

2) The short notice of the 2nd meeting of the PEPC itself is a breach of the the Punjab Environmental Protection Council (Procedure) Rules, 2016 adopted by the PEPC in its 1st meeting held on 16 March 2016 (copy attached as Annex E/2). These Rules require members of the PEPC be given fourteen (14) days notice for meetings, and working papers be circulated at least seven (7) days prior to a meeting.

3) The violation of the Punjab Environmental Protection Council (Procedure) Rules, 2016 in not giving members of the PEPC adequate time to consider the gravity and details of the agenda of the 2nd meeting. This was pointed out by one member of the PEPC vide letter dated 19 October 2017 (copy attached as Annex E/3) requesting the meeting be rescheduled by giving adequate notice.

4) In no way can it be said that the PEPC discharged its powers and functions of approving a “comprehensive Punjab environmental policies” as the Smog Policy & Action Plan was hastily approved without proper consideration, rendering it the product of an unreasonable and arbitrary decision making process and liable to be set aside.

3. The indices for AQI prescribed by Annex A of the Smog Policy & Action Plan are in violation of the PEQS for Ambient air. In this regard, it is submitted: 1) The purpose of ambient air standards is to set a limit for safe, healthy and acceptable levels of various air pollutants. The PEQS for Ambient Air set those standards for nine (9) different air pollutants.

2) The range of acceptable values prescribed to AQI readings by Annex A of the Smog Policy & Action Plan exceed the limits prescribed by NEQS for Ambient Air. 3) There is no “safe” levels of air pollution. However, PEQS for ambient air prescribe limits beyond which air pollution is unsafe. By having an AQI measurement indices that does not recognize the severity of air pollution beyond PEQS limits, the Smog

Policy & Action Plan is in violation of PEQS for Ambient air and merits to be struck down as they are in violation of the Fundamental Right to a clean and healthy environment.

4. The Petitioner does not have an adequate alternative remedy and is constrained to approach this Honourable Court in its Constitutional jurisdiction to protect the Fundamental Rights of the Petitioners and the public.

C. Prayer In light of the above, it is respectfully prayed this Honourable Court will be pleased to direct as under: 1) Declare the Smog Policy & Action Plan, specifically Annex A thereof, unreasonable, arbitrary, illegal and null and void; 2) Direct the PEPC to reconsider an air ambient pollution and smog policy and action plan for Punjab; 3) Order the EPA, Punjab to comply with the Order dated 14 November 2017 passed in Writ Petition 34789 of 2017 and provide real-time air quality information from all of its air monitoring stations to the public via its website; 4) Direct the PCSA to relay accurate air quality information to the general public; and 5) Pass any other such order as may be just and equitable given the facts and circumstances of the matter.

Petitioner Through her guardian and counsel

Ahmad Rafay Alam Advocate High Court Saleem, Alam & Co. 90 Upper Mall, Lahore Filed on 4 November 2019 List of Books: (1) Punjab Environment Protection Act, 1997; Certified that: (1) The Writ Petition has arisen from a violation of law on part of the Respondents; (2) There is no other alternate or efficacious remedy available to the Petitioner for the relief claimed herein; and (3) As per instructions from the client, this is the first petition on the subject on behalf of the Petitioner.

Counsel

Before the Honourable Lahore High Court at Lahore

Writ Petition No. _____________ of 2019 In re: Leila Alam vs.

Punjab Environmental Protection Council and others Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 Affidavit of Leila Alam, daughter of Ahmad Rafay Alam and resident of 90 Upper Mall, Lahore.

Respectfully Submitted: That I, the above named deponent, do hereby solemnly swear and affirm that the contents of the above captioned Writ Petition are true and correct to the best of my knowledge and belief and that nothing has been concealed therein.

Deponent

Verification: Verified on oath on this _____ day of November 2019 that the contents of the above affidavit are true and correct and that nothing has been concealed therein.

Deponent

Before the Honourable Lahore High Court at Lahore

Writ Petition No. _____________ of 2019 In re: Leila Alam vs.

Punjab Environmental Protection Council and others Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 Affidavit of Laiba Siddiqi, daughter of Mohammad Saleem Siddiqi and resident of and resident of House F-58, Block B, North Nazimabad, Karachi.

Respectfully Submitted: That I, the above named deponent, do hereby solemnly swear and affirm that the contents of the above captioned Writ Petition are true and correct to the best of my knowledge and belief and that nothing has been concealed therein.

Deponent

Verification: Verified on oath on this _____ day of November 2019 that the contents of the above affidavit are true and correct and that nothing has been concealed therein.

Deponent

Before the Honourable Lahore High Court at Lahore

Writ Petition No. _____________ of 2019 In re: Leila Alam vs.

Punjab Environmental Protection Council and others Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 Affidavit of Mishael Aisha Hyat Ayub, daughter of Kamila Hyat and resident of of House No. 7, Street 3, Shah Jamal, Lahore House No. 7, Street 3, Shah Jamal, Lahore.

Respectfully Submitted: That I, the above named deponent, do hereby solemnly swear and affirm that the contents of the above captioned Writ Petition are true and correct to the best of my knowledge and belief and that nothing has been concealed therein.

Deponent

Verification: Verified on oath on this _____ day of November 2019 that the contents of the above affidavit are true and correct and that nothing has been concealed therein.

Deponent

Before the Honourable Lahore High Court at Lahore

C.M No. ____________ of 2019 in Writ Petition No. _____________ of 2019 In re: Leila Alam vs.

Punjab Environmental Protection Council and others

Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 Application to dispense with the requirement of filing certified copies of documents.

Respectfully Submitted: 1. That the applicant has filed the accompanied Writ petition in which no date has yet been fixed.

2. That the true photo copies of the original documents have been submitted in support of the writ petition as the attested copies are not readily available at present. Any how the same shall be provided if and when required by this Honourable Court.

It is therefore, most respectfully prayed that the above said exemption may graciously be granted for filing of attested copies of the annexures and the case may kindly be heard as it is.

Petitioner

Through

Ahmad Rafay Alam Advocate of the High Courts Saleem, Alam & Co. 90 Upper Mall, Lahore

Before the Honourable Lahore High Court at Lahore

C.M. ____________ of 2019 in Writ Petition No. _____________ of 2019 In re: Leila Alam vs.

Punjab Environmental Protection Council and others Application to dispense with the requirement of filing certified copies of documents.

Affidavit of Leila Alam, daughter of Ahmad Rafay Alam and resident of 1 Bawa Park, Upper Mall, Lahore.

Respectfully Submitted: That I, the above named deponent, do hereby solemnly swear and affirm 1. That the contents of accompanying application may be treated as an integral part of this affidavit.

2. That the contents of the accompanying application are true and correct to the best of my knowledge and belief and that nothing has been concealed therein.

Deponent

Verification: Verified on oath on this _____ day of November 2019 that the contents of the above affidavit are true and correct and that nothing has been concealed therein.

Deponent

Before the Honourable Lahore High Court at Lahore

Writ Petition No. _____________ of 2019 In re: Leila Alam vs.

Punjab Environmental Protection Council and others Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 Index of Documents Respectfully Submitted: No. Particulars 1 Writ Petition with affidavits WHO Report on air pollution and children’s health Children’s Hospital Report Notification establishing PEPC dated 5 October 2017 PEQS for Ambient Air Minutes of 1st meeting of PEPC Smog Policy & Action Plan Minutes of 2nd meeting of PEPC Information about AQI measurement Order dated 14 November 2017 in WP 34789/16 PAQI readings of EPD website (2012-2018) Screenshot of EPD website Notice of 2nd meeting of PEPC PEPC (Procedure) Rules, 2016 Letter dated 19 October 2017 Application to dismiss with the requirements of certified copies with affidavit Vakalatnama

Annex

Page 1-10

A/1 A/2 B C/1 C/2 C/3 C/4 C/5 C/6 D/1 D/2 E/1 E/2 E/3

Through Ahmad Rafay Alam PLH 18857 CNIC: 352 -4073007-1 Advocate of the High Courts Saleem, Alam & Company 90 Upper Mall, Lahore

BEFORE THE LAHORE HIGH COURT, LAHORE

Writ Petition No.

of 2019

In re: Leila Alam and others vs.

Punjab Environmental Protection Council and others Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

Know all to whom these presents shall come that I/we, the undersigned do hereby appoint Mr. Ahmad Rafay Alam, Advocate of the High Courts, 90 Upper Mall, Lahore to be the advocate for Petitioner(s) in the above mentioned cause, to do all the following acts, deeds and things or any of them, that is to say: 1. Act, appear and plead in the above-mentioned case or any of them, that is to say, any other court, tribunal or forum in which the same may be tried or heard in the first instance or in appeal, review, revision, withdrawal, compromise or execution or in any other stage of its progress until its final decision; 2. To present pleadings, appeals, cross objections or petitions for execution, review, revision, withdrawal, compromise or other petitions or affidavits or other documents which are necessary or advisable for the prosecution/defence of the said case or related matter in any of its stages; 3. To withdraw or compromise the said case or submit to arbitration any dispute or difference which may arise touching upon or in any manner related to said case; 4. To receive money and grant receipts therefore and to do all other acts and things which may be necessary to be done for the progress and in the course of the prosecution of the said cause; 5. To employ any other such Legal Practitioner and authorize him to exercise the powers and authorities hereby conferred on the Advocate whenever he may think fit to do so and I /we hereby agree to ratify whatever the Advocate or his substitute shall do in the said premises; and And I/we hereby agree not to hold the Advocate or his substitute responsible for the result of the said cause in consequence of his absence from the court when the said cause is called for hearing; In witness whereof, I/we hereunto set my/our hands to these presents the contents of which have been explained to and understood by me/us, this 4th day of November 2019.

________________________ (Signature) Accepted Ahmad Rafay Alam Advocate of the High Courts PLH No. 18857 90 Upper Mall Lahore