It's an era where stars don't shine above you, because the glow of the stars is outshined by the illumination of cities.
Globe at Night defines light pollution as the excessive, misdirected, or obtrusive usage of artificial light and links it to the disappearance of dark skies. This, in turn, affects astronomical observations, caused by excessive sky glow which results from shielded lighting, improper adjustment and unnecessary light fixtures. Light pollution comes in many forms, including sky glow, light trespass, glare, and over-illumination. Studies have shown that this is indeed a growing concern in Malaysia. Nonetheless, is the enactment of the Light Pollution Act as purported by the Consumers Association of Penang (CAP) and initiated by the National Space Agency (ANGKASA) the only solution to curtail this issue? This article examines the legal solutions to curb light pollution in Malaysia with a comparison from other jurisdictions such as Australia, the United Kingdom, and South Korea, as well as to identify the implications of enacting and enforcing such laws on various stakeholders.
The issue of light pollution is not alien in Malaysia. There is, however, no evidence that suggests that Malaysia has dark sky reserved places, although tourists and locals may still enjoy the sight of the skies blanketed over millions of cosmic wonders at dark sky places such as Kudat, Sabah and Canada Hills, Sarawak. Today, environmental initiatives; especially in respect to light pollution is still at its budding stage, calling for legislative measures. According to an online news article by The Star, ANGKASA was planning to devise the Light Pollution Act two years ago as a countermeasure to the polluted skies of Kuala Lumpur which disrupts the observatory works of the national planetarium. Nonetheless, such initiatives have not been heard of since.
II. COMPARISON ON LIGHT POLLUTION LEGISLATIONS FROM DIFFERENT JURISDICTION
This leads us to the next question: if such legislations were to be enacted, should the issue of light pollution fall within the ambit of federal jurisdiction or should it only be confined to state jurisdiction? The very framework of such laws is not evident in any of the existing local legislations. However, if Malaysia were to truly enact a legislation regulating the conducts of modern man-made lighting, Malaysia should emulate the practices of other common law countries which have already determined the jurisdiction for light pollution.
The Australian Environment Protection Act 1997 for instance, regulates environment related matters on a federal level, governing all states to comply with the Act, while having numerous other state legislations regulating environment related matters in each Australian state. The Australian Environment Act 1997 includes the term ‘light’ in defining ‘pollutants’ and ‘environmental nuisance’, substantiating the fact that Australia has employed legal initiatives to mitigate light pollution on a federal level.
On the other hand, in the United Kingdom (UK), legislations concerning light pollution vary from regulations to statutes to case laws. The Clean Neighbourhoods and Environment Act 2005 is the first statute which talks about light pollution directly. Section 102 of the Act amended section 79 of the Environmental Protection Act and added, inter alia, provisions which declares artificial lights which can jeopardise health or cause nuisance as statutory nuisance. In addition, Section 102(5B) of the Clean Neighbourhoods and Environment Act also excludes lights emitted for the purpose of transportation system, lighthouse, and prison. The exclusion however is necessary for safety reasons due to the nature of the items excluded. It is also pertinent to note that a reading of this Act would show that the Act does not address lights emitted for advertisement. Nevertheless, UK laws still regulate the use of light for advertisement through the Control of Advertisements Regulations 1992 which empowers the local authorities to regulate illuminated advertisement including laser beams or any high-powered lights directed towards the sky to attract public’s attention. The motive for the use of light is important as it only governs the lights used for advertisement purpose. Apart from these statutes and regulations, the common law of nuisance has also been used as a course of action against light pollution. In Raciti v Hughes, the Supreme Court of New South Wales held that the lights used by Mr Hughes which had adverse effects on Mr Raciti’s health and lifestyle constituted as actionable nuisance and an injunction was granted by the court for Mr Hughes to stop using such lights. Nevertheless, it is a pity that such common law action on light pollution can only be used when special damage can be proven.
Comparatively, other jurisdictions have stepped further in incorporating light pollution into their laws, South Korea being one of the examples. The South Korean government defines light pollution in a narrower sense by restricting it to artificial lighting which may interfere with health, comfort, and the ecological system. Due to the increasing awareness on the issue of light pollution, South Korea has become one of the most recent countries to enact a legislation relating to light pollution through the enactment of the Light Pollution Prevention Act in 2013. Under this Act, the areas are divided into zones (E1 to E4) according to their nature – whether the surroundings are natural, rural, suburban and urban surroundings. Different standards also apply to each zone as the light disturbance diminution measures should not be equally strict due to the different levels of artificial lighting activities in each area. The whole concept of the Act is to determine the appropriate and accepted level of the use of artificial lights which will have minimum harm to the ecosystem.
III. PROSPECTIVE OF MALAYSIAN LAW ON LIGHT POLLUTION
Comparing the approaches taken by these three countries with respect to light pollution, the authors believe that the best path for Malaysia to follow in the event that the government should decide to enact laws with respect to light pollution is to emulate the laws of Australia. It is best for the legislature to include ‘light’ as a form of pollutants in the definition of Malaysia’s Environmental Quality Act 1974 instead of having an Act of itself as done by South Korea. This is due to the federation system that Malaysia practices whereby the division of power between Federal and State government must be observed in the enactment of any laws regarding environment. To follow the United Kingdom which has multiple laws regulating a single issue might not be the best idea since this will create confusion and raise the issue of jurisdiction. If Malaysia were to enact a law, it is also best to adopt the method of dividing areas according to their conditions and impose limitations based on the activities done there as done in South Korea. This method will allow development of the areas as well as ensuring the level of pollution is always controlled. Hence, development will not be estopped in the midst of the government’s efforts to overcome light pollution.
Regarding the challenges Malaysia face in confronting light pollution, the authors conducted an interview with the Deputy Director under the Education Section of Planetarium Negara, Mr. Mohd Zamri Shah to get more input. He mentioned that the Act, if enforced, is only beneficial to the astronomical researches in urban areas. This alone is not sufficient to outweigh the interests of profitable commercial entities. The interests of other stakeholders are accorded in other Acts such as the Exclusive Economic Zone Act 1984 and Custom Duties (Amendment) Order 1989, which would definitely need to be amended if the Light Pollution Act comes into force. It would take years of debates, amendments and consultation with various experts, considering the fact that light is not even a pollutant under the Environmental Quality Act. Perhaps the government envisioned that there is no urgency for the enactment of such Act.
Further, with the advancement of technology and other viable solutions such as conducting researches in areas having dark skies, astronomers are not highly dependable on the enactment of the Act. Nonetheless, this should not curtail grassroot awareness towards light pollution. The effects are vast and widespread, affecting not only researchers, astronomers, human health, but also wildlife and the ecosystem. There is no doubt that there is a need to light up cities and homes at night, as this enables the extension of human activities into the night and increases safety of premises both indoor and outdoor. Nevertheless, it should be balanced with proper energy saving lighting and must adhere to proper regulations and standards. Mr Zamri also proposed other solutions such as gazetting dark sky areas which are out of the economic zone and resolving to local municipal outdoor lighting regulations.
Light pollution, although not critical, is still an important issue in Malaysia. As a developing country, the need to brighten the skies at night might increase day by day. Without proper laws regulating it, there is a possibility that Malaysians may never see the stars again. Hence, to stop that from happening, the authors urge for everyone to play their roles in reducing light pollution by taking their own simple initiatives such as switching off the lights or converting into eco-friendly lighting equipments. Nonetheless, this does not mean that the issue should remain untouched by our government. The government needs to be proactive in reviewing this issue before it is too late. The authors emphasize that it is important for each and every one of Malaysians to play their roles in society to curb light pollution. The authors are hopeful that it is only then that Malaysians can let the stars in and out of them shine.
Written by Hanis Hazidi, Sahira Sha’ari, and Akmal Faiq, third year students of the Faculty of Law, University of Malaya. Edited by Farah Nabihah.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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