DEVELOPMENT OF ENVIRONMENTAL LAW

Rio Declaration also talks about prior knowledge in trans-boundary movements. However, a ship “Blue Lady” was allowed[13] without prior decontamination. The ship contains 1250 MT (approx.) asbestos waste, 10 MT (approx.) of PCB (Poly-chloro-biphenyl) plus 44,000 meters of cables and 1100 radio-active elements. This quantity is many times higher than the French ship Clemenceau which was recalled by the French Government. In justification, the Supreme Court has referred to the concept of “balance” under the principle of “proportionality”, a doctrine which is totally alien to the environmental matters.


DEVELOPMENT OF ENVIRONMENTAL LAW: A CRITICAL APPRAISAL
- Sanjay Parikh

It is necessary - before we discuss the development of Environmental Law by our Courts, in particular, the Supreme Court – that we have a brief look at the international developments on environment. Broadly, it started with Stockholm Declaration commonly known as “Declaration of the UN Conference on Human Environment, 1972” where it was asserted that both aspects of man’s environment, the natural and man made, are essential to his wellbeing and to the enjoyment of basic human rights – even the Right to Life itself. This Declaration had resulted in 42nd Amendment in our Constitution and the enactment of Environment Protection Act, 1986 and Air (Prevention, Control & Pollution) Act, 1981. The Stockholm Declaration was followed by the “Earth Summit” known as the Rio Declaration, 1992 which was based on the report “Our Common Future” (also known as “The Brundtland Report”) which finally culminated in the document “Caring for the Earth”. Nearly 240 Treaties/Declarations exist on protection of environment, among them Agenda 21 and Summit at Johannesburg on sustainable development in 2002 can be taken note of. But whether the ideas developed in these international instruments have made a real impact in preservation of environment at national level is required to be seen.

The development of environmental jurisprudence in our Courts can be broadly put into cases[1] where the environmental principles developed in International Conventions and Treaties, were sought to be incorporated in the Municipal Law on the basis that these principles are a part of customary international law. The Court also took them as an integral part of Article 21 of the Constitution which protects life. Thus, environment became a part of life itself. Right to environment is, therefore, accepted as a human right and also a fundamental constitutional right. By referring to Stockholm Declaration, 1972 and Rio Declaration, 1992, the Supreme Court stated the importance of Pollutor Pays Principle, Precautionary Principle, Inter-generational Equity Principle, Absolute Liability Principle, Public Trust Doctrine and Reversal of Burden of Proof in the important environmental cases. This was no doubt an era where the Supreme Court showed remarkable leadership in implementing the global environment concerns.

The second line of cases[2] were those where the Supreme Court took cognizance of non-implementation of Water (Prevention & Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981, Environment (Protection) Act, 1986, Coastal Regulation Zone notification, Hazardous Wastes Rules etc, and gave several directions to the authorities to comply with the law for protection of the environment. It said that “tolerating infringement of law is worse than not enacting the law at all.”

But on analysis of these judgements, we have to find as to what extent the environmental principles could be actually implemented and how effective was the procedure of monitoring adopted by the Supreme Court.

To begin with, let us have a look at the Pollutor-pays-principle and whether it was effectively implemented.

Though the Supreme Court accepted the Pollutor-pays-Principle and the absolute liability of a polluter in the given circumstances, but in none of the cases (with few exceptions) either the polluter could be compelled to make the payment and/or to restore the ecology in its original position. In the Oleum gas Leak case[3], the Supreme Court evolved the doctrine of absolute liability, clarifying the principle of strict liability which was developed in Ryland vs. Fletcher; it also developed the principle of claiming compensation under the writ jurisdiction by evolving the public law remedy. But ultimately, the victims of gas leak were left to the ordinary relief of filing suits for damages.

In the Bichuri case[4] regarding contamination of ground water, the Supreme Court, after analyzing all the provisions of law rightly found that compensation can be recovered under the provisions of Environment (Protection) Act. However, the assessment of compensation, its payment and the remedial measures have still not been complied with. In the case of S. Jagannathan[5] concerning destruction of coastal ecology by intensive and extensive shrimp farming, the Supreme Court had directed, closure/demolition of shrimp farms and payment of compensation on polluter pays principle as well as cost of remedial measures to be borne by the Industries. But after the judgement, firstly the Supreme Court itself stayed its own directions in review and thereafter, the Parliament has brought a Legislation over-ruling the directions given in the said judgement.

Therefore, neither any compensation has been paid to the farmers and the people who lost their livelihood and ground water nor the damage done to the environment has been remedied. In yet another case where fine was imposed by the Supreme Court on Kamal Nath[6] for affecting ecology of the river Beas, by applying the public trust doctrine, it was later clarified by the Court that no fine can be imposed under writ jurisdiction and it requires adjudication under the provisions of Environment (Protection) Act. One does not know whether the river ecology was restored by the violator in the said case. An attempt made to recover compensation for the loss caused to the environment in the case[7] of dumping of waste oil by various importers also failed.

The Supreme Court did not develop the jurisprudence of liability of the polluter and imposed only payment of incineration cost (actual cost) on the violators. It needs emphasis that all these imports were illegal, in violation of Basel Convention and our country had suffered the dumping of huge quantity of waste oil and its ultimate incineration, as directed by the Court, had seriously affected our environment. But the violators were not saddled with any liability, much less any deterrent one. The Court had distinguished the judgement in Deepak Nitrate Limited – 2004 (6) SCC 402, where it was observed that there should be actual damage to the environment in order to attract Pollutor-pays-principle and had rightly observed that the Pollutor-pays-principle “includes environmental costs as well as direct cost to people or property, it also covers cost incurred in avoiding pollution and not just to those related to remedying any damage. It will include full environmental cost and not just which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it”. But as mentioned above, no damages were imposed on the violators for illegally dumping waste oil in our country.

The Supreme Court has, therefore, failed to implement its own directions in protecting the environment in many cases; still no legal principle of liability has been developed to ensure implementation of polluter-pays-principle for recovering damages caused to the environment, to the people and for restoration of the ecology. The result is that those who cause damage to the environment are emboldened to continue with violations. They are also now using the argument of sustainable development in their support, which is unfortunately finding acceptance in the Courts.

Few words about monitoring. One view is that we should have followed the law laid down in Ratlam Municipal case – 1980 (4) SCC 162 to generate more awareness at the local and district levels and for effective implementation by the District Courts. The other view is that while exercising powers under Art. 32 and 226 of the Constitution, the statutory mechanism should have been enforced making the authorities responsible and accountable. A sound monitoring mechanism, which should be followed by the Courts in all environmental matters, is required to be evolved.

Let us now look at the Precautionary & the Sustainable Development Principles and their understanding and implementation by the Supreme Court. In several cases, the Court has referred to “carrying capacity” of the environment and that any exploitation of the natural resources should not exceed their carrying capacity or assimilative capacity. It is forgotten that the “carrying capacity principle” evolved in the Stockholm Declaration, 1972 was given up when it was realized that man has immense potential to irreversibly damage the environment and under the wrong notion that the nature has immense capacity to revive itself. This notion was, therefore, rightly substituted by the Precautionary Principle to put a check on the destroying activities of the human being, namely, warning them that it is safe to err on the side of caution. It is only in one judgement, i.e. M.V. Nayudu[8] that this aspect was explained by the Supreme Court. However, we find that in subsequent judgements till 2007[9], the Supreme Court is still talking about the carrying capacity and in that context applying the theory of irreversible damage.

One will be shocked to find that even where experts have found that a particular eco-system has been exploited/neglected in such a manner that it has lost its carrying capacity, still it is subjected to environmental appraisal for further exploitation under the cover of sustainable development, when the only constitutional obligation and human duty permissible in that situation is to work for its restoration and revival. Principles like ‘sustainable development’ and ‘precautionary approach’ have no application when we deal with the rich areas of natural resources, those which are center of origin, sources of water and its conservation, fragile eco-systems etc. They have to be preserved and protected for survival of mankind and for future generation.

In the Narmada case[10], the Supreme Court refused to apply precautionary principle on the big dams as if protection of natural resources and its ultimate cost for the present and future generation is not an integral part of development. The observation of the Court that the said principle will apply in cases where extent of damages are not known but not in the cases where they are known is, with respect, incorrect. Natural Resource, once destroyed cannot be rebuilt by mitigative measures or even be substituted. In Tehri Dam case[11] a highly seismic prone area, right in rare Himalayan ecology, was chosen notwithstanding precautionary principle. It was done with the full knowledge that any breach in the dam will cause havoc, submerging several cities in few hours. Justice Dharmadhikari, who gave a dissenting judgement, invoked the precautionary principle in support of the safety aspects of the Dam and had agreed with the experts who had suggested 3-D non-linear analysis of the dam, to be on the safer side. But the Government authorities had refused it on the ground of scientific uncertainty. The Majority accepted the Government’s view. If any calamity happens, who will be responsible?

The idea of the “need” in the context of sustainable development has not been fully and correctly understood. In the Bombay Dying & Manufacturing Co. Ltd.(supra), the dire need of the society has been given precedence over the inter-generational interests, by using the argument of balancing environment and development. The need aspect has undergone considerable debate among the social scientists and environmentalists world over. It cannot be taken as insatiable desire of an individual, a society or a nation, which is another form of greed, and are thus allowed to exhaust natural resources without applying the rule of caution. Unfortunately, under the cover of need, we are allowing reclamation of sea, estuaries, ponds, riverbeds & other natural resources and erroneously calling it a balancing exercise.

Let us have a quick view of the hazardous waste case. In the wake of non-implementation of Hazardous Waste Rules, 1989 for nearly two decades and dumping of huge quantities of toxic waste by the developed countries, a public interest action[12] was initiated in the Supreme Court. It was established that the States and Pollution Control Boards were either ignorant or grossly negligent in not taking any action against dumping by the indigenous recycling industries and the importers. A High Power Committee Report, chaired by Prof. M.G.K. Menon, which was constituted by the Supreme Court, pointed out serious lacunae in the legal frame work, negligence and connivance of implementing authorities. Based on that, in a significant judgment given by the Supreme Court in the year 2003 various directions were given to regulate the functioning of indigenous recycling industries as well as the waste importers by incorporating the provisions of Basel Convention which India had signed and ratified but not implemented. The Court also accepted transparency and public participation as parts of Art. 21. It had led to amendment in the HW Rules in 2003.

It was in this litigation that the court also considered dumping of hazardous waste in the process of ship breaking. One of the important directions given by Supreme Court was regarding “prior decontamination” of the ship by the exporting Country before it reaches the country of import. Prior decontamination is necessary because trans-boundary movement of hazardous substances is an activity, which harms the environment and further Basel convention puts a ban on movement of certain hazardous wastes.

Rio Declaration also talks about prior knowledge in trans-boundary movements. However, a ship “Blue Lady” was allowed[13] without prior decontamination. The ship contains 1250 MT (approx.) asbestos waste, 10 MT (approx.) of PCB (Poly-chloro-biphenyl) plus 44,000 meters of cables and 1100 radio-active elements. This quantity is many times higher than the French ship Clemenceau which was recalled by the French Government. In justification, the Supreme Court has referred to the concept of “balance” under the principle of “proportionality”, a doctrine which is totally alien to the environmental matters. While referring to the principle of proportionality, reliance is placed on the keynote address on “Global Constitutionalism” by Lord Goldsmith, Her Majesty’s Attorney General (UK) [Stanford Law Review Vol. 59 at P.1155]. This article deals with the problem of terrorism and in that context discusses balance theory between individual rights and protection of the public while keeping in view the non-derogable nature of some of the human rights.

The Supreme Court also referred to India’s economic growth above 9% after the era of globalization dawned and justified the ship-breaking on the ground that large section of population is below poverty and that problem of unemployment is endemic in India.

How these reasons can justify violation of necessity of prior decontamination of toxic substances and how dumping of these lethal wastes can be helpful in solving the problem of poverty and unemployment? Even if for the sake of argument, it is accepted that in ship-breaking huge quantity of steel is generated but can it be at the cost of accepting such conditions which even a country like Bangladesh had rejected.

To put it simply, can you allow dumping of any amount of hazardous waste provided you get some benefit out of it? As far as steel is concerned one can not definitely say that it is used in our country only. If the steel generated in the process is again imported then the only role India plays is: dumping of hazardous wastes, its disposal in the land-fills or by incineration and the dirty job of dismantling done at the cost of workers’ lives, their health in totally unprotected working conditions. Poverty is therefore, given as an excuse to permit acceptance of outside waste against human dignity, right to life and health.

If there was one principle which ought to have been applied, it was, that without prior decontamination as a safeguard to national environment under the precautionary principle, ship will not be allowed for breaking. Further, after 2005 judgement when the Monitoring Committee was made non-functional, the hazardous wastes dumping from developed countries again started. The other day, municipal waste sent by some foreign country was caught by the Kerela Pollution Control Board. This is only a tip of the iceberg. Tons and tons of plastic waste, municipal waste, cow dung, paper waste, waste oil, battery waste, electronic waste etc., etc, is being dumped into our country.

Recently, a study was conducted to analyze whether social and economic inequalities aggravate environmental degradation. James Boyce, who contributed a Paper on this aspect, revealed a shocking bias in hazardous waste disposal policy in the United States against low income areas with higher percentage of African American and other minority groups. The study shows that where social and economic inequalities exist, it leads to weaker environmental policies, which, in turn, results in greater environmental degradation. The conclusion drawn by the study is that inequalities in the distribution of power operate not only to the detriment of specific groups but also to the detriment of environmental quality as a whole.[14] It will be quite shocking to know that after a decade of efforts made in controlling and regulating the trade of hazardous waste disposal, the Ministry of Environment & Forests has now taken a U-turn and has come out with draft Rules to allow import of waste batteries, waste oil and other wastes, which are banned under the Basel Convention.

In another case[15] concerning mining in an area which is rich in bio-diversity, a source of water recharge and where tribals have been living for hundreds of years in symbiotic relationship with the nature, Supreme Court has permitted mining (by imposing certain conditions), drawing support from the principle of sustainable development. Again poverty has been given as an excuse. Similarly, the Supreme Court permitted construction of residential complex in a reserved forest area[16] ignoring the scientific proof of existence of a forest. Similarly, construction of a hotel[17], on wrong understanding of sustainable development, was allowed by the Supreme Court in an ecologically sensitive sand dune area.

Let us, therefore, not go by the words but the intent of it and whether the nature’s rights have been respected in letter and spirit.

These principles have otherwise lost their value because we have entered in a critical phase where nature and its essential principles, on which human life is sustained, have to be zealously safeguarded. No longer we can be allowed to be misled by the term “sustainable development”. It is same mindless development, least caring about the damage and harm to the natural resources and the future generation. It is nothing but another form of economic development where the indicators of growth are only economic factors like GDP. WTO has virtually dominated the entire area of International Law concerning environment and human rights. Everywhere, the focus is only on commercial and trade interests. In a recent ruling, the WTO[18] has brushed aside the defence of European countries against the trade of GMOs by observing that the said principle is neither customary international law nor a general principle of law.

These instances show a dangerous trend, namely, that the environmental principles are understood only superficially, without integrally connecting them with the nature’s laws. The natural resources build by nature in millions of years once destroyed can never be created by man. Scientific efforts and processes cannot generate water and the rich eco-systems. The economic development is assessed in terms of GDP but the cost of continuous destruction of natural resources is not counted. If a method is evolved to asses the economic costs, it will certainly out-weigh earnings in terms of economic gains. Natural Capital is fast becoming the limiting factor while human made capital is becoming abundant. (Herman E. Daly “From Empty-World Economics to Full-World Economics: A Historical Turning Point in Economic Development).

What is therefore the conclusion:

The need for preservation and protection of natural resources is often repeated; similarly the environmental principals namely, sustainable development, pre-cautionary principal and polluter pays principle are chanted endlessly. The creative interpretations, whether in courts or outside, tend to justify the development under the cover of need (which is an extension of greed only) thus completely diluting these principles and making them meaningless in terms of actual implementation. It then becomes only an intellectual activity and we fall in the trap of subterfuge of language. It is quite shocking that the argument of so-called development finds acceptance even when it is for patently wrong reasons and at the huge cost of environment. Thus private interests, which have merged their identity with larger idea of holistic development, are causing a serious imbalance in the society. The benefits of natural resources should be available to all but unfortunately they are being allowed to be exploited only by a few.
It is pitiable that the State is not only completely failing in discharge of its obligations under the established Public Trust Doctrine but is consciously exercising its powers to the detriment of these natural resources when they need revival. How this callous disregard, an act of culpable negligence and an environmental crime of the State can be accepted. The devastation of Yamuna bed, a flood plain, and raising of unscientific issues with an attitude of violating any law or norm and arm-twisting of those who care for sanity, to impose the real estate on the river bed is quite shocking. How can a State compromise after knowing fully well that the main source of ground water for drinking purposes is the river bed and if this source is sustained, you will be able to sustain the future needs of drinking water requirement of the people? How a ridge which is billions of years old can be allowed to be used for construction of buildings when the expert authorities recognise the place ecologically sensitive – a ridge, a forest and a rich source of ground water.

Is this kind of development permissible? What are State’s obligations as a trustee and what legal structure we need to evolve to protect the natural resources – for now and for the future? In what way people can protest if the State acts totally irresponsibly? If the State succumbs to narrow political considerations and vested interests? These are complex but important questions of immediate importance.

There is an urgent need for the Courts to understand these issues holistically, integrally with a vision. There is no conflict between environment and development. True development can never harm environment if it is realized that without nature and its resources life has no meaning. We need perhaps a simple principle, a simple law for complete protection of natural resources; integrated efforts for their revival and rejuvenation and their use conducive to the nature of these resources, and not the application of sustainable development principle as these resources can no longer bear the onslaught of exploitation; they are in trust with us for the future. If, we still ignore, be ready to lose them for ever. The choice is quite clear.
23.2.2008

[1] Vellore Citizen Welfare Forum 1996 (5) SCC 647
M.C. Mehta vs. UOI (Taj Mahal case) 1997 (2) SCC 353
A.P. Pollution Control Board vs. M.V. Nayadu 1999 (2) SCC 718
Indian Council of Enviro-legal Action (Bichuri case) 1996 (3) SCC 212
[2] Indian Council of Enviro-legal Action (CRZ Notification) 1996 (5) SCC 281
M.C. Mehta vs. UOI (Ganga Water) 1987 (4) SCC 463
RFSTE vs. UOI 2005 (10) SCC 510

[3] M.C. Mehta vs. UOI 1987 (1) SCC 95
[4] Supra
[5] S. Jagannathan vs. UOI 1997 (2) SCC 87
[6] M.C. Mehta vs. UOI (Kamal Nath) 1997 (1) SCC 388
[7] RFTSE vs. UOI 2005 (13) SCC 186
[8] Supra
[9] Essar Oil 2004 (2) SCC 392
Bombay Dying vs. Bombay Environ Group 2006 (3) SCC 434
Karnataka Industrial Area 2006 (6) SCC 371
[10] Narmada Bachao Andolan 2000 (10) SCC 664
[11] N.D. Jayal & Anr. vs. UOI 2004 (9) SCC 362
[12] RFSTE vs. UOI 2005 (10) SCC 510; 2005(13) SCC 186
[13] Orders dated 6.9.2007 & 11.9.2007 (RFTSE vs. UOI)
[14] Hindu dt. 6.11.2007 – Environment and the Poor – book review
[15] Order dated 23.11.2007 in M/s. Vedanta Alumina Ltd.
[16] Tata Housing & Development Corporation – 2003 (11) SCC 714
[17] Goa Foundation vs. Diksha Holding – 2001 (2) SCC 97
[18] EC – Biotech Dispute decided by WTO in Nov. 2006

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http://www.epa.gov/compliance/complaints/index.html

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