Showing posts with label Environmental Law. Show all posts
Showing posts with label Environmental Law. Show all posts

Introduction:

As environmental pollution increases, the risk of the consequences of degradation of environment not only falls on the specific country where such activities are being carried out, but also spreads across the globe, especially the countries near such areas of practice. This puts the innocent countries at high risk of being exposed to environmental pollution and transboundary pollution, which brings about the concept of safeguards that can be taken in case of transboundary pollution, recognized under International Environmental Law. [1]

In recent times, with the rising need for the protection of environment from pollution and climate disasters, it has been observed that the developed countries are those who are the most responsible for causing high ranges of pollution, the consequences of which are reaped by the developing and emerging nations.[2] At this state of affairs, in order to prevent transboundary pollution to affect the states who are not responsible for such consequences, appropriate laws have to be introduced as a regulatory measure, in order to prevent the victim states to not be unethically subject to the pollution caused by others.

In this context, the instant article attempts to demystify the meaning of Transboundary Pollution under International Environmental Law with a special focus on the Polluter Pays Principle (PPP) and inform the readers about the liability a state may hold under international treaties and obligations, not only as a competitive partner, but also as a good Samaritan and neighbouring country.

 

Framework of a Pollution Proof Network

Few of the most important principles which carry the most weightage in Internatinal Environmental Law includes the principle of Sustainable Development, the Precautionary Principle, and the Polluter Pays Principle (PPP).[3] In addition to these, as good Samaritans and neighbouring countries, states should cooperate internationally and exhibit the qualities that any good neighbour should have, i.e., to support and to refrain from performing any act which may cause a great deal of harm in both lands. Although these principles are considered to be soft principles, the same is incorporated across various state practices, treaties, soft law commitments, binding acts of international organizations, etc. [4]

The Polluter Pays Principle (PPP) in particular is one which resonates the most with the betterment of the future environmental circumstances, deeming it pertinent to ensure a standard living condition in the near future. However, for effective action, it is necessary for such soft laws to be implemented in different national legislations in order to reap effective results of the objective of achieving a pollution proof globe.

The Polluter Pays Principle (PPP) holds the responsible state to be liable for causing environmental harm in other states as a result of its activities. Thus, the polluters in this case have the burden to not only compensate the victims of such pollution, but also to make right the effects and consequences faced by such pollution under the 1972 and 1974 OECD Recommendations.[5] Moreover, the public authorities who are responsible for the regulation of International Environmental Laws are the ones who decide what measures can be taken by the polluters for controlling the pollution emitted by their practices and bring the same to an acceptable level post the industry operation.

 

Application of Polluter Pays Principle (PPP)

The Polluter Pays Principle (PPP) has existed as one dominant force since the early 1970s, but has not been given much significance.[6] It has been often reported that states who are most responsible for pollution do little to stop the hazardous activities,[7] but according to international obligations and treaties that India is a part of, the states are under an obligation to do so, no matter how incalculable the damage may be.[8]

After a series of climate disasters that had to be faced by innocent states who did not have a hand in polluting their territories, the Polluter Pays Principle (PPP) acts as a single ray of hope towards the end of a dark tunnel. This is because, the countries who are most vulnerable to climate disasters are the developing countries.[9] In furtherance to this, the countries in the Indo-Pacific region which are surrounded by water on majority of the sides are even more disaster prone due to such reasons, due to the high probability of rising sea levels.[10]

To be specific, according to the Reo Declaration of 1992, it is proposed that the offender, i.e., the polluter has to bear the consequences of the damages caused by the pollution committed, while also taking up all the costs,[11] in relation to the public interest of the globe as a whole, as well as a duty to ensure as good Samaritans and neighbouring countries, as was discussed in the preceding paragraphs. Moreover, this principle is also supported largely in order to ensure that the system of international trade and investments is not disturbed due to such activities which may cause bad relations between two or more states.[12]

Moreover, the good health of the citizens is also ensured through the instant mechanism of controlling the pollution through the Polluter Pays Principle (PPP).[13] This is because it has been often reported that the health of Samaritans are affected due to the high level of pollution in a particular area, which does not only affect the current generation, but also the upcoming generations, who turn out to be quite weaker than is known to us.[14]

 

Conclusion:

To conclude the short brief, the Polluter Pays Principle (PPP) discusses under the concept of Transboundary Pollution in the subject of International Environmental Law discusses the liabilities a state has towards its neighbouring territories. These liabilities are classified as the incalculable compensation paid to the victims of transboundary pollution as well as retrieving the state the territory was at before it was subject to such high degree of pollution caused by the offender.

It is proposed that in recent times, such matters are taken into high consideration due to the frequenting climate disasters as well as the rising sea levels which may rule out certain states out of the global map. This not only causes a huge uproar for the victim states, but also to the states who were responsible for such consequences at the first plays. At times like these, the Polluter Pays Principle (PPP) acts as the only ray of hope towards the end of a dark tunnel which may help such victim countries to overcome the consequences of the transboundary pollution they had been subject to.

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This blog is authored by Poulomi Chatterjee, student of Bennett University (2019-24)

 

References:

1.      Mohammad Ali Hassan & Valiappan Raju, Legal Recognition of thePolluter Pays Principle in South Asia: A Comparative Legal Study, 83 Test Engineering and Management, pp.16876-16887, (2020).

2.      CGDEV, Developed Countries Are Responsible for 79 Percent of Historical Carbon Emissions, CGDEV, (August 18, 2015), Available at: https://www.cgdev.org/media/who-caused-climate-change-historically Accessed 6th August 2021.

3.      Philippe Sands, Principles of International Environmental Law, 1st Ed., Manchester University Press, pp.183, (1995).

4.      Id.

5.      OECD, Recommendation of the Council on Guiding Principles concerning International Economic Aspects of Environmental Policies, OECD/LEGAL/0102, (2021).

6.      Fredrico Cheever & Celia I.,Environmental Law, Britannica, (September 19, 2016), Available at:https://www.britannica.com/topic/environmental-law Accessed 7th August 2021.

7.      Id.

8.      Id.

9.      Mary Robinson,Climate Justice, New York, Bloomsbury Publishing,(2018).

10.  Andrew Holland & Esther Babson,Atlantis 2.0: How Climate Change Could Make States Disappear and What That Means for Global Security, Epicenters of Climate and Security: The New Geostrategic Landscape of the Anthropocene, The Center for Climate and Security, (2017).

11.  Duncan Clark, What is the 'polluter pays' principle?The Guardian, (2012) Available at: https://www.theguardian.com/environment/2012/jul/02/polluter-pays-climate-change Accessed 7th August 2021.

12.  UN Doc. A/CONF.151/26 (vol. I) / 31 ILM 874 (1992)Principle 16.

13.  Supra Note11.

14.  World Health Organization (WHO), Climate Change and Health, World Health Organization (WHO), (February 1, 2018), Available at: https://www.who.int/news-room/fact-sheets/detail/climate-change-and-healthAccessed 7th August 2021.

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Global warming is a plague which affects us all, as such it is imperative various governments around the world take steps towards protection and conservation of the environment, to reduce the rate of global warming and minimize its impact on life on earth. Some forms of action are self-regulation by individuals and corporations, projects by various NGOs and legislative action by the state. In this blog, the focus would be on legislative actions taken by the state towards the protection of the environment in India.

Let’s start off by understanding what exactly a statute is; as per the Oxford Learner’s Dictionary, “a law that is passed by a parliament, council, etc. and formally written down”. 

In a country like India, a vibrant democracy with an active legislature, writing a blog on all statutory provisions for protection of the environment would result in corruption of the very definition of what a blog is, and hence I shall be focusing on some of the important and recent statues in India, which have the motive of protection and conservation of the environment.

 

Even before India's independence, several environmental protection laws existed. However, it was only until the United Nations Conference on the Human Environment (1972) that the real push to put in place a well-developed framework began. Following the Stockholm Conference, the Department of Science and Technology established the National Council for Environmental Policy and Planning in 1972 to act as a regulatory authority for environmental issues. This Council later became the Ministry of Environment and Forests. This exemplifies a critical turning point in India's environmental protection. [2]

 

Some of the prominent works of legislation include-

1.      The National Green Tribunal Act, 2010- India pledged the participating governments to offer legal and administrative remedies to victims of pollution and other environmental damage at the United Nations Conference on Environment and Development in June 1992. Under the National Green Tribunal Act, the National Green Tribunal was formed in 2010. This statute governs civil cases involving environmental protection and natural resource conservation. Legal rights and environmental rights are included. The Act is enacted under Article 21 of the Indian Constitution, and it explains the right to live in a clean and healthy environment. The NGT's Principal Bench is located in New Delhi. Pune (West), Bhopal (Central), Chennai (South), and Kolkata all have regional benches (East). Each Bench is responsible for a specific geographical area within a region. Additionally, a circuit bench mechanism is offered. [3] [4]

2.      E-waste (Management) Rules, 2016- The rule applied to a total of 21 items (Schedule-I). The regulation also applied to electrical and electronic equipment (EEE) components, consumables, parts, and spares, as well as related commodities. The current principle has fortified the Extended Producer Responsibility (EPR), which is the worldwide best practice to guarantee the reclaim of the finish of-life items. [5]

3.      Environment Impact Assessment Notification 2006- EIA 2006 was issued on 14th September 2006, in supersedure of EIA 1994, except in respect of things done or omitted to be done before such supersession. The Ministry of Environment and Forests employs the Environmental Impact Assessment Notification 2006 as a key tool for reducing the negative effects of fast industrialisation on the environment and reversing long-term trends that could lead to climate change.  The Notification is given under the various important arrangements of the Environment (Protection) Act, 1986. [6]

4.      Biological Diversity Act 2002- This piece of legislation was passed by the parliament of India to meet the obligations imposed by the Convention for Biological Diversity, a multilateral treaty of which India is a member. Biodiversity has been defined under Section 2(b) of the Act as "the variability among living organisms from all sources and the ecological complexes of which they are part, and includes diversity within species or between species and of eco-systems". Situated in Chennai, The National Biodiversity Authority (NBA) is a statutory autonomous organisation within the Ministry of Environment and Forests of the Government of India, that was created in 2003 to carry out the Act's requirements. The penalties for violation of any of the provisions of the act are defined as "punishable with imprisonment for a term which may extend to five years, or with fine which may extend to ten lakh rupees and where the damage caused exceeds ten lakh rupees, fine may commensurate {be in proportion} with the damage caused, or with both."

5.      The Air (Prevention and Control of Pollution) Act, 1981- The Air (Prevention and Regulate of Pollution) Act, 1981 (the "Air Act") establishes boards at the national and state levels to prevent, control, and abate air pollution, as well as to carry out the aforementioned functions. The Air Act set ambient air quality standards to address the difficulties connected with air pollution. The Air Act aims to reduce air pollution by limiting the use of harmful fuels and chemicals, as well as regulating air pollution-producing appliances.

6.      The Water (Prevention and Control of Pollution) Act, 1974- The Act was passed to provide for the prevention and control of water contamination, as well as to maintain or restore the country's water's wholesomeness. It also establishes Boards for the prevention and management of water pollution in order to achieve the aforementioned goals. The Water Act forbids the discharge of pollutants and pollutant-like particles into water bodies in excess of a certain standard, and it imposes fines for non-compliance.

7.      The Environment Protection Act, 1986- The 1986 Environmental Protection Act was enacted to protect the environment. The statute establishes a framework for environmental preservation and enhancement. The Environment Protection Act creates a framework for investigating, planning, and implementing long-term environmental safety regulations, as well as a mechanism for responding quickly and appropriately to environmental threats. It is a piece of law that establishes a framework for the cooperation of federal and state bodies created under the 1974 Water Act and the 1974 Air Act. The Central Government is empowered under the Environment Act to take measures to protect and improve the environment's quality by establishing standards for emissions and discharges of pollution into the atmosphere by anyone carrying on an industry or activity; regulating the location of industries; and managing hazardous wastes, along with the protection and preservation of public health and welfare. Non-compliance or violation of the Environment Act, or its regulations or orders, will result in a penalty of up to five years in prison or a fine of up to Rs 1,000,000, or both. If the breach persists, an additional punishment of up to Rs 5,000 shall be imposed for each day that the failure or contravention persists after the conviction for the first such failure or contravention. [7]

 

It can be noticed that there is an active effort on behalf of the legislature to both penalise those polluting the environment and providing remedies to those who have suffered from such pollution. It is crucial such statutes are further modernised for the changing world, to meet new demands and challenges, with the focus of protecting public health and safety.


[1] Oxford Learner’s Dictionaries, https://www.oxfordlearnersdictionaries.com/definition/english/statute, (7th June, 2021)

[4] National Green Tribunals Act, 2010, No. 25, Acts of Parliament, 2010 (India).

[7] Mondaq, https://www.mondaq.com/india/waste-management/624836/environment-laws-in-india, (7th June, 2021)

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By- Sanath Vijairaghavan, BBA LLB Batch of 2025, NMIMS School of Law, Bangalore.


 



The word ‘Environment’ sum up the total of water, air and land inter-relationships among themselves and also with the human being, other living organisms and material goods. It comprises all the physical and biological surroundings and their connections. Environmental studies give an approach towards understanding the environment of our globe and the impact of human life upon the environment and vice-versa. The Environment is actually universal in nature and it is a multidisciplinary subject counting physics, chemistry, history, geology, geography, soil science and biotechnology, etc1. Everyone is affected by the Global warming, depletion of ozone layer, loss of diversity, deforestation, disposal of hazardous wastes. Environment is visualized in different ways and with different angles by different group of people but it may be safely argued that ‘Environment is an inseparable whole and is constituted by the interacting systems of physical, biological, and cultural elements which are interlinked individually2. Social science have borrowed the concept of ecology from biology. As a branch of biology, ecology is the study of the relationship between the living beings and their environment. On one hand man is born in environment and establishes harmony with environment. On other hand man tries to control his environment and change it according to his requirements. Therefore it requires an understanding of environment of which a man is part of. Environmental knowledge is an integrative knowledge whose fundamental aspects have a direct significance to every part of the planet. Its main characteristics include providing new dimension to nation’s security through conversation, protection, management and maintenance of environment, controlling and managing environmental pollution to permissible limit, maintenance and management of biological diversity and much more are mentioned. Therefore this research paper highlights about environment laws liability and the principle of no fault. 

            

THE RULE OF STRICT LIABILITY:

Strict liability is very important for commercials and other activities that have the possibility of causing horrifying damages. Some activities may be so damaging that law has to be imposed for consequences occurred. For example, the law may sometimes charge penalty even if damage occurs without any individual’s fault. Strict liability principle is very important in the field of law of torts. The underlying principle of compensation in torts generally depends on the extent of the precaution taken by the individual’s3. The law makes people pay compensation for the damage even though that was not caused by people. In other words, people have to pay compensation to the victims who were affected, even when they took all necessary precautions. There are certain case that attracts this liability such as –

o   Bhopal gas tragedy4:

It was India’s first and worst major industrial disaster, where more than 27 tonnes of Methyl isocyanate and other deadly gases turned Bhopal into gas chamber. The disaster resulted in the death of at least around or more than15,000 people and there were serious injuries and diseases to many people which affected over 600,000 workers and nearby inhabitants.

The Supreme Court laid the rule of absolute liability in preference to the strict liability. The defence of the UCC on the grounds of damage was rejected and the principle laid by the Supreme Court in the M.C.Mehta v. Union of India5 was followed. The Rule clearly had that where an enterprise is engaged in a hazardous or inherently dangerous activity and it harm results to anyone on account of accident in the operation of such hazardous or inherently dangerous activity resulting, the enterprise is strictly and absolute liable to compensate to all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule of  Ryland’s v. Fletcher.

It was assumed that the victims would be getting compensation, therefore all the victims who were working or handling of the hazardous substance should get quick relief through insurance, and therefore ‘Public Liability Insurance Act 1991’6 was passed. 

                                                                      

The Strict Liability is also called as ‘No Fault Liability’, this is opposite to the general principle of negligence in torts where a person can be held liable for the commission of a tort only when the plaintiff can prove negligence on his part and the defendant himself is unable to disapprove it.

 

RYLAND’S VS. FLETCHER7:

The defendant (Fletcher) an owner of a mill with an aim to improve water supply for his mill employed independent and efficient engineers for the construction of a reservoir. During their revealing of the ground underneath, they came across some stick and passages bur chose not to block them. Post construction of the reservoir, when they filed it with water, all the water flowed through the unblocked old stick and passages to the plaintiff (Ryland’s) coal mines on the adjoining land and the overburden them completely. The engineers kept the defendant in the dark about the occurrence of these incidents. On a suit filed before the court by the plaintiff against the defendant, the court though ruled out negligence about the defendant’s part on the other hand held him liable under the rule of strict liability. Any amount of carefulness on his part is not going to save him where his liability falls under the scope of “No fault Liability”.

 

EXCEPTIONS OF STRICT LAIBILITY:

 

Strict liability evolved from the Rylands v Fletcher case in the English court in the year 1868. This principle clearly states that a person, who keeps hazardous substances in his premises, is responsible for the fault if that substance escapes in any manner and causes damages. This principle stands true if there was no negligence on the side of the person keeping it and the burden of proof always lies on the defendant to prove how he is not liable. However there are certain exceptions to this rule. These exceptional rules have been recognized by the Rylands v Fletcher case and later cases. The exceptions are as follows:

o   Consent of the plaintiff:

When the plaintiff has either expressly or impliedly consented to the presence of a source of danger and also there has been no negligence on the defendant’s part, the defendant will not be held liable. It is basically the defence of ‘Volenti non fit injuria’ taken by the defendant in the court.

 

o   Plaintiff’s Own Default:

When damage is caused to the plaintiff solely due to his own fault, he shall receive no remedy in such cases.If somehow the plaintiff himself enters into the land of the defendant and injures himself and then claims for damages, he is not liable for the damages since he himself went forward to the dangerous thing. . In the case of Ponting vs.Noakes(1994), the claimant’s horse died after it had reached over the defendant’s fence and ate some leaves from a Yew tree. The defendant was not liable under Rylands v Fletcher as the Yew tree was entirely in the confines of the defendant’s land and there had therefore been no escape.8The plaintiff cannot recover anything if the damage was caused due to the unusual sensitiveness of the plaintiff’s apparatus and such damage won’t cause any harm to a person carrying ordinary business there. Until and unless there is ‘escape’ of the dangerous thing or the land of the defendant is being used for non-natural purposes for an ordinary person, the defendant can’t be held liable.

 

o   Act of God or Vis Major:

An act of God is a sudden, direct and irresistible act of nature that nobody can reasonably prepare for. It can cause damage regardless of how many precautions one may take. For example, tsunamis, tornadoes, earthquakes, extraordinary rainfall, etc. are acts of God. Any damage that occurs due to these acts does not attract strict liability. For acts which are beyond human control and contemplation, caused due to superior natural forces, the principle of strict liability does not apply.          

 

o   Common Benefit of Plaintiff and the Defendant:

Where the act or escape of the dangerous thing was for the common benefit of the defendant and plaintiff, the defendant will not be held liable.

 

 

o   Statutory Authority:

If any act done under the authorization of the law/statute like the government of a country or a state government causes any damage to a person, it acts as a defence to an action for tort.The defence cannot be pleaded if the if there is any kind of negligence on the part of the defendant who is under statutory authority.

 

o   Wrongful act of a third party:

Sometimes, the involvement of third parties may be the cause of damages. For example, renovation work in one flat may cause nuisance to another flat. Here, the tenant affected by the nuisance cannot sue his landlord. He can only sue the person renovating the other flat.

 

Now the question arose that whether the “NO-FAULT” Liability imposed by the National Green Tribunal is justified?

Well the Apex Court of India, in the case of MC Mehta v. UOI8, affirmed that the principle of strict liability is not sufficient for safeguarding the rights of people living in an industrialised economy like India. Thus, it developed the doctrine of absolute liability which asserted that any industry performing a hazardous activity will have an absolute obligation to prevent any peril arising out of the very activity, and this obligation will not be excused in whatsoever conditions.Post this landmark case, it was noticed that the judiciary has ruled out the imposition of strict liability on the big industrial corporation and subjected it to only smaller entities. It was also perceived in many enviro-legal cases like Indian Council for Enviro-Legal Action v. Union of India9 and Union Carbide Corporation v. Union of India10, wherein the principle of absolute liability was imposed on the negligent act of big Industrial corporations. Hence, considering this well-established trend, the imposition of absolute liability as a deterrent principle would have been much more viable and reasonable retribution for committing such a reckless act.

CONCLUSION:

The principle of strict liability clearly states that a person who keeps hazardous substances in his premises is responsible for the fault if that substance escapes in any manner and causes damages. This principle stands true if there was no negligence on the side of the person keeping it and the burden of proof always lies on the defendant to prove how he is not liable. Whereas the rule of absolute liability held that where an enterprise is engaged in a hazardous or inherently dangerous activity and it harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, the enterprise is strictly and absolutely liable to compensate to all those who are affected by the accident.Both these rules follow the ‘no fault liability principle’, a principle in which the defendant is held liable even if he is not directly or indirectly responsible for the damages caused to the plaintiff.There is a principle which claims an individual liable without his being at fault. This is the ‘no fault liability principle’. In this case, the liable person may not have done any act of negligence or may have put in some positive efforts but the rule claims him for the compensation. This principle has its roots in the two landmark cases- Rylands v Fletcher (strict liability) and M.C.Mehta v Union of India(absolute liability).

The assertion that the strict liability rule is completely defunct in India is erroneous since the application of the rule has continued even after the establishment of the absolute liability principle. Although the implication of the strict liability principle has been reduced to a narrower set of cases, the principle itself isn't completely inoperative in the country. The order of imposing the strict liability rule on the Vizag Gas leak cataclysm by the NGT has perplexed the legal fraternity and raised several questions over the scope of its implication. It was reported that the recklessness of the polymers factory has caused the demise of 11 citizens, more than 100 being hospitalized, along with many flora and fauna being succumbed to death. Therefore, this implies that the Vizag Gas leak was a severe industrial tragedy and its severity shouldn't be determined by the number of fatalities, and LG Polymers factory should be sanctioned for the mischief caused to the citizens and ecological system.

This Blog is authored by Miss.Vaishali Joshi, a student of Rajarshi Shahu College of Law.

REFERENCE:

  • §  dspmuranchi.ac.in
  • §  yourarticlelibrary.com
  • §  toppr.com
  • §  hindustantimes.com
  • §  scconline.com
  • §  lawctopus.com
  • §  kanoonnearlaw.com
  • §  ikouniv.ac.in


1Etc. (‘and other things’ or ‘and so on’)

2Environment Protection Act 1986.

3Law of tort

4Union carbide Corporation vs. Union of India etc. on 4 may, 1989

5Equivalent Citations: 1987 AIR 1086, 1987 SCR (1) 819

6Public Liability Insurance Act 1991

7(1868) L R 3 H.L.330

8Supra note 11

9Supra note 7

101992 AIR 248