ENVIRONMENTA

L PRINCIPLES
UNIT 3
 POLLUTER PAYS PRINCIPLE

• The principle is based on the non-availability of full information

about the widespread ramifications, serious and irreversible harm
which may be caused, based on scientific experiments.
• Rule of evidence and deals with burden of proof in environmental
cases. It shifts the burden on the polluter to prove that his
activity/industry/operation is not a health hazard, damaging
environment and his action is environmentally benign.
• Powerful legal tool to combat environmental pollution in India
 HISTORY BEHIND THE PRINCIPLE

• Recommendation on Guiding Principles Concerning the International Economic Aspects of

Environmental Policies of the Organisation for Economic Co-operation and Development
(OECD), 1972
“The polluter should bear the expenses of carrying on the …….. measures decided by public
authorities to ensure that the environment is in an acceptable state. In other words, the cost of
these measures should be reflected in the cost of goods and services which cause pollution in
production and/or consumption. Such measures should not be accompanied by subsidies that
would create significant distortions in international trade and investment.”
The 1972 OECD Council Recommendation added the polluter pays principle to allocate costs
of pollution prevention and control measures to promote the frugal use of environmental
resources.
CONTN….

Rio Declaration on Environment and Development,1992

• Principle 15
In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.

• Principle 16
National authorities should endeavor to promote the internalization of environmental costs and the use
of economic instruments, taking into account the approach that the polluter should, in principle, bear
the cost of pollution, with due regard to the public interest and without distorting international trade and
investment.
 INDIAN JUDICIARY
• MC Mehta v. Union of India (1987)-Oleum Gas Leak case
Environment is a privilege provided to us to everyone residing on this earth and it is everyone’s human right to enjoy a
safe and healthy environment and it is also everybody’s duty to work for it and contribute towards its betterment. Any
person who keeps any sort of hazardous substance in its premises shall be responsible for its escape and causing
damages.

• Indian Council for Enviro-legal Action v. Union of India (1996)-Bichri case

The polluter pays principle says, polluter must pay for the damage done to the human beings and environment. River
bichri was being polluted and industries were releasing affluents to this river, which had caused a lot of env. Hazards
and brown water, contamination and death and disease were reported. It was held that the polluter is not only
responsible for the cause but also is liable to pay.
• Vellore Citizens Welfare Forum v. Union of India (1996)-Tanneries case
A lot of chemicals were used by the tanneries industry and untreated affluents were released to Palar river. It was a
major water source of the households agricultural as well as drinking water. Potable water was not available due to
chemical discharge and most of agricultural areas became unfavourable for cultivation. It was identified that almost
170 industries were using chemicals all were leather industries. It was held: all the 170 industries need to pay
compensation and create a fund called environment protection fund to pay compensation to the affected parties.
• S. Jaganath v U.O.I (1997) Shrimp culture case

Shrimp farming was very much prevalent in coastal zone, it is considered to be fragile
and here activities were also prohibited. There were large no. of MNCs that were
involved in shrimp farming. 8000 hectares of land were converted into shrimp farming.
This was causing ecological hazard. There was a person S.Jaganath chairman of one of
the movements to protect weaker sections. He filed this case. As a result we have coastal
zone regulation. It was then notified coastal zones to ecologically fragile.
It also talks about the categorization of coastal areas and activities prohibited therein.
Those who were involved were asked to pay for the damages and a fund called env.
Relief fund was created. Applicable to most of the coastal zones.
• M.C Mehta v U.O.I. (1997) (Taj Mahal Trapezium Case)

Efforts were taken by the court to protect the ancient monument. In an around the city of
Agra there were a lot of factories emitting pollution to air which led to discoloration of
the marbles. Because of this PIL was filed invoking fundamental duty. The Court
ordered to close the nearby industries that were casuing pollution in the air.
• M.C Mehta v Kamalnath (2002) Span Motel Case
In this case two principles were laid:
Polluter pays principle and Precautionary Principle
There was a proposal to build a Hotel in the coastal of river Deas in Himachal
Pradesh. So for the construction natural course of river was disturbed and crated
hazard. It was held that it is the fundamental duty of the state to protect the
destruction of natural course of river, the hotel owner will have to pay back. The
construction had caused a lot of disturbances and the Court invoked public trust
doctrine.
held, the state is responsible for all kinds of hazardous happening and Court
ordered to restore the ecological hazard.
NATIONAL GREEN TRIBUNAL AND
PPP
• Section 20 of the National Green Tribunal Act, 2010 states “The
Tribunal, while passing any order or decision or award, shall
apply the principles of sustainable development, the
precautionary principle and the polluter pays principle.”
CASE LAWS

• Hindustan Coca Cola Beverages Pvt Ltd. v. West Bengal Pollution

Control Board (Principal Bench, Appeal No. 10 of 2011)
• Vanashakti & Anr. v. MPCB and Ors.,(Application No. 37 of 2013 (WZ)
• M/s. NGT (SZ) Bar Association v. The Chief Secretary, Govt. of Tamil
Nadu and Ors. (Application No. 41 of 2015 (SZ)
• Perma Nand Khanta v. State of Himachal Pradesh (CWP1480/2010)
• Ojasvi Party v. Ministry of Environment & Forest & Ors.) dated
09/03/2016
CRITICISM

• First, absence of appropriate formula for determining the

compensation i.e. resorting to ‘guesswork’ for calculating
compensation
• Second, the sufficiency of the fines which have been imposed on
the polluters
• Third, the difficulty of identification of a ‘polluter’ in numerous
cases.
CASES

• Krishan Kant Singh v. Triveni Engineering Industries

the use of ‘guesswork’ at arriving at compensation was explicitly
mentioned by the NGT. In this regard it should be considered that
the very absence of a logical basis for imposing fines reflects a lack
of direction in the broader scheme of environment jurisprudence.
 CONTN….

• Manoj Mishra v. Union of India & Others dated 11/09/2019

Another challenge which is being faced at present is the problem of
identifying the polluter. Reference in this regard can be made to the rampant
discharge of industrial and household waste and effluents in the Yamuna
River.
The NGT passed an order stating that whoever dumps waste matter in the
Yamuna River shall be ordered to pay a fine of Rs. 50,000. However, the
implementation of this order could not be made possible because of presence
of large number of polluters and hence difficulty in polluter identification.
CONTN…

• Roshni B. Patel v. Union of India & Ors OA 27 of 2020

In a recent case brought by the fishermen of Hazira in Gujarat
against Adani Group, the fine levied by NGT was deposited with the
district collector of Surat, however, it is yet to be utilized for the
affected fishermen and the mangroves in the affected area.
 HISTORY OF THE PRINCIPLE
• Principle 6 of the Stockholm Declaration, 1972-
“Science should provide policy makers with the information and means necessary to avoid encroaching
upon the capacity of the environment to assimilate impacts and it is presumed that relevant technical
expertise would be available when environmental harm was predicted and there would be sufficient time
to act in order to avoid such harm.”
• UN General Assembly Resolution on World Charter for Nature, 1982
Activities which might have an impact on nature shall be controlled, and the best available technologies
that minimize significant risks to nature or other adverse effects shall be used; in particular:
(a) Activities which are likely to cause irreversible damage to nature shall be avoided;
(b) Activities which are likely to pose a significant risk to nature shall be preceded by an exhaustive
examination; their proponents shall demonstrate that expected benefits outweigh potential damage to
nature, and where potential adverse effects are not fully understood, the activities should not
proceed;
CONT….
(c) Activities which may disturb nature shall be preceded by assessment of their consequences, and
environmental impact studies of development projects shall be conducted sufficiently in advance, and if
they are to be undertaken, such activities shall be planned and carried out so as to minimize potential
adverse effects;

(d) Agriculture, grazing, forestry and fisheries practices shall be adapted to the natural characteristics and
constraints of given areas;

(e) Areas degraded by human activities shall be rehabilitated for purposes in accord with their natural
potential and compatible with the well-being of affected populations.

• Principle 15 of Rio Declaration on Environment and Development, 1992

“In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.”
 INDIAN JUDICIARY AND
PRECAUTIONARY PRINCIPLE
• Essence of Article 21 of the Constitution of India

In 1996, Kuldip Singh J. in Vellore Citizen Welfare Forum v Union of India

declared that the principle involves three conditions:
• State government and statutory authorities must anticipate, prevent and attack the
causes of environmental degradation;
• Where there are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a reason for postponing measures to prevent
environmental degradation;
• The ‘onus of proof’ is on the actor or developer or industrialist to show the actions
are environmentally benign.
CONTN….. CHK JUDICIARY PPT

• MC Mehta v. Union of India (1997)- Taj Mahal Trapezium case

• AP Pollution Control Board v. MV Nayudu (1999)
The Supreme Court considered whether the establishment of chemical industry carries with it the imminent danger
of chemicals or chemical effluents polluting the waters of Himayat and Osman Sagar lakes. Based on exhaustive
scientific evidence provided by expert organizations, the Supreme Court applied the ‘reasonable person’ test and
concluded that there was every ‘likelihood’ of the industry affecting the sensitive catchment area of the lakes.
• Democratic Youth Federation v Union of India (2011)
• The DYFI filed a writ asking the Indian Supreme Court for a nationwide ban on the organochlorine insecticide
Endosulfan. On 2011, the court passed an interim order to ban endosulfan. On 01/30/2017, it issued a new order
directing the State Governments to release the entire payment of compensation for each of the affected persons
within 3 months.
• Association for Environmental Protection v. State of Kerala (2013)
• Alembic Pharmaceuticals v Rohit Prajapati & Ors. (2020)
CHALLENGES

• To activate precaution, actions are based on scientific information

and analysis of possible risks to human health and environment,
albeit tentative, inconclusive or in dispute. Tentative,
inconclusive or disputed scientific information creates uncertainty
in relation to gaps in data and/or poor data, ignorance, faulty
models, scientific inconsistency and disagreement on the nature of
risk with low epistemic threshold of evidence and tend towards
risk prevention.
CONTN…

• The NGT declared the precautionary principle to be an integral part of

national environmental law:
The applicability of [the] precautionary principle is a statutory command to
the Tribunal while deciding or settling disputes arising out of substantial
questions relating to environment. Thus, any violation or even an
apprehended violation of this principle would be actionable by any person
before the Tribunal. Inaction in the facts and circumstances of a given case
could itself be a violation of the precautionary principle, and therefore bring
it within the ambit of jurisdiction of the Tribunal, as defined under the NGT
Act 2010.
PUBLIC TRUST DOCTRINE

• By the law of nature these things are common to all mankind, the air, running
water, the sea and consequently the shores of the sea.” The Public Trust
Doctrine, as this notion came to be known, suggests that certain resources—
usually water, but now much more—are common, shared property of all
citizens, stewarded in perpetuity by the State.

• Under the English Common law, however, the Sovereign could own these
resources but the ownership was limited in nature, the Crown could not grant
these properties to private owners if the effect was to interfere with the public
interests in navigation or fishing. Resources that were suitable for these uses
were deemed to be held in trust by the Crown for the benefit of the public.
MONO LAKE CASE

National Audubon Society v. Superior Court of Alpine County

(1997)
“the public trust doctrine is more than an affirmation of state power
to use public property for public purposes. It is an affirmation of the
state to protect the peoples’ common heritage of streams, lakes,
marshlands and tidelands, surrendering the right of protection only
in rare cases when the abandonment of that tight is consistent with
the purposes of the trust.”
PTD AND JUDICIARY

• M.C. Mehta v. Kamal Nath - Span Motels case (1997)

• Th. Majra Singh v Indian Oil Corporation (1999)
• Th. Majra Singh v Indian Oil Corporation, where the petitioner objected to the location of a plant for filling cylinders with liquefied petroleum gas. It was
held that the High Court can only examine whether authorities have taken all precautions with a view to see that laws dealing with environment and pollution
have been given due care and attention. Though the case was decided on the basis of the precautionary principle, it confirmed that the Public Trust Doctrine
has become part of the Indian legal thought processes. In the High Court's opinion, the doctrines is a part and parcel of Article 21 of the Constitution and that
there can be no dispute that the State is under an obligation to see that forests, lakes and wildlife and environment are duly protected. According to the Court,
the idea that the public has a right to expect certain lands and natural areas to retain their natural characteristics is finding its way into the law of the land.
• K. M. Chinnappa v Union of India AIR 2003 SC 724
This was a petition challenging the renewal of mining lease granted to Kudremukh Iron Ore Company in the Kudremukh National Park. The Supreme Court
held that the pristine glory of the natural resources cannot be allowed to be eroded or encroached unless the Courts find it necessary in good faith for public
good and in the public interest.
• State of West Bengal v Kesoram Industries Ltd. (2004)
• This Doctrine was once again followed wherein it was observed that deep underground water belongs to the State in the sense that the Doctrine of Public
Trust extends thereto. Ground water is considered as a part of national wealth and it belongs to the entire society. Water is a nectar sustaining life on earth
and thus the State has a duty to protect ground water against excessive exploitation.
• M.I. Builders (P) Ltd. v. Radhey Shyam Sahu -‘M.I. Builders’ (2009)
• As a matter of fact Mahapalika was the trustee of the park and Mahapalika, therefore, could only manage the park and could not alienate it or convert it
something different from the park. Park was held by the Mahapalika on trust for the citizens of Lucknow.
• Reliance Natural Resources Ltd. v. Reliance Industries Ltd. (2010)
Court relied on Art. 297 of the Constitution, which vests natural resources in the Union of India, Art. 39(b), which requires distribution of resources to subserve
the common good, commercial practice in the oil and gas industry(para 84), the international principle of permanent sovereignty over natural resources adopted
by the UN General Assembly in Resolution 1803 (para 88), the provisions of the PSC, the doctrine of public trust (para 97) etc.
• Intellectual Forum v State of A.P (2006)-
”the right to shelter does not seem to be so pressing under the present circumstances so as to outweigh all
environmental considerations.” It is true that the tank is a communal property and the State authorities are
trustees to hold and manage such properties for the benefits of the community and they cannot be allowed to
commit any act or omission which will infringe the right of the Community and alienate the property to any
other person or body.
• Fomento Resorts & Hotels Ltd. .Minguel Martins (‘Fomento Resorts Case (2009)
We reiterate that natural resources including forests, water bodies, rivers, sea shores, etc. are held by the
State as a trustee on behalf of the people and especially the future generations. These constitute common
properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust
properties to a private party, if such a transfer interferes with the right of the public and the Court can invoke
the public trust doctrine and take affirmative action for protecting the right of people to have access to light,
air and water and also for protecting rivers, sea, tanks, trees, forests and associated natural eco-systems
PTD AND NGT

• Lt. Col. Sarvadaman Singh Oberoi v. Union of India, 2020 SCC

OnLine NGT 862, decided on 18-11-2020
Protection of water bodies serves a great public purpose and is
essential for the protection of the environment. It helps not only
aesthetics but also water availability, aquatic life, microclimate,
recharge of groundwater and maintaining e-flow of the rivers. Further,
the bench stated that, Under the Public Trust Doctrine, the State has to
act as trustee of the water bodies to protect them for the public use
and enjoyment for current and future generations.