Environmental Law

B.A. LL.B. 2020 Batch

Spring 2024

Prof. Aakriti Tripathi

• Class Participation - Think – Question – Discuss

• Safe Space Pledge

• Class Format

• Readings (Online Repository)

• Assessment: Internals (50 marks) – Guidelines to be shared

• Institutional rules on plagiarism applicable

Externals (50 marks)

 Week 1
• Introduction to Environmental Law
Readings
• John Alder and Wilkinson, Environmental Law and Ethics, Macmillan Law Masters (Chapter 2; Main ethical
approaches)
• Sanja Bogojevic and Rosemary Rayfuse, Environmental Rights in Europe and Beyond: Setting the Scene,
Swedish Studies in European Law (Chapter 1)
• Derek Bell and Jayne Carrick, Procedural environmental justice, Chapter 9 of The Routledge Handbook of
Environmental Justice
• Kyle Whyte, The recognition paradigm of environmental justice, Chapter 10 of The Routledge Handbook of
Environmental Justice
• Mukul Sharma, Caste, Environment Justice, and Intersectionality of Dalit–Black Ecologies, 13 Environment
and Society: Advances in Research 78-97 (2022)
Cases
• Mohd. Salim v. State of Uttarakhand & Ors, 2017 SCC OnLine SC 291, 29-03-2017 (giving personhood to
rivers)
• Animal Welfare Board of India vs A. Nagaraja & Ors, (2014) 7 SCC 547
 Week 1
Introduction to Environmental Law

• Discussion on ethics (ēthikós) and its relationship with the environment

• ”a person's set dispositions to behave in one way or another”
• Values or views actually held by some individual or group about the environment
• Relationship between ethics and morality
• Nowadays being used interchangeably

Why are delving into philosophy in a discussion about the environment?

 Week 1
Introduction to Environmental Law

• Broad classification of ethical approaches

• Descriptive
• reveals new perspectives on the human/nature relationship
• Lawyers use it to search for the assumptions implicit in the language of the legal sources

• Normative
• “Ought”
• What we should do and justifications for the same
• Fundamental for law reform and legal argumentation
 Week 1
Introduction to Environmental Law

• Theories of Ethics
• Broad classification
• Consequentialist - Utilitarianism (https://www.youtube.com/watch?v=51DZteag74A)

• Deontological (https://www.youtube.com/watch?v=wWZi-8Wji7M)

• Virtue Ethics (https://www.youtube.com/watch?v=NMblKpkKYao)

Application of all three approaches to rationalize relationship between humans and nature
 Week 1
Introduction to Environmental Law

• Are there any principles of ethics particular to the environment?

• Anthropocentric perspectives
• Traditional Anthropocentrism
• Only human beings can have direct moral value and that we can value other natural things
only in relation to human purposes and goals
• Biodiversity is important to us as a gene pool of resources for the future
 Week 1
Introduction to Environmental Law
Aristotle believed that everything in nature fulfils a purpose and that
the ultimate purpose of nature is the satisfaction of human needs:

‘Plants exist for the sake of animals... all other animals exist for the sake of man,
tame animals for the use he can make of them as well as for the food they
provide; and, as for wild animals, most though not all of these can be used for
food and are useful in other ways; clothing and tools can be made out of them.
If we are right in believing that nature makes nothing without some end in view,
nothing to no purpose, it must be that nature has made all things for the sake
of man.’
 Week 1
Introduction to Environmental Law

• Medieval Christian doctrine

‘As the green herbs, I have delivered all flesh to you.’

’Christianity encouraged certain special attitudes to nature: that it exists

primarily as a resource rather than as something to be contemplated with
enjoyment, that man has a right to use it as he will, that it is not sacred,
that man's relationships with it are not governed by moral principles.’
(Passmore)
 Week 1
Introduction to Environmental Law

• Among the philosophers who have influenced western thought

• Descartes (1596-1650) thought that animals were like machines without consciousness
• Hegel (1770-1831) considered nature to be totally lacking in virtue in its untransformed
state, and only worthy of admiration when converted into some form of garden or farm
• Hobbes (1588-1679) and Locke( 1632-1704) thought that only human beings have value
and that, by desiring, we project our values onto a worthless world
• From a non-Christian standpoint Marxism also regards nature as of value only as a
human instrument
• Exploitation of nature, at least within sustainable limits, is for some the very
essence of virtue
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Introduction to Environmental Law

• Enlightened Anthropocentrism (virtue ethics)

• Ethics which begin to express the relationship between environmental protection
and non-material human concerns
• Emphasizes that we are part of nature and that in our own interests we should respect
nature for its existence as well as a resource
• Does not require us to put the interests of other species before our own but does
require us to give a strong reason for overriding other life
• Aesthetic
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Introduction to Environmental Law

• John Stuart Mill in ‘Principles of Political Economy’ (1908)

’A world from which solitude is extirpated, is a very poor ideal. Solitude, in the sense of being
often alone, is essential to any depth of meditation or of character; and solitude in the
presence of natural beauty and grandeur, is the cradle of thoughts and inspirations which are
not only good for the individual, but which society could ill do without. Nor is there much
satisfaction in contemplating the world with nothing left to the spontaneous activity of
nature; with every rood of land brought into cultivation, which is capable of growing food for
human beings; every flowery waste or natural pasture ploughed up, all quadrupeds or birds
which are not domesticated for man's use exterminated as his rivals for food, every
hedgerow or superfluous tree rooted out, and scarcely a place left where a wild shrub or
flower could grow without being eradicated as a weed in the name of improved agriculture.’
 Week 1
Introduction to Environmental Law

• Extended Anthropocentrism
• For future generations
• Intergenerational Equity
• balance based on fairness must be struck between our own interests and those of our
descendants
• Sustainable Development
• we must meet our needs without compromising the ability of future generations to meet
their own needs

Essential principles of Environmental Law

 Week 1
Introduction to Environmental Law

• Non-Anthropocentric
• Animal Welfare
• Content of human rights includes, as a minimum, a right to life
• Based on the possession of inherent value; and in order to have inherent value one must be the 'subject
of a life’

‘To be a subject of a life is to have: 'beliefs and desires; perception, memory, and a sense of
the future including their own future; an emotional life together with feelings of pleasure and
pain; preferences and welfare interests; the ability to initiate action in pursuit of their desires
and goals; a psychophysical identity over time; and an individual welfare in the sense that
their experiential life fares well or ill for them, independently of their utility for others.'
 Week 1
Introduction to Environmental Law

• Biocentricism
• One of the earliest 'whole nature' ethics is that of Nobel Prize winner, Albert
Schweitzer (1875-1965)
• This ethic remains individualistic but extends to all living things
• Ethical thought and action was encapsulated in the attitude of 'reverence for
life’
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Introduction to Environmental Law

Biocentricism
• Paul Taylor adds a normative argument - 'species egalitarianism’
• Duties towards all natural organisms
(i) the duty of 'non-maleficence' (a duty not to do harm to any entity in the natural environment which has a
good of its own)
(ii) the duty of non-interference( a 'hands-off policy in relation to biotic communities)
(iii) the duty of fidelity (a duty not to deceive for example by trapping or to break trust that a wild animal has had
to place in us in a situation of our making)
(iv) the principle of 'restitutive justice' (a duty to compensate a moral subject where the subject has been
wronged by the moral agent)
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Introduction to Environmental Law

• Aesthetic Approach
• the aesthetic value of natural objects lies in the fact that they are natural

• Eco-centric/Holistic perspectives
• all life is interdependent and that human beings are parts of a wider whole
• Land Ethic
• 'a thing is right when it tends to preserve the integrity, stability, and beauty of the biotic
community. It is wrong when it tends otherwise’ (Aldo Leopold)
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Introduction to Environmental Law

• Deep Ecology
• to synthesize the anthropocentric and ecocentric viewpoints by telling us to re-orientate how
we perceive nature and to cultivate a mental 'state of being' in harmony with nature which
should lead to an environmentally friendly lifestyle

Justifying eco-centricism
• Animal Welfare Board of India v. A. Nagaraja & Ors, (2014) 7 SCC 547
• Jallikattu banned
• Animal Welfare Board of India and Others v. Union of India & Other, (2023) 9 SCC 322
• Jallikattu upheld
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Introduction to Environmental Law

• 1972 report commissioned by the Club of Rome, titled Limits to Growth

• rapid growth in global population, energy use, resource depletion and food
production could not be sustained indefinitely and would eventually confront
the earth’s biophysical limits
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Introduction to Environmental Law

Framing of Environmental Rights

Rights of Nature
• 2008 Ecuador first country to include in its Constitution specific recognition of inalienable
rights of nature, granting ‘the right to integral respect for [Nature’s] existence and for the
maintenance and regeneration of its life cycles, structure, functions and evolutionary
processes’.
• Several countries have followed suit – New Zealand, Bolivia
• 2017 – India granting certain rivers and glaciers the same legal rights as humans
• Mohd. Salim v. State of Uttarakhand & Ors, 2017 SCC OnLine SC 291
• Remains underdeveloped and contested
 Week 1
Introduction to Environmental Law

Framing of Environmental Rights

Human Rights to the Environment
• Preamble to the 1972 Stockholm Declaration on the Human Environment, of man as ‘both
creature and moulder of his environment’. Here the environment is described as being
‘essential … to the enjoyment of basic human rights—even the right to life itself’ and its
protection and improvement, which is a ‘major issue affecting the wellbeing of all’, has
become an ‘imperative goal for mankind’.
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Introduction to Environmental Law

Framing of Environmental Rights

Autonomous Human Right to the Environment

• Principle 1 of the Stockholm Declaration, which recognised that ‘Man has the fundamental
right to freedom, equality and adequate conditions of life, in an environment of a quality
that permits a life of dignity and well-being, and he bears a solemn responsibility to
protect and improve the environment for present and future generations’.
• First acknowledgment at the global level of the concept of environmental rights, with
environmental quality being seen as a prerequisite for achieving ‘adequate conditions of
life’.
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Introduction to Environmental Law

Framing of Environmental Rights

• Principle 1 of the Rio Declaration merely articulates a strongly anthropocentric rationale

for environmental protection and sustainable development pronouncing that ‘Human
beings are at the centre of concerns for sustainable development’ and that they ‘are
entitled to a healthy and productive life in harmony with nature’.

• African Charter – Article 24

• Additional Protocol to the American Convention – Article 11
• EU Charter – Article 37
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Introduction to Environmental Law

Framing of Environmental Rights

• As Existing Human Rights

• Greening of human rights
• 2015 report of the UN Human Rights Council’s Special Rapporteur on the issue of
human rights obligations relating to the enjoyment of a safe, clean, healthy and
sustainable environment notes ‘a growing level of consensus about how human rights
norms apply to environmental issue’ and ‘agreement that environmental degradation
can and does interfere with the enjoyment of wide range of human rights’
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Introduction to Environmental Law

Framing of Environmental Rights

• As Participatory Rights
• Principle 10 of the Rio Declaration, which states that ‘environmental issues
are best handled with the participation of all concerned citizens’.
• Aarhus Convention of 1998
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Introduction to Environmental Law

Framing of Environmental Rights

• As Participatory Rights
• Principle 10 of the Rio Declaration, which states that ‘environmental issues are best
handled with the participation of all concerned citizens’.
• Look at Aarhus Convention of 1998
• “procedural environmental justice is a means for promoting distributive environmental
justice”
• Alternatives to the principle of equality have been proposed in recent discussions of
procedural environmental justice
• Two alternative principles – proportionality* and plurality**
 Week 1
Introduction to Environmental Law

Framing of Environmental Rights

• As generational Rights
• First – Civil and Political Rights
• Second – Economic, Social and Cultural Rights
• Third – Collective or Solidarity Rights
 Week 1
Introduction to Environmental Law

• Questions of Environmental Justice

• Procedural Fairness – already explained
• Intersectionality*
• Seventeen “Principles of Environmental Justice”
(https://www.ejnet.org/ej/principles.html)
• Adopted at the First National People of Color Environmental Leadership Summit Washington,
DC, 24 - 27 October 1991
• How race affects access to justice
• Indian context – the Dalit lens
• How caste affects access to justice
 Week 1
Introduction to Environmental Law
• Indian context – the Dalit lens
• How caste affects access to justice
• Most Dalit movements have not seriously tried to conceptually
intersect the cause of Dalits with environment, in the way Black
people and other people of color have.
• Some of the fundamental themes of environmental and social justice
—Dalits’ access, ownership, rights, and participation in land, water,
forests, and commons—have appeared frequently in these
movements.
 Week 1
Introduction to Environmental Law
• Indian context – the Dalit lens
• How caste affects access to justice
• Issues of land reform/distribution, caste segregation, discrimination and atrocities in Dalit villages,
unequal access to water, forests, commons, and housing, and spatial dimensions of Dalit subjugation,
and a minimum of environmental health and occupational safety have appeared frequently in Dalit
agendas.
• Dalit livelihood issues and rights in the context of conservation, pollution, extraction of raw materials,
alterations of ecosystems, environmental degradation, resource pricing and marketing, impact of
climate change, and the making of environmental policy have been prominent in the past two decades.
• Dalit estrangement goes much deeper and their detachment from mainstream environmental
movements continues, in spite of increased access and participation in the recent past.
• An understanding is required of the existential, experiential, spatial, and cultural blinders, such as soil, water, air,
touch, taste, smell, and space, which carry distributional and participatory software to build Dalit environmental
justice and ecology.
• Brings to the fore the pluralizing scope and meaning of justice theory vis-à-vis caste issues