Env_ Law Project.docx

INTRODUCTION Environment is the wellspring of life on earth like water, air, soil, etc., and determines the presence, development and improvement of humanity and all its activities. The concept of ecological protection and preservation is not new. It has been intrinsic to many ancient civilizations. Ancient India texts highlights that it is the dharma of each individual in the society to protect nature and the term ‘nature’ includes land, water, trees and animals which are of great importance to us. . In the ‘Atharva Veda’, the ancient Hindu Scepters stated “What of thee I dig out let that quickly grow over”. [i] At the same time, new innovations like, thermal power, atomic plant and so on without any sufficient natural assurance pose another danger to the situations, the aftereffect of which results in issues like global warming, climate change, acid rain, etc. Moreover, according to pattern of Indian legislature to make a number of legislations as opposed to addressing the reason for failure and disappointment, and passing new bills consistently is just like ‘old wine in new bottle’. Therefore, there arises a requirement for a comprehensive analysis of the protection of the environment. In recent years, there has been a sustained focus on the role played by the higher judiciary in devising and monitoring the implementation of measures for pollution control, conservation of forests and wildlife protection. Many of these judicial interventions have been triggered by the persistent incoherence in policy-making as well as the lack of capacity-building amongst the executive agencies. Devices such as Public Interest Litigation (PIL) have been prominently relied upon to tackle environmental problems, and this approach has its supporters as well as critics[ii]. MEANING OF ENVIRONMENT The word “environment” relates to surroundings. It includes virtually everything. It can be can defined as anything which may be treated as covering the physical surroundings that are common to all of us, including air, space, land, water, plants and wildlife[iii]. According to the Webster Dictionary, it is defined as the “Aggregate of all the external condition and influences affecting the life and development of an organism.[iv]” The Environment (Protection) Act, 1986 Section 2(a) environment “includes water, air and land and the inter- relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property[v].” Thus, after analyzing all the above definitions, the basic idea that can be concluded is that environment means the surroundings in which we live and is essential for our life. NEED FOR ENVIRONMENTAL LAWS Today we are living in nuclear arena. No one can overlook the harm caused to the environment by the nuclear bombs, dropped by airplanes belonging to the United States on the Japanese urban communities of Hiroshima and Nagasaki amid the last phases of World War II in 1945. Day to day innovation and advancement of technology, apart from development additionally expands the risk to human life. Accordingly, there arises an intense and an acute need of the law to keep pace with the need of the society along with individuals.

So now the question of environmental protection is a matter of worldwide concern, it is not confined to any country or territory. EMERGING PRINCIPLES OF ENVIRONMENT LAW AT INTERNATIONAL LEVEL Environmental law has developed in response to emerging awareness of and concern over issues impacting the entire world. While laws have developed piecemeal and for a variety of reasons, some effort has gone into identifying key concepts and guiding principles common to environmental law as a whole. The principles discussed below are not an exhaustive list and are not universally recognized or accepted. Nonetheless, they represent important principles for the understanding of environmental law around the world. The principles are1. Precautionary Principle 2. Polluter Pays Principle 3. Sustainable Developement 4. Doctrine of Public Trust 5. Hazardous Substances Absolute Liability 6. Principle of New Burden of Proof 7. Principle of Inter-Generational Equity In this project work, Precautionary Principle and Polluter Pays principle are dealt with. DEVELOPMENT OF ENVIRONMENTAL LAW PRINCIPLES IN INDIA The Court has successfully isolated specific environmental law principles upon the interpretation of Indian statutes and the Constitution, combined with a liberal view towards ensuring social justice and the protection of human rights. The principles have often found reflection in the Constitution in some form, and are usually justified even when not explicitly mentioned in the concerned statute. There have also been occasions when the judiciary has prioritized the environment over development, when the situation demanded an immediate and specific policy structure.

PRECAUTINARY PRINCIPLE INTRODUCTION The precautionary principle states that if there is risk of severe damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-sorry approach, in contrast with the traditional reactive wait-and-see approach to environmental protection. When there is uncertainty regarding the impacts of an activity, the precautionary principle advocates action to anticipate and avert environmental harm. Article 3 of the UN Framework Convention on Climate Change was just one in a long list of international agreements that contained the precautionary principle, making it one of the most popular legal concepts in international environmental law today. Whereas traditional regulatory practices are reactive, precautionary measures are preventive and pre-emptive. In its simplest form, the precautionary principle (also known as PP) provides that if there is a risk of severe damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-thansorry approach, in contrast with the traditional reactive wait-and-see approach to environmental protection. Often available scientific evidence provides us cause for concern but does not give conclusive information. In such scenarios, risk assessment compels us to strike a balance between the need to protect health and environment on one hand and the foregone advantages of strict restrictions that may turn out to be unwarranted. It is in this context the role for precautionary principle (PP) emerges. While deciding the need and timing of the application of the PP, it is important to clearly understand the principle and its consequences. ORIGIN OF THE PRECAUTIONARY PRINCIPLE In his address to the Parliamentary Earth Summit of the UN Conference on Environment and Development, the Dalai Lama of Tibet noted that “in the seventeenth century, Tibetan leadership began enacting decrees to protect the environment and so we may have been one of the first nations to enforce environmental regulations” The Theravada scriptures of Buddhism provide the earliest written sources which could accommodate the concept of precaution. Theravada teaches not to commit harm, the Buddha urging his followers to refrain from ‘unwholesome action’ and monks prohibited from ‘injuring plants and seeds’. Undeniably, the origin of the concept of precaution may well be found in the history of civilization. In the early stage of civilization, humans had a holistic attitude towards nature which was regarded with sacred veneration. Nature was revered as the provider of life and therefore exploitation of its generosity was considered unethical. Subsequently, nature’s mystery was unravelled by the teachings of monotheistic religions and corresponding developments in science. This elevated the status of humans above the environment. The regard to human life became primordial and gave humans the right to exploit nature without ethical limitation. The struggle to survive and protect human health led to the early use of the concept of precaution. It has been suggested that the earliest formulation of the precautionary principle in contemporary public policy can be traced in the early 1950s under the guise of what was then

called “safe minimum standard of conservation.” Major environmental issues of the 1960s– the case of DDT (dichloro diphenyl trichloroethane) — led environmentalists and policy makers to rethink their approach to specifically address uncertainties. This paved the way in the 1970s for the establishment of the precautionary principle as a reaction to “the limitations of public policies based on a notion of ‘assimilative capacity,’ i.e. that humans and the environment can tolerate a certain amount of contamination or disturbance, and that this amount can be calculated and controlled”. In the mid-1970s, West Germany’s legislature enacted a national environmental policy which provided for precautionary approach to environmental protection. Termed as Vorsorgeprinzip, the precautionary principle is considered to be the most important principle of German environmental policy. CONCEPT AND DEFINITION The term ‘precautionary principle’ had its origin in the German word Vorsorgeprinzip. An alternative translation of this word would mean ‘foresight principle’ – which could have given an active and positive impression, as against the reactive and perhaps negative connotation attached with precaution. Though the principle had its roots in the German environmental policy, it has entered the centre-stage of the global environmental policy in the past two-and-half decades with several global environmental treaties invoking the PP for decision making. In simple terms, the PP conveys the common-sense based advice – to err on the side of caution. The principle intends to prevent harm to humans, environment, and ecosystem at large. Before looking at some of the widely used definitions of the PP, it would be helpful to understand the context and rationale. When the impacts of a particular activity – such as emission of hazardous substances – are not completely clear, the general presumption is to let the activities go ahead until the uncertainty is resolved completely. The PP counters such general presumptions. When there is uncertainty regarding the impacts of an activity, the PP advocates action to anticipate and avert environmental harm. Thus, the PP favours monitoring, preventing and/or mitigating uncertain potential threats. There two widely referred definitions of the PP – the first one, The Rio Declaration (or Agenda 21) of 1992, states that: “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 costeffective measures to prevent environmental degradation.” This definition given primarily with environmental issues in focus is also extended to cover health issues. The second definition is based on 1998 Wingspread Statement on the Precautionary Principle and it states: “When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. The process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties. It must also involve an

examination of the full range of alternatives, including no action. In this context the proponent of an activity, rather than the public, should bear the burden of proof.” It is interesting to note the differences between the two definitions. The first one stresses on ‘serious or irreversible damage’, whereas the second one states that precaution is relevant to ‘harm’ in general. Thus the second definition is typical of the way in which the precautionary principle is used by environmental advocacy groups. Some of the other key features of the definition worth noting include: 

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Lack of full scientific certainty shall not be used as a reason for postponing: Though scientific uncertainty may not be used for any delay in action, this leaves scope for citing reasons such as poverty reduction priorities for postponing the actions. Cost effective measures: Though scientific uncertainty about the likely impacts prevails, stress on cost-effectiveness compels assessment (however accurate they may be) of costs of proposed actions and compare it with possible alternatives. Applied by states according to their capabilities: The capabilities of states, including economic and technical capabilities, could guide the final adoption of the precautionary principle.

It is worth noting the way the burden of proof is treated in these definitions. When an activity is likely to cause harm to the environment and/or humans, the conventional practice is that the opponents of the activity have to provide the proof of the harmful effects caused by the activity. The precautionary principle, on the other hand, shifts the burden of proof to the proponents of the activity – i.e., the proponents have to establish that the proposed activity will not cause any harm to the environment and/or human-beings. Further, it is also argued that since scientific uncertainty is inherent in the environmental problems for which the PP is typically applied, the decision making process based on the PP may become more inclusive, participatory and democratic. PRECAUTIONARY PRINCIPLE IN INTERNATIONAL INSTRUMENTS The precautionary principle appeared at the international level in the mid 1980s. The principle was first formally acknowledged internationally in the Preamble to the 1985 Vienna Convention for the Protection of the Ozone Layer, in which the Parties acknowledged the ‘precautionary measures’ which had already been undertaken at both the national and international levels in relation to the protection of the ozone layer. Building on this recognition, in 1987, the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer agreed to take ‘precautionary measures’ to control global emissions of ozone depleting substances and noted the ‘precautionary measures’ already undertaken at national and regional levels in relation to the emission of chlorofluorocarbons. The need for a ‘precautionary approach’ was also recognised in the sequence of conferences on the North Sea. In the Second North Sea Conference Ministerial Declaration (the London Declaration) in 1987, the principle was referred to three times: “In in order to protect the North Sea from possibly damaging effects of the most dangerous substances, a precautionary approach is necessary which may require action to control inputs of such substances even before a causal link has been established by absolutely clear scientific evidence; By combining approaches based on emission standards and environmental quality objectives, a more precautionary approach to dangerous substances will be established; The parties therefore agree to accept the principle of safeguarding the

marine ecosystem of the North Sea by reduction polluting emissions of substances that are persistent, toxic and liable to bio accumulate at source by the use of the best available technology and other appropriate measures. This applies especially when there is reason to assume that certain damage or harmful effects on the living resources of the sea are likely to be caused by such substances, even where there is no scientific evidence to prove a causal link between emissions and effects (‘the principle of precautionary action’)”. At the Third North Sea Conference in 1990, the participants agreed to: “continue to apply the Precautionary Principle, that is to take action to avoid potentially damaging impacts of substances that are persistent, toxic and liable to bio accumulate even where there is no scientific evidence to prove a causal link between emission and effects”. This process led to the inclusion of the precautionary principle in the Convention on the Protection of the Marine Environment of the North–East Atlantic (the OPSAR Convention) of 1992. In 1990, the Bergen Ministerial Declaration on Sustainable Development in the Economic Commission for Europe Region was the first international instrument to treat the principle as one of general application and linked to sustainable development. The Declaration states: “In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent, and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation”. In 1991, the Convention on the Ban of Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (the Bamako Convention), signed in Bamako on 29 January 1991, required parties to strive to adopt and implement: “the preventative, precautionary approach to pollution problems which entails, inter alia, preventing the release into the environment of substances which may cause harm to humans or the environment without waiting for scientific proof regarding such harm. The parties shall co-operate with each other in taking the appropriate measures to implement the precautionary principle to pollution prevention through the application of clean production methods”. In 1991, the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) resolved that “in order to achieve sustainable development, policies must be based on the precautionary principle”. In 1992, the Parties to the Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes, agreed to be guided by: “The precautionary principle, by virtue of which action to avoid the potential transboundary impact of the release of hazardous substances shall not be postponed on the ground that scientific research has not fully proved a causal link between those substances, on the one hand, and the potential transboundary impact on the other hand”. The four instruments signed at the UNCED (the Earth Summit) in Rio de Janeiro also refer to the precautionary principle. The Rio Declaration states in 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 a reason for postponing costeffective measures to prevent environmental degradation”. The Convention on Biological Diversity recites in the Preamble: “Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimise such a threat”. Article 3(3) of the Framework Convention on Climate Change provides that: “The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures, taking into account that policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost. To achieve this, such policies and measures should take into account different socio- economic contexts, be comprehensive, cover all relevant sources, sinks and reservoirs of greenhouse gases and adaptation, and comprise all economic sectors. Efforts to address climate change may be carried out cooperatively by interested Parties”. Agenda 21 refers to the precautionary principle in a number of contexts. For example, in relation to marine environmental protection, Chapter 17 calls for: “A precautionary and anticipatory rather than a reactive approach is necessary to prevent the degradation of the marine environment. This requires, inter alia, the adoption of precautionary measures, environmental impact assessments, clean production techniques, recycling, waste audits and minimization, construction and/or improvement of sewage treatment facilities, quality management criteria for the proper handling of hazardous substances, and a comprehensive approach to damaging impacts from air, land and water”. In dealing with the protection of the quality and supply of freshwater resources, Chapter 18 of Agenda 21 requires Parties to implement various activities including: “Introduction of the precautionary approach in water-quality management, where appropriate, with a focus on pollution minimization and prevention through use of new technologies, product and process change, pollution reduction at source and effluent reuse, recycling and recovery, treatment and environmentally safe disposal”. In the context of science and sustainable development, Chapter 35 of Agenda 21 states: “In the face of threats of irreversible environmental damage, lack of full scientific understanding should not be an excuse for postponing actions which are justified in their own right. The precautionary approach could provide a basis for policies relating to complex systems that are not yet fully understood and whose consequences of disturbances cannot yet be predicted”.

Many other conventions have subsequently committed their Parties to apply the precautionary principle. Most importantly, 1992 paved the way for the convergence of the precautionary principle and the climate change issue in international law. At Rio de Janeiro, the world acknowledged the precautionary principle at the level of international law when it adopted the United Nations Framework Convention on Climate Change. Article 3 of the Climate Change Convention partly provides that: “The parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversi.ble damage, lack of full scientific research should not be used as a reason for postponing such measures, taking into account the policies and measures to deal with climate change should be cost-effective so as to ensure global benefits at the lowest possible cost.” A reference to the afore quoted article was provided in the Preamble of the 1997 Kyoto Protocol and worded as follows, “Being guided by Article 3 of the Convention”. The precautionary principle is thus a norm that parties to the UNFCCC have endorsed. Contested by some environmentalist and political analysts for being a weak precautionary formulation, legal positivists argue that law is law and its merits has to be interpreted without going beyond the wordings of the pertinent international agreement.

PRECAUTIONARY PRINCIPLE IN INDIAN LAW AND ROLE OF JUDICIARY The Indian courts have particularly embraced the precautionary principle. In Vellore Citizens Welfare Forum v. Union of India, the petitioners filed a petition in the public interest under Article 32 of the Constitution of India, directed against the pollution caused by enormous discharge of untreated effluent by the tanneries and other industries in the State of Tamil Nadu. The Supreme Court of India noted that: “though the leather industry is of vital importance to the country as it generates foreign exchange and provides employment avenues it has no right to destroy the ecology, degrade the environment and pose as a health hazard”. The Court recognised that a balance must be struck between the economy and the environment: “The traditional concept that development and ecology are opposed to each other, is no longer acceptable; ‘Sustainable Development’ is the answer”. It reviewed the development of the concept of sustainable development in the international sphere, from the Stockholm Declaration of 1972, Our Common Future in 1987 and Caring for the Earth in 1991, to the Earth Summit and the Rio Declaration in 1992. It went on to state: “Some of the salient principles of ‘Sustainable Development’ as culled out from the Brundtland Report and other international documents are Intergenerational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays, principle, Obligation to assist and co-operate, Eradication of Poverty and

Financial Assistance to the developing countries. We are, however, of the view that ‘The Precautionary Principle’ and ‘The Polluter Pays’ principle are essential features of ‘Sustainable Development’. The ‘Precautionary Principle’ in the context of the municipal law means:  

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Environmental measures – by the State Government and the 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 the developer/industrialist to show that his action is environmentally benign”.

The Supreme Court held that “the precautionary principle and the polluter pays principle are part of the environmental law of the country”. In M.C Mehta v. Kamal Nath, the Supreme Court of India affirmed the decision in Vellore Citizens’ Welfare Forum v Union on India[l] upholding the precautionary principle as part of the environmental law of India. In AP Pollution Control Board v. Prof. M V Nayudu, the Supreme Court comprehensively reviewed the precautionary principle. An application was submitted by a company to the Pollution Control Board for permission to set up an industry for production on “BSS Castor Oil Derivatives”. Although a letter of intent had later been received by the company, the Pollution Control Board did not give its no objection certificate to the location of the industry on the site proposed by it. The Pollution Control Board, while rejecting the application for consent, inter alia, stated that the factory fell under the red category of polluting industry and it would not be desirable to locate such an industry in the catchment area of Himayat Sagar, a lake in Andhra Pradesh. The appeal filed by the company against the decision of the Pollution Control Board was accepted by the appellate authority. A writ petition was filed in the nature of public interest litigation and also by the Gram Panchayat challenging the order of the appellate authority but the writ petition was dismissed by the High Court. On the other hand, the writ petition filed by the company was allowed and the High Court directed the Pollution Board to grant consent subject to such conditions as may be imposed by it. The decision of the High Court was the subject matter of challenge in the Supreme Court of India. The Supreme Court referred to the difficulty courts face in dealing with highly technological or scientific data. The Court noted that uncertainty in science in the environmental context has led international conferences to formulate new legal theories and rules of evidence. One of these is the precautionary principle. The Supreme Court discussed the earlier decision in Vellore Citizens Welfare Forum v Union of India where it was held that the precautionary principle, and the shifting of the burden of proof onto the developer or industrialist who is proposing to alter the status quo, are part of the environmental law of the country. They found it “necessary to explain the meaning of the principles in more detail, so that courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them”. The Court reviewed the development of the precautionary principle at international level, including reference to Principle 15 of the Rio Declaration. The Court identified inadequacies of science as the real basis that has led to the precautionary principle. The precautionary

principle is “based on the theory that it is better to err on the side of caution and prevent environmental harm which may become irreversible”. It was observed: “The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it, or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, prosperity and economic interest, but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger, but also by (justified) concern or risk potential”. The Court next elaborated on the burden of proof referred to in the Vellore case and stated: “It is to be noticed that while the inadequacies of science have led to the ‘precautionary principle’, the said ‘precautionary principle’ in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, is placed on those who want to change the status quo reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to preserve the status quo. This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof, and the party who wants to alter it must bear this burden. The Precautionary Principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.”. In Narmada Bachao Andolan v. Union of India, the Court was called upon to decide various legal questions arising from the Sardar Sarovar Project involving the construction of a dam on the Narmada River. An environmental clearance had been given for the project. At the time it was granted there was no obligation to obtain any statutory clearance and hence the environmental clearance granted was essentially administrative in character. Nevertheless, the environmental clearance was challenged. It was alleged the necessary particulars in regard to the environmental impact of the Project were not available when the environmental clearance was given and it therefore could not have been given[lxi]. It was further alleged that the execution of the Project, having diverse and far reaching environmental impact, without proper study and understanding of the environmental impacts and without proper planning of mitigative measures, was a violation of fundamental rights of life of the affected people guaranteed under Article 21 of the Constitution of India. In the course of judgment, the majority noted the submission of the petitioners that “in cases pertaining to the environment, the onus of proof is on the person who wants to change the status quo and, therefore, it is for the respondents to satisfy the Court that there will be no environmental degradation”. The majority dealt with this argument of shifting of the burden of proof and the precautionary principle stating: “It appears to us that the ‘precautionary principle’ and the corresponding burden of proof on the person who wants to change the status quo will ordinarily apply in a case of polluting or

other project or industry where the extent of damage likely to be inflicted is not known. When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution. On the other hand where the effect on ecology of environment of setting up of an industry is known, what has to be seen is that if the environment is likely to suffer, then what mitigative steps can be taken to set off the same. Merely because there will be a change is no reason to presume that there will be ecological disaster. It is when the effect of the project is known then the principle of sustainable development would come into play which will ensure that mitigative steps are and can be taken to preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation”. UNADDRESSED ISSUES Despite widespread endorsement of precaution as a strategy in many (but not all) cases, there is no single agreed statement or understanding of PP as a Principle. Nor is it clear whether the PP is meant to be an aspirational principle or a binding rule. If it is an aspirational principle, then it can more easily be vague and ambiguous but will be of little help in making difficulty choices. If it is binding regulatory rule, then it must be more concrete but will be more arbitrary. It is neither well defined nor a stable concept. Rather, it has become the repository for a jumble of adventurous beliefs that challenge the status quo of political power, ideology and environmental rights. Versions of PP diverge on several key issues: 

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Is the PP part of mainstream process of risk assessment and risk management or is it an alternative? The view that PP is inconsistent with and an alternative to, the traditional risk assessment/risk management framework is held by both advocate (who dislike the risk-based approach and see PP as a desirable alternative) and critics (who favour the risk-based approach and see PP as undesirable). In contrast, the European Commission takes the view PP is a part of risk management. Similarly, the San Francisco version of PP calls for an analysis of alternatives and their consequences. And many see the PP already at work in traditional risk assessment through the adoption of conservative default assumptions and methods for calculating risks. Does the PP apply only to the environment or more broadly to all health and environmental risks? The Rio Declaration (paragraph 15) addresses only environment. But the European Commission, the Court of Justice of European Commonwealth, the WTO, and other bodies have considered the PP to be equally relevant to health, food and consumer safety risks. What degree of risks triggers the PP? Some versions refer to uncertain, serious or irreversible risks (for example, the Rio Declaration) but some versions omit these trigger criteria. What action should be taken under the PP? Most versions give no real guidance, simply stating what that action should be. Other versions call for a ban on the proposed product or activity until certainty is reduced to some degree, usually by shifting the burden of proof unto the proponent of the product or activity. Some versions call for adoption of best available control technology, but others do not.

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May costs be considered? Some versions exclude cost and many analyst pose the PP in opposition to cost0benefit analysis. But the Rio Declaration (principle 15) refers to ‘cost-effective’ measures and the European Commission maintains that precautionary regulation must be based on an analysis of costs and benefits. Does PP require zero risk? Most versions do not and the European Commission explicitly states that the PP ‘must not aim at zero risk’, but some versions lean toward banning activities posing any uncertain risk. For example, ‘where potential adverse effects are not fully understood, the activities should not proceed’. Risks are never fully understood, so this version would amount to a ban. Is there a difference between ‘precaution’ and ‘prevention’? Early version used the terms interchangeably. For example, the Bergen Declaration (1990, Paragraph 7) provided that the PP requires states to ‘anticipate, prevent and attack’ risks. By contrast European Environment Agency has argued that precaution applies to the ‘uncertain’ risks whereas prevention applies to ‘known’ risks. It is not clear, however, what is meant by ‘known’ risk. Either there is no such thing (because all risks are uncertain), in case prevention is an empty set and the PP applies to all risks, or there are many ‘known’ risks (in the sense of well-understood cause and effect relationships) in which case the PP is only about risks for which there fundamental uncertainty about the cause-and-effect or hazard-and-harm relationship and the PP applies only to those few rare and temporary cases of utter misery that later become understood as scientific advances.

CONCLUSION It is clear that the law on sustainable development is gaining momentum at local, national, regional, and international levels. While the four fundamental elements of sustainable development – the precautionary principle, intergenerational and intra generational equity, the conservation of biological diversity and ecological integrity, and the internalisation of environmental costs – have been much discussed and promulgated in various international and national legal contexts, there is still a long way to go in terms of their implementation. The role of the judiciary in relation to the law of sustainable development is thus of the greatest important. As an offshoot of the judicial recognition the National Environmental Policy adopted precautionary principle as a guiding principle. However, it is still a long way to go before the PP takes its rightful place in Indian environmental laws and even more importantly gets effectively implemented.

POLLUTER PAYS PRINCIPLE INTRODUCTION The polluter pays principle is an extension of the principle of absolute liability. The principle of absolute liability is invoked regardless of whether or not the person took reasonable care and it makes him liable to compensate those who suffered on account of his inherently dangerous activity. The polluter pays principle extends the liability of the polluter to the costs of repairing the damage to the environment. The polluter pays principle broadens the ambit of the principle of absolute liability.The importance of this principle is that the damage to the environment may be remedied and this is extremely essential to sustainable development. "The polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. Despite the potential that the polluter pays principle holds to protect the environment, it was not a part of the law in India till it was invoked in the EnviroLegal Action case as late as 1996. In this case the court affirmed the principle of absolute liability as stated in the Oleum Gas Leak case and extended it. The court laid down, "The polluter pays principle demands that the financial costs of preventing or rcmedying the damage caused by pollution should lie in the undertakings which cause the pollution or produce the goods that cause the pollution." The judgement of the above case on thc polluter pays principle and the justification for invoking it was reaffinned by another Bench in 1996, in the case of Vel/ore Citizens Welfare Forum v. Union of India. In these cases the use ofthe polluter pays principle has been justified via the constitutional mandate, statutory provisions and international customary law. HISTORICAL EVOLUTION OF THE POLLUTER PAYS PRINCIPLE The first major reference to the PPP appeared 1972 in the OECD Guiding Principles Concerning International Economic Aspects of Environmental Policies ( henceforth called OECD Guiding Principles). The PPP as a guiding principle across countries became necessary because some countries faced complaints by national firms about rising costs and a loss of international competitiveness following a national implementation of the PPP within their borders. The OECD Guiding Principles define the PPP as an instrument for “ allocating costs of pollution prevention and control measures”. The polluter should bear these costs in order to achieve and maintain an “ acceptable state of environment” which is determined by the public authorities. The OECD Guiding Principles also states that PPP should “ not be accompanied by the subsidies that would create significant distortions in international trade and investment”. This weak or standard definition of the PPP neither requires polluter to bear the costs of accidental damages, nor fo they have to pay for residual pollution. The range of costs to be borne by the polluter has expanded over time. In 1989, the OECD suggested extending the PPP in order to cover the costs of accident prevention and to internalise the environmental costs caused by accidents. In 2001, the OECD Joint Working Party on Agriculture and Environment stated that according to the PPP “ the polluter sould be held responsible for environmental damage caused and bear the expenses of carrying out pollution prevention measures or paying for damaging the state of the environment where the consumptive or productive activities causing the environmental damage are not covered by property rights”. This version of the PPP is referred to as the extended or strong PPP in the literature. Only one year later, the European Community followed the example of the OECD Principles from 1972 by adopting the first Environment Action Programme (EAP). Since 1990, when the International Convention on Oil Pollution Preparedness, Response and Co-operation was agreed upon by the International Maritime Organization (IMO), the PPP has been

acknowledged as a” general principle of international environmental law”. In 1992, the Rio Declaration (UNCED) included the PPP in Principle 16-“ National authorities should endeavour to promote the internalisation 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 public interest and without distorting international trade and investment.”

POLLUTER PAYS PRINCIPLE IN INDIA AND ROLE OF JUDICIARY However, it is introduced to the Indian environmental law through the Supreme Court only, in the case of Indian Council for Enviro-legal Action v. Union of India , the Court said that for whatever the damage or loss happened by the hazardous substances of an industry, it is responsible to make good the loss caused. The Court observed that Sections 3 and 5 of the Environment Protection Act empowered the Central Government to give directions and take measures for giving effect to this principle. Further in M.C. Mehta v. Kamal Nath case, the Court said that the polluter is responsible for compensating and repairing the damage caused by his act. Despite its deterrent impact on potential polluters, the doctrine is limited in the sense that it can be applied as remedial stage, after pollution has taken place. In Deepak Nitrite Limited v. State of Gujarat case, the Supreme Court again made it clear that the compensation should have broad correlation with the harm caused by the polluting industry. It means the word ‘compensation’ is equivalent to what was lost. In Vellore Citizen’s Welfare Forum v. Union of India case, the Supreme Court had declared that the polluter pays principle is an essential feature of sustainable development. It means that absolute liability for harm to the environment extents not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. As customary International law has been accepted as part of the law of the land, polluter pays principle has become part of the law of the land. Hence, the court directed the Central government to constitute an authority, and accordingly ‘Loss of Ecology Authority’ was constituted to assess the damage caused by the tanneries. Whatever the fine collected from the tanneries had to be deposited under a separate head called “Environment Protection Fund” to utilize for the compensation purpose. In Ramji Patel v, Upbhokta Marg Darshak Manch case, the Supreme Court held that awarding damages is in consonance wit the “Polluter Pays Principle” i.e. the polluter is under an obligation to make good the damage caused to the environment. Apart from the judiciary, the Parliament enacted the Public Liability Insurance Act, 1991, under which all industries having a capital value of rupees two lakhs to get insured is mandatory and the National Environment Tribunal Act, 1995 enacted incorporates this principle. FLAWS IN POLLUTER POLLUTER PAYS It is true that polluter pays principle has a positive effect to reduce pollution. The principle seems quite relevant for pollution that occurs during industrial activity, although it remains inefficient in the case of historical poolution. Most developing countries, however, have not yet subscribed to the PPP as a main environmental policy guideline. As Rege (1994) points out, this is due to adverse economic conditions. Legal theorists discovered few loopholes of this rule. The flaws are as follows1. Firstly, ambiguity still exists in determining ‘who is polluter’. In legal terminology, a ‘polluter’ is someone who directly or indirectly damages the environment or who creates conditions relating to such dmage. Clearly, this definition is so broad as to be unsupportive in many situations. 2. Secondly, a large number of poor households, informal sector firms, and subsistence farmers cannot bear any additional charges for energy or for waste disposal.

3. Thirdly, small and medium-size firms from the formal sector, which mainly serve the home market, finds it difficult to pass on higher costs to the domestic end-users of their products. 4. Fourthly, exporters in developing countries usually cannot shift the burden of cost internalisation to foreign customers due to elastic demand. 5. Lastly, many environmental problems in developing countries are caused by an overexploitation of common pool resources. Access to these common pool resource (in line with the PPP) could be limited in some cases through assigning private property rights, however, this solution could lead to severe distributional conflicts. All of these problems make it difficult to implement the PPP as a guideline for environmental policy in developing countries. Despite the fact that Polluter Pays Principle was publicized by early conservationists as a means to reduce ecological pollution, still many consider it as a ‘vague idea’. Some put forward their argument that under this principle a polluter fulfils his obligation when he pays at least some of administrative expenses of the agencies who regulate pollution activities. ‘Exxon Valdez’ case is the best example of this criterion of Polluter Pays Principle. Others argue that it can only be satisfied by polluters when they will pay the total destruction cost. And the rest support the view that tax( like ‘Carbon Taxes’) should be legitimised on the users of the natural resources that cause atmospheric hazards. CONCLUSION It is good that India that imbibed the Polluter Pays Principle (PPP) in their Law of Land. And, it also had actually helped in imposing damages on the polluter but still the problem with this principle is that it has not been implemented properly. If we look at the exemplary damages granted to span motels does not serve the purpose of the exemplary damges. Ten lakhs rupees is nothing for big corporations like span motels. For them at least ten Crore rupees exemplary damages should be given. And again if we look at the penality imposed in the Vellore Citizens case, then it just shocks me that how 10,000 rupees can justify the pollution spread by the tanneries in the nearby areas. The Author personally feels that this is not an effective way of fund raising. We should reconsider the criteria laid to decide the compensation amount. At least it should deter the polluters from spreading pollution. This principle needs a strict interpretation from our judiciary with immediate effect and we just can’t afford any sort of delay in its proper implementation in developing country like India.