Environment Law

Monday - January 18, 2021 (Ms. Pallavi Mishra) Synchronous

What is Sustainable Development?

Principles of Sustainable Development
Case Laws (India - Kinkeri Devi v. State of Himachal Pradesh 1967 (not mentioned in the PPT))
Stockholm Declaration, 1972 - Magna Carta of Environment Law
Rio Conference 27 principles
Brundtland Commission

Monday - January 18, 2021 (Ms. Pallavi Mishra) Asynchronous

Sustainable Development

Sustainability - (In general) - maintaining a certain state

(In ecology) - maintaining a an ecosystem, biodiversity, natural resources, etc for a longer period of time.

Development must be with environment protection.

The term was first coined in 1980 in World Conservation Strategy of IUCN.

It again came in the World Commission on Environment and Development (WCED) aka Brundtland Commission. It gave the
report - Our Common Future; and placed the sustainable development on an international agenda for the first time. It said that
Human Development depends upon elevating sustainable development to a global ethic. It set out the definition of ‘sustainable
development’. Norwegian PM G.H. Brundtland (also the director of WHO at that time) gave the definition.

Inspired by this report, United Nations Conference on Environment and Development was held in June 1992.
Principle 27 highlighted the States Commitment to the further development of the international law in the field of sustainable
development.

As per Brundtland Commission Report, S.D. means meeting the needs of present generation without compromising the needs of
the future generation. It highlights the fundamental principles of intergenerational and intragenerational equity. It emphasizes
the concepts of needs (needs of the world’s poor should be given overriding priority) and limits (should be in conscience wit the
environment’s ability to meet present and future needs). It also bring light to the fundamental issues - environmental
degradation and economic growth to alleviate poverty.

Sustainable Development has taken 3 dimensions over the years - environmental, social, and ecological. Besides in the
international agreements of S.D., the 4 concepts in the legal context of the S.D. are :-
1. Preserving the natural resources for the future generation (Natural resources are permanent resources of mankind and are
not to be exhausted in 1 generation) : Principle of Inter-generational equity.
2. Exploiting the natural resources in a rational manner : Principle of Sustainable Use
3. Equitable use of natural resources (a state using a natural resource, should keep in mind the needs of other state of same
resource also) : Principle of Intra-generational equity.
4. Consideration of environment has to be given due importance : Principle of Integration

The Stockholm Conference, 1972 aka Magna Carta of Environment. In this conference, FTFT a major effort for the conservation
of environment was taken at an international level. Subsequently, the Rio Declaration gave 27 principles guiding the nations
towards S.D. It created new levels of cooperation among the states, key sectors, society and its people.

In India, in the case of Vellore Citizen Welfare Forum v. UoI (1996) aka Sir Tamil Nadu Tanneries Case, the apex court sumed up
the principles of S.D. They are :-
1. Inter-generational Equity : In the case of State of Himachal Pradesh v. Ganeshwood Products, the SC held that the present
generation has no right to imperil the safety the future generations.
2. Use & Conservation of Natural Resources : Exploitation of natural resources should be in a sustainable manner. The present
generation should be modest and have minimum access to the resources, so the future generation can have the same access to
the natural resources. It was also held in Montreal Proposal in Human General Assembly, 1967.
3. Environmental Protection : It is also reflected in our Environment Protection Act, 1986. It implements the decision of the
Stockholm Conference 1972. Environment Protection and development are complementary to each other. Thus, the
administration has to strike a balance between the two.
4. Precautionary Principle : Principle 15 of Rio Declaration. It says that any activity posing a threat to the environment has to be
prevented from doing so, even if there is no scientific proof that it will likely do so. It should be widely applied by the states to
their capabilities, and wherever there is a threat of damage, lack of scientific proof should not be used as cause of proposing
cost effective measures to prevent environmental degradation.
5. Polluter Pays Principle : The liability of the polluter not only extends to the compensating the victim’s health but also to
restoring the environmental degradation.
6. Principle of Liability to help and co-operate : It also obliges to assist and cooperate. It can be seen in the principle 9, 10, 12, 27
of the Rio Declaration
7. Poverty eradication : The goal of sustainable development can not be achieved with the alleviation of poverty.
8. Principle of ‘Public Trust’.

Judicial Overview
Justice Kuldeep Singh aka Green Judge.
1. Vellore Citizen Welfare Forum v. UoI AIR 1996 SC 2715 - The doctrine of S.D. was implemented.
2. Indian Council of Enviro-Legal Action v. UoI (1996) 5 SCC 281, SC said, while economic development should be allowed to take
place at the cost of ecology by causing widespread environment destruction, and violation, the same time, the necessity to
preserve it lodging environment should not hamper economic or other developers.
3. Narmada Bachao Andolan v. UoI (2000) 10 SCC 664- SC observed that, Development means what kind, what type or extent of
development that can take place which can be sustained by nature or ecology.
4. T.N. Godavaraman Thirumalpad v. UoI (2008) 2 SCC 222, SC said, adherence to the principle of S.D. is a constitutional
requirement.

The apex court has tried to give due importance to both environment and the economic development. Right to healthy
environment is a prt of right to life under art. 21 of the CoI. The court has also emphasized the need of special courts handling
environmental issues for the speedy trial of cases.

Tuesday - January 19, 2021 (Dr. Furqan Ahmad) Synchronous

Evolution of Environment Law

It came under British Raj in India. Stockholm Declaration came a lot later. The religious scriptures of all religions also talk about
protection of environment law.

No fault liability - Ryland v. Fletcher, Bhopal Gas Tragedy,

Deep Pocket Theory
Shri Ram Food Fertilizer - J. Bhagwati

IPC 268 &272

CrPC 133

Thursday, January 21, 2021 (Dr. Furqan Ahmad) Asynchronous

Precautionary Principle

The principle can be found in the Principle 15 of the Rio Declaration, 1972.

In India, it can be seen in art. 21, 48A and 51A(g) of the CoI, 1950.

In the case of Vellore Citizen Welfare Forum v. UoI AIR 1996 SC 2715, Sc observed,
1. State government and statutory authorities must anticipate, prevent and attack the causes of environmental degradation;
2. 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;
3. The 'onus of proof' is on the actor or developer or industrialist to show the actions are environmentally benign.

NGT is a creation of statute. It derives its powers from NGT Act 2010. Precautionary Principle has been given in sec 20 of the Act,
2010.

In M.C. Mehta v Union of India & (1997) 2 SCC 352 (Taj Trapezium case), the Court precluded industries located in the proximity
of Taj Mahal from burning coal for their operations, by applying the precautionary principle. Once again, it acknowledged that
the adverse impacts of coal burning on Taj were "established beyond doubt", i.e., there was no evident scientific uncertainty in
that regard. Regardless, the Court relied on the precautionary principle to support its decision.

Narmada Bachao Andolan v. UoI (2000) 10 SCC 664

Saturday, January 23, 2021 (Ms. Pallavi Mishra) Synchronous

Precautionary Principle

Precaution is better than cure.

History can be traced on the German principle - principle of forsoche (foresight)
United States - Natural Environment Policy Act (NEPA), Clean Water Act, Endangered Species Act

Hospitality Association Case

Principles -
It is the state’s duty to take environment prevent measures as per the economic capabilities.
The steps should be taken to avoid serious measures.
Despite Scientific measurements environment should be protected.

J. Kuldeep Singh Vellore - Green Judge

M. V. Naidu Judgement
State Govt. Prevented pollution of reservoirs that was the source of drinking water of majority people.

Monday, January 25, 2021 (Dr. Furqan Ahmad) Asynchronous

Polluter Pays Principle

It can be found in Principle 16 of the Rio Declaration.

It originated in OCED, 1972. Then it said, that polluters should settle the cost of pollution prevention as mentioned by public
authorities, and that it should be reflected in the final cost of goods.

Judicial Overview
1. In Indian Council for Enviro-Legal Action vs. Union of India 1996(3) SCC 212 The Court held that once the activity carried on is
hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other
person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised
upon the very nature of the activity carried on.
2. In Vellore Citizens' Welfare Forum vs. Union of India 1996(5) SCC 647 The court interpreted the meaning of the polluter pays
principle as the absolute liability for harm to the environment extends not only to compensate the victims of the pollution but
also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of
'Sustainable Development' and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of
reversing the damaged ecology."
3. In The Oleum Gas Leak case (M.C. Mehta vs. Union of India) AIR 1987 SC 1086 The Court laid down that an enterprise engaged
in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in
the factory and to those residing in the surrounding areas, owes an absolute and non-delegable duty to the community to
ensure that no harm results to any one on account of hazardous or inherently dangerous nature of the activity which it has
undertaken. The enterprise is absolutely liable to compensate for such harm and irrespective of all reasonable care taken on his
account. The larger and more prosperous the enterprise, greater must be the amount of the compensation payable for the harm
caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.
4. In M. C. Mehta vs Kama! Nath & Ors (1997)1 SCC 388 The Court held that pollution is a civil wrong and is a tort committed
against the community as a whole. Thus, any person guilty of causing pollution has to pay damages (compensation) for
restoration of the environment and ecology. Under the Polluter Pays Principle, it is not the role of Government to meet the costs
involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the
financial burden of the pollution incident to the taxpayers.