INTERNAL ASSIGNMENT-2

ENVIRONMENTAL LAW

On topic:

“Fundamental Principles of Environmental Protection”

SUBMITTED BY:

Yash Agarwal (20GSOL1030046)

BBA LLB (Hons.), Semester VIII

SUBMITTED TO:

Mr. Ajay Singh

SCHOOL OF LAW

GALGOTIAS UNIVERSITY
FUNDAMENTAL PRINCIPLES OF ENVIRONMENTAL PROTECTION

Introduction
Environmental Law can be explained as a legal framework comprising principles, directives,
policies, and regulations founded by different local, national, or international units. Its
purpose is to safeguard and maintain the environment, verifying its appropriateness for both
present and future generations.
According to Black’s Law Dictionary, environmental law is defined as, “A collective body of
rules and regulations, orders and statutes, constraints and allowances that are all concerned
with the maintenance and protection of the natural environment of a country”.
Based on the definition of the Free Legal Dictionary, “Environmental Law is, “an amalgam
of state and federal statutes, regulations, and common-law principles covering Air Pollution,
Water Pollution, hazardous waste, the wilderness, and endangered wildlife”1.
Principles Guiding Environmental Law:
To neutralize the previously mentioned environmentally noxious exercises, both the Indian
and international legal systems have uniformly improved laws and regulations centered on a
set of key environmental law principles. These principles incorporate:
 Public Trust Doctrine,
 Precautionary Principle,
 Polluter Pays Principle, And
 Sustainable Development.
 Inter-Generational Principle
 Common But Different Responsibility

1. Sustainable Development
The Brundtland Report defines, ‘sustainable development’ as ‘development that meets the
needs of the present generation without compromising on the ability of the future generations
to meet their own needs.’ The report emphasizes that sustainable development means an
integration of economics and ecology in decision making at all levels.
Sustainable Development is a process in which development can be sustained for generations.
It means improving the quality of human life while at the same time living in harmony with
nature and maintaining the carrying capacity of the life supporting ecosystem. Development
means increasing the society’s ability to meet human needs. Economic growth is an important
component but cannot be a goal in itself. The real aim must be to improve the quality of
human existence to ensure people to enjoy long, healthy and fulfilling lives.
Sustainable development focuses at integration of development and environmental
imperatives. It modifies the previously unqualified development concept. To be sustainable,
development must possess both economic and ecological sustainability. The concept of
sustainable development indicates the way in which development planning should be
approached.

1
https://www.lloydlawcollege.edu.in/blog/environmental-law.html
Case- In Vellore Citizens Welfare Forum v. Union of India, the Supreme Court of India
recognized the Principle of sustainable development as a basis for balancing ecological
imperatives with developmental goods. Rejecting the old notion that development and
environment cannot go together, the Supreme Court gave a landmark judgment and held that
sustainable development is a viable concept to eradicate poverty. It will improve the quality
of human life if human beings live within the carrying capacity of the life supporting
ecosystem.
The Supreme Court in A.P. Pollution Control Board v. M.V. Nayudu, observed that in order
to ensure that there is neither damage to the environment nor to the ecology and, at the same
time ensuring sustainable development it can refer scientific and technical aspects for
investigation and opinions to statutory expert bodies having combination of both judicial and
technical expertise in such matter.
The Supreme Court in M.C. Mehta v. Union of India, observed that “the development and
the protection of environments are not enemies. If without degrading the environment or
minimizing adverse effects thereupon by applying stringent safeguards, it is possible to carry
on development activity applying the principles of sustainable development, in that
eventuality, the development has to go on because one cannot lose sight of the need for
development of industries, projects, etc. including the need to improve employment
opportunities and the generation of revenue. A balance has to be struck.

2. Precautionary Principle
The Precautionary principle only began to appear in international legal instruments in the mid
1980’s. It aims to provide guidance in development and application of environmental law
where there is scientific uncertainty.
The Precautionary Principle underlies the concept of sustainable development which requires
that the development must be stopped and prevented if it causes serious and irreversible
environmental damage.
Instance of Precautionary Principle: when the impacts a particular activity – such as the
emission of a hazardous substances- are not completely clear, the general activities is to let
the activity go ahead until the uncertainty is resolved completely. The Precautionary Principle
counters such general presumptions. When there is an uncertainty regarding the impacts of an
activity, the Principle advocates actions to anticipate and avert the environmental harm. In
this case, the Precautionary Principle will favor monitoring, preventing or mitigating
uncertain potential threats.
The Precautionary Principle represents a shift in decision-making. Accordingly, it allows for
five key elements that can prevent irreversible damage to people and nature:2
 Anticipatory actions i.e. the duty to take actions to prevent harm
 Right to know i.e. community’s right to know complete and accurate information on
potential human health and environmental impacts
 Alternatives assessments i.e. to examine a full range of alternatives and select the
alternative with the least potential impact on human health and environment.
 Full cost accounting i.e. cost benefit analysis
 Participatory decision process i.e. decisions applying this principle should be
transparent and public participatory
2
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This principle thus assumes that science could 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 harms.
The basis for emergence of this principle is the non-availability of full information about the
widespread ramifications, serious and irreversible harm which may be caused, based on
scientific experiments. This is known as ‘inadequacies of science’.
Thus, PP is a notion which supports taking protective actions before there is complete
scientific proof of risks i.e. actions should not be delayed simply because there is a lack of
full scientific information.
The Principle appeared for the first time in a Declaration adopted by an International
Conference on the North Sea in 1987 and is now included in almost all the International
Instruments related to environmental protection adopted since 1990’s.
Principle 15 of Rio Declaration, 1992 states that “In order to protect the environment, the
Precautionary principle shall be widely applicable by the States according to their
capabilities. Where there are threats of serious or irreversible damage, lack of full certainty
shall not be used as a reason for postponing cast effective measures to prevent environmental
degradation.”
The Indian Supreme court has also adopted this principle and currently, the legislature is also
trying incorporating it in various environmental legislations.
Case- In Narmada Bachao Andolan v. Union of India, precautionary principle came to be
considered by the majority of judges. The Court also took the view that the doctrine is to be
employed only in cases of pollution when its impact is uncertain and non-negligible.

3. Polluter Pays Principle (PPP)

Under environmental law, the polluter pays principle is enacted to make the party producing
pollution responsible for paying the damage done to the natural environment.
According to this principle, the polluter should pay for the expenditure of pollution control
measures such as the investment in anti-pollution installations, the costs of running these
installations and introduction of new processes so that a necessary environmental quality
objective is achieved.
The main objective of polluter pays principle is that the polluter should bear the expense of
carrying out the measures decided by public authorities to ensure that the environment is in
an acceptable state.
The polluter pays principle never got featured in Stockholm Conference. However, the first
international document to refer expressly to the polluter pays principle was the 1972 OECD
Council Recommendations on guiding Principles Concerning the International Economic
Aspects of Environmental Policies.
Principle 16 of Rio Declaration states that: “national authorities should endeavor to promote
the internalization of environmental costs and the use of economic instruments, taking into
account that the polluter should bear the cost of pollution with due regards to public interest
and without distorting international trade and investment.”
Thus, polluter pays principle aims to avoid the wastage of natural resources and to put an end
to the cost-free use of environment.
Case- In the M.C. Mehta v. Union of India & Ors (Calcutta Tanneries Case), the Polluter
Pays principle relating to relocation of industries was applied with a direction to those
relocated industries to pay 25% of the cost of land. Those who did not pay for the cost of land
were directed to be closed. The Supreme Court again resorted to directions earlier given in
Vellore Citizens Welfare Forum for setting up effluent treatment plants.

4. Inter-Generational Equity (IGE)

The use if the term Inter-Generational Equity is a concept of recent origin under the regime if
international environmental law.
Inter-Generational Equity is a concept that says that human beings hold the natural and
cultural environment of the earth in common- both with the members of present and future
generations. It simply portrays that we have inherited our earth from our ancestors and have
an obligation to pass it on in reasonable conditions to future generations.
The principle of Inter-Generational Equity is based on the notion that ‘justice between
generations requires equity between generations’. Accordingly, each person has an inherent
right to exist, survive threats, have access to resources and pursue a decent life, despite his or
her social and economic status.by the same token, unborn generations must inherent various
opportunities for a good life that have not been diminished by those who came before them.
The central notion of Inter-Generational Equity is that the future generations shall have the
same access to the resources and ecological services that the current generation is enjoying.
There are three required principles of Inter-Generational Equity and these principles require
that the current generation has following obligations on their part:
CONSERVATION OF OPTIONS: fulfillment of this principle can be accomplished not only
by conservation of resources directly, but also by mew technological developments that
creates substitutes for existing sources.
CONSERVATION OF QUALITY: each generation is required to maintain the quality of
planet so that it is passed on in no worse condition than in which we received from previous
generations.
CONSERVATION OF ACCESS: each generation should provide its members with equitable
rights of access to the legacy of previous generations and should conserve this access for
future generations.
Principle 1 of Stockholm Conference proclaims 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 the solemn responsibility to protect and improve
the environment for present and future generations’
The principle was again reaffirmed at Rio Declaration, 1992 in Principle 3 which provides
that “the right to development must be fulfilled so as to equitably meet developmental and
environmental needs of present and future generations.”
 5. Public Trust Doctrine (PTD)
The Public Trust Doctrine rests on the principle that certain resources like air, sea, water,
forests have such a great importance to the people that it would be wholly unjustified to make
them a subject of private ownership. It is believed that they being the gifts of nature should be
made freely available to everyone irrespective of status in life.
The doctrine puts an obligation on the States to protect the resources for enjoyment of general
public rather than to permit their use for private partnership or commercial purposes.
With this obligation, three types of restriction are put on the governmental authority:
The property must not only be used for public purpose but it must be held available for use by
the general public.
The property must not be sold even for a fair amount of case.
The property must be maintained only for specific types of uses. [City around a small forest.
The forests should be converted to and used as a small recreational park or zoo.]
The ancient laws of the Roman Kingdom held that natural resources like sea, seashores, air,
running water was common to everyone and thus, could not be appropriated (res nullius) and
commonly open to everyone (res communis). This principle came to be known as Public
Trust Doctrine.
The principle also prevailed under the English law and under that legal system the sovereign
could hold these resources in trusteeship.
Case- M.C.Mehta v. Kamal Nath and Others
 Span Motels Pvt. Ltd. was a private company held by the owner of Span Resorts, had
floated an ambitious project called Span Club.
 Mr. Kamal Nath (the then Minister of Environment and Forests) had a direct contact
with the owner of Span Motels. He leased out 27.12 bighas of land to the Company
for their project.
 Due to this permission given, led to the encroachment of Beas river and due to the
pressure from construction work of the project, the river changed its course which led
to washing away of the adjoining lawns.
 The Owners used bulldozers and earthmovers which led to a change of course of the
Beas river. This was done to protect the motel from floods due to the river in future.
 The Public Trust Doctrine primarily rests on the principle that certain resources like
air, water, sea and the forests have such a great importance to people as a whole that it
would be wholly unjustified to make them a subject of private ownership.

6. Common but different responsibility

The meaning of common but differentiated responsibility is that the common aim of all states
should be protecting the environment, but having said that, certain states owing to their
different ecological systems, physical appearances, geographical features might have to take
more responsibility than other states. The basic idea of this principle is that all states should
follow and obey international laws on the basis of equity and in accordance with their
common but differentiated responsibilities and respective capacities. Two major principles of
this principle are
Common responsibility
It signifies that all the states must aim to conserve the environment together. They should not
disregard their responsibility at any cost. They should not take advantage of their fellow
states and not perform their own duty,
Differentiated responsibility
States comprised of heavy industries, factories have to bear more precautionary measures or
perform actions compared to a state which is filled with flaura and fauna. But each state has
to keep in mind that while performing their differentiated responsibility, they cannot perform
or form any such policies which are harmful or derogatory to their own state or other states.

Conclusion
In India, environmental protection is not only protected by the country's fundamental laws,
but also incorporated into human rights policies. The fundamental human right of every
individual is to exist in an unpolluted environment, because a clean environment is essential
to human dignity. It is essential for the public, public bodies, and state and federal
administrations to distinguish the negative environmental effects of growth processes.
Environmental laws must be strictly enforced because they are an effective tool for
encouraging citizens to prioritise sanitation and combat pollution. However, it is equally
important to in still a positive attitude towards environmental protection throughout society,
as laws alone are insufficient without extensive social responsibility.
References
https://www.lloydlawcollege.edu.in/blog/environmental-law.html
https://lawbhoomi.com/important-case-laws-of-environmental-law/
https://blog.ipleaders.in/fundamental-principles-of-international-environmental-law/
https://www.legalservicesindia.com/article/755/Fundamental-Principles-of-Environmental-
Protection.html
https://lawbhoomi.com/important-principles-of-environmental-law/