3 Principles of Environmental Law

Ms.Lovleen Bhullar

Background

• UN GA Resolution 1831 (1962)

– Encouraged governments to pay attention to natural resource management early into a phase of economic development

• Fournex Report (1971)

• Stockholm Declaration (1972): Principle 13

– Called on states to adopt ‘an integrated and co-ordinated approach to their development planning so as to ensure that their development is compatible with the need to protect and improve the human environment’

• World Conservation Strategy (1980)

– Integration of conservation and development to ensure that modifications to the planet do indeed secure the survival and well-being of all people

Brundtland Report (1987)

•  …development that meets the needs of the present without compromising the ability of future generations to meet their own needs

– needs – essential need of the world’s poor – overriding priority

– limits – not absolute; interaction of ‘present state of technology and social organisation on natural resources’ and ‘the ability of the biosphere to absorb the effects of human activities’

Rio Declaration (1992)

• Principle 1: Human beings are at the centre of concerns for SD. They are entitled to a healthy and productive life in harmony with nature.

• Principle 4: In order to achieve SD, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

• Principle 3: The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.

Johannesburg Declaration on Sustainable Development (2002)

• we assume a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development — economic development, social development and environmental protection — at the local, national, regional and global levels

Case Concerning the Gabcikovo-

Nagymaros Project (1997, ICJ)

• Parties – Hungary and Slovakia

• Treaty to build a series of hydroelectric dams on the Danube

• Both parties referred to SD

• “…This need to reconcile economic development with protection of the environment is aptly expressed in the concept of SD. For the purposes of the present case, this means that the Parties together should look afresh at the effects on the environment of the operation of the Gabcikovo power plant…”

• Separate Opinion of Vice-President Weeramantry

– Right to development does not exist in the absolute sense; it is relative always to its tolerance by the environment

– Right to development is clearly part of modern international law – compendiously referred to as SD

Pulp Mills Case (Provisional Measures) (2006, ICJ)

• Parties – Argentina and Uruguay

• Case highlights the importance of the need to ensure environmental protection of shared natural resources while allowing for sustainable economic development

• Necessary to bear in mind the reliance of the Parties on the quality of the water of the River Uruguay for their livelihood and economic development

• Account must be taken of the need to safeguard the continued conservation of the river environment and the rights of economic development of the riparian States

SD in the Supreme Court of India

• Compromise approach in disputes concerning termination of mining leases (late 1980s)

• More environmental focus (1990s)

• Anthropocentric or eco-centric basis of SD (recent)

• Article 21 – Right to life includes right to environment & right to development

• Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh (1991, SC)

– If a just balance is not struck between development and environment by proper tapping of natural resources, there will be violation of articles 14, 21, 48-A and 51(g) of the Constitution.

Vellore Citizens’ Welfare Forum v. UoI & Others (1996, SC)

• Suit in response to reports that tanneries were discharging effluents into the river Palar, the source of drinking water

• ‘the traditional concept that development and ecology are opposed to each other, is no longer acceptable’

• SD ‘has been accepted as a part of the customary international law though its salient features have yet to be finalized by the international law jurists’

• SC identified ‘salient principles’ and ‘essential features’ of SD

• Notwithstanding the economic benefits of leather industry, economic interests cannot be allowed to ‘destroy the ecology, degrade the environment and pose a health hazard’ to the public at large

PRECAUTIONARY PRINCIPLE OR APPROACH 

Background

• Swedish and German environmental law & policy (national)

• 1982: World Charter for Nature

• 1984: North Sea Conference (international)

• 1990: Bergen Ministerial Declaration on SD (regional – EC)

• 1991: EU proposed a text

• 1992: UNCED

Rio Declaration: Principle 15

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

P-15 (contd)

• Does not have normative character of rule of law

• Phrased in very general terms

• What it does?

– Helps identify whether a legally significant risk exists by addressing the role of scientific uncertainty

• What it does not do?

– What should the ‘measures’ be?

– How to control the ‘risk’?

– What level of ‘risk’ is socially acceptable?

• Questions best answered by politicians and society; rather than courts or scientists

Approach, not Principle

• US insistence

• Offers greater flexibility + less potentially restrictive

• Is the difference significant?

– High uncertainty and costs – risk of irreversible harm

– Significant level of uncertainty and potential costs – harm is less irreversible

• European treaties and EC law

– Precautionary principle

• Global agreements

– Precautionary approach or measures

Strong v. Weak version

• Strong version

– Potentially risky activity is banned

– Burden of proof on proponent to demonstrate that the activity is benign and that it poses no (or acceptable) risk

– Can stifle innovation and creativity, hamper scientific and technological advancement and result in regulatory paralysis (Sunstein)

– Not supported in IL

– Adopted by SC of India (Vellore case)

•  Weak version

Application of P-15: International

• Widely endorsed by states

• Agenda 21

• Applied/endorsed by a growing number of IOs and treaty bodies

• Matter of policy

• Legally binding treaty articles and subsidiary rules

• Different thresholds of harm

• UNFCCC: risk of ‘serious or irreversible harm’

• Burden of proof

• Reversal

• Lower standard of proof

Application of P-15: ICJ

• Gabcikovo-Nagymaros Case

• Relied on by Hungary

• Referred to with approval by Judge Weeramantry in his dissent

• No reference by ICJ although willing to apply new norms of IEL

–  Environmental risks were sufficiently certain

–  ICJ did not regard the principle as having any legal status

• Pulp Mills Case (2006)

• Referred to in the dissent of ad hoc Judge Vinuesa

Application of P-15: WTO

• Beef Hormones Case (1998)

• EC: principle of customary law or general principle of law

• Canada: emerging principle of IL

• US: denied that it had any legal status

• WTO AB

–  Applicable agreement incorporated precautionary elements

–  Uncertain legal status of principle in general IL

Application of P-15: ITLOS

• Southern Bluefin Tuna Case (Provisional Measures) Cases (1999)

• Conservation of tuna stocks

• ITLOS took no view on precautionary principle/approach in general IL

• ITLOS relied on scientific uncertainty to justify grant of provisional measures to protect the stock from further depletion pending dispute resolution

• Precautionary approach is inherent in award of provisional measures

• UNCLOS 1982 in effect requires a precautionary approach to fisheries conservation

Is it Customary International Law?

• WTO Asbestos Case

• EC argued that principle is customary IL

–  Not accepted by Appellate Body

• Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities w.r.t. Activities in the Area (2011)

– Seabed Disputes Chamber

– The incorporation of the precautionary approach into a growing number of international treaties and other instruments, many of which reflect the formulation of P-15, has initiated a trend towards making the approach part of customary IL.

Issues

• Changes the role of scientific data in environmental cases

• Not applied universally

• Uncertainties in meaning, application & implications

• Concept of precaution means different things in different contexts

– Identification of risk

– How to respond to that risk

• Customary obligation of due diligence

• What do the States have to do?

– Are they required to act?

– Are they empowered to act?

– Are they encouraged to be more cautious?

Vellore case

• The principle requires the state to take environmental measures ‘to anticipate, prevent and attack’ the causes of environmental degradation. [Prevention]

• 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. [Precautionary principle]

• The onus of proof is on the actor or the developer/industrialist to demonstrate that the proposed action is ‘environmentally benign’. [Burdenof proof]

Precaution in Other SC Decisions

• AP PCB v. MV Nayudu (1999)

– Principle used to emphasize the need for scientific inputs before adjudicating complicated issues of environmental pollution

• TN Godavarman Thirumalpad v. UoI & Others (2002)

– Principle of proportionality – balance priorities of development and environmental protection

TN Godavarman Thirumalpad v. UoI & Others (2006)

– Principle used to advocate general ‘precautionary measures’

POLLUTER PAYS PRINCIPLE

PPP     as an Economic Principle

• Producer should bear the cost of externalities (eg environmental pollution) resulting from production/consumption of good/service

OECD: Partial cost internalization approach

• 1972 & 1974 Recommendations

• Cost allocation principle

– To improve efficiency and encourage rational use of scarce natural resources

– Governments decide pollution prevention & control measures to ensure that environment is in acceptable state

– Polluter must internalize/bear full cost of carrying out these measures

– Cost should be reflected in cost of goods and services which cause pollution

– Nothing has to be paid to anyone

• Non-subsidization principle

– To avoid distortions in international trade and investment arising from adoption of differential pollution abatement mechanisms/methods

– No to government subsidies

– Exceptions/special arrangements possible

OECD: Full cost internalization approach

• Wider scope of PPP

• Costs of accidental pollution caused by hazardous installations + control, clean-up and rehabilitation costs– 1989 Recommendation

• Internalization of damage costs

– 1991 Recommendation

Rio Declaration: P-16

• National authorities should – at the inter-national level

• endeavor to promote – not absolute or obligatory

• the internalization of environmental costs and the use of economic instruments – beyond OECD definition

• taking into account that – non-binding language

• the polluter should, in principle,

• bear the cost of pollution – wide meaning of ‘cost’

• with due regard to the public interest and without distorting international trade and investment – scope for exceptions

Application of P-16: International & Regional

•  Unclear content and legal status

• Not an absolute principle

– Exceptions permitted

• Marine agreements – international and regional

– Parties are required to apply the PPP

• Operative provision – binding

– Softer language of guidance

• Environmental liability agreements

• General principle?

– Preambles to some conventions

• Limited role

– North Sea Continental Shelf Case, ICJ Reports (1969) 3, para 72.

PPP     in Domestic Environmental Law

• Implicit or explicit

• Judicial Decisions

– Indian Council for Enviro-Legal Action v. UoI (1996, SC) [Bicchri case]

– Vellore Citizens’Welfare Forum v. UoI and Others (1996, SC) [Vellore case]

• Legislation

Bicchri case

• PPP has ‘now come to be accepted universally as a sound principle’ and ‘has gained almost universal recognition’

– Based on a journal article discussing PPP in the context of the OECD and the EC

– General principle of law prevalent in other systems

– No reference to international environmental law

– No reference to the Constitution of India and/or domestic legislation

• Offending industry is responsible for repairing the damage

• Referred to in a number of subsequent decisions

Vellore case

• Two sources of PPP

– Implicit inclusion in the constitutional provisions relating to environmental protection as well as environmental legislation, such as Water (Prevention and Control of Pollution) Act, 1974 and Environment (Protection) Act, 1986

– Its status as a principle of customary international law

• No reference to Rio Declaration

PPP in Domestic Legislation

• National Green Tribunal Act, 2010

– NGT is required to apply PPP in all its orders etc.

• Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 & E-Waste (Management and Handling) Rules, 2011

– Certain entities are responsible for preventing environmental damage and liable in case of their failure to do this

Issues

• Who is a polluter? Industry, government or members of the public

• What does the polluter have to pay for? Past, present or future pollution

• When is the obligation to pay triggered? Violation of an environmental standard and occurrence of actual harm, violation of an environmental standard without occurrence of actual harm (potential to harm); occurrence of actual harm without violation of an environmental standard

• How to determine payment? Percentage of annual turnover formula or absolute liability principle etc.

• What is to be paid? Monetary compensation to victims, costs for environmental damage to affected persons or into a government-managed fund or punitive/exemplary costs

• Who has to actually pay? Polluter, government or members of the public

Liability

• Fault-based liability

– Proof of polluter’s negligence

• No-fault liability

– Reversal of burden of proof

• Strict liability

• Absolute liability

Liability (contd)

• Strict liability

– Subject to certain exceptions

• Examples: Public Liability Insurance Act, 1991, National Green Tribunal Act, 2010, and Civil Liability for Nuclear Damage Act, 2010

• Disincentive to pollute in future

– If high amount of liability imposed on polluter

• In most cases, capped liability

• Absolute liability

– Not subject to any exceptions whatsoever or a cap on liability

– MC Mehta v Union of India (Oleum gas leak case) (1987, SC)

Polluter engaged in an inherently dangerous and hazardous activity is absolutely liable for the resulting harm

Weblinks:

• Decisions of the Supreme Court of India and High Courts: http://indiankanoon.org [please note that these are not the official versions]

• International Court of Justice, Judgments, Advisory opinions and Orders by chronological order: http://www.icj-cij.org/docket/index.php?p1=3&p2=5.

• International Tribunal for the Law of the Sea, List of Cases: https://www.itlos.org/index.php?id=35&L=etc%2Fpasswd.

•World Trade Organization, Dispute Settlement – Appellate Body Reports: http://www.icj-cij.org/docket/index.php?p1=3&p2=5.