Decoding the Foundational Principles of Environmental Law
Anshul Nandwani,
Kalyan Law College, Durg
Introduction
It is historically evident that the environment plays a crucial role in the survival of human beings and other living organisms including plants and animals. The air we breathe, the water we drink, and the grains we consume constitute the environment. The elements are not just limited to natural but also include man-made infrastructures.
With the increasing population, growth and development aspirations have also increased globally. This has now taken the form of greed. The exploitation of natural resources in the form of deforestation, mineral and coal mining, oil and gas extraction, hunting and fishing etc have taken apace. We threw caution to the wind and accelerated towards economic growth without considering the damages being caused to the environment.
It would be right to quote Gandhi ji, that, there is enough on this earth for everyone's needs but for no one’s greed. The onset of the Environmental crisis globally has given us a reason to question the values rooted in modern times. It has raised concerns about our survival. The crisis was triggered and is rising at a higher rate today due to anthropogenic activities.
The concern for the environment was given much importance and highlighted by public opinion during the 1960s period of the 20th century. There was little attention given to the environmental problems before that. The concept of Environmentalism came into being. The countries came together to discuss and decide on the global issues. The Stockholm Declaration of 1972 and the Rio Declaration of 1992 were two initial and important events that forged the path to environmental laws at the national and international levels.
The reason for the movement towards Environmentalism was rapid economic growth in the face of globalisation, the rise in free trade, the threat to the develeopment of poor countries and increasing armed conflicts.
Certain principles are the foundational stone of Environmental policies and Laws at the National and International Levels. We will be delving into these principles to understand the philosophical aspects of Environmental law.
Foundational Principal of Environmental Law
Principle 1 of the Rio Declaration 1992 clearly explains that in the sustainable development of the economy, human beings are the point of concern. They have the right to have a healthy life in a way that is in harmony with ecology. The Rio Declaration states the principles which are the foundational pillars of the International Environmental Law. The Declaration highlights the rights and duties of the states towards safeguarding the environment and delivering effective governance.
● Principle of Prevention
The Principle of Prevention is the golden rule which directs that the state must prevent damage to the environment within its territory. They are expected to curb the excess pollutants that are discharged into the environment through various means before the damage becomes irreversible. To prevent this from happening, steps should be taken in the early stages.
The principle of Prevention is rooted in The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989. The convention talks about reducing hazardous waste and fights illegal dumping of waste material.
Other Measures are prior assessment of harm, licensing or permitting with certain terms and conditions to conduct the operations. It also speaks about the consequences of violation of the conditions and creating liability in the form of fines and punishment. It ensures that harming the environment can be prevented by taking effective measures. It is always better to prevent the action from happening where the restoration process of the damage is difficult in the form of cost or it is not possible to restore the original condition. It aims at making the risk associated minimal.
● Precautionary Principle
The principle speaks that when a threat is foreseen, certain cost-effective measures must be taken to contain the degradation of the environment. These measures should not be avoided just on the sole basis of lack of scientific knowledge on the risk to the environment.
This principle ensures preventive measures should be part of the discussion and decision-making stages for the policies on the developmental processes.
When there is limited scientific knowledge available on the effects of an activity, it comes into play. The Environment Impact Assessment is founded based on this principle.
In the landmark case of Vellore Citizen Welfare Forum v Union of India (AIR 1996 SC 2715), The Apex Court reiterated that this principle is a core part of the Indian Environmental Jurisprudence. The court further states that it is associated with the following conditions -
●The governmental authorities and bodies must anticipate, prevent and attack the cause of environmental degradation.
● Where there are threats of serious and irreversible damage, a lack of scientific knowledge should not be used as a possible reason to delay actions to mitigate the degradation.
● The ‘onus of proof’ is on the actor involved in the activity to prove that environmental harm is not caused.
The Rio Declaration of the UN Conference of Environment and Development mentions this precautionary principle under Principle 15. This principle gained much importance after the Rio Declaration held in 1992.
● Polluter Pay Principle
This principle was first introduced and explained by Thomas Lindqvist in the year 1990 and the Organization for Economic Co-operation and Development (OECD) highlighted the importance of the principle.
This principle highlights that the person or industry carrying out an economic activity that impacts the environment will act towards the direction to mitigate the harm done. The principle doesn’t seek to point out the fault of the person. It aims to follow a curative method towards restoring ecological damage. This principle is also known as Extended Producer Responsibility.
It aims at internalising the external cost of the damage caused. It further aims to prevent pollution and causing harm to the environment by making the polluter responsible for their actions, thus creating sustainable business practices.
The act of harm to the Environment creates Absolute Liability on the part of the polluter which needs to be fulfilled -
●The polluter is liable to pay the affected parties. They should be sufficiently compensated considering the capacity of the polluter and the magnitude of the harm done.
●The polluter is liable to pay the cost for the restoration of the ecological damage. This includes the cost of cleaning up and remediation of the environment.
●Public Trust
The doctrine of public trust speaks about the unrestricted availability and accessibility of natural resources by the public. It ensures that the character of natural elements and areas will not be changed to fulfil the interest of a particular section of society.
The Doctrine rests foot on the principle that the natural elements such as rivers, sea, forests and the air are for the general use of the public without any hindrances. To ensure this, the state plays a proactive role in ensuring that the natural resources should not be exhausted by a particular generation. This applies at both inter-generational and intra-generational levels.
●Sustainable Development
The concept of Sustainability is an old one. Without this, our survival would not be possible. Sustainable means striking the right balance while extracting and using resources so that it doesn't cause harm to the environment or go to a point where they cannot be restored to their original state.
The doctrine of Sustainable Development is the process of development that ensures the needs of the current generation are fulfilled without compromising the ability of the coming generations to fulfil their requirements in the future. It strives to strike the correct balance between Economic growth, social equity and ecological protection in the modern world.
Agenda 21 of the Rio Summit sketches the plan for local, national, and global levels of Sustainable Development.
●Principle of Equity and Environmental Justice
The Rio Declaration under Principle 10 highlights three rights: the right to access to information, the right to public participation and the right to access to justice. As these rights are essential to environmental governance. These rights uphold the importance of citizen participation in the process of making decisions and policy formation. In case of infringement of these rights, there shall be the provision of access to justice that ensures the enforcement of the rights given.
The idea is simple Environmental problems are resolved better with the involvement of the people at the community level.
●Inter-generational Equity
The natural and cultural environmental resources are held commonly by the people of the present and the future. It follows the concept of passing the natural property we inherited from our forefathers to the coming generations. It puts us under the obligation that the property should be passed on under such conditions so that the interests and rights of the future generation on these resources don’t hamper.
The idea is simple, how this current generation is enjoying the services of ecology, the future generation has the same right to enjoy the services. The policies should be formed by keeping in mind the needs and requirements of the future generations. The policies must be planned for the long term
The present generation has certain duties to perform that include securing multiple alternatives that give options for existing resources. Further, they should secure the quality of resources when passed to the coming generations. Lastly, the present generation should secure access to these resources.
●Common but Differentiated Responsibility
This Principle has come to light after considering the difference in the capacity and capability of developed and developing countries towards mitigation of the harm done, it is a reflection of equity in the international domain to perform their part.
It is enshrined in principle 7 of the Rio Declaration. The principle reflects that developed and developing countries have different contributions to environmental problems. These countries stand at various levels of growth and development, The Least Developed Countries are most affected by it. Their role in the problems were different but it affected them equally, they had a common responsibility to work towards the cause. But standing on different pedestals of economic stages, the role differs. The developed coutnries are expected to take the front seat in contributing to the protection of the environment and capacity building.
●Transboundary responsibility
It has been accepted as a core principle of international environmental law that the territorial limits would be always upheld. It reflects the idea from the Latin maxim, ‘ sic utere tuo ut alienum non laedas’. It states that the state must use its territory in a manner that the rights are not infringed of the neighbouring state.
It promotes the idea of Good neighbourliness and protection of own environment while also considering the damage to neighbours. It fundamentally puts some checks on the powers exercised by a sovereign state.
Case laws
The Indian Justice system has also from time to time paid attention to these principles and given their views on it in many cases that revolved around environmental problems. Some of the cases are discussed below.
○Indian Council for Environmental Legal Action vs Union of India 2011 - In this case, the court defined for the first time the principle of Polluter Pays. The court held that the cost of preventing or remedying the damage caused by pollution should lie with the undertaking that causes the pollution or produces the good that causes the pollution.
○Vellore Citizens Welfare Forum vs Union of India 1996 - The Apex court in this case again highlighted the importance of the polluter pays principle in the environmental jurisprudence of India. It further adds that the pollutor has absolute liability to cover the cost.
○Rural Litigation Entitlement Kendra vs Union of India - The Court in response to the petition order to halt the mining operations. The petition was on the issues of environmental damage in the green belt of the Doon Valley. Later on, after the recommendation of the committee to study the ecological impact, it ordered the stoppage of mining activity in the ecologically sensitive area.
○Andhra Pradesh Pollution Control Board(APPCB) vs M.V. Nayadu - The Supreme Court overturned the High Court decision and upheld the refusal of license granting by APPCB. The court cited the Precautionary Principle and Polluter Pays Principle.
Conclusion
These principles set the foundation stage for the present laws to regulate, and oversee the impact of the growth and development of ecological stability. These principles are not to be viewed as void of each other. They are studied and viewed in the collection. The Principles are important to understand the philosophy of the Environmental Law of not only International Environmental law but also Indian Environmental laws. It is important to understand these foundational pillars for everyone including Law students, Legal public policy researchers, advocates and the members of society.
With the rapid developmental process, we must shift our attention towards the significance of conserving the environment. It is essential to balance economic development and ecological conservation to walk on the path of sustainable development.
The need of the hours is that various stakeholders such as researchers, policymakers, businessmen, and should join hands with a common vision to uphold these principles to solve environmental problems and deliver the coming generation a sustainable place.
References
● https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1069&context=ilsajournal
● https://calr.in/the-basic-principles-of-environmental-law/
● https://www.ohchr.org/sites/default/files/FrameworkPrinciplesUserFriendlyVersion.pdf
● https://sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf
● https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1069&context=ilsajournal
● https://cms-lawnow.com/en/ealerts/1999/11/environment-law-in-india-an-overview
● https://www.britannica.com/topic/environmental-law/Sustainable-development
● https://www.clientearth.org/latest/news/what-are-environmental-principles/
●REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT - Rio declaration
● https://www.eea.europa.eu/soer/2010/synthesis/synthesis/chapter8.xhtml