Environmental Justice, Equity and Governance

By | September 25, 2016

Environmental Justice, Equity and Governance

 Introduction

The term ‘environment’ can describe a limited area or the entire planet, even including a part of the outer space which surrounds it. The term ‘biosphere’ used in particular by UNESCO, corresponds to one of the broadest definitions, since it designates the totality of the human environment, the part of the universe where, according to present knowledge all life is concentrated.

The definition of environment affects the scope of legal rules which are intended to protect the environment law cannot affect the natural processes that cause environmental changes. However, the obligatory character of law and the sanctions which can ensure the enforcement of legal rules should prevent and eliminate acts and behaviors which are detrimental to the environment. Nonbinding principles and rules, formulated in recommendation or declaration by international organization or conferences play an increasing role in international law, especially in the field of environmental protection. Their function is to guide State authorities and also other actors in their action but they can also contribute to the emergence of new obligatory rules.

Stages in Environmental Protection

The social mechanism of environmental protection can be characterized by a three stage approach.

  • In the first stage law mainly national Constitutions, laws with a large environmental scope and major intentional declaration or treaties defines the environmental values to be preserved and protected.
  • In the second stage environmental policy determines the objectives and strategies which should be used in order to ensure the respect of environmental values, taking into account the prevailing economic, social and cultural situation.
  • In the third stage legal instruments are used to reach the objectives fixed by the environmental policy. The content of such instruments can be economic, political, social or educational. As a feedback, their implementation often needs the support of public opinion, the consensus of which was the very basis of the recognition of the environment as a fundamental value.

The main characteristics of environmental law is the necessity for an inter disciplinary approach because of the complexity of the subject. In order to prepare appropriate modern legal rules, legal research should be undertaken in the two fields of legal history and comparative law.

Environmental Doctrines

Right to wholesome environment is a fundamental right protected under Article 21 of the Constitution of India. However the important question is that whether the environment can be protected at present times when almost all the countries in South-East Asia are still at their developing stages? Development comes through industrialization, which in turn the main factor behind the degradation of environment. To resolve the issue, the experts worldwide have come up with a doctrine called ‘Sustainable Development’, i.e. there must be balance between development and ecology. The concept of ‘Sustainable Development’ had come to be known as early as in 1972 in the Stockholm declaration. It had been stated in the declaration 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 a solemn responsibility to protect and improve the environment for present and future generation” The concept was given a definite shape in a report by World Commission on Environment, which was known as ‘ our common future’ (the Brundtland Report). The commission, which was chaired by the then Norway Prime Minister, Ms. G.H. Brundtland defined ‘Sustainable Development’ as “Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs”.

The concept was further discussed under agenda 21 of UN conference on environment and development held in June 1992 at Rio de Janeiro, Brazil and later on in the Johannesburg Conference held in 2002. Some of its basic principles as described in ‘Brundtland report’ are as follows:

  • Inter-Generational Equity: The principle talks about the right of every generation to get benefit from the natural resources. Principle 3 of the Rio declaration states that: ” The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” The main object behind the principle is to ensure that the present generation should not abuse the non-renewable resources so as to deprive the future generation of its benefit.
  • The Precautionary Principle: This principle has widely been recognized as the most important principle of ‘Sustainable Development’. Principle 15 the Rio declaration 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 cost-effective measures to prevent environmental degradation.” In other words it means:

1) Environmental measures by the state government and the local authority 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 used as a reason for postponing measures to prevent environmental degradation.

3) The ‘onus of proof’ is on the actor or the developer to proof that his action is environmentally beginning.

  • Polluter Pays Principle: Principle 16 of the Rio declaration states that : “National authorities should endeavor to promote the internalization 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 the public interest and without distorting international trade and investment.”

It is quite obvious that the object of the above principle was to make the polluter liable not only for the compensation to the victims but also for the cost of restoring of environmental degradation. Once the actor is proved to be guilty, he is liable to compensate for his act irrelevant of the fact that whether he’s involved in development process or not.

These concepts of have become an integral part of Environmental Law. Most of the doctrines are recognized worldwide and have been adopted and implemented everywhere, including in India. Judiciary in India, more precisely, the Supreme Court and the High Courts has played an important role in preserving the doctrine of ‘ Sustainable Development ‘. Parliament has enacted various laws to deal with the problems of environmental degradation. In such a situation, the superior courts have played a pivotal role in interpreting those laws to suit the doctrine of ‘Sustainable Development’.

The Polluter Pays” principle has been held to be a sound principle by this Court in Indian Council for Enviro – Legal Action v. Union of India, AIR 1996 SC 1446.

The Court observed, “We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining in this country”. In this case the number of private companies operated as chemical companies were creating hazardous wastes in the soil, henceforth, polluting the village area situated nearby, and they were also running without licenses, so an environmental NGO, filed writ petition under article 32 of the Constitution of India, which sought from the court to compel SPCB and CPCB to recover costs of the remedial measures from the companies.

The Court ruled 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”.

Consequently the polluting industries are “absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas”.

The “Polluter Pays” principle as interpreted by the Court means that the absolute liability for harm to the environment extends not only to compensate the victims of 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 polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. It is worthwhile to mention here that principle 10 of Rio declaration, 1992 states that:

“Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities, in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided”.

Environment and development are two sides of the same coin. Any one of these cannot be sacrificed for the other. On contrary, both are equally important for our better future. Thus the responsibility lies on the Supreme Court and the various High Courts to deal with these cases with caution of high degree. Then only, we will achieve our goal i.e. to secure a pollution free developed country for our next generation.

Mayank Shekhar
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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