This Article is written by Vedant Tapadia, student of Hidayatullah National Law University.
Introduced as an integral part of the Rio Declaration the Polluter pays principle can be understood as the soundest environmental policy directly working towards the restoration of the environment to its beautiful natural state. In the modern era, with development being the prime objective of every nation-state, damage done to the environment has started to be viewed as “collateral damage”, a “necessary evil”, a risk that has to be incurred in lieu of the reward. It is at this junction that the polluter pays principle imposes a liability on the polluter to compensate the world for the damage caused and at the same time rehabilitate the environment to its original condition had the pollution not taken place. However, its incorporation into the domestic laws of the countries is yet to be unveiled completely.
In 1972, the Organization for Economic Cooperation and Development (OECD) first introduced The Polluter Pays Principle and laid down the Guiding Principles concerning International Economic Aspects of Environmental policies where under the polluter was held responsible for the environmental damage and pollution caused by them. The principle was reaffirmed in the recommendation of OECD on 14th November 1974.
Subsequently, in 1992 the Rio Declaration laid down the guidelines for sustainable development meaning thereby a strategy to cater to the needs of the present generation while also considering its impact on the environment so that such development does not come at the cost of future generations and their resources. In furtherance of the aim of sustainable development, the Rio Declaration enshrined the Polluter Pays principle in its Principle 16 of the guidelines stating that the polluter should bear the cost of pollution.
The Polluter Pays Principle is an environmental policy principle that imposes a liability on the person who is responsible for polluting the environment so as to compensate for the damage caused by him and to return the environment to its original state had the pollution not occurred, regardless of the polluters intent.
The concept of “polluter pays” can be implemented through two different policy approaches: The first includes setting up of performance and technology regulations, this approach aims at controlling the levels of pollution before it can damage the Environment. Whereas, the Second approach includes setting up pollution or eco-taxes which aims at the rehabilitation of the Environment after the damage has already taken place.
Most of the time, the ‘polluter pays’ is in a form of a tax or damages collected by the government and levied per unit of pollution.
THE ROLE OF SUPREME COURT
In the absence of Legislations enforcing the Polluter Pays Principle, the judiciary has stepped in and taken over the role of lawmakers while also setting precedents governing the principle. The Apex court has enforced and upheld the Polluter Pays Principle through its decisions on multiple junctures and continues to consider it an integral part of the national environmental policy. Let us now look at the most landmark judgments upholding the Polluter Pays Principle as declared by theSupreme Court of India:
- Indian Council for Enviro-Legal Action vs. Union of India
The Court declared that “if the activity carried on is inherently dangerous and hazardous, then the person responsible for such actions has to assume complete liability, despite the fact that he or she took reasonable care while the commission of such activities. The rule is founded on the very nature of the activity.”
- Vellore Citizens’ Welfare Forum vs. Union of India
The Court defined the policy of the Polluter Pays Principle as, “absolute liability incurred for the harm caused to the environment, to compensate the victims of such pollution as well as the restore the environment to its original glory.” The court also declared that “Rehabilitation of the damaged environment is part of the principles of Sustainable Development and such a person is liable to pay the damages to the individual victims as well as the ecology”
- The Oleum Gas Leak case (M.C. Mehta vs. Union of India)
The Court laid down that, “Any enterprise which participates in an inherently dangerous and hazardous industry which threatens the safety and health of the workers working in the factory and to those living in the surrounding area who are directly affected by such pollution, owns a complete and non-delegable duty towards the society to ensure that no harm results to anyone on account of hazardous nature of the work being carried on” The court also held, “that the enterprise is completely liable to compensate for such damages and that too despite all reasonable care taken on his account.”
- C. Mehta vs Kamal Nath &Ors
The Court held that “Pollution is also a wrong against the society and in a form of a tort committed against the community as a whole. Hence, any polluter guilty of pollution has to pay the compensation for the rehabilitation of the environment and to return it to its original position had the pollution not occurred. Under the Polluter Pays Principle, the burden to meet the costs of the pollution is on the polluter and not on the government, because then it shall shift the financial burden caused due to pollution onto the shoulders of the taxpayers.”
THE INTERNATIONAL STANCE ON POLLUTER PAYS PRINCIPLE
After the Polluter Pays Principle was first formally articulated in 1972 by the OECD it has been adopted as a management mechanism and incorporated within many international environmental instruments, some of which have been ratified by over 175 countries worldwide. These include Agenda 21, The Rio Declaration, The International Convention on Oil Pollution Preparedness, Response and Co-operation, The Convention on the Transboundary Effects of Industrial Accidents, The Paris Agreement. Today, the Polluter Pays Principle is one of the core principles of sustainable development. It is also one of the fundamental principles governing modern environmental law and policy,
The Polluter Pays Principle has been of immense value in mitigating the damage caused to the environment in lieu of development and in assigning the liability of such damage caused to the polluter directly, however, the concept is not flawless. The principle falls short at some fronts, for example, the principle puts a monetary value on the environment in form of damages which is very subjective in nature. To ascertain the amount of compensation to be charged for the restoration of the damage caused to the environment is to limit the value of something invaluable and hence is often seen to be inadequate in comparison to the loss actually caused.
Therefore, a more effective and unambiguous interpretation of the Polluter Pays Principle, which curbs the subjectivity of the principle will be more effective and beneficial to the society and its environment.
- OECD, Recommendation of the Council on Guiding Principles concerning International Economic Aspects of Environmental Policies, 26th May 1972, [Cf. C/M (72) 15 (Final), Item 129(a), (b) and (c) – Doc. No. C (72) 128].
- OECD, Recommendation of the Council on the Implementation of the Polluter-Pays Principle, 14th November 1974, C (74) 223.
- Mondaq, India: Polluter Pays Principle, by Rupin Chopra, 10 November 2017, https://www.mondaq.com/india/clean-air-pollution/645232/polluter-pays-principle
- Indian Council for Enviro-Legal Action vs. Union of India – 1996(3) SCC 212.
- Vellore Citizens’ Welfare Forum vs. Union of India – 1996(5) SCC 647.
- The Oleum Gas Leak case (M.C. Mehta vs. Union of India) – AIR 1987 SC 1086.
- C. Mehta vs Kamal Nath &Ors – (1997) 1 SCC 388.