Polluter pays the principle: India vs. the USA

The ultimate goal of the doctrines of environment law is to make the polluter bear the cost and responsibility for polluting the environment. The OECD in the Recommendation of the Council on Guiding Principles concerning Economic Aspects of Environmental Policies created the idea of the Polluter Pays Principle and states that: the polluter should bear the expenses of carrying out the above-mentioned measures decided by public authorities to ensure that the environment is in an acceptable state. This principle now plays an important role in both national as well as international environmental policy formulation and legal strata of the environment.

Introduction

While environmental problems resulting from industrialization have increasingly become scientific, political, ethical as well as social priorities at local, national, regional, and international level, in the last two decades, a general concord has grown around the liberal suffrage for the need of increased involvement of the public in environmental law and policy. Regarding the notion of demand for Environmental laws, already in the Rio Declaration, it was held that ‘environmental issues are best handled with the participation of all concerned citizens at the relevant level’ [1]. The importance attributed to this statement at the European level is symbolized by the recent enactment of the Aarhus Convention [2], hailed by Kofi Annan as ‘the most ambitious venture in environmental democracy undertaken under the auspices of the UN.’

The following article talks about the role of a theory “polluter pays the principle” its significance and a comparison between its legal interpretation in India and U.S.A. before coming to the core issue, let’s get a brief idea on the polluter pays principle.

Polluter Pays Principle

“If anyone intentionally spoils the water of another … let him not only pay damages but purify the stream or cistern which contains the water…” – Plato

The Polluter Pays Principle simply means that “If you make a mess, you must clean it up”. This is the fundamental on which this doctrine relies. It supports a remedial methodology which is concerned with restoring natural harm done by humans. It’s a rule in international environmental law where the polluting party pays for the harm or damage done to the natural environment. The following doctrine was enacted in Rylands v. Fletcher [3],’’ whoever for his purpose bring or keep anything on his land and is likely to do mischief if it escapes, must keep at his own risk,  if he fails to do so, then he is prima facie liable for the damage done by the escape. If escape brings any harm or likely to cause any harm or damage, then the person in charge is liable to compensate for the damage caused.

The polluter pays principle (PPP) for the very first time was mentioned in the recommendation of the OECD of 26th May 1972 and reaffirmed in the recommendation of 14th November 1974. The OCED Guiding Principles define the PPP as an instrument for “allocating costs of pollution prevention and control measures”.

Later on, The polluter pays principle became a part of a set of broader principles to guide sustainable development worldwide (formally known as the 1992 Rio Declaration). [4]

Principle 16 of the Rio Declaration [5] proclaims that:

“National authorities should endeavor (try to do) 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 (without change)international trade and investment”.

Polluter Pays Principle significance in India

The year 1986 was a very revolutionary year for Environment law and Tort law, as within 2 years 2 major gas leak even happen Bhopal gas tragedy [6] and the Shriram gas leak case [7]. These 2 cases lead to the basic question of who shall be held liable for the damage caused to the Environment. It was declared by the court to protect the environment, we have to evolve a new principle and introduced new norms to tackle these new problems raised in a new highly industrialized economy’.

Thus, the court added a new principle of ‘absolute liability’ to the discourse of environmental law. The norm was adopted by the legislature through the Environment Protection Act, 1986 (EPA) Public Liability Insurance Act of 1991 (PLIA), and the National Environment Tribunal Act of 1995(NETA).

Taking the doctrine into the account for the first time, the supreme court in the Indian Council for Enviro- Legal Action v. Union of India case [8],” Sec.3 of EPA gives powers to the central government to “take all accountable measures that are conceived necessary for protecting the environment and improving the quality of the environment”. The responsibility of repairing the damage concurred is on the offending industry and the task of determining the recovering amount for the loss incurred is placed upon the central government.

In the Vellore citizen welfare forum v. union of India [8], the court held that the precautionary principle and the polluter pay principle are the inherent part of environmental jurisprudence as well as in the Indian constitution under Art.21. There is a constitutional mandate to protect and revamp the environment under Article 48-A & 51-G.

Further noted the PPP in ‘Sustainable Development’ as defined by the Brundtland Commission and observed that that remediation of the damaged environment is part of the process of ‘Sustainable Development’ and supported PPP, Precautionary Principle, and New Burden of Proof Principles in Art. 21, 47, 48A and 51A (g) of the Constitution [10].

Further, in Taj Trapezium [11] case, the court retreated the principle of” polluter pays principle” and it was a case concerning the ‘yellowing and decaying of the Taj Mahal.’The court based on NEERI Report (1993) & Vardhrajan Report (1995) concludes that the hazardous industries and the Matura refinery were the major cause of damaging the Taj Mahal. The court ordered the industries to shift from the taj trapezium zone, or they have to switch from the traditional method of using as to fuel. And the industries which refused to do so were ordered to stop tier operation by 31se December 1997.

But the interesting fact, in this case, was, a new angle was given to the PPP Principle, the factories were asked to compensate tier workers under the principle.  The rights and benefits of these industries will include:

  1. Continuity of employment in the new sifted factories
  2. One year wage as sifting wage
  3. Workers who are not interested in shifting will get compensation under sec 25-F(b) of the Industrial dispute act and six-year wages as additional compensation
  4. Gratuity shall be added on top of it.

This new dimension by Justice Kuldeep Singh, clearly amply, that both workers and the environment should not suffer due to the deeds of the polluting industries. Workers do not play any role in polluting the environment. They all are acting on behalf of their employer.

If the polluting industries are dismantling/re-locating themselves because of violation of provision related to the protection of the environment, the workers working in those industries shall not be thrown out without providing any economic/ job security.

Polluter pays principle in the USA

The stand on the PPP Principle of the United States is indecisive. The US has never codified the principle formally, but many federal and state environmental laws and common law principles ensure that the polluter pays, at least in some instances [12]. Judicial decisions uphold statutes and regulations that impose liability on polluters, thus implementing the PPP. Important environmental statutes, including CERCLA (the “Superfund” law), the Clean Air Act, and the Clean Water Act, require pollution control and impose sanctions for failure to comply. CERCLA, which allocates liability for clean-up of hazardous substances, maybe the clearest example of the PPP in the US.CERCLA imposes strict liability on “potentially responsible parties” for damages from hazardous releases and authorizes coercive methods for compelling the polluter to pay [13].

In the US, which has adopted a resource-specific approach for many environmental laws, statutes and regulations authorize and implement programs to control pollution. Federal prescriptive laws like the Clean Air Act and Clean Water Act establish environmental standards, require permits that impose those standards on individual polluters, require ambient and compliance monitoring, and authorize enforcement of laws, regulations, and duties imposed in permits. States often issue and enforce permits under laws enacted to comply with federal standards.

It is important to note down that Americans “consider environmental quality as a kind of ‘non-market’ good that is extremely important in consumer choices”. Many of the U.S environmental laws exempt some polluting agricultural activities from several environmental laws that apply to other industries.

For example, though CERCLA applies to most industries, important exceptions protect farmers. CERCLA excludes liability for damages from the application of a pesticide product registered under federal law; also, it excludes the “normal application of fertilizer” from the definition of releases subject to remediation and liability [14].

Even though, U.S.A considers PPP as a ‘vague concept’. However, the Exxon Valdez case would be an example of its application. In 1989, the oil tanker ran aground and over 300,000 barrels of crude oil poured into Alaskan waters. Exxon was in principle required to pay USD 125 million in fines to the US Federal Government and the state of Alaska, as well as USD 900 million for a fund to be doled out by government officials for environmental projects, among other things. Besides, Exxon was put under tremendous political pressure to restore the shoreline. It thus engaged in an extensive and costly clean-up operation, with controversial results [15].

Conclusion

The articles reviewed have partially dealt with the Polluter Pays Principle. In this article, I tried to compare the point of view of the Indian Judiciary and legislation and the United States judiciary and legislation on their take on the doctrine of polluter pays principle. Wherein in India, the doctrine has been considered an inherent and important part of environmental jurisprudence with many landmark judgments to prove its importance. Whereas in the US, the doctrine is implemented in its true nature but we get to see, even in many instances, courts of the U.S have considered this doctrine for the protection of the environment.

FAQs

  • From where did the doctrine of the Polluter pay principle arise?

The polluter pays principle (PPP) for the very first time was mentioned in the recommendation of the OECD of 26th May 1972 and reaffirmed in the recommendation of 14th November 1974. The OCED Guiding Principles define the PPP as an instrument for “allocating costs of pollution prevention and control measures”.

  • In which Indian case, the doctrine was firstly applied?

In Indian Council for Enviro- Legal Action v. Union of India case, this treaty was first applied, wherein, The responsibility of repairing the damage concurred is on the offending industry and the task of determining the recovering amount for the loss incurred is placed upon the central government.

  • Is the PPP principle under the ambit of Art.21 of the Indian constitution?

In the Vellore citizen welfare forum v. union of India, it was held, the polluter pays principle is the inherent part of environmental jurisprudence as well as in the Indian constitution under Art.21.

  • In which international convention, this treaty has been explained?

As per Principle 16 of the Rio Declaration,1992 proclaims that:

“national authorities should endeavor (try to do) 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 (without change)international trade and investment”.

  • Does the United States have considered the PPP principle as an inherent part of its Environmental jurisprudence?

No, the United States has considered the PPP principle as an inherent part of its Environmental jurisprudence. as they believe in more market-driven jurisprudence.they considered the environment is something that should be based on free driven forces of the market.

References


Leave a Reply

Your email address will not be published.