Indian Legal System > Civil Laws > Environmental Laws > Sustainable Development > Polluter Pays Principle
Polluter Pays Principle is also known as the principle of extended producer responsibility. With the advent of the modern industrial revolution, the scheme of production in factories added the idea of externalizing the waste. It caused pressure on the surrounding environment and the need of polluter pays principle arose.
Polluter Pays Principle is a globally well recognized and a much celebrated environmental law principle. There is no agreed definition of the term ‘Polluter Pays Principle. Similarly the scope of its application is also doubtful and there is lack of clear agreement on permissible exceptions. The ‘polluter pays’ principle is the commonly accepted practice that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment. Thus the primary function of the Principle is that it helps in allocating the costs and repairing the damage, between different stakeholders, for the harm caused by them to the environment. The principle places the responsibility of paying the damages to the persons who ought to pay it and also who have the ability to pay it. It was the Organization for Economic Co-operation and Development (OECD) which first popularized the polluter pays principle in the early 1970’s.
The Rio-Declaration adopted in 1992 also recognizes the polluter pays principles. According to principle 16 of the Declaration – “National authorities should endeavour to promote the internalization of environmental costs and 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 clear, therefore, that without referring to the “Polluter Pays” principle the Rio Declaration has put emphasis on the principle of internalization of environmental costs i.e. an economic concept which consists in charging a polluter for all the costs that his activity created for other persons.
Thus the principle means:
- The polluter should pay for the administration of the pollution control
system; and - The polluter should pay for the consequences of the pollution- for example, compensation and clean-up”.
Under this Principle, it is not the role of Government to meet the costs involved in either prevention of damage caused by pollution or in carrying out remedial measures. If the Government do so it would shift the financial burden to the taxpayer. It may be accepted that the shift in environmental liability principle from criminal sanction to economic and financial deterrence is the driving force which has paved the way for the incorporation of polluter pays principle in most of the countries in the world.
Case Laws:
In Indian Council for Enviro-Legal Action v Union of India, 2011 (8) SCC 161, case, the polluter pays principle was applied for the first time in India. The Court tried to define the polluter pays principle and its scope. Justice Dalveer Bhandari & Justice H. L. Dattu said, “The polluter pays principle demands that the financial costs of preventing or remedying the damage caused by pollution should lie with the undertakings which cause the pollution or produce the goods which cause the pollution. Under the principle, it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The ‘polluter pays’ principle was promoted by the Organization for Economic Cooperation and Development (OECD) during the 1970s when there was a great public interest in environmental issues. During this time there were demands on government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in modern industrialized society.” The Court further held that sections 3 and 5 of the Environment (Protection) Act, 1986 empowered the Central Government to give directions and take measures for giving effect to polluter pays principle.
In Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 case, the Supreme Court declared that the polluter pays principle is part of the environmental jurisprudence of India. The Court held that the polluting tanneries were liable to pay for the past pollution generated by them, which resulted in the environmental degradation and suffering to the residents of the area. In addition to this a fine of Rs. 10,000/- each on all the polluting tanneries was also imposed, this money along with the compensation amount recovered from the polluters were directed to be deposited under a separate head called “Environment Protection Fund”. The fund was to be used for the purpose of giving compensation to affected persons and for restoring the damaged environment.
In this case, explaining the meaning and scope of the polluter pays principle the Court observed “The Polluter Pays principle, as interpreted by this 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, the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology”.
The Court also directed the Central Government to constitute an authority under section 3(3) of the Environment (Protection) Act, 1986 for implementation of the polluter pays principle. The Court opined that the authority should, with the help of expert opinion, assess the loss to the environment and also identify the victims of the pollution and assess the compensation to be paid to the said victim. The authority should further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment.
In M. C. Mehta v. Kamal Nath (1997) 1 SCC 388 case also known as Span Motel case, the Court opined that “one who pollutes the environment must pay to reverse the damage caused by his acts”. It was proved that the Motel administration changed the course of the river in order to save the Motel from future floods. The Court held that the Motel should pay compensation by way of cost for the restitution of the environment and ecology of the area. The pollution caused by various constructions made by the Motel in the riverbed and the banks of River Beas has to be removed and reversed”. The Court asked the National Environmental Engineering Research Institute, Nagpur (NEERI) to submit an assessment of the cost which was likely to be incurred for reversing the damage caused by the Motel to the environment and ecology of the area.
The principle is also applied in the M. C. Mehta v. Union of India, AIR 1987 SC 965 also known as Oleum Gas Leak case. Shriram Food and Fertilizers, a subsidiary of Delhi Cloth Mill Limited was manufacturing caustic chlorine and oleum at a plant surrounded by thickly populated colonies. The nature of the chemical processes involved was polluting environment and was creating a nuisance for the surrounding community of people. To address this issue public interest litigation was filed by environmentalist and lawyer, M.C. Mehta, requesting the Supreme Court for the immediate closure and relocation of the industrial complex. On the 4th of December 1985, one month after the petition was filed Oleum had leaked from the complex into the surrounding community resulting in one fatality and many injuries.
Justice P. N. Bhagwati writing for a Constitution Bench discussed the need for the development of the polluter pays principle in the Indian sustainable development jurisprudence. The Bench said, “We must also deal with one other question which was seriously debated before us and that question is as to what is the measure of liability of an enterprise which is engaged in a hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured”. The Court also discussed the concept of strict liability and absolute liability citing the famous Rylands v. Fletcher case. The decision in the case provides a principle of strict liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. Court also cleared that this rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority.”
The Court further said that they are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-derogable duty to the community to ensure that no harm results to anyone on account of the hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer for the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm, the enterprise must be held strictly liable for causing such harm, as a part of the social cost for carrying on the hazardous or inherently dangerous activity.
The Court also pointed out that the measure of compensation must be correlated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. The larger and most prosper the enterprise the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise. The Court also advised the implementation Process of environmental auditing for the industrial activities
In S. Jagannath v. Union of India, (1997) 2 SCC 87 case also known as Shrimp Farming case, the Court applied the Polluter Pays Principle and passed orders against the shrimp farming culture industry found guilty of Polluting Coastal areas. The Court held that the shrimp culture industry was liable to compensate the affected persons on the basis of the ‘Polluter Pays’ Principle.
The Central Government was directed by the Court to constitute an Authority under section 3(3) of the Environment (Protection) Act, 1986 to deal with the situation created by the shrimp culture industry in the Coastal Stated and Union Territories.
The Court further said that the aforesaid Authority should assess the loss to the environment in the affected areas and identify the individuals or families who had suffered because of the pollution, and assess the compensation to be paid to them. The Court held that, the Authority should further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment.
In M. C. Mehta v. Union of India, (1997) 2 SCC 411 case, also known as Calcutta Tanneries case, the Court applied the Polluter Pays Principle. The Court involved issues relating to pollution caused by about 550 tanneries located in the adjoining areas in the eastern fringe of the city of Kolkata. The Court directed the State Government to appoint an Authority / Commissioner to assess the loss to the environment in the areas affected by the pollution caused by the tanneries. The said authority should determine the compensation to be recovered from the polluter-tanneries as, cost of reversing the damaged environment.
Conclusion:
With the rapid development of technology and industries, environmental degradation is inevitable and dealing with it becomes vital for human existence. The problem escalates when economic aspects of dealing with it become dominant, and the polluters pay principle helps in dealing with the later. We need the strict implementation of the principle, to the polluters which can change the situation to a very large extent.
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