The balance between environmental protection and developmental activities could only be maintained by strictly following the principles of “Sustainable development”. This is a development strategy that caters to the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. It is a guarantee to the present and a bequeath to the future.
All environment related development activities should benefit more people while maintaining the environmental balance. The adherence to sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the right to environment and development.
The concept of “sustainable development” has grown since its inception at the international fora and it has acquired different dimensions in terms of economic growth, development and environment protection. However, some of the salient principles of “sustainable development” as culled out from Brundtland Report and other international documents such as Rio Declaration and Agenda-21, are as under:
- Intergenerational Equity
The central theme of the theory of intergenerational equity is the right of each generation of human beings to benefit from the cultural and natural inheritance of the past generations as well as the “obligation” to preserve such heritage for future generations. Intergenerational equity requires conserving the diversity and quality of biological resources, and of renewable resources such as forests, water and soils. The principle of intergenerational equity is of recent origin. The 1972 Stockholm Declaration refers to it in Principles 1 and 2. In this context, the environment is viewed more as a resource basis for the survival of the present and future generations.
- Use and Conservation of Natural Resources
In order to meet the needs on sustainable basis, it is absolutely necessary to use the Earth’s natural resources carefully and the natural resource base must be conserved and enhanced. It is part of our moral obligation to other living beings and future generations. The resources must be conserved and enhanced to meet the needs of growing populations.
The idea that, for the benefit of future generations, present generations should be modest in their exploitation of natural resources has found widespread international approval since the Maltese Proposal at the UN General Assembly of 1967, which contended that there was a common heritage of mankind and that this also required legal protection by the international community.
- Environment Protection
The protection of the environment is an essential part of sustainable development. Without adequate environment protection, development is undermined; without development, resources will be inadequate for needed investments, and environmental protection will fail. The strong environment policies complement and reinforce sustainable development.
It is often the poorest who suffer the most from the consequences of pollution and environmental degradation. For example, unlike the rich, the poor cannot afford to protect themselves from the contaminated water. The poor also draw a large part of their livelihood from unmarked environmental resources such as forests. The unscrupulous exploitation of forests may be detrimental to both environment and development.
In Citizen, Consumer and Civic Action Group v. Union of India, the Court observed that while the courts have social accountability in the matter of protection of environment, there should be a proper balance between the same and development activities, which are essential for progress. There can be no dispute that the society has to prosper, but it shall not be at the expense of environment.
- The Precautionary Principle
The main purpose of the “precautionary principle” is to ensure that a substance or activity posing a threat to the environment is prevented from adversely affecting the environment, even if there is no conclusive scientific proof of linking that particular substance or activity to environmental damage.
The words ‘substance’ and ‘activity’ imply substances and activities introduced as a result of human intervention. In the context of the municipal law, the “Precautionary principle” means:
- Environmental measures by the State Government and the local authorities must anticipate, prevent and attack the causes of environmental degradation.
- Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
- The “onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign.
Vellore Citizens’ Welfare Forum v. Union of India,
The Court expressed the view that “the precautionary principle and the polluter pays principle” are essential features of sustainable development and that they have been accepted as part of the law of the land. The Court had no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country. The Court also observed that even otherwise, the above said principles are accepted as part of the customary international law and hence there should be no difficulty in accepting them as part of our domestic law.
The Precautionary Principle and the New Burden of Proof — The “uncertainty” of scientific proof and its changing frontiers from time to time has led to great changes in environmental concepts flouting the period between 1972 and 1992. In the case of Vellore Citizens ‘Welfare Forum v. Union of India, Court has observed new concept of “burden of Proof in environmental matters. It means burden of proof on the developer or industrialist who is promising to alter the status quo has also become part of our environmental law.
The Precautionary Principle and Difficulty in its Application-The application of precautionary principle is not always very easy or in a straitjacket. If an activity is allowed to go ahead, there may be irreversible or irreparable damage to the environment and if it is stopped, there may be irreparable damage to the economic interests. In case of doubt, however, protection of environment would have precedence over the economic interest. Precautionary principle requires anticipatory action to be taken to prevent harm. The harm can be prevented even on a reasonable suspicion.
The Precautionary Principle Replaces the Assimilative Capacity Principle- Assimilative capacity refers to the ability of the environment or a portion of the environment (such as a stream, lake, air mass, or soil layer) to carry waste material without adverse effects on the environment or on users of its resources. Pollution occurs only when the assimilative capacity is exceeded. Some environmentalists argue that the concept of assimilative capacity involves a substantial element of value judgement, i.e., pollution discharge may alter the flora and fauna of a body of water, but if it does not affect organisms we value (e.g., fish) it is acceptable and within the assimilative capacity of the body of water.
From the above observations it is clear that inadequacies of science is a real basis that has led to the development of precautionary principle. It is based on the theory that it is better to err on the side of caution and prevent environmental harm, which may indeed become irreversible. In other words, the principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harm activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interests but also protect the environment for its own sake. The precautionary duties must not only be triggered by the suspicion of concrete danger but also by justified concern or risk potential.
The Special Burden of Proof in Environmental Cases : It is to be noted that while the inadequacies of science have led to the “precautionary principle” the said “precautionary principle” in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effects of the action proposed, is placed on those who want to change the status quo. This is often termed as a reversal of burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair.
Therefore, it is necessary that the party attempting to preserve the status quo while maintaining a less polluted state should not carry the burden of proof and the party who wants to alter it, must bear this burden.
The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.
It is also explained that if the environmental risks being run by regulatory inaction are in some way “uncertain but non-negligible, then regulatory action is justified. This will lead to the question as to what is the non-negligible risk.
In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a “reasonable ecological or medical concern”. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environmental protection.
In Research Foundation for Science (18) v. Supreme Court has explained that the Union of India, the “precautionary principle” generally describes an approach to the protection of the environment or human heal based on precaution even where there is no clear evidence of harm or risk of harm from an activity or substance. It is a part of the principle of sustainable development. It provides for taking protection against specific environmental hazards by avoiding or reducing environmental risks before specific harms are experienced.
M.C. Mehta v. Union of India, 164 (popularly known as Taj Mahal case), is get another case in which the judgment of the Court is based on the principle of sustainable development and where the Court applied then “precautionary principle”
In Kevstone Realators (P) Ltd. v. Anil V. Tharthare, the Supreme Court observed that the Environment Impact Assessment (EIA) Notification is an operationalization of the precautionary principle, which forms a part of the environmental law of India. The EIA Notification must be read in a manner which gives effect to the precautionary principle.
In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & ors., the industrial units continued their production without obtaining prior environmental clearance. The Supreme Court observed that it cannot be oblivious to the On Act environmental degradation caused by industries units that operated without valid environmental clearances. However, the Supreme Court allowed the industries to continue their production. The Court applied the “precautionary principle” as well as polluter pays principle and directed the industries in question to deposit compensation of 10 crore each for restoration.
- The Polluter Pays Principle
The ‘Polluter Pays Principle” (PPP), as interpreted by the Supreme Com of Indian, means that the absolute liability for harm to the environment extend, of India, to compensate the victims of pollution but also the cost of restoring not environmental degradation. Thus, it includes environmental costs as well as direct costs to people or property. 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. Under this 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 tax payer.
Further the cost here means full environmental cost. It means it is not limited to tangible degradation or not limited to immediately tangible. There is misconception regarding cost is that cost will be incurred only for the time as long as polluter has polluted.
European community has accepted this principle as a fundamental part on environmental matters with some following basic principles :
- Preventive action is to be preferred to remedial measures;
- Environmental damage should be rectified at source;
- The polluter should pay for the costs of the measures taken to protect the environment; and
- Environmental policies should form a component of the European Community’s other policies.
Thus, according to the “polluter pays principle”, the responsibility to repair the environmental damage is that of the polluter.
Principle 16 of the Rio Declaration of 1992 also enunciates “polluter pays principle“.
It provides that national authorities should endeavour to promote the internationalisation 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.
Research Foundation for Science v. Union of India, the Supreme Court has explained that the “Polluter Pays Principle” basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible. However, this principle does not mean that the polluter can pollute and pay for it. The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case.
In M.C. Mehta (Kant Enclave Matters) v. Union of India, 2018 the damage was caused to the forests in Aravali Hills, by developers by doing construction. Thus, irreversible damage to environment and ecology of the Aravali Hills was caused. The Court applied, “polluter pays principle” and directed the builders to deposit 10% of the project cost of the project.
In the case of Threat to Life Arising Out of Coal Mining in South Garo Hills District v. State of Meghalaya, 2019 the National Green Tribunal directed the State of Meghalaya to deposit an amount of Rs. 100 crores with the Central Pollution Control Board, which was to be spent for restoration of environment. The said amount of Rs. 100 crore was required to be spent only for restoration of the environment in the State of Meghalaya. The State of Meghalaya aggrieved by the above direction filed Appeal in the Supreme court. The Supreme Court expressed the view that the amount, which has been directed by NGT to be deposited by the State of Meghalaya, is neither a penalty nor a fine imposed on the State. The amount has been directed to be deposited for carrying out steps regarding restoration of environment. However, the Supreme Court took note of the fact that Meghalaya has very limited source of revenue and putting an extra burden on the State of Meghalaya to make payment of Rs. 100 crores from its own financial resources and budgetary amount may cause great hardship to the State of Meghalaya. Accordingly, the court observed that the ends of justice will be served in modifying the direction of NGT to the extent that the State is permitted to transfer an amount of Rs. 100 crore from the amount lying in the MEPRF to the Central Pollution Control Board which shall utilize the aforesaid amount only for the restoration of the environment.
In Goel Ganga Developers (India) (P) Ltd. v. Union of India,2018 the developers did the construction in the violation of environmental clearance. The Supreme Court instead of directing demolition, imposed damage of Rs. 100 crore or 10% of project cost, whichever was higher, for violation of environmental clearance in addition to Rs. 5 crore damages imposed by NGT.
- Obligation to Assist and Co-operate: The environmental problem is not the problem of an individual or that of one country. It is a global problem and it can be tackled only with the assistance and co-operation of all.
Principle 9 of the Rio Declaration provides that the States should co-operate to strengthen indigenous capacity- building for sustainable development by improving scientific understanding through exchanges of scientific and technological knowledge, and by enhancing the development, adaptation, diffusion and transfer of technologies, including new and innovative technologies.
Principle 10 of the Rio Declaration further provides that environmental issues are best handled with the participation of all concerned citizens, at the relevant level. Similarly,
Principle 12 of the Rio Declaration provides that the States should co-operate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation.
Principle 27 of the Rio Declaration expects the people and the States to co-operate in good faith and in a spirit of partnership in the further development of international law in the field of sustainable development.
- Eradication of Poverty :
The sustainable development has to address the problem of the large number of people who live in absolute poverty and who cannot satisfy even their basic needs. At the Stockholm Conference in 1972, our former Prime Minister Mrs. Indira Gandhi said : “of all pollutants we face, the worst is poverty”.
The Brundtland Report has rightly pointed out that poverty reduces people’s capacity to use resources in a sustainable manner and hence it intensifies pressure on the environment. Most of the developing countries are under the stress of poverty. Therefore, it is necessary that the growth must be revived in developing countries because that is where the links between economic growth, the alleviation of poverty, and environmental conditions operate most directly.
The UN Conference on Environment and Development, i.e., “Earth Summit” of 1992 has brought about a leap in public awareness of key environment and development issues and rightly projected that elimination of poverty is a must for sustainable development, particularly in the developing countries. The key to achieve sustainability is to break the vicious cycle of poverty.
- Financial Assistance to Developing Countries
It has already been explained above that the developing countries face poverty as the worst pollutant. The people in the developing countries strain their natural resources and over exploit them to meet their basic needs. The developing countries also do not have the finances and modern technology to follow the path of development which is sustainable. Therefore, the financial assistance and transfer of technology from the developed nations to the developing nations is a must if we want to achieve the goal of sustainable development and environment protection. In fact, this was one of the major demands of developing countries at the “Earth Summit” of 1992.
It is worth mentioning here that the World Bank, in addition to various other international institutions, has been playing a key role in response to the clarion call of sustainable development at “Earth Summit”
It is submitted that the challenges of environment protection and sustainable development are daunting. The concept of sustainable development has grown from Stockholm Conference to Paris Agreement and thereafter through various national and international fora. Some of the salient principles of the sustainable development have been identified. But the real task which lies ahead is that of implementation. For this, what we need is the political will of the North and the South to act in co-ordination to protect this planet Earth from further deterioration.