Polluter Pays Principle - Critical Analysis

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Khurana and Khurana

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The aim of this article is to delve into the role played by the National Green Tribunal in determining the scope of Polluter Pays Principle in India and the significance...
India Environment
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The aim of this article is to delve into the role played by the National Green Tribunal in determining the scope of Polluter Pays Principle in India and the significance of economic instruments concerning widening the scope of this concept.

INTRODUCTION

It is well accepted that as you sow, so shall you reap. With regard to the environment this idiom is perfectly summed by the Polluter Pays Principle. Black's Law Dictionary defines Polluter-Pays Principle as "a principle that states that the costs incurred due to pollution control, prevention and treatment should be paid by the entity which is responsible for causing the pollution in the first place."1 In a nutshell, Polluter Pays Principle stipulates that whoever is responsible for causing pollution should meet the cost of mitigating the damage caused.2 Ergo, the liability of causing pollution and making right the wrong done to the environment lies on the polluter.

LITERATURE REVIEW

Barthakur, A., Polluter Pays Principle As The Key Element To Environmental Law

In this research paper, Ashmita3 explores the historical evolution and acceptance of the Polluter Pays Principle, highlighting its place in customary international law, and examines pollution definitions from a legislative standpoint. Citing court rulings and constitutional support, the research paper delves deeper into India's adoption of the Polluter Pays Principle followed by the part played by market-based tools like transferable permits in developing and putting into practice the Polluter Pays Principle. The author emphasizes the necessity of adopting the Polluter Pays Principle with nuance, taking into account resources related to common property, economic ramifications, and the possible influence on smaller businesses.

Shinde, M., The Polluter Pays Principle in Effect at the National Green Tribunal India

In this research paper, Mrinalini4 in the context of National Green Tribunal, which provides a forum for resolving judicial disputes largely involving environmental issues, examines the specific role of the Polluter Pays Principle, in order to determine whether or not Polluter Pays Principle isa useful tool for holding polluters accountable, creating a deterrent, compensating those harmed by the environment, and raising enough money to restore the environment to its pre-pollution state. Moreover, theauthor examines the benefits and limitations of this approach because Polluter Pays Principle are currently more often used as a compensation mechanism than for other objectives.

Doabia, TS., Environmental &Pollution Laws in India

In Chapter 8 of this book, TS Doabia5 emphasizes that the cost of minimizing the harm must be borne by the party who is accountable for the pollution. This idea has long existed because penalties for environmental degradation were included in earlier municipal laws. In upholding the "Polluter Pays Principle," the Indian Supreme Court said that businesses involved in hazardous activities are fully responsible for making up for any damage they cause to community members, the environment, or the water supply. The idea includes paying for environmental restoration expenses in addition to victim compensation. A number of laws, including the Water (Prevention and Control of Pollution) Act, 1974. the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 establish procedures for regulating pollution, and constitutional clauses underscore the state's obligation to safeguard the environment.

Dube, I., Environmental Jurisprudence: Polluter's Liability

In this book, Indrajit6 enunciates that internationally and within municipal legal systems, the Polluter Pays Principleis widely acknowledged as a preventive as well as a compensation remedy. In addition to acting as a deterrence by imposing hefty penalties, it mandates that polluters pay for the environmental harm they do. This principle includes four main viewpoints: making polluters criminally liable, making them pay to repair environmental harm, enacting eco-taxes or carbon taxes, and requiring them to contribute to environmental conservation. In India, this principle has been used by the Supreme Court and High Courts, which have interpreted it to suggest that polluters must pay for the costs of repairing environmental damage in addition to providing compensation to victims of pollution. Therefore, the 'Polluter Pays' approach is essential for advancing environmental responsibility.

DESCRIPTIVE ANALYSIS- ROLE OF NGT

Established by the National Green Tribunal Act, 2010, the National Green Tribunal (NGT) is an important adjudicating body for civil matters pertaining to environmental issues. Under statutes including the Environment Protection Act of 1986, the Air Act of 1981, the Water Act of 1974, the Forest Act of 1927, the Biological Diversity Act of 2002, and the Public Liability Insurance Act of 1991, the NGT has jurisdiction over disputes involving significant environmental problems. In making judgements, Section 20 of the NGT Act highlights the use of concepts like the Polluter Pays Principle (PPP), the Precautionary Principle, and Sustainable Development. Furthermore, Section 19 emphasises that the NGT adheres to natural justice principles rather than the Code of Civil Procedure, 1908's procedural guidelines.

With a specific emphasis on urban air pollution from automotive sources, the National Green Tribunal (NGT) has successfully used the Polluter Pays Principle as a legislative tool to address environmental harm and civic dereliction. The NGT noted that cars entering the city enjoyed a "undue incentive" in Vardhaman Kaushik v. Union of India & Ors.7 involving air pollution in Delhi NCR, creating an unacceptably unfavourable environmental condition. As a result, in addition to toll charges, a 'environment compensation charge' of between Rs 500 and Rs 1,000 was placed on cars entering Delhi and had to be submitted with the Delhi Pollution Control Committee.

JUDICIAL PRONOUNCEMENTS

  1. Jan Chetna v. Ministry of Environment and Forests8: The NGT focused on the importance of the PPP in Indian environmental law while examining the concepts of sustainable development and international environmental law in this particular instance. The ruling demonstrated the Polluter Pays Principle's efficacy in an area with standardised environmental regulations.
  1. Hindustan Coca Cola Beverages Pvt Ltd. v. West Bengal Pollution Control Board9: The NGT strictly enforced the Polluter Pays Principle, making a polluting industry pay for the expenses associated with environmental rehabilitation and abatement. Notably, the West Bengal Pollution Control Board was given charge of cost assessment, which represented a change from the courts' custom of determining damages.
  1. Vanashakti & Anr. v. MPCB and Ors.10: In this case, damages totaling INR 760 million were granted for restitution and rehabilitation in response to environmental harm brought on by industrial establishments and publicly owned Common Effluent Treatment Plants that contaminated rivers in Maharashtra.
  1. M/s. NGT (SZ) Bar Association v. The Chief Secretary, Govt. of Tamil Nadu and Ors.11: The NGT took note of an illegal tank collapse incident on its own, which resulted in worker deaths and pollution. A total of INR 7.5 million in damages were granted, covering both the families of the victims and compensation for environmental harm.
  1. Perma Nand Khanta v. State of Himachal Pradesh12: The NGT levied a tax on cars that made contributions to the State Government's Green Tax Fund in order to address air and noise pollution at the Rohtang Pass glacier. This demonstrated an innovative use of the PPP.
  1. Vardhaman Kaushik and Ors. v. Union of India and Ors.13 The NGT ordered the Environment Compensation Charge in response to substantial automobile air pollution in New Delhi. The Supreme Court later upheld the charge with an enhanced amount, demonstrating the NGT's significant influence in environmental governance. Water contamination in the Yamuna River The PPP is distorted when citizens are required to pay for environmental restoration without a clear connection between pollution and payers. This was the case when the NGT ordered all Delhi households to pay a minimum sum for environmental compensation.

SIGNIFICANCE OF ECONOMIC INSTRUMENTS

The Polluter Pays Principle should be implemented and applied with a protective framework to mitigate potential risks and uncertainties regarding its commercial impact. This principle is closely associated with policies categorized as "market-based" or "economic instruments," further classified into taxes and tradable permits. The tax approach involves direct payments, either as emission fees or excise taxes on pollution-related product sales. The government establishes an overall allowable emission level for an industry and distributes licences in accordance with it under the tradable permits system. Based on their needs for reducing pollution and their capacity to implement pollution abatement techniques, companies can then exchange these licences.

Concerning the expansion of the concept, economists have four concerns14:

  1. Using the principle in metropolitan regions where small and medium-sized businesses predominate in a highly competitive market may present hazards and reduce competitiveness in comparison to larger organisations that can afford to invest in pollution control equipment.
  2. While the polluter pays concept does not forbid companies from passing on additional costs to customers, in developing countries that depend on the export of commodities, manufacturers may choose to absorb these costs at the expense of ecosystems, property, and human health.
  • Estimating fines for polluters can be challenging, particularly in Third World countries when trade includes goods from sectors that produce a lot of pollution. The idea should be put into practice via market-based instruments, like environmental assurance bonds, to prevent financial harm.

CONCLUSION

In summary, this article examined the Polluter Pays Principle, a cornerstone of environmental law, critically. Examined are the historical development of the Polluter Pays Principle, its legal adoption, and its actual implementation, with an emphasis on the significance of holding polluters accountable for damages to the environment. The idea has been investigated from a variety of legal and academic perspectives. It is predicated on the core tenet that the people who generate pollution should bear the cost of its management, prevention, and treatment. In essence, the study adds to our understanding of the Polluter Pays Principle as a dynamic and ever-evolving idea in environmental law that is impacted by legislative frameworks, judicial decisions, and economic variables. As we navigate the complex challenges of environmental preservation and sustainable development, the Polluter Pays Principle is a crucial instrument for promoting accountability, deterrent, compensation, and restoration. In conclusion, it is crucial to implement the Polluter Pays Principle in a context-specific and nuanced way, taking into account the complexities of environmental challenges as well as the reality of the economy.

REFERENCES

BOOKS

  1. Doabia, TS. (2023). Environmental & Pollution Laws in India. LexisNexis Butterworths

https://advance-lexis-com.eu1.proxy.openathens.net/api/permalink/04b4efb5-2d81-46a8-afbc-00e50239a494/?context=1523890

  1. Dube, I., (2007). Environmental Jurisprudence: Polluter's Liability

JOURNAL ARTICLES

  1. Barthakur, A. (2021). Polluter pays principle as the key element to environmental law.International Journal of Scientific and Research Publications (IJSRP),11(3), 274-277. http://dx.doi.org/10.29322/IJSRP.11.03.2021.p11137
  2. Shinde, M. (2017). The Polluter Pays Principle in Effect at the National Green Tribunal in India.HEE-Journal,9, 10-18. https://www.dx.doi.org/10.18455/09002
  3. Parikh, K S., (1993). The Polluter-Pays and User-Pays Principles for Developing Countries: Merits, Drawbacks and Feasibility, in FAIR PRINCIPLES FOR SUSTAINABLE DEVELOPMENT: ESSAYS ON EVIRONMENTAL POLICY AND DEVELOPING COUNTRIES

Footnotes

1 Black's Law Dictionary. (n.d). Polluter-Pays Principles. In the Law Dictionary. Retrieved March 5, 2024, from https://thelawdictionary.org/polluter-pays-principle/

2 Doabia, TS. (2023). Environmental & Pollution Laws in India. LexisNexis Butterworths

https://advance-lexis-com.eu1.proxy.openathens.net/api/permalink/04b4efb5-2d81-46a8-afbc-00e50239a494/?context=1523890

3 Barthakur, A. (2021). Polluter pays principle as the key element to environmental law. International Journal of Scientific and Research Publications (IJSRP), 11(3), 274-277. http://dx.doi.org/10.29322/IJSRP.11.03.2021.p11137

4 Shinde, M. (2017). The Polluter Pays Principle in Effect at the National Green Tribunal in India. HEE-Journal, 9, 10-18. https://www.dx.doi.org/10.18455/09002

5 Doabia, TS. (2023). Environmental & Pollution Laws in India. LexisNexis Butterworths

https://advance-lexis-com.eu1.proxy.openathens.net/api/permalink/04b4efb5-2d81-46a8-afbc-00e50239a494/?context=1523890

6 Dube, I., (2007). Environmental Jurisprudence: Polluter's Liability

7 2016 SCC OnLine NGT 4176

8 Appeal No. 22 of 2011(T) 9/02/2012

9 Principal Bench, Appeal No. 10 of 2011

10 Application No. 37 of 2013 (WZ)

11 Application No. 41 of 2015 (SZ)

12 CWP 1480/2010

13 Principal Bench, Application No. 21/2014

14 Parikh, K S., (1993). The Polluter-Pays and User-Pays Principles for Developing Countries: Merits, Drawbacks and Feasibility, in FAIR PRINCIPLES FOR SUSTAINABLE DEVELOPMENT: ESSAYS ON EVIRONMENTAL POLICY AND DEVELOPING COUNTRIES

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Polluter Pays Principle - Critical Analysis

India Environment

Contributor

K&K is among leading IP and Commercial Law Practices in India with rankings and recommendations from Legal500, IAM, Chambers & Partners, AsiaIP, Acquisition-INTL, Corp-INTL, and Managing IP. K&K represents numerous entities through its 9 offices across India and over 160 professionals for varied IP, Corporate, Commercial, and Media/Entertainment Matters.
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