CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

INTERNATIONAL ENVIRONMENT LAW PRINCIPLES ADOPTED IN

POLLUTER PAYS PRINCIPLES AND PRECAUTIONARY PRINCIPLES
AND THE IMPORTANT CASES.

SUBMITTED BY

NAME- PRIYADERSHIKA

ENROLLMENT NO.- CUSB1713125031

PROGRAMME- B.A. LLB. (H)

SUBJECT TITLE AND CODE- ENVIRONMENTAL LAW (LAW402)

SUBMITTED TO

Mr. Mani Pratap (Assistant Prof.)

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 Table of cases

1. Imperial Oil Ltd. v. Quebec (Minister of the Environment) ……………………….05

2. Indian Council for Enviro-Legal Action vs. Union of India………………………...10
3. M. C. Mehta vs Kamal Nath& Ors…………………………………………………...11
4. North Fraser Harbour Commission v. Environmental Appeal Board…………......07
5. Oleum Gas Leak case (M.C. Mehta vs. Union of India) ……………………………11
6. Vellore Citizens' Welfare Forum vs. Union of India………………………………...10

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CONTENT

1. INTRODUCTION…………………………………………………………..04
2. INTERNATIONAL ENVIRONMENTAL LAW PRINCIPLES ADOPTED IN
POLLUTER PAYS PRINCIPLE…………………………………………………….05
3. PRECAUTIONARY PRINCIPLE…………………………………………………...08
4. DEFINITION OF PRECAUTIONARY PRINCIPLE………………………………09
5. PRECAUTIONARY PRINCIPLE AS A RULE OF CUSTOMARY LAW……….10
6. VIEWS OF THE INDIAN JUDICIARY………………………………………...…...10
7. CONCLUSION………………………………………………………………………...13
8. BIBLIOGRAPHY……………………………………………………………………...14

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 POLLUTER PAYS PRINCIPLES

INTRODUCTION

"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, Greek Philosopher

The Polluter Pays principle is one of the oldest principles of environmental law and also one of
the most intuitive. After all, making the polluter pay for its wrongs makes sense on both,
practical as well as moral levels. It is expected that would-be polluters will be deterred in the
future and it seems fair that if one has dirtied the environment, one should be expected to clean it
up too. So far, so good. But one big question remains – who should pay for causing pollution,
and how much?

Polluter Pays Principle has become a popular catchphrase in recent times. 'If you make a mess,
it's your duty to clean it up'- this is the main basis of this slogan. It should be mentioned that in
environmental law, the 'polluter pays principle' does not refer to "fault." Instead, it favors a
curative approach which is concerned with repairing ecological damage. It's a principle in
international environmental law where the polluting party pays for the damage done to the
natural environment. It is regarded as a regional custom because of the strong support it has
received in most Organization for Economic Co-operation and Development (OECD) and
European Community (EC) countries.

In recent days, the polluter pays principle is seen as a way of internalizing pollution-related costs
within the context of the economic rationality of the enterprise. There is a close relationship
between a country's environmental policy and its overall socioeconomic policy. Furthermore,
under this principle it is not the responsibility of government to meet the costs involved in either
prevention of environmental 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. But State
practice does not support the view that all de-pollution costs should be borne by the polluter,
particularly where transnational dispute is involved.

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 Bugge has identified three versions of the PPP:

a) Economically, it promotes efficiency;

b) Legally, it promotes justice; it promotes harmonization of international environmental

policies; it defines how to allocate costs within a State.

c) The normative scope of the PPP has evolved over time to include also accidental pollution
prevention, control and clean-up costs, in what is referred to as extended Polluter Pays Principle.

Today the Principle is a generally recognized principle of International Environmental Law.

INTERNATIONAL ENVIRONMENTAL LAW PRINCIPLES ADOPTED IN

POLLUTER PAYS PRINCIPLE

The PPP can be applied internationally for addressing climate change, both in mitigation and
adaptation. However, this warrants the fulfillment of a few conditions:

(a) For developing countries to apply PPP, industrial countries are required to make transfer of
resources, financial and technological, so that the former can improve environmental standards in
production;

(b) agreement on the specific year from which to assume historical responsibility by the
industrial countries for past GHG emissions; and

(c) a nation-state causing damage to another should bear the responsibility and pay
compensation for it1.

PPP is recognized in a number of international Conventions (most of which have a regional

character) like the Helsinki Convention on the Protection of the Baltic Sea or the for the
Protection of the Mediterranean Sea against Pollution. There is not yet a unanimous opinion as to
whether PPP should be considered as a general principle of law or as a rule of customary law as
provided for in Art. 38 of the Statute of the International Court of Justice. The fact that most
nations have introduced PPP into their national legal orders, there is growing international

1
https://www.mdpi.com/2075-471X/4/3/638/htm

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acceptance for it, and an increasing number of international Conventions refer to it are all strong
argument.

1. Imperial Oil Ltd. v. Quebec (Minister of the Environment) 2, In 2003, the Supreme Court
of Canada issued a judgment upholding the ability of the Quebec Minister of Environment to
issue an order to Imperial Oil requiring it to assess contamination at a site previously owned by
Imperial, with a view towards future remediation of the site. The site in question had been used
for roughly 50 years as a petroleum products depot by Imperial. The depot had been shut down
by Imperial, which sold the site to a purchaser who demolished the industrial buildings and
subsequently transferred the property to a real estate developer. Ultimately the site was
developed as residential properties, following remediation of the site by the developer in
consultation with the Quebec Minister of Environment. Further contamination problems became
evident on the site in the mid-1990s, and in 1998 the Minister of Environment issued an order to
Imperial, as the former owner and operator of the site, to prepare and submit a report assessing
the soil contamination and providing recommendations on future action. Imperial challenged the
order, and the matter made its way to the Supreme Court of Canada for consideration on points
of administrative law.

The key question addressed by the Supreme Court was whether the Minister of Environment
had violated administrative law principles of procedural fairness and impartiality by issuing the
order to Imperial. Before the order was issued, several of the residential property owners had
initiated civil actions against the Minister for involvement in the site’s remediation. Basically,
Imperial’s main argument was that the order was flawed and should be set aside due to bias on
the part of the Minister, suggesting that by issuing the order to Imperial, the Minister avoided
potential liability on his own part and was therefore in a conflict of interest.

As part of its determination of the application of the rules of procedural fairness to this case, the
Supreme Court reviewed the legislative context in which the Minister issued the order to
Imperial. It recognized the incorporation of the polluter pays principle in Quebec’s Environment
Quality Act and many other pieces of Canadian environmental legislation, indicating “that
principle has become firmly entrenched in environmental law in Canada” and went on to
examine the regulatory process under the Act for remediation of contamination. Ultimately, the
2
[2003] 2 S.C.R. 624, 2003 SCC 58

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Supreme Court’s decision to uphold the order hinged on its finding that the Minister was
exercising a primarily political role, rather than an adjudicative one, in choosing “the best course
of action, from the standpoint of the public interest, in order to achieve the objectives of the
environmental protection legislation.” Due to the nature of the Minister’s role under the Act, he
was not required to maintain the impartiality that the law would require of a court, and was held
to have met the requirements of procedural fairness in issuing the order to Imperial.

2. North Fraser Harbour Commission v. Environmental Appeal Board 3, In early 2005, the
Supreme Court of Canada ruled on an appeal of a remediation order issued under the British
Columbia Waste Management Act to B.C. Hydro and Power Authority (BC Hydro), a successor
of a party involved in pollution of the site in question.9 The Act provides for retroactive liability
for remediation of contaminated property. Industrial operations on the site took place over
roughly forty years, until the late 1950s. BC Hydro was created in 1965 by the amalgamation of
three corporate entities, including BC Electric Company. Activities of BC Electric Company
were admitted by BC Hydro to have contributed to the site’s contamination. While the legislation
under which the disputed order was issued incorporates the polluter pays principle, the principle
was not specifically mentioned in the judgment. The Supreme Court did not issue its own
reasons, instead adopting the reasons of Justice Rowles, one of the dissenting justices when the
matter was heard by the British Columbia Court of Appeal.10 BC Hydro had conceded that its
predecessor would have been a “responsible person” under the Waste Management Act due to its
activities at the site. Given that concession, Justice Rowles felt it was unnecessary to deal with
the question of retroactive application of the Act and focused on the meaning and effects of
corporate amalgamation. BC Hydro had argued that wording in the amalgamation agreement and
supporting statute creating it had the effect of protecting it from liability attracted by the
company’s three predecessor corporations. Justice Rowles disagreed with this argument,
indicating that much clearer wording would be required to immunize an amalgamated company
from liability for the consequences of acts carried out by its predecessors. As such, the order
against BC Hydro requiring remediation was upheld. uments in favour of the reconnaissance of
PPP as a general principle of law.

PRECAUTIONARY PRINCIPLES

3
2005 SCC 1

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While the judiciary has used “precautionary principle” to provide for preventive relief to protect
environment, it has applied the “polluter pays” principle to give remedial relief to check and
control environmental degradation. Of these two principles which are the two sides of the same
coin of “sustainable development”, the “polluter pays” has been frequently used to control
environmental pollution. Thus, in a number of cases the higher judiciary has used this principle
not only to award ordinary damages/compensation to the victims of environmental degradation
but also to award exemplary damages/ compensation for the restoration of degraded
environment. Besides, the Courts have used this principle to invent the principle of absolute
liability in the case of environmental harm caused by hazardous industries.

Human life is, has always been, and will always be full of risks. The urge to deal with the risks
we face is a basic condition of our existence. Sailors sail on boats with lifeboats not because they
expect wreckage, but because they know that it would be irrational not to be prepared for the
potential dangers that they might encounter on their voyage. For reasons of equity and feasibility,
governments sought to apportion the economic costs of such intervention by requiring polluters
to pay the cost of pollution. It soon became apparent, however, that this Polluter Pays Principle
was practicable only if accompanied by a preventive policy, intended to limit damage to what
could be repaired or compensated for. This ‘prevention is better than cure’ model marks the
second stage of governmental action for environmental protection. This stage was characterized
by the idea that science can reliably assess and quantify risks, and the Prevention Principle could
be used to eliminate or diminish further damage.

The emergence of increasingly unpredictable, uncertain, and unquantifiable but possibly

catastrophic risks such as those associated with Genetically Modified Organisms, climate change
etc., has confronted societies with the need to develop a third, anticipatory model to protect
humans and the environment against uncertain risks of human action: The Precautionary
Principle (PP). The emergence of the PP has marked a shift from post damage control (civil
liability as a curative tool) to the level of a pre-damage control (anticipatory measures) of risks.

In its most basic form, the PP is a strategy to cope with scientific uncertainties in the assessment
and management of risks. It is about the wisdom of action under uncertainty: ‘Look before you
leap’, ‘better safe than sorry’, and many other folkloristic idioms capture some aspect of this
wisdom. Precaution means taking action to protect human health and the environment against

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possible danger of severe damage. The PP is often seen as an integral principle of sustainable
development that is development that meets the needs of the present without compromising the
abilities of future generations to meet their needs. Within the United Nations system, the PP is
included in the 1992 Rio Declaration on Environment and Development, and in the United
Nations Framework Convention on Climate Change. Later, the PP was incorporated into the
article on precaution (Article 5.7) of the World Trade Organization’s (WTO) Agreement on
Sanitary and Phytosanitary Measures (SPS Agreement) of 1994, as well as into the Biosafety
Protocol that was approved in Montreal in January 2000.

DEFINITION OF PRECAUTIONARY PRINCIPLE

There are two definitions of Precautionary Principle which are widely accepted-

1. The first definition is given in the Rio Declaration of 1992. It states that in order to protect the
environment every state should apply the principle to the best of their abilities. When there are
chances of irreversible and serious damage, lack of full scientific should not be the reason for the
postponement of preventive measure4.

2. The second definition is based on the Wingspread Statement on Precautionary Principle,

which was given 1998. This definition states that when there is a threat to the environment and
human health, precautionary measures should be taken even when full scientific data is not
available. The principle should examine the alternative options available (even the option of
taking no action).

There is a significant difference between the two definitions. The first definition talks about
“irreversible and serious damage, but the second definition talks about “harm” to the
environment and human health in general. Thus, the scope of the second definition is wider.

PRECAUTIONARY PRINCIPLE AS A RULE OF CUSTOMARY LAW

4
Principle 15 of Rio Declaration, 1992.

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The status of the precautionary principle as a rule of customary law is significant because a rule
of customary law creates obligations for all states, except those that have persistently objected to
the practice and its legal consequences. The statute of International Court of Justice defines
customary international law as “evidence of general practice accepted as law”5. The Nicaragua
case22 and the North Sea Continental Shelf case23 complement this article of the Statute and

VIEW OF THE INDIAN JUDICIARY

The Indian Judiciary has incorporated the Polluter Pays Principle as being a part of the
Environmental Law regime is evident from the judgments passed.

Indian Council for Enviro-Legal Action vs. Union of India 6 (Bichhri Village case) The
Polluter Pays" principle has been held to be a sound principle by the Court in this case. The
Court held that once the activity carried on is hazardous or inherently dangerous, the person
carrying on such activity is liable to make good the loss caused to any other person by his
activity irrespective of the fact whether he took reasonable care while carrying on his activity.
The rule is premised upon the very nature of the activity carried on.

Vellore Citizens' Welfare Forum vs. Union of India7 -The Court interpreted the meaning of the
Polluter Pays Principle as the absolute liability for harm to the environment extends not only to
compensate the victims of the 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 Oleum Gas Leak case (M.C. Mehta vs. Union of India) 8 -The Court laid down that an
enterprise engaged in a hazardous or inherently dangerous industry which poses a potential threat
to the health and safety of persons working in the factory and to those residing in the surrounding
areas, owes an absolute and non-delegable duty to the community to ensure that no harm results

5
The Statute of the International Court of Justice, available at http://www.icjcij.org/documents/index.php?
p1=4&p2=2&p3=0
6
Indian Council for Enviro-Legal Action vs. Union of India 1996(3) SCC 212
7
Vellore Citizens' Welfare Forum vs. Union of India 1996(5) SCC 647
8
3 The Oleum Gas Leak case (M.C. Mehta vs. Union of India) AIR 1987 SC 1086

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to any one on account of hazardous or inherently dangerous nature of the activity which it has
undertaken. The enterprise is absolutely liable to compensate for such harm and irrespective of
all reasonable care taken on his account. The larger and more prosperous the enterprise, greater
must be the amount of the compensation payable for the harm caused on account of an accident
in the carrying on of the hazardous or inherently dangerous activity by the enterprise.

In M. C. Mehta vs Kamal Nath& Ors 9 , Court by considering the PPP as the law of the land,
ordered that:

"It is thus settled by this Court that one who pollutes the environment must pay to reverse the
damage caused by his acts." Court disposed this matter by giving a show cause notice to the span
motels, that, why Pollution-fine and damages be not imposed as directed by us. This case
subsequently came up in front of the court in the year 2000 and court directed to the span motels
that: "The powers of this Court under Article 32 are not restricted and it can award damages in a
PIL or a Writ Petition as has been held in a series of decisions". Henceforth, court directed a
fresh notice to be issued to M/s. Span Motel to show cause why in addition to damages,
exemplary damage be not awarded for having committed the acts set out and detailed in the main
judgment. Finally in 2002, while granting exemplary damages court held that:"Liability to pay
damages on the principle of 'polluter pays' in addition to damages, exemplary damages for
having committed the acts set out and detailed in the main judgment. Considering the object
underlying the award of exemplary damages is to serve a deterrent for others not to cause
pollution in any manner. So the quantum at Rs. 10 lakhs is fixed for the span motels."

CONCLUSION

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4 M. C. Mehta vs Kamal Nath& Ors (1997)1 SCC 388

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Apart from being a part of the environmental protection instruments, Precautionary Principle has
also become a crucial part of the Public International Law. With the law gaining significant
momentum in the sphere of sustainable development, it is only inevitable that concept such as
these is accepted by all the nations. Precautionary Principle, a fundamental element of
sustainable development has been discussed much in the legal context, but improvements are still
needed in implementation.

Judiciary plays an immense role in linking the law with the concept of sustainable development.
So, it is vital that the judiciary also supports this kind of approaches. It can be concluded that
among other international environmental law principles, the precautionary principle is the only
principle which has the capacity to foresee possible serious and irreversible damage to
environment. It is also clear that environmental legislations in India are not very open to
expressly show the presence of precautionary principle, but indirectly with various provisions
they speak of precautionary approach only. International regulation of precautionary principle,
though, has not been accepted under legislation, but has found a place in national environmental
policy. What is noteworthy here is that Indian Supreme Court, when found that environmental
legislations cannot be of any help to determine the environmental damage which could be of
irreversible nature, it is the precautionary principle which not only could foresee such
irreversible damage to the environment, but also shifted the burden of proof from complainant to
respondent. It is also remarkable to note that the Supreme Court in India, where based on the
applicability of precautionary principle, the environmental Justice was promulgated. The journey
of nurturing the precautionary principle, though, started from the Vellore citizens case, but will
have to go many miles further to ensure the protection and preservation of natural environment.

BIBLIOGRAPHY

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BOOKS

1. Jaswal, P.S: Environmental Law (Allahabad Law Agency,4th edition,Reprint: 2016)

2. Leela Krishanan,P, The Environmental Law in India (LexisNexis Butterworth,

Nagpur,4th Edition 2016)

3. Shyam Diwan and Amin Rosencrantz, Environmental Law and Policy in India, Cases,
Materials and Statutes (Oxford University Press, New Delhi. 2nd Edn.)

WEBSITES

1. https://www.mdpi.com/2075-471X/4/3/638/htm
2. Indiankanoon.com
3. https://events.development.asia/system/files/materials/2016/12/201612-environmental-
law-principles-polluter-pays.pdf

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