Environmental FirstYear

ENVIRONMENTAL LAW SAVANTHI PONNAMPERUMA
Inter-generational equity
It is based on the principle that while the present generation is entitles to exploit the
limited natural resources of the earth for its subsistence and survival, the future
generations also have a resources for their subsistence. It is recognized that there
should be equity between the generations in the subsistence use of the earth’s natural
resources.
This principle was first recognized in the Stockholm Declaration. Principle 1 says:
“Man has the fundamental right to freedom, equality and adequate conditions of life,
in an environment of quality that permits a life of dignity and well-being, and he bears
a solemn responsibility to protect and improve the environment for the present and
the future generations.”
Principle 02 further elaborates that the natural resources and the eco-systems must be
safeguard for the benefit of present and future generations.
Climate Change Convention also incorporates this principle. Article 3(1) says that “The
parties should also protect climate system for the benefit of the present and the future
generations of humankind, on the basis of equity.”
This principle is closely linked with that of Sustainable Development and it is in fact
incorporated in the definition of sustainable development. It is also inter-connected to
precautionary principle.
The principle of inter-generational equity has been articulated in the domestic laws of
Sri Lanka. Section 17 of the NEA makes it compulsory for the CEA to ‘recommend to the
Minister the basic policy on the management and conservation of the country’s natural
resources in order to obtain the optimum benefits and to preserve the same for the
future generations’.
Case law in both national and international level has expressed and upheld the
principle.
In the case of New Zealand v. France (1995) Vol.3 (1 and 2) SAELR 7, Justice
Weeramanthry observed that “New Zealand’s claimant that its rights are affected does
not relate only to the rights of the people presently in existence. The rights of the
people of New Zealand include the rights of the unborn posterity. Those are rights
which a nation is entitled and indeed obliged to protect”.
The most significant case up to date on the issue is the Juan Antonio Oposa and Others
v. The Honorable Fulgencio S. Factoran and another (1994) Vol.1 (3) SAELR 113
 The petitioners were minors suing through their parents, on behalf of the
generations yet to be born seeking the court to cancel all timber licenses against
the felling of virgin tropical rain forests.
 They stated that they have a right for themselves but also a duty to defend the
rights of the future generations.
 They were successful in their suit.
The dictum is significant as it recognizes not only the right of the petitioners to a sound
environment but also their rights to represent future generations and defend their
rights as well.
The principle of inter-generational equity has also received judicial notice in Sri Lanka. It
was discussed in the context of the sustainable use of natural resources in the Eppawela
Case.
In the case of SmithKline Beecham Biological v. State Pharmaceuticals Corporation of

Sri Lanka and Others, Amarasinghe J made reference to the rights of the future
generations.
 This case concerned the award of the tender for the supply of the rubella
vaccine. On the issue of whether the tender should be awarded to the lowest
bidder, Amarasinghe J stated “Obviously, the cheapest, as the common
experience shows, may not procure the best product; when any authority is
dealing with a product concerned with the lives of the of people, including the
unborn citizens of Sri Lanka- would the government compromise; may it
gamble?”
This concept was also mentioned in the Indian case of M C Mehta v. Union of India (the
tanneries case) AIR 1988 Supreme Court 1037 at 1039.
Polluter-Pays Principle
The polluter-pays principle means that those who are responsible for causing the
pollution must bear the cost of such pollution. But in many instances the costs of
pollution are borne by the state or the public, rather than the polluters
Example - An industry discharge pollutants into a river. The ways in which the public bear
may the economic loss of such pollution:
a.The river can remain polluted and unsuitable for certain downstream activities ,
thereby causing economic loss for those who utilize the river
b.The river may become unsuitable for agriculture, fisheries or even for recreational
purposes.
The direct or indirect cost of these problems may include medical costs, loss of livelihood,
degradation of natural resources and the cost of cleaning up the river.
These costs would generally have to be borne by individuals, public authorities or

communities.The polluters pay principle tries to ensure that such costs are ultimately
borne by the polluters in the form of taxes and fines or as compensation to those who
have been adversely affected by the pollution or being compelled to repair the damage
to the environment.
A wide interpretation was given to this principle by the Indian Supreme Court in M.C
Mehta v Kamal Nath and Others (1997) Vol. 4 (3) SAELR 122; (1997) 1 SCC 388
extending the liability not only to compensate the victims of pollution but also to cover
the cost of restoring the environmental degradation.
o In this case the state government had leased public land to a private hotel
company. The hotel company has engaged in operation to divert the natural
course of a river to prevent the further flooding of the hotel, causing fears of
serious ecological damages.
o Holding that the company was bound to pay the cost of restoring the
environment the court stated put that the absolute liability for harming the
environment extends not only to compensate the victims of pollution but also
the cost of restoring the environmental degradation.
In the case of Indian Council for Enviro-Legal Action and Others v. Union of India and
Others (1997) Vol.4 (1) SAELR 2 several chemical factories in the state of Rajasthan were
discharging poisonous chemical wastes and polluting the environment including the
ground water. Several hardships were caused to the villagers as a result. Upholding the
polluter-pays principle the Court held that the responsibility for repairing the damage is
that of the offending company.
In the case of Vellore Citizens Welfare Forum Case the court held that the polluter must
compensate the affected persons and also pay the cost of restoring the damaged
ecology.
This Principle was also discussed in the Eppawela Phosphate mining case -
Bulankulama v Secretary, Ministry of Industrial Development (2002) Sri.L.R 243 Justice
Amarasinghe said
“ The cost of environmental damage should , in my view , be borne by the party that
causes such damage, rather than being allowed to fall on the general community to be
paid through reduced environmental quality or increased taxation in order to mitigate
the environmentally degrading effects of a project …… “
These cases are examples of polluters being required to both compensate affected
people and bear the cost of environmental damage already caused.
Precautionary Principle
The Precautionary Principle is based on the premise that that it is better to prevent
environmental degradation in the first place than allow it to occur and then try to repair
the damage.
The precautionary principle has been incorporated in several international conventions.
The Principle 15 of the Rio Declaration states that “In order to protect the environment,
the precautionary approach shall be widely applied by states, according to their
capabilities. Where there are threats of serious irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing the effective measures to prevent
environmental degradation”.
Also, the Climate Change Convention in Article 3(3) and The Convention of Biological
Diversity in its preamble articulate the precautionary principle.
To prevent environmental degradation it is necessary to assess the possible impacts on

the environment whenever a particular activity is carried out. In order to do so, the risks
to the environment must be assessed in the light of scientific and other knowledge
available at that time. However, the lack of full scientific certainty regarding such harm
must not be used as a reason to avoid taking steps to prevent harm to the environment.
The precautionary principle has been addressed in judgments of the ICJ.
New Zealand v. France (1996) Vol 3 (1&2) SAELR page 7
o This case concerned a dispute between the two countries over France’s intention
to conduct underground nuclear test in the South Pacific.
o Majority of judges dismissed the application of New Zealand objecting to such
testing. However, in the dissenting judgment Weeramantry J stated, “The proof
or disproof of the matter alleged may present difficulty to the claimant as the
necessary information largely be in the hands of the party causing or threating
the damage. The precautionary principle gives the court the basic rationale for
considering New Zealand’s request and not postponing the application until such
time as the full scientific evidence becomes available in refutation of the New
Zealand contention.
The precautionary principle was cited by the Supreme Court of Sri Lanka in the
Eppawela phosphate mining case.
o The petitioners alleged that there will but massive and irreversible
environmental pollution and health impacts as a result of the project including
the large scale mining and the construction of a factory for the production of
phosphoric and sulphuric acid in Trincomalee, both of which are highly polluting
substances.
o The petitioners further stated the past records of environment pollution by
Freeport MacMoran (the major shareholder and the 5th respondent).
o In this case Amarasinghe J applied the precautionary principle and pointed out
the way in which the principle evolved from the Stockholm to the Rio
Declarations.
Common but Differentiated Responsibility

All countries have a responsibility to co-operate with each other in protecting the both
the environment in their own countries as well as the global environment. It is accepted
that all countries have contributed to some extend to environmental degradation within
their territories and such degradation would affect the international community as a
whole.
However, it is argued that developed countries have caused more harm to the global
environment than the developing countries by consuming more of the earth’s natural
resources and cause more pollution. Therefore they should bear a greater burden of
environmental protection than the developing countries. Further, they have more
economic resources to contribute towards environmental protection than the
developed countries which are still trying to achieve basic standard of living for their
people.
The principle of common but differentiated responsibility emphasized
o Firstly, that protection of the global environment is the common concern of

humankind and that of all the States.
o Secondly, it acknowledges the fact that various States in various stages of
economic development may have different capabilities to do so. Therefore the
developed countries may be called upon to make a greater contribution.
This principle has been recognized in Principle 07 of the Rio Declaration; “States shall
co-operate in a spirit of global partnership to conserve and restore the health and
integrity of the Earth’s eco-system. In view of the different contributions to global
environment degradation, States have a common but differentiated responsibilities. The
developed countries acknowledge the responsibility that they bear in the international
pursuit of sustainable development in view of the pressures their societies place on the
global environment and the technologies and financial resources they command”.
It has also been recognized in Article 3 (1) of the Climate Change Convention.
Sustainable Development
Sustainable development was defined in the Brundtland Commission report as
“development that meets the need of the present without compromising the ability of
the future generations to meet their own needs”
Development needs and environmental concerns should be balanced in order to achieve

sustainable development.
The Rio conference was a significant milestone that set a new agenda for sustainable
development. Principle 4 of the Rio Declaration states that “in order to achieve
sustainable development, environmental protection shall constitute an integral part of
the development process and cannot be considered in isolation from it.”
Principle 1 – “Human beings are at the center of concerns for sustainable development.
They are entitled to a healthy and productive life in harmony with nature”.
Sustainable development relates to issues of over exploitation of natural resources and

irreversible destruction of the environment in the process of development by the
present generation, thus compromising the ability of the future generations to meet
their own needs. The concept of sustainable development is thus inter-connected with
other concept of environment law such as polluter pays, precautionary principle and
inter-generational equity. When decisions are made on development issues, the
environmental impact of such development must be taken into account both at national
and international level.
This concept has been articulated in
 Article 3(4) of the Convention of Climate Change

 Article 5 of the Desertification Convention
The concept of sustainable development has been discussed in cases in both national
and international level.
Gabcikovo-Nagymares, Hungary v. Slovakia (1997) Vol.4 SAELR 197
o Case on a dispute between the two countries for the construction and operation
of a project over the River Danube. In this case ICJ discussed the concept of
sustainable development at length.
o Weeramantry J observed that the project in question was important to Slovakia
from the point of development and Hungary claimed that he project would
cause extensive environmental damage. A principle must be followed which pays

due regard to both considerations.
o Development cannot be perused to such a point so as to result in substantial
damage to the environment. Therefore development can only be prosecuted in
harmony with the reasonable demands of environmental protection.
The principle of Sustainable development has been incorporated into the domestic
laws as well. Though it is not explicitly mentioned, certain sections in the NEA reflect
this principle.
 In Part IV of the Act titled ‘Environmental Management’, the CEA is vested

with the power to formulate the schemes by which the natural resources of
the country should be utilized and exploited.
 Section 15(b) which relates to land use management, states that one of the
objects of the scheme should be ‘to encourage the prudent use and
conservation of land resources in order to prevent an imbalance between the
needs of the nation and such resources.’
 The other sections of the Act specify that various natural resources shall be
subject to ‘rational exploitation’
 The EPL and the EIA processed introduced by the NEA seek to integrate
environmental concerns with development processes.
The principle of sustainable development was recognized by the judiciary in

Bulankulama v. The Secretary, Ministry of Industrial Development Case (Eppawela
Phosphate mining Case)
o In this case, the government proposed to enter into a joint venture with a
foreign company to mine the phosphate deposits in Eppawela.
o According to scientific evidence, phosphate would be mined and exported within
a period of 30 years.
o In rejecting the proposal the Court considered the concept of sustainable
development at length.
o This is the first judgment, which specifically refers to international environmental
law instruments, including the Stockholm Declaration and the Rio Declaration.
o While recognizing the right of the State to engage in economic development
activities for the benefit of the people. Amarasinghe J stated that;
‘…… the petitioners do not oppose the utilization of the deposit. However, they
submit that the phosphate deposit is not a non-renewable natural resource that
should be developed in a prudent and sustainable manner in order to strike an
equitable balance between the needs of the present and the future generations in
Sri Lanka..’
He further stated that: ‘the human development paradigm needs to be placed within
the context of our finite environment so as to ensure the future sustainability of the
mineral resources and of the water and the soil conservation ecosystem of the
Eppawela region, and the North Central Province and the Sri Lanka in general. Due
account must also be taken of our non-renewable cultural heritage.’
In Gunarathne v. the Homagama Pradeshiya Sabha, the Supreme Court held that
publicity, transparency, and fairness are essential if the goal of sustainable
development is to be achieved.
The Indian Supreme Court cited the principle of sustainable development in the case of
Vellore Citizens Welfare Forum v. Union of India and Others AIR 1996 SC 2715; Vol.4
SAELR 90 at 106
o This case concerned the large scale pollution caused by the tanneries in Tamil
Nadu.
o The Court upheld the complaint of the petitioners that excessive harm was
caused to the environment and the people by this industry.
o Kuldip Singh J observed that although the leather industry in India is a major
foreign exchange earner and is of vital importance to the country, “it has no right
to destroy the ecology, degrade the environment and pose a health hazard.”
o He further observed that “the traditional concept that development and ecology
are opposed to each other, it is no longer acceptable. ‘Sustainable development’
is the answer.”
Public trust Doctrine

This doctrine rests on the principle that certain resources like air, sea, water , fauna and
flora have such a great importance to the people as a whole , that it would be wholly
unjustified to make hem subject to private ownership. The said resources being a gift of
the nature should be freely available to everyone irrespective of the status of life.
The doctrine of public trust is essentially a restriction on the private ownership of public
lands or public property. According to the English Common Law principles of public
trust, certain types of lands which are put to certain types of used must be held for all
people of the State and cannot be given to private ownership to be used for commercial
purposes.
Illinois Central Railroad Company v. State of Illinois which is the most celebrated public
trust case in American law.
o The Illinois Legislature had made an extensive grant of submerged lands to the
Illinois Central Railroad Company. The grant included the land underlying Lake
Michigan.
o The Supreme Court held that the State of Illinois cannot abdicate its authority
over navigations in the waters of Lake Michigan, by granting submerged lands to
the Railroad Company.
o It was further held that the title of the state of Illinois to the lands in question
was held in trust for the people of the state.
Some state constitutions specifically incorporate the public trust doctrine. For example,
the Hawaiian Constitution declares that, “All public natural resources are held in trust
by the State for the benefit of the people”.
The doctrine of public trust was categorically held to be a part of the law of India, as
discussed in the case of M C Metha v Kamal Nath and Others (1997) Vol. 4 (3) SAELR
122
o This case involved the grant of state land on lease for the construction of a motel
on bank of river Beas
o Kuldip Singh J held that the public trust doctrine was a part of the law of India.
o The prior approval granted by the Government of India, Ministry of
Environment and the lease-deed in favor of the Motel are quashed and the
motel was ordered to pay compensation for the damage caused to the
environment.
o It was further held that the granting of State land to private ownership for
commercial purposes violated the public trust.
It should be noted that the doctrine does not impose an absolute prohibition on the
state in alienating public land to private owners or for purposed other than the
recognized ones. This can be done if it is in the public interest.
At national level the public trust doctrine is a legal principle which has its roots in both
Roman law and English Common Law.
The Sri Lankan Constitution does not explicitly recognize the PTD. The Supreme Court
has developed the Doctrine of Public Trust on the basis of ‘Sovereignty of the people’
set out in Article 3, 4 of the Constitution, Article 12(1) and the principles of Rule of Law
which is the basis of our Constitution.
In Sri Lanka, the public trust doctrine can be traced back to 247-207 BC, when Arahath
Maninda preached to King Devanampiya Tissa, “O great king, the birds of the air and
the beasts have an equal a right to live and move about in any part of the land as
thou. The land belongs to the people and all living beings; thou are only the guardian
of it”.
In the Eppawela Phosphate mining case, an application claimed an imminent

infringement of the FR due to the proposed agreement between the government
and a foreign company for the exploration and mining of the phosphate deposits.
o In recognizing violation of FR, Amarasinghe J elaborated as to the scope of the

PTD as applied in Sri Lanka. This case first pronounced the nexus between Article
3 and PTD.
o The Court holds that Article 3 is an expression of democratic values, in that it
affirms that the people are the ultimate sovereigns and that holder of powers of
government are only temporary bearers of those powers. There for such power
can only be exercised to further the interests of the people.
In Sugathapala Mendis and Others v. Chandrika Bandaranayake Kumarathunga and

Others S.C. F.R No.352/2007 (popularly known as the Water’s Edge case), involved the
lease and the transfer of land to Asia pacific Ltd for a price less than the true value of
the land.
o The petitioners alleged that the national interest, national economy and the FR if
the citizens had suffered by the abuse of executive power vested in the
president.
o Thilakawardena J in declaring that the FR of the petitioners under Article 12(1)

has been violated, stated that , several transactions which the cabinet had
approved has no force in law because they were in violation of the PTD. The land
which was acquired for public purpose was alienated to private persons
arbitrarily.
o It was further held that, 1st respondent (Mrs. Bandaranayake) has failed to
further the public interest, has betrayed such trust bestowed upon her by the
constitution and by the people.
In the opinion on the 19th Amendment to the constitution a seven judge bench of the
Supreme Court held that the Executive, the Legislative and the Judiciary being the
custodians of government, exercise powers in trust for the people.
The public trust doctrine was also discussed in the case of Environmental Foundation
Ltd. v. Urban Development Authority and Others S.C. F.R 47/2004
Environmental Protection Licenses (EPL)

Part IV A of the NEA dealing with ‘Environmental Protection’ seek to provide
regulate the discharge , deposit or emission of waste to the environment by means
of an Environmental Protection Licenses. The goal of this part of the act is to ensure
that the discharge, deposit or emission of waste by industrial, commercial or other
undertakings, is done according to prescribed standards and procedures.
Section 23A of Part IVA was amended by Act No.53 of 2000. Section 23A as
amended provides that the Minister may determine the ‘prescribed activities’ which
requires an environmental protection license before they commence or continue
operations.
The amendment in 2000 made it a criminal offence to violate the terms and
conditions of the licenses. The earlier Act only provided for the cancellation or
suspension of the license if the license holder violates the conditions. Under the
amendment such person may be liable to a fine not less than Rs. 10000 or to a term
of imprisonment not less than one year or both.
The framework for the EPL procedure is set out in the National Environment Act and
National Environmental (Protection and Quality) Regulations.
According to the NEA upon an application being made to the CEA for an EPL and
upon the prescribed fee being paid, the CEA may issue a license to such person
authorizing him/her to discharge, deposit or emit waste into the environment in
accordance with the standards that may be prescribed under the Act. All such
licenses are valid for a period of 3 years and shall be renewable.
According to Regulation 8, the CEA shall issue the license only if it is satisfied that:
a) The license will not be used to contravene the provisions of the Act or these
regulations;
b) No irretrievable hazard to man and environment or any nuisance will result
from the acts authorized by the license;
c) The applicant has taken adequate steps for the protection of the
environment in accordance with the requirements of the law.
The CEA may suspend or cancel a license if,
 A person to whom the EPL has been issued violates any of the terms, standards
or conditions contained in it.
 If the receiving environment has been altered or changed due to natural factors
or otherwise , or
 Where the continued discharge, deposit or emission of waste into the
environment under the authority of the EPL will or could adversely affect any
beneficial use.
According to Regulation 10, when the license is suspended or cancelled according to

Section 23DD of the NEA, the CEA may, before doing so give the holder of the license an
opportunity to show cause why such order should not be issued.
According to Section 23EE an applicant for an EPL who is aggrieved by the refusal of the
CEA to grant a license, or any holder of a license who is aggrieved by its suspension or
cancellation, or refusal to renew the license may within 30 days notified of such
decision, appeal to the Secretary, Ministry of Environment. The Secretary’s decision is
final.
It should be noted that the CEA has delegated its power to issue EPLs to local authorities
in the case of industries polluting on a small scale.
There have been several cases relating to issue of EPLs. Most of these cases have been
filed by petitioners aggrieved by the refusal of the CEA or the relevant local authorities
to grant the license.
In the case of an Appeal under Section 23E of the NEA by G L M Kamal Fernando (1995)
2 SAELR 16, it has been held that the conditions imposed by the authority granting the
license must be reasonable and not arbitrary.
o In this case when the appellant applied for an EPL in respect for a brick kiln, the
CEA has imposed two conditions on the construction of the kiln, namely :
I. -That it should be situated at least 200 meters away from the 3 rd respondents
residence, and
II. -that the smoke from the kiln be disposed of by means of a chimney 30 meters
high.
The appellant was unable to comply with the first requirement and was denied the
license.
o It was found that the CEA had no general guidelines regarding the distance to be
maintained between brick kilns and the residential premises.
o The Secretary held that under the circumstances the conditions imposed on the
Appellant requiring him to maintain a distance of 200 meters was arbitrary and
had no technical basis.
In the case of Jayawardena v, Akmeemana Pradeshiya Sabha and four Others (1998)
SAELR 10 ; (1998)1 SLR 316( Supreme Court),
o The petitioner submitted an application to the CEA to set up a metal crusher and
paid the inspection fee. CEA inspected the site and recommended granting the
license.
o The petitioner thereupon applied the Akmeemana Pradeshiya Sabha for a license
and paid the required inspection fee. After visiting the site the pradeshiya sabha
issued the EPL and the petitioner started operations.
o Two days later the petitioner was requested to stop operations due to a protest
from the nearby residents.
o It was found that the petitioner had not obtained a trade license. And he was
obliged to do so under the terms of the license. After an inspection it was
advised that an EPL should be not be issued, as the location was unsuitable for a
metal crusher.
o The petitioner filed action stating that his FR under Article 12 and 14(1) (g) has
been violated.
o The Court pointed out firstly that the Pradeshiya Sabha was exercising the
powers of the CEA which had been delegated to it under Section 26 of the NEA.
o It was held that as the petitioner failed to comply with the conditions under
which the license was granted and causing air and noise pollution. The CEA and
the pradeshiya sabha was entitled to cancel licenses without giving the
petitioner an opportunity to show cause why it should not be cancelled.
o Amarasinghe J further pointed out, the petitioner’s occupation or enterprise was
unlawful in terms of Section 23A read with 23B of the NEA therefore Article
14(1) (g) was not violated.
V D S Gunaratne v. Homagama prasedhiya Sabha and Five Others (1998) 5 SAELR

28
Environmental Impact Assessment and Approval

of projects
An Environmental Impact Assessment report has been defined under Section 33 of
the NEA.
It is a written analysis of the predicted environment containing the following:-
 An environment cost-benefit analysis

 Description of the project including the avoidable and unavoidable adverse
impacts.
 A description of alternatives to the activity together with the reasons why
other alternatives were rejected.
 Irreversible and Irretrievable commitments of resources.
EIA examines how the project might cause harm to people, their homeland or to their
livelihood, or to other developments. After predicting potential problems the EIA
identifies measures to minimize the problems and outline ways to improve the project’s
suitability to the proposed environment.
The assessment is conducted prior to the commencement of the project. A prior

environmental assessment enables impacts to be identified and mitigatory measures to
be incorporated into the planning process before the project commences and thus
reduce the harm caused to the environment.
The EIA process was first introduced to Sri Lanka by way of the Costal Conservation Act
No 57 of 1981. The provisions regarding EIA are contained in Part III of the Act entitled
“Permit Procedure”.
Further, international conventions have also incorporated this concept. Principle 17 of

the Rio Declaration states that
“Environmental impact assessment, as a national instrument, shall be undertaken for

proposed activities that are likely to have a significant adverse impact on the
environment and are subject to a decision of a competent national authority”
The EIA provisions in the National Environmental Act

The amendment to the NEA by the Act No. 56 of 1988, introduced the EIA procedure
into the statute. The relevant provisions are contained in Part IV C of the NEA entitled
“Approval of Projects”. The required regulations are National Environmental
(Procedure for Approval of Projects) Regulations.
Section 23 Y and 23Z of the NEA empowers the Minister to gazette a list of state
agencies as ‘Project Approving Agencies (PAAs)’ and a list of projects as ‘Prescribed
Projects’. All prescribed projects must obtain prior approval from the relevant PAAs
before the commencement of the project. A list of such prescribed projects and project
approving agencies is found in the regulations. Examples –
 Prescribed projects
 Construction of hotels exceeding 99 rooms or 40 hectares
 Development of Industrial Estates and Parks exceeding an area of
10 hectares
 Project Approving Agencies

 Central Environmental Authority
 Urban Development Authority
 Ceylon Tourist Board
The act applies to all projects carried out by both the State and the private sector.
The project approval may be based on an Initial Environmental Assessment (EIA) or an

Initial Environmental Examination as decided by the PAA. (Section 23 BB). The IEE is
carried out for projects which are likely to be less harmful. The EIA is carried out for
projects that may produce ‘significant impact’ to the environment.
Public participation - The Act makes it mandatory that the EIA is made available to the
public and that the public be invited to send their comments to the relevant PAA. The
PAA should publish a notice in the gazette and one newspaper each in Sinhala, Tamil
and English and notify the public the place and the time the report may be inspected.
The PAA shall forward the comments to the project proponent who is required to
respond to them in writing.
Public Participation in environmental matters has been recognized in the Rio Declaration. Principle 10
states that:
“Environmental issues are best handles with the participation of all concerned citizens, at the relevant
level. At the national level, each individual shall have appropriate access to information concerning the
environment that is held by public authorities, including information on hazardous materials and
activities in their communities, and the opportunity to participate in decision-making process. State shall
facilitate and encourage public awareness and participation by making information widely available.”
There have been several instances of intensive public involvement in controversial

projects. Examples are the Upper Kotmale Hydro Power Project and Colombo-
Katunayake Expressway.
Public Hearings- the PAA may, if it considers it appropriate to do so in the public interest
provide an opportunity to any person who has made comments, to be heard in support
of his comments. However, it is not mandatory to do so. Public hearing was held in the
case of Upper Kotmale Hydro Power Project.
Grant of Approval- After the project proponent has submitted its response to the public
comments; the PAA shall, with the concurrence of the CEA either
 Grant approval for the implementation of the project subject to specified

conditions; or
 Refuse approval for the implementation of the project with reasons for doing so.
When approval is granted for any project, such approval shall be published in gazette
and in one newspaper each in Sinhala, Tamil and English.
Appeals- According to section 23 DD of the NEA, if a PAA refuses approval for a project,
the person or persons aggrieved by that decision shall have a right to appeal to the
Secretary, to the Ministry in charge of the subject of Environment. The decision of the
Secretary shall be final.
The first appeal under these provisions was the Appeal under Section 23DD of the NEA
by Rajawella Holdings (Pvt) Ltd Vol.1 SAELR 155. In this case the PA had approved the
project subject to certain conditions and the project proponent was appealing against
some of the conditions.
Alterations or abandonment of the project- Section 33 EE of the Act and Regulation 17

states that if any alterations are being made to an approved project or if the project is
being abandoned, the project proponent shall inform the PAA of the alterations or the
abandonment of the project. Where it is necessary the project proponent shall obtain
fresh approval in respect of such alterations.
The procedure for the approval of projects (Summary)

PROJECT PROPONET
PREMINIARY INFORMATION TO THE PAA
SCOPING
(Terms of reference will be laid down to find out whether the project proponent will
have to submit an IEE or EIA)
SUBMISSION OF THE EIA BY THE PROJECT PROPONENT TO THE PAA

PAA PUBLISHES AS NOTICE OF THE TIME AND PLACE OF INSPECTION OF THE EIA IN THE
GAZETTE AND IN THE NEWSPAPER IN ALL THREE LANGUAGES
PUBLIC COMMENTS WITHIN 30 DAYS
PUBLIC HEARING IF NECESSARY
COMMENTS SENT BACK TO THE PROJECT PROPONENT
FINAL SUBMISSION OF EIA
THE PROJECT APPROVING AGENCY MAY

A. APPROVE WITH CONDITIONS; OR
B. REFUSE APPROVAL
APPROVAL TO BE PUBLISHED IN GAZETTE AND NEWSPAPERS
APPEAL BY THE AGGRIEVED PERSONS (PROJECT PROPONENT) TO THE SECRETARY OF

MINISTRY IN CHARGE OF ENVIRONMENT WITHIN 30 DAYS OF THE DECISION OF THE PAA
THE PROJECT PROPONENT SHALL INFORM OF ANY ALTERATION OR ABANDONMENT OF

THE PROJECT TO THE PAA AND DET FRESH APPROVAL IF NECESSARY
THE PROJECT APPROVING AGENCY SHALL MONITOR THE PROJECT

Nuisance
There are three types of nuisance actions namely,
• Private nuisance
• Public nuisance
• Statutory nuisance
Statutory Nuisance
A nuisance which has been specifically created by a statute is called statutory
nuisance. The relevant provisions prohibit people from doing specific acts and
impose penalties for them.
Statutory nuisance are found in several statutes in Sri Lanka. Examples:-
- Nuisance Ordinance No. 15 of 1982
- Municipal Council ordinance No. 29 of 1947 (relevant to public health)
- Urban Council Act No. 16 of 1939 (relevant to public health)
Private Nuisance
Private nuisance covers situations in which an individual may be obstructed in the
peaceful and unobstructed use of his or her land or property.
Am action for private nuisance is filed in the District court under the provisions of
the Civil Procedure Code.
Public Nuisance
Public nuisance is an act or omission which endangers or adversely affects the
general public. Public nuisance is a crime and therefore will be prosecuted by the
state. Environment related actions in public nuisance are noise pollution, air and
water pollution, disposal of garbage.
When can an individual sue in public nuisance?
An individual or more members of the group of people affected can bring a tort
action for public nuisance only if he or she can prove that he or she has suffered
greater loss or injury than the other members of the community and has been
particularly affected by nuisance.
Actions for public nuisance
The Penal Code
• Section 261 of the penal code defines public nuisance.
• Section 283 and 284 contain provisions for the punishment of a person who
causes a public nuisance.
Although criminal liability is imposed for the commission of these offences, the
sanctions are extremely limited. Therefore the provisions do not have much
deterrent value.
The Code of Criminal Procedure
The principle relief for members of the public affected by a public nuisance, either
actual or imminent is the abetment of the nuisance. The procedure for an abetment
of public nuisance is contained in Chapter IX of the Code of Criminal Procedure.
Section 98 of the code empowers a Magistrate to make a conditional order in

respect of any nuisance. The categories of nuisance for the purpose are stated in
Section 98 (1) as:
• Any unlawful obstruction or nuisance in any public way, harbor, lake, river or
channel;
• Any trade or occupation or the keeping of any goods or merchandize that is

injurious to the health or physical comfort of the community;
• The construction of any building or the disposal of any substance that is likely to
cause conflagration or explosion;
• Any building or tree that is in such condition that it is likely to fall and injure
passersby;
• Any tank, well or excavation adjacent to any public way or place which may be a
danger to the public.
An affected person, against whom a conditional order is made, is entitled to have

the order set aside or modified. After recording evidence from the affected person
and the complainant and any other witness, the magistrate may modify or set aside
the conditional order or make the same absolute under section 101.
According to section 102, when an order is made absolute, the person will be
required to perform the act directed by the order within the specified time. If such
order is disobeyed he or she will be liable to specified penalties.
Section 103 states that if the act is not performed, the magistrate may cause it to be
performed and may recover the costs of performing it.
If the magistrate, while making an order under section 98, considers that immediate
measures should be taken to prevent imminent danger or serious injury to the
public, he may issue an injunction order under section 104.
The power given to a Magistrate under the criminal procedure code has been
exercised not only against private defendants, but also against statutory and local
government bodies.
M M Khalid and three others v. Chairman, Sri Jayawardenepura Kotte Urban

Council (1996) vol 3 (3) SAELR 62
 Actions were brought as a private plaint under section 98 of the criminal

procedure code.
 The plaintiffs claimed that the urban council was dumping garbage in the vicinity
of Senanayake Avenue which is a residential area and causing public nuisance to
the residents.
 On the basis of the complaints the court issued a conditional order on the
respondent Urban Council. The respondents then filed objections stating among
others, the following.
 Garbage was been disposed under the provisions of section 118 of the urban
council ordinance.
 It was the only site available to the urban council.
 There was no danger to the plaintiffs ‘health and well-being.
The court rejected the objections. It pointed out that section 121 of the urban
council ordinance states that garbage must be disposed of in a manner which does
not cause a nuisance.
In India too, the Supreme Court has issued orders against Municipal authorities
which has caused a public nuisance.
• Municipal Council Ratlam v. Vardichand
• MC Mehta v. Union of India (The Municipalities Case) AIR 1988 SC 1115

The courts have not hesitated to shut down factories which were polluting the
environment and causing a nuisance to the public.
The case of Singalanka Standard Chemicals ltd. v. T.A. Sirisena and others (1996)
vol.3(3) SAELR 69 concerned a petition made to High Court of Avissawella from the
Magistrates Court of Homagama to revise a conditional order of the Magistrate
halting the operation of the Respondent-Petitioner’s chemical factory.
o Petitioners instituted the action under Chapter IX of the Criminal Procedure

Code to halt the operations of this factory which produced Sulphuric acid on
the ground that it constituted a public nuisance by polluting the well water
and the environment in general.
o It was held that there is no legal impediment to the issue of an order under
Section 98(1) for the purpose of shutting down a factory.
The conflict between the nuisance action and the EPL regulations and other statutory
provisions
In the case of Keangnam Enterprises Ltd. v. E A Abeysinghe and eleven others (1994)
Vol.1(1) SAELR 1, (Court of Appeal) the question at issue was whether statutory
provisions, i.e. section 23A of the NEA , ousted the power of the Magistrate to make
orders under Section 98 of the CPC
o The magistrate granted an injunction under Section 104 of the CPC and also
entered a conditional order under Section 98(1) for the removal of the public
nuisance caused by the quarry. At the time the Magistrate made his order, the
company had applied for the EPL but has not obtained it.
o The Court of Appeal in the present application for a license was not sufficient to
invoke he provisions of the NEA and oust the jurisdiction of the Magistrate, and
the revision application would be dismissed.
Although this issue has not been conclusively determined by an appellate court it
appears that this position is that the EPL license does not oust the jurisdiction of the
Magistrate to hear cases of public nuisance.
In the case of Marshall v. Gunaratne Unnanse 1 NLR 179, it was held that a permit
issued under the Police Ordinance was not a defense to a public nuisance action under
the Penal Code
Absolute Liability
It is the application of Strict Liability but without the exceptions. It is a remedy for the
environmental issues in tort.
The right to compensation in the environmental cases has been traditionally linked to
strict liability as enunciated in Ryland’s V. Fletcher
The rule of Absolute liability was established in the landmark case of M. C Metha v.
Union of India and Shriram Foods and Fertilizers Industries AIR 1987 SE 965 982 in this
case the Supreme Court of India was dealing with claims arising from the leakage of
Oluem gas from one of the units of Shriram Food and Fertilizers Industries. As a
consequence of this leakage one person died and several suffered serious injury.
The action was brought through a writ petition under Article 32 of the Indian
constitution by way of Public Interest Litigation.
The court had in mind the earlier leakage of the deadly MIC gas from the Union carbide
plant in Bopal where more than 3000 people died and lakhs of others were subject to
various kinds of diseases. In the rule of Strict Liability laid down in Ryland’s v. Fletcher
was applied to such situations, people having “hazardous and inherently dangerous”
industries would escape the liability for the havoc caused by pleading some exceptions
to the rule in Ryland’s.
The Supreme Court took a bold step and evolved the rule of absolute liability as part of
Indian law in preference to the rule of strict liability. It is expressly declared that the new
rule was not subject to any of the exceptions under the rule in Ryland’s and Fletcher.
The following rules were laid down by the Supreme Court in this case;
 When an enterprise is engaging in hazardous or inherently dangerous

activities, the enterprise is strictly and absolutely liable to compensate all
those who are affected by the accident and such liability is not restricted by
any exceptions.
 The enterprise cannot escape liability by showing, it had taken all reasonable
care and there was no negligence on its part.
There was a lot of controversy regarding the compensation payable to the victims.
Several cases were filed claiming compensation. The government of India passed the
Bopal gas Disaster (Processing of claims) Act to takeover and peruse the claims of the
victims.
In the Union Carbide corporation v. Union of India (popularly known as the Bopal gas
disaster case) , the Supreme Court decided to follow the principle in M.C Mehta v.
Union of India, where the Court laid down the rule of absolute liability in preference to
the rule of strict liability.
After a long drawn litigation, the Supreme Court passed an order directing the payment
of a sum of $470 MN.
The principle of Absolute Liability was also cited in the case of Enviro- Legal Action v.
Union of India.
Air Pollution
Air pollution is the presence of any pollutants that reduce the air quality thereby
threatening the health and welfare of people, plants and animals.
The main causes of air pollution are human activities, which includes vehicle emissions,
industries and power plants, burning of solid waste.
Air pollution from vehicle emissions is a major problem in urban areas. High volumes
and poor maintenance, coupled with improper traffic management had led to air
pollution.
These pollutants can directly and indirectly cause health impacts, global warming,
melting of glaciers, and depletion of the Ozone layer, reducing the yield of agricultural
crops, climate changes and rise of the sea level. Air pollution in a particular place can
also affect other parts of the country due to the dispersal of pollutants through wind
currents.
Part IV B of the NEA which deals with “Environment Quality” makes reference to the
pollution of the atmosphere. Section 23 J and 23 K contains provisions relating to
pollution of the atmosphere.
There are regulations relating to the prohibition of materials which deplete the ozone
layer.
National Environmental (Ambient Air Quality) Regulations specify the quality of the
surrounding air. It specifies permissible ambient air quality standards and specifies the
maximum permissible amounts in the ambient air of pollutants such as carbon
monoxide and nitrogen dioxide.
Air quality regulations- In the case of Lalantha de Silva v. Nandimithra Ekanayake

(Minister of Forestry and Environment) and Others FR 569/98 the petitioners
complained that the Ambient Air Quality standards were not being maintained in some
parts of the Colombo metropolitan area. He further maintained that this is due mainly
to pollution caused by motor vehicles and in order to maintain these standards the
Minister of Environment should specify other standards as well under Section 23 of the
NEA.
The petitioner therefore sought a direction of court to the Minister to make and gazette
regulations specifying:
 Mobile Air Emission Standards

 Fuel Standards
 Vehicle Specification Standards for importation
As a result of this case the National Environmental (Air Emission, Fuel and Vehicle
Importation Standards) Regulation No. 1 of 2000 was gazette. These regulations set out
the following standards:
Part I-Mobile Air Emission Standards- These sets out the permissible Mobile Air
Emission limits for every motor vehicle in use in Sri Lanka and no user of a motor vehicle
shall discharge emissions in to the atmosphere which exceed these standards. The
commissioner of Motor traffic is empowered to authorize any garage as an accredited
garage for the purpose of testing and certifying these standards in relation to any motor
vehicle.
Part Il- Fuel Standards – every person who supplies fuel for the use of any motor vehicle
shall comply with the fuel standards.
Part III – Vehicle Specification Standards for Importation – Every person imports any
motor vehicle into Sri Lanka shall comply with the vehicle specification standards.
In addition to the above specific provisions, the general provisions of the Penal Code set
out in Section 271 provide that whoever voluntarily vitiates the atmosphere in any place
so as to make it noxious to the health, commits an offence in terms of the Code
Geethanie and Environmental Foundation Limited v. Minister of Environment and

others led to the preparation of road maps to reduce air pollution.
Human Rights and Environmental Protection

Human beings are totally dependent on their natural environment for the survival and
the degraded environment will have a devastating impact on the people and the
communities. The recognition of interdependence between humankind and the
environment has translated itself in a human rights context.
The relationship between human rights and environment is widely recognized. The 1 st
international document which articulated this link is the Stockholm Declaration. In its
preamble it proclaims “both aspects of man’s environment, the natural and man-made
are essential to his well-being and to the enjoyment of basic human rights”.
Principle 1 of the Declaration also talks about this link. Environment has been linked not
only to civil and political rights but also to economic and social rights.
Principle 1 of the Rio Declaration also provides for this.
The Sri Lanka Constitution
The constitution of Sri Lanka does not expressly recognize the right to a healthy
environment as a constitutionally protected fundamental right, nor does it expressly
recognize the right to life as a fundamental right.
However, it, does, under the chapter titled ‘’ directive principles of state policy and
fundamental duties ’’ specifically recognize that the state has a duty, albeit
unenforceable, to protect, preserve and improve the environment for the benefit of the
community, and the supreme court has held that some fundamental rights in the
constitution implicitly recognize the right to life.
Furthermore, the constitution imposes a fundamental duty on every person in Sri Lanka
to protect nature and conserve its riches (Article 28 (f)), which is also known as
unenforceable duty.
 Article 12
Although the constitution does not contain any specific fundamental right pertaining to the
enjoyment of a healthy environment, the Supreme Court has entertained, afforded relief and
settled many fundamental rights applications relating to environmental issues, on the basis of
the equal protection provisions contained in article 12(1) of the constitution.
This principle was applied in the Eppawela phosphate mining case, where the petitioners
asserted that the action of the government in entering into this project was arbitrary and
unreasonable, therefore discriminating against them. And the EIA report would be bias and
their comments would not be considered as the government already is committed to the
project. They also challenged that their rights under Article 24(1) (g) and 14 (1) (h) are violated.
 Right to Life
Our Constitution does not expressly mention the right to life. However it is argued that
recognition of the right to life is implicit in all other rights that are expressly set out, since such
rights would be meaningless without the right to life itself.
An environmental case that attempted to invoke the right to life on the basis that such right is
implicitly recognized by the constitution was Deshan Harinda (minor) v. Ceylon Electricity
Board which involved severe noise pollution from a diesel generation that was affecting young
children. The case ended in settlement, the legal argument on right to life was not tested and
this question still remains open.
However, right to life is expressly provided in Article 21 of the Indian Constitution. M C Metha
v Union of India (Tannaries Case)
 Right to clean and healthy environment
Case law in India and other countries have extended the right to life to include the right to a
healthy environment.
In the Philippines case of Juan Antonio Oposa and Others v. The Honorable Fulgencio S.
Factoran and another (1994) Vol.1 (3) SAELR 113, the Supreme Court held that, the State shall
protect and advance the right of the people to a balanced and healthy ecology. And further
held that the state has an obligation to preserve, protect and advance it not only to present by
also for generations to come.
 Freedom of Association
The right found in Article 14(1) (c) is essential to organize people, communities and non-
governmental organizations to monitor decisions and projects which may impact adversely on
the environment and their lives.
 Right to information
Access to information is essential to public participation in decision making and monitoring

state and private agencies. This has been recognized by the Rio Declaration.
In Environmental Foundation Ltd v Urban Development Authority (Galle Face Green Case) the
Supreme Court held that the right to freedom of speech and expression may include the right
to information that would enable a person to effectively exercise rights in respect of a matter
that should be in the public domain.
In this case the petitioner which was a non-profit making environmental organization filed a FR
application in public interest seeking disclosure of the vesting order issued under the UDA law
vesting Galle Face Green in the UDA, and the agreement entered into by the UDA with a private
company to lease it.
The right to information was not expressly provided in the Sri Lankan Constitution, but with the
19th amendment to the constitution this right was included in Chapter III of the Constitution.
Solid Waste Management (SWM)

Solid waste, especially Municipal Solid Waste [MSW], is a growing problem in urban
areas of Sri Lanka and this problem is aggravated due to absence of proper solid waste
management systems in the country. At present in many instances solid waste are
collected in mixed state and being dumped in environmentally very sensitive places like
road sides, marshy lands, low lying areas, public places, forest and wild life areas, water
courses etc. causing numerous negative environmental impacts such as ground and
surface water pollution, air pollution. Further, the open dumps of solid waste are ideal
places for breeding of disease vectors like Mosquitoes.
SWM may be defined as the discipline associated with the control of generation,
storage, collection, transfer and transport, processing, and disposal of solid waste in a
manner that is in accordance with the best principles of public health, economics,
engineering, conservation, aesthetics, and other environmental considerations and that
is also responsive to public attitudes.
No comprehensive technical guidelines are available at present in Sri Lanka addressing

all important elements of waste management systems. The present set of guidelines is
aimed to cover only the municipal solid wastes.
Policies, laws and standardsAccording to the Local Government Act, the Local
Authorities in Sri Lanka are responsible for collecting and disposal of waste generated by
the people within their territories. The necessary provisions are given under -
 The sections 129, 130 and 131 of the Municipal Council Ordinance;
 the sections 118, 119 and 120 of the Urban Council Ordinance;
 and sections 93 and 94 of the Pradeshiya Sabha Act.
It is stated that it is the duty of these local authorities to provide for:
• Properly sweeping and cleaning of the streets, including the footways, and
collection and removal of all street refuse;
• Due removal at proper periods of all house refuse, and due cleansing and
emptying at proper periods of all latrines and cesspits; and
• Proper disposal of all street refuse, house refuse and night-soil.
Provincial Councils have been given the powers to manage solid waste, as a devolved
subject under the 13th Amendment to the Constitution of Sri Lanka. Sometimes the
Nuisance Ordinance is used by local authorities to stop undesired dumping
National Environmental Act

The National Environmental Act (NEA) of 1980 which was subsequently amended in
1988 provides the necessary legislative framework for environmental protection in the
country.
The Ministry of Environment prepared the National Strategy for Solid Waste
Management in 2000, which recognized the need for SWM from generation to final
disposal through a range of strategies, based on the 3-R principal, as well as the need
for decentralized actions as well as centralized actions such as developing the market
conditions for sale of recyclable materials and products made from recycled materials.
National Strategy for Solid Waste Management available at present highlights the
importance of waste avoidance, reduction, reuse, and recycling and final disposal in an
environmentally sound manner and still giving high priority for waste recycling over
disposal.
This was superseded by a National Policy for Solid Waste Management prepared in
2007 “to ensure integrated, economically feasible and environmentally sound solid
waste management practices for the country at national, provincial and Local
Authority level”.
A major activity that sprung from the National Policy is the setting up of the Pilisaru
Programme in 2008, to solve the solid waste problem at the national level, with the help
of the “Pilisaru Project” at the Central Environmental Authority, with the concept of
reusing the resources available in the collected garbage to the maximum before final
disposal. While technical and financial assistance on SWM to the local authorities is a
major role of Pilisaru, it is also empowered to take legal action against those local
Authorities that are not managing their solid waste properly.
In addition, a general guideline for the implementation of SWM was prepared by the
Central Environmental Authority in 2005,( which is available in the CEA website.) The
Central Environmental Authority has stipulated regulations giving standards and criteria
for generation, collection, transport, storage, recovery, recycling, disposal or
establishment of any site or facility for the disposal of any waste specified as ‘Scheduled
Waste’, and such activities need an EPL for operation. (Government Gazette
Extraordinary No. 1534/18 - FEBRUARY 01, 2008).
A specification for Compost from Municipal Solid Waste Management and Agricultural
Waste was stipulated by the Sri Lanka Standards Institution as Sri Lanka Standard 1246:
2003 (UDC 628.477.4).
Water pollution
Water pollution is the contamination of water bodies. (e.g. lakes, rivers, oceans, aquifers
and groundwater). This form of environmental degradation occurs when pollutants are
directly or indirectly discharged into water bodies without adequate treatment to
remove harmful compounds. Water pollution affects the entire biosphere – plants and
organisms living in these bodies of water.
Water pollution is a major global problem which requires ongoing evaluation and
revision of water resource policy at all levels (international down to individual aquifers
and wells). It has been suggested that water pollution is the leading worldwide cause of
deaths and diseases, and that it accounts for the deaths of more than 14,000 people
daily.
Water is typically referred to as polluted when it is impaired by anthropogenic

contaminants and either does not support human use, such as drinking water, or
undergoes a marked shift in its ability to support its constituent biotic communities,
such as fish. Natural phenomena such as volcanoes, algae blooms, storms, and
earthquakes also cause major changes in water quality and the ecological status of
water.
In Sri Lanka water pollution is mainly caused by, domestics agricultural and industrial
activities. Pollution done majorly by Sediments, sewage, trace elements in water,
inorganic pollutants, etc. causes cancer, health issues, threat to aquatic life sources,
toxicity, etc.
Relevant Provisions
The NEA provisions on ‘environmental quality’, ‘environmental protection’ and the

‘approvals of projects’ are all relevant for the prevention of water pollution.
 The NEA mandates that subject to the provisions pertaining to the EPL, the
discharge or emission of waste into inland waters in contravention of prescribed
standards is an offence.(Section 23G)
 The provisions of the law also contain a general prohibition on the pollution of
inland waters (Section 23 H)
 In terms of Section 270 of the Penal Code it is an offence to voluntarily corrupt
of foul the water of any public spring, reservoir, so as to render it less fit for the
purpose for which it is ordinarily used.
Examples:
 Kelani river pollution- according to Central Environmental Authority (CEA) 23 odd

factories situated on Kelani valley and 20 odd factories expel effluents to river.
 The Environmental Protection License (EPL) granted to the Coca-Cola beverage
factory which is blamed for oil leakage into the Kelani River was temporarily
suspended.
 Residents of Rathupaswala alleged their supply of drinking water had been
contaminated due to chemicals being released by a factory in the area, Dipped
Products Ltd (DPL) owned by the Hayleys Group.
Soil contamination/pollution
Soil contamination or soil pollution is caused by the presence of xenobiotic (human-
made) chemicals or other alteration in the natural soil environment. It is typically caused
by Drilling of oil refineries, Accidental spills, Acid rain (which is caused by air pollution),
Intensive farming, Deforestation, Genetically modified plants, nuclear wastes, Industrial
accidents, Landfill and illegal dumping.
The most common chemicals involved are petroleum hydrocarbons, naphthalene and
benzo(a)pyrene), solvents, pesticides, lead, and other heavy metals. Contamination is
correlated with the degree of industrialization and intensity of chemical usage.
The concern over soil contamination stems primarily from health risks, from direct
contact with the contaminated soil, vapors from the contaminants, and from secondary
contamination of water supplies within and underlying the soil.
Under the Sri Lanka Soil Act (1996) there are several institutions responsible to protect
soil resources. The institutions are: ministries such as environment, land, Mahaweli
development, housing, highways, plantation industries, finance, provincial councils,
mines and minerals, forestry and irrigation.
The Soil Act clearly proposes measures, activities and research in order to protect soil
resources from various damages. Due to poor implementation of regulations and lack of
public awareness, rich soil in the hill country has been eroded. One obvious
repercussion of soil erosion is reservoir sedimentation. For example, the more than 40%
of the full capacity of the Polgolla Dam is filled with silt. Colombo is the most affected
urban area which faces a serious threat with respect to the disposal of around 1500 tons
of solid waste material per day.
There is little national law on structural soil protection; some indirect protection
appears in forestry laws that are designed to avoid erosion and consequence flooding. A
few cases have been decided. One example is from the Environment Appeal Tribunal of
Mauritius, Case No. 03/01, Mrs. Jamamloodeen Dulloo v. Minister of Environment.
The National Environmental quality provisions of the NEA provide for the regulation of
soil pollution. Section 23 M of the Act provides that no person shall discharge or deposit
waste into the soil, except in accordance with such standards or criteria as may be
prescribed under the Act. Section 23N (1) of the NEA contains general provisions for the
prevention of soil pollution.
Noise pollution
- NEA defines noise pollution as: “the presence of sound at a level which causes
irritation, fatigue, hearing loss or interferes with the perception of other sounds and
with creative activity through disturbance “(Section 33)
-Unlike other environmental problems, noise does not lead to chemical or organic
pollution of natural resources but instead affects human beings and other animals
directly. In recent years, noise has been recognized not only as an annoyance but as a
serious health hazard as well.
-Types of noise pollution range from community noise to occupational noise, with
examples including barking dogs, household appliances, security alarms, loud music,
road traffic, air traffic, machinery use, and construction.
-High noise levels can contribute to cardiovascular effects in humans and an increased
incidence of coronary artery disease. In animals, noise can increase the risk of death by
altering predator or prey detection and avoidance, interfere with reproduction and
navigation, and contribute to permanent hearing loss.
-Noise pollution has traditionally been controlled by the laws pertaining to nuisance.
One of the first attempts at regulating noise through specific laws can be found in the
noise codes of Portland, Oregon, USA. The government of India has rules and
regulations against firecrackers and loudspeakers, but enforcement is extremely low.
-The CEA may require local authorities to comply with its recommendations, for the
regulation of noise pollution. (Section 10 (i) (VI) of the NEA)
-Subject to the provisions pertaining to the EPl, the NEA prohibits the emission of
excessive noise other than in compliance with prescribed standards or limitations. No
person may emit greater in volume, intensity or quality than the levels prescribed for
objectionable noise and tolerable noise.(Section 23 P, 23Q and 23R of the NEA)
-In terms of the Police Ordinance, any person who makes noise in the night so as to
disturb the repose of the inhabitants without having obtained a license for that purpose
commits an offence.
-Al Haj M T M Ashik and Four Others, Trustee of Kapuwatta Mohideen Jumma
Mosquue Denipitiya Weligama V. R P S Bandula OIC Weligama and Nine Others (2007)
– led to the preparation of new regulations in regard to noise pollution The Supreme
Court gave its decision, in simplified terms, the right of one party to use loudspeakers
was weighed against the annoyance, disturbance and harm caused to those other
parties who are compelled against their will to listen to the amplified sounds which
emanate from these loudspeakers.
The order contains valuable information regarding the position of the law in respect of
noise pollution, especially that caused by the inconsiderate use of loudspeakers. The
Court considered whether it was permissible to force members of the general public to
become captive listeners– on the grounds that a noise, is protected if it is made in the
course of a religious ceremony, particularly if the Police have issued a license for the use
of loudspeakers. The Court stated clearly that no religious body is entitled, by reason of
claimed religious practice, to commit a public nuisance by excessive noise.
-Under National Environmental (Community Noise Control) regulations laws,

loudspeakers and amplification may not be used between 10 pm and 6 am. The
exceptions are announcements made in times of emergency or disaster, and in the case
of special religious functions and special occasions.
-Schools, hospitals and courthouses have been declared “silent zones”,

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ENVIRONMENTAL LAW SAVANTHI PONNAMPERUMA

In the case of SmithKline Beecham Biological v. State Pharmaceuticals Corporation of

These costs would generally have to be borne by individuals, public authorities or

The precautionary principle has been incorporated in several international conventions.

To prevent environmental degradation it is necessary to assess the possible impacts on

The precautionary principle has been addressed in judgments of the ICJ.

New Zealand v. France (1996) Vol 3 (1&2) SAELR page 7

Common but Differentiated Responsibility

The principle of common but differentiated responsibility emphasized

o Firstly, that protection of the global environment is the common concern of

Development needs and environmental concerns should be balanced in order to achieve

Sustainable development relates to issues of over exploitation of natural resources and

This concept has been articulated in

 Article 3(4) of the Convention of Climate Change

Gabcikovo-Nagymares, Hungary v. Slovakia (1997) Vol.4 SAELR 197

cause extensive environmental damage. A principle must be followed which pays

 In Part IV of the Act titled ‘Environmental Management’, the CEA is vested

The principle of sustainable development was recognized by the judiciary in

Public trust Doctrine

In the Eppawela Phosphate mining case, an application claimed an imminent

o In recognizing violation of FR, Amarasinghe J elaborated as to the scope of the

In Sugathapala Mendis and Others v. Chandrika Bandaranayake Kumarathunga and

o Thilakawardena J in declaring that the FR of the petitioners under Article 12(1)

Environmental Protection Licenses (EPL)

The CEA may suspend or cancel a license if,

According to Regulation 10, when the license is suspended or cancelled according to

V D S Gunaratne v. Homagama prasedhiya Sabha and Five Others (1998) 5 SAELR

Environmental Impact Assessment and Approval

It is a written analysis of the predicted environment containing the following:-

 An environment cost-benefit analysis

The assessment is conducted prior to the commencement of the project. A prior

Further, international conventions have also incorporated this concept. Principle 17 of

“Environmental impact assessment, as a national instrument, shall be undertaken for

The EIA provisions in the National Environmental Act

 Project Approving Agencies

The project approval may be based on an Initial Environmental Assessment (EIA) or an

There have been several instances of intensive public involvement in controversial

 Grant approval for the implementation of the project subject to specified

Alterations or abandonment of the project- Section 33 EE of the Act and Regulation 17

The procedure for the approval of projects (Summary)

PREMINIARY INFORMATION TO THE PAA

SUBMISSION OF THE EIA BY THE PROJECT PROPONENT TO THE PAA

PUBLIC COMMENTS WITHIN 30 DAYS

PUBLIC HEARING IF NECESSARY

COMMENTS SENT BACK TO THE PROJECT PROPONENT

FINAL SUBMISSION OF EIA

THE PROJECT APPROVING AGENCY MAY

APPROVAL TO BE PUBLISHED IN GAZETTE AND NEWSPAPERS

APPEAL BY THE AGGRIEVED PERSONS (PROJECT PROPONENT) TO THE SECRETARY OF

THE PROJECT PROPONENT SHALL INFORM OF ANY ALTERATION OR ABANDONMENT OF

THE PROJECT APPROVING AGENCY SHALL MONITOR THE PROJECT

Statutory nuisance are found in several statutes in Sri Lanka. Examples:-

- Nuisance Ordinance No. 15 of 1982

- Municipal Council ordinance No. 29 of 1947 (relevant to public health)

- Urban Council Act No. 16 of 1939 (relevant to public health)

When can an individual sue in public nuisance?

Actions for public nuisance

The Penal Code

• Section 261 of the penal code defines public nuisance.

The Code of Criminal Procedure