In UK law, ‘Pollution’ is interpreted as contamination of the air, land or water by harmful or potentially harmful substances.
It is well said that “It pays to pollute”, so, the large corporations in thirst and hunt for profit pollute the environment without caring for nature and human life. The ‘polluter pays’ principle is a practice in which those who cause pollution should experience or bear the costs of controlling and putting a stop to the damage to human health or the environment. This principle supports most of the regulations for controlling pollution of land, water and air.
History of the Polluter-Pays Principle
The Polluter-Pays Principle was adopted by OECD in 1972 as an economic principle for allocating the costs of pollution control. Subsequently, the guidelines for sustainable development were laid down by the Rio Declaration.
Sustainable development refers to the strategy in which the needs of the present generation are catered to without compromising the needs of the future generation. In pursuit of the aim of sustainable development, Rio Declaration Principle 16 of the Rio Declaration enshrined the Polluter Pays principle stating that the cost of pollution must be beared by the polluter.
The Kyoto Protocol is also based on the Polluter-Pays Principle. According to the Kyoto Protocol, parties are imposed with certain obligations to reduce the emission of GreenHouse Gases and be held responsible as well as accountable if they are not doing to protect the environment.
The first Act which the Government of India passed which was inclined with this principle was the Air (Prevention and Control of Pollution) Act of 1981. This was also the first attempt by the Government of India to tackle air pollution.
Interpretation of Polluter-Pays Principle in India
The “Polluter Pays” principle, as interpreted by the Court, means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of “Sustainable Development” and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.
Main Objectives of the Polluter-Pays Principle
1. To help in preventing, controlling and decreasing the instances of pollution
2. To inspire corporates and individuals to follow non-polluting acts and take measures to stop pollution
3. To held the polluter more accountable and responsible towards the environment
4. To promote rational and effective use of resources by fining parties with the cost of pollution
5. To include the cost of pollution as well as the cost of measures taken by the Government to curb the effects of the pollution
Polluter-Pays Principle in International Law
The Polluter-Pay Principle enjoys the support of most of the countries of the OECD as well as from the majority of countries of the European Community. It is also present in the Kyoto Protocol.
Some of the International Environmental Instruments which have included the Polluter-Pays Principle are:-
- The Paris Agreement
- The Rio Declaration on Environment and Development
- The International Convention on Oil Pollution Preparedness, Response and Co-operation
This principle is one of the main ideas behind the various measures taken to control climate change which is increasing at an exponential rate.
Developed countries like the USA and China are one of the worst emitters of the Green House Gases but they are also one of the richest countries of the world. Other countries get inspired by these countries and start polluting their environment. They become rich but in the worst case, they become inhabitable. The best example of this scenario is that of the capital city of China, i.e. Beijing, as in the article published by the Guardian in 2015.
Implementation of the Polluter-Pays Principle
The Polluter-Pays Principle can be implemented in various ways. Some of them are listed below:-
By introducing laws which are aimed at controlling the levels of pollution in a region. This can be carried out by the authorities as they can make the procedure of issuing licenses to the polluting factories more demanding in terms of the level of pollution. Various orders, sanctions and limits can be set for the businesses which promote polluting the environment.
Taxes can be imposed on businesses which survive by polluting the environment, also, subsidies and tax concessions can be provided to businesses which follow the non-polluting measures.
3. Awareness Programmes
Consumers can be made aware of the ill effects of pollution like degradation of quality of life, chronic and fatal diseases, slow death of the ecosystem making earth uninhabitable etc. which can motivate them to boycott certain products or companies which promote pollution. This can motivate the businesses to mend their ways and shift to non-polluting ways.
Flaws of the Polluter-Pays Principle
There are certain loopholes in the Polluter-Pays Principle. Some of them are:-
The Principle can be held into an effective category of principles which can curb pollution but, this principle cannot help in healing the already polluted regions of Earth.
As waste management is necessary to avoid polluting the environment, small business owners have a disadvantage. This is so because they do not have enough capital to arrange for waste management and most of the time need to do pollution to barely run their businesses. Therefore, the principle does not align with the principle of equity.
The definition of polluter is not provided in the said principle. So, it can be defined as one wishes. This can make the whole purpose behind the principle fail big and help polluters to pollute the environment as no obligation would be defined.
The developing countries whose economy runs on the wheels of selling goods in the international market are not in the position to invest in waste management but also can not burden their customers from increasing prices by adding to the costs of preventing pollution.
Views of Indian judiciary on Polluter-Pays Principle
The Indian Judiciary has recognised the Polluter-Pays Principle in many of its judgments. The most landmark judgments of the same are:-
1. M.C. Mehta vs Kamal Nath & Ors (1997)1SCC388
In this case, it was held, by the Court, that pollution is a civil wrong. It is a tort which is committed against the community as a whole. Thus, any person who is held liable for producing pollution has to provide damages as compensation for the restoration of the ecology and environment.
Under the Polluter-Pays Principle, it is not the duty of the Government to provide for the costs arising in either the act of preventing such damage or in process of providing remedial action. The reasoning behind so is that the financial burden of pollution caused by a polluter shall not shift to the taxpayer.
2. Vellore Citizens’ Welfare Forum vs. Union of India 1996(5) SCC 647
In this case, the Supreme Court held that the Polluter-Pays Principle is the part of environmental jurisprudence of India. It also interpreted the meaning of the Polluter-Pays Principle as absolute liability for the loss caused to the environment. The damages for the same are not limited to the compensation to victims of pollution but also include the cost of restoring the environment to the original form. This is an effect of the measures taken to promote sustainable development and according to these, the polluter has tried to damage the ecology for future generations too.
3. Civil Action v. Criminal Action
Living in a healthy environment is an existential right of a human being and this makes its protection concern of top priority. There is an increasing debate going on regarding whether the liability of the polluter shall be restricted to civil in nature or be extended to criminal in nature. The main reason behind the activity of encouraging pollution by the polluter is to turn a maximum profit. So, the argument is that the polluter undermines the interest of other people and capitalize on their life. Therefore, this should attract criminal liability.
The above argument highlights the ineffectiveness of the Polluter-Pays Principle as the economy of countries is growing at a fast rate so is the scale of pollution and hence, the scope of the Polluter-Pays Principle needs to be widened for effective control on pollution.
The world is progressing, and new technologies are being developed at a swift pace. In such a fast world, environmental degradation is inevitable but this also makes its protection and preservation more vital. The Polluter-Pays Principle has helped in controlling the increase in pollution but it also has ambiguities in it. This principle can help in the short-run but more unambiguous and effective measures need to be developed with the Polluter-Pays Principle to make it more impactful in the longer run.
OECD Official Document – “THE POLLUTER-PAYS PRINCIPLE OECD Analyses and Recommendations”
This article is authored by Anushk, 1st Year BALLB(H) Student at CHRIST (Deemed to be University).
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