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Polluter Pays Principle Polluter Pays Principle

Polluter Pays Principle Polluter Pays Principle

Article · June 2012

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 IJLESS International Journal of Languages, Education and Social Sciences, Vol. 01, Issue 02, June 2012
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Polluter Pays Principle

Asha Poonia1, Virender Sindhu2, Anju Ahlawat3 and Anil Ghanghas4
1
Research Scholar, Department of Zoology, Panjab University, Chandigarh (India)
2
Assistant Professor, Department of Laws, MDU, Rohtak, Haryana (India)
3
Research Scholar, Department of Botany, CCS HAU, Hisar, Haryana (India)
4
LLM Final Year, Department of Laws, Panjab University, Chandigarh (India)

Abstract operations to so-called 'pollution havens' –

"If anyone intentionally spoils the water of another ... let
him not only pay damages, but purify the stream or
cistern which contains the water..."- Plato1. The polluters
pay principle is the commonly accepted practice that
those who produce pollution should bear the costs of
managing it to prevent damage to human health or the
environment. For instance, a factory that produces a
potentially poisonous substance as a by-product of its
activities is usually held responsible for its safe disposal.
Keywords: Agenda 21, Environment Law, Polluter
Pays Principle, Rio Declaration.
Introduction
This principle underpins most of the
regulation of pollution affecting land, water and air.
Pollution is defined in UK law as contamination of
the land, water or air by harmful or potentially
harmful substances. It is part of a set of broader
principles to guide sustainable development
worldwide (formally known as the 1992 Rio
Declaration). The polluter pays principle has also
been applied more specifically to emissions of
greenhouse gases which cause climate change.
Greenhouse gas emissions are considered a form of
pollution because they cause potential harm and
damage through impacts on the climate. However,
in this case, because society has been slow to
recognize the link between greenhouse gases and
climate change, and because the atmosphere is
considered by some to be a 'global commons' (that
everyone shares and has a right to use), emitters are
generally not held responsible for controlling this
form of pollution. Many economists argue a carbon
price should be global and uniform across countries
and sectors so that polluters do not simply move
351
countries where a lack of environmental regulation
allows them to continue to pollute without
restrictions.
Meaning
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. There is a close
relationship between a country's environmental
policy and its overall socioeconomic policy2.
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
the pollution costs should be borne by the polluter,
particularly where transnational dispute is
involved3.
History4
The first mention of the Principle at the
international level is to be found in the 1972
Recommendation by the OECD Council on
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Guiding Principles concerning International
Economic Aspects of Environmental Policies,
where it stated that: "The principle to be used for
allocating costs of pollution prevention and control
measures to encourage rational use of scarce
environmental resources and to avoid distortions in
international trade and investment is the so-called
Polluter-Pays Principle." It then went on to
elaborate: "This principle means that the polluter
should bear the expenses of carrying out the above-
mentioned measures decided by public authorities
to ensure that the environment is in an acceptable
state."
However, the PPP evolved into what is
called extended or strong PPP. In 1989, OECD
included in the PPP costs related to accidental
pollution. The PPP has also been reaffirmed in the
1992 Rio Declaration, at Principle 16: "National
authorities should endeavor to promote the
internalization of environmental costs and the use
of economic instruments, taking into account the
approach that the polluter should, in principle, bear
the cost of pollution, with due regard to the public
interest and without distorting international trade
and investment.", and is mentioned, recalled or
otherwise referred to in both Agenda 21 and the
World Summit on Sustainable Development
(WSSD) Johannesburg Plan of Implementation.
The PPP is widely acknowledged as a
general principle of International Environmental
Law, and it is explicitly mentioned or implicitly
referred to in a number of Multilateral
Environmental Agreements.
Flaws in the PPP
It is true that polluter pays principle has a
positive effect to reduce pollution. The principle
seems quite relevant for pollution that occurs
during industrial activity, although it remains
inefficient in the case of historical pollution. Legal
theorists discovered few loopholes of this rule. The
flaws are as follows:
Ø Firstly, ambiguity still exists in determining 'who
is a polluter'. In legal terminology, a 'polluter' is
someone who directly or indirectly damages the
environment or who creates conditions relating to
such damage. Clearly, this definition is so broad as
to be unsupportive in many situations5.
Ø Second, a large number of poor households,
informal sector firms, and subsistence farmers
cannot bear any additional charges for energy or
for waste disposal.
Ø Third, small and medium-size firms from the
formal sector, which mainly serve the home market,
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find it difficult to pass on higher costs to the
domestic end-users of their products.
Ø Fourth, exporters in developing countries usually
cannot shift the burden of cost internalization to
foreign customers due to elastic demand.
Ø Lastly, many environmental problems in
developing countries are caused by an
overexploitation of common pool resources.
Access to these common pool resources (in line
with the PPP) could be limited in some cases
through assigning private property rights, however,
this solution could lead to severe distributional
conflicts.
All of these problems make it difficult to
implement the PPP as a guideline for
environmental policy in developing countries.
Despite the fact that Polluter Pay Principle was
publicized by early conservationists as a means to
reduce ecological pollution, still many consider it
as a 'vague idea'6. Some put forward their
argument that under this principle a polluter fulfils
his obligations when he pays at least some of
administrative expenses of the agencies who
regulate pollution activities. 'Exxon Valdez' case is
the best example of this criterion of Polluter Pays
Principle7. Others argue that it can only be satisfied
by polluters when they will pay the total
depollution cost. And the rest support the view that
tax (like 'Carbon Taxes') should be legitimised on
the users of the natural resources that cause
atmospheric hazards8.
Indian Judiciary and PPP
"We are interested not only in the
development but also in the enforcement of law"9 -
Justice Christopher G. Weeramantry [Vice
President of the ICJ]
The judiciary in India recognizes the
Polluter Pays Principle as is seen from the
judgment delivered by the Supreme Court of India
in writ petition no 657 of 199510. In its order dated
Feb.4, 2005, The Supreme Court held that "The
Polluter Pays Principle means that absolute liability
of harm to the environment extends not only to
compensate the victims of pollution, but also to the
cost of restoring environmental degradation.
Remediation of damaged environment is part of the
process of sustainable development."
"The Polluter Pays" principle has been
held to be a sound principle by this Court in Indian
Council for Enviro - Legal Action v. Union of
India11. The Court observed, "We are of the
opinion that any principle evolved in this behalf
should be simple, practical and suited to the
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conditions obtaining in this country. The Court
ruled 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".
In M.C.Mehta V. UOI12, SC reffered the
case of Enviro-Legal Action and Vellore Citizens
case and ordered the Calcutta tanneries to relocate
and pay compensation for the loss of
ecology/environment of the affected areas and the
suffering of the residents.
In Vellore Citizen's case13, court held that:
The precautionary principle and the polluter pays
principle have been accepted as part of the law of
the land. Article 21 of the Constitution of India
guarantees protection of life and personal liberty.
Apart from the constitutional mandate to
protect and improve the environment there are
plenty of post independence legislations on the
subject but more relevant enactments for our
purpose are: The Water (Prevention and Control of
Pollution) Act, 1974 (the Water Act), The Air
(Prevention and Control of Pollution) Act, 1981
(the Air Act) and the Environment Protection Act
1986 (the Environment Act). In view of the above
mentioned constitutional and statutory provisions
we have no hesitation in holding that the
precautionary principle and the polluter pays
principle are part of the environmental law of the
country.
To support we may refer to Justice H.R.
Khanna's opinion in Addl. Distt. Magistrate
Jabalpur V. Shivakant Shukla14, Jolly George
Varghese's case15 and Gramophone Company's
case16.
In the Kamalnath's case17, 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." This case subsequently
came up in front of the court in the year 200018.
Finally in 200219, 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 to be 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."
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Conclusion
It is good that India that imbibed the
Polluter Pays Principle (PPP) in their Law of land.
And, it also had actually helped in imposing
damages on the polluter but still the problem with
this principle is that it hasn't been implemented
peoperly. If we look at the exemplary damages
granted to span motels doesn't serve the purpose of
the exemplary damages. Ten lakhs rupees is
nothing for the big corporations like span motels.
For them at least 10 crores Rs. exemplary damges
should be given. And again if we look at the
penalty imposed in the Vellore Citizens case, then
it just shocks me that how 10,000 rupees can justify
the pollution spreaded by the tanneries in the
nearby areas. The Author personally feels that this
is not an effective way of fund raising. We should
reconsider the criteria's laid to decide the
compensation amount. At least it should deter the
polluters from spreading pollution. This principle
needs a strict interpretation from our judiciary with
immediate effect and we just can't afford any sort
of delay in its proper implementation in developing
country, like India.
References
[1] The Dialogues of Plato: The Laws, vol. 4,
book 8, section 485(e), translated by Jowett B,
Oxford: Clarendon Press (4th ed.), 1953.
[2] This is a part of the International
Environmental Agreements Compendium,
compiled 1995 by the Pollution Prevention and
Pesticide Management Branch, Ministry of
Environment, Lands and Parks, British
Columbia, Canada.
[3] http://www.thedailystar.net/law/2007/january/
04/depth.htm(accessed on 27-02-2014)
[4] http://www.eoearth.org/view/article/155292/(a
ccessed on 27-02-2014)
[5] For example, Mr. Aryaan owns a BMW. If his
BMW emits harmful gas in the atmosphere, he
will be directly liable for the emission.
Furthermore, the manufacturer of the vehicle
will be indirectly liable for committing
ecological damage too and so the retailer of the
vehicle and the fuel supplier, and the
government who created 'conditions relating to
the damage' by building roads and neglecting
public transport regulations.
[6] http://www.unece.org/ie/intersol/documents/s.
8e.pdf (Who can pay for depollution ? an
economic approach) (accessed on 27-02-2014)
[7] In 1989, an oil tanker owned by Exxon spilled
out over 300,000 barrels of crude oil into the
sea and caused significant environmental
hazard. Exxon was forced to pay $125 million
in fines to the federal government and the state
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of Alaska and $900 million into a fund for

environmental projects controlled by
government, habitat protection, and scientific
research, among other things
[8] Barrister Abu Hena Mostofa Kamal, "Polluter
pays principle and its limitations"
[9] www.e-
wasteproject.org/docs/del_usha.pdf(accessed
on 27-02-2014)
[10] AIR1996SC1446, Indian Council for Enviro-
Legal Action v. UOI & Ors.
[11] J.T. (1996) 2 196
[12] WP 3727/1985 (19 December, 1996)
[13] AIR1996SC2715
[14] MANU/SC/0187/1984
[15] MANU/SC/0014/1980
[16] MANU/SC/0187/1984
[17] (1997)1SCC388
[18] 2000 AIR SCW 1854
[19] AIR2002SC1515

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