25 Oct 2009

Polluter to pay, the trend reaffirmed ...

Environmental law is indeed one of the ticklish areas of law of the judges. Not for the fact that it requires the judges to balance competing interests of different segments of society (for that is what judges always do) but because of the fact that it requires approximation and estimation of how much wrong-doing can be permitted currently so that it is not too much for the future. Plus, all this decision-making amidst the reluctant and non-supportive attitude of the executive or even the legislative machinery, which is more concerned with the existing vote-bank and current scenarios rather than effectively planning for the future. It is only recently that an exclusive 'Environmental Protection Authority' has been proposed for India (of which we wrote recently) otherwise a quick look at the major environmental initiatives in India would reflect that the Courts have done more than the Ministry of Environment itself. Whether it be for the CNG buses in Delhi, the Taj-pollution case of Agra, illegal mining in Aravilis, or for that matter even the aftermath of the Bhopal Gas leak case, all along the courts have been instrumental in ensuring that environment is protected even if it commits a current wrong for it can translate in disaster for the future.

In this process of becoming the 'Green Benches', the Courts have also evolved. Beginning with the calm notion of 'Sustainable Development', the courts were quick to more to a more conservative approach of 'Precautionary Principle' intermittently employing with vigourous zeal the 'Strict Liability' principle for those carrying potentially harmful activities. And then to put environmental protection as a cost to the business, the transition to 'Polluter-Pays Principle' shows the rising concern on the part of the judiciary to translate the euphoria of environmental development from a mere academic debate to a practical-implementable solution.

In a recent decision, relating to the "preservation of ecology and for keeping the Noyyal river in Tamil Nadu free from pollution" from the dyeing and bleaching works at Tirupur area which had been "discharging the industrial effluents into the Noyyal river which created water pollution to the extent, that the water of the river was neither fit for irrigation nor potable", the Supreme Court has reaffirmed the 'Polluter-Pays principle' to direct the polluters to bear the cost of cleaning the area and improving the habitat.

In the first round of litigation, a petition filed before the High Court of Madras, the dyeing and bleaching units were directed to contribute an amount to meet the expenses of cleaning of the area around a dam built on the river. This was met to some extent by the industries. Thereafter a study was conducted by the State Government only to find that there had been no improvement in the quality of water. Thereupon another public interest litigation by filed before the High Court by an NGO seeking directions against the polluting units to contribute for the clear up and the prevention of pollution. On the petition, the High Court directed the units to pay specific amounts proportionate to the discharge made by them in the river and as well as pay for the monitoring committees and experts involved. Against these directions the units approached the Supreme Court expecting relief.

Besides arguing on account of high costs involved in the directions of the High Court (and thus the non-proportionality in terms of costs), the units put forth before the Supreme Court that "the High Court failed to appreciate that there are more than 40 thousand families to earn their livelihood on dyeing and bleaching industry. Several lakh persons are employed in its ancillary industries who directly depend on this business and most of them are basically the erstwhile agriculturists who could not earn their livelihood because of the barren nature of their land and for want of proper rain over several years. A large number of people have indulged in transport activities because of such heavy industries in Tirupur area." Defending the decision of the High Court, the Government sough to argue that the units were "bound to compensate the persons who have suffered the loss because of the activity of its members, as water of the river is neither worth for irrigation purpose nor potable. The members of the appellant association being responsible for the pollution, cannot escape the responsibility of not meeting the expenses of removing the sludge from the river and cleaning the dam and treating the water to make it pollution free."

The Supreme Court, not oblivious to the competing interests, noted the ground-realities as under;
As per the pleadings of the case, Tirupur is the place exporting the finest garments like T-shirts, inner wears to all foreign countries. The competitors are Bangladesh and China. Tirupur is an industrial hub providing employment to  5 lakh persons. The State Government has granted Sales Tax exemption to the units indulged in bleaching and dyeing units, considering the importance of the place and taking into account the nature of the industries. The country earns about 10,000/- crores in foreign exchange annually. The industries have provided the means of livelihood to a large number of persons indulged in transport of passengers and goods in the area to the extent of 80 kilometers radius for the purpose of fetching labourers residing away from the city and to deal with the export business. 

... The High Court constituted an Expert Committee and also the Monitoring Committee to assess the damage caused to the dam and the river and to find out the modalities to remove the effect of pollution. It also got the assessment of the amount required for removing the sludge from the river and for the treatment of the water, making it worth for irrigation and human consumption.
... The Committee had taken note of all previous developments and assessed the loss to ecology and environment in the affected area. It also identified the individuals and families who suffered because of pollution and further determined the amount of compensation to be paid to each affected individual or family. It also fixed the liability for making the payment of compensation.
On these facets and the other facts relating to the high-levels of pollution in the river water, the Supreme Court concluded thus;
Undoubtedly, there has been unabated pollution by the members of the appellant Association. They cannot escape the responsibility to meet out the expenses of reversing the ecology. They are bound to meet the expenses of removing the sludge of the river and also for cleaning the dam. The principles of "polluters-pay" and "precautionary principle" have to be read with the doctrine of "sustainable development". It becomes the responsibility of the members of the appellant Association that they have to carry out their industrial activities without polluting the water. A large number of farmers have suffered because of the pollution caused by them. They could not cultivate any crop in the said land.
Noting as above, the Supreme Court affirmed the order of the High Court in full and directed the units to pay the amounts as directed and pending for cleaning-up and as compensation to the victims of such pollution and other actions required to be undertaken by the units for the clean-up. Have a look at the decision. One can only hope that instead of the courts directing, the units which discharge such stuff in the environment will on their own accord provide for the clean-up as well.

No comments: