If anyone intentionally spoils the water of another ... let him not only pay damages, but purify the stream or cistern which contains the water.Plato, Greek Philosopher
The Polluter Pays principle is one of the oldest principles of environmental law and also one of the most intuitive. After all, making the polluter pay for its wrongs makes sense on both, practical as well as moral levels. It is expected that would-be polluters will be deterred in the future and it seems fair that if one has dirtied the environment, one should be expected to clean it up too.
So far, so good. But one big question remains – who should pay for causing pollution, and how much?
The Principle
The polluter pays principle is deeply rooted in legal systems but it came to be explicitly discussed in relation to environmental harms by the Organisation of Economic Cooperation and Development in the 1970s and 80s.
Finally, in 1992, it was adopted by the international community in Principle 16 of the Rio Declaration:
Authorities should endeavour to promote the internalisation 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.
In India, the courts have been at the forefront of making the principle work – they have repeatedly imposed costs and fines to try and ensure that polluters do not escape the responsibility of paying compensation and cleaning up.
The Indian Experience
The Polluter Pays principle made an important impact in the famous MC Mehta Oleum Gas Leak case. In this judgment, the Supreme Court laid down the rule of absolute liability which essentially states that a person would be wholly responsible for any mishap caused by their “hazardous or inherently dangerous” enterprise, which in this case was a chlorine plant. The apex court noted that the polluter’s liability would depend on their ability to pay – thus using the principle to both clean up the environmental damage and to punish the polluter.
In later cases like Bichhri, the Court noted that the polluter would need to pay for cleaning up the damage as well as compensate those harmed by the pollution. Again, in the Vellore Citizens case, the Court highlighted that the polluter pays principle was implied in the Constitutional provisions protecting the environment as well as in the various Acts concerning the environment.
Interestingly, under the public interest litigation route, courts in India have often also held the government liable for failing to curb the pollution and have directed them to pay for the costs of environmental damage.
Ultimately, in the National Green Tribunal Act 2010, it was stated that the NGT would decide cases based on the polluter pays principle (among others):
A.20. The Tribunal shall, while passing any order or decision or award, apply the principles of […] the polluter pays principle.
The recent Delhi environmental charge is just one example of the courts imposing such fees with a view to using the money to help improve the environment.
Grey Areas
The primary problem with this principle occurs with the fact that by its very nature, environmental pollution is not always easy to narrow down to a single source which can be strictly punished. A great deal of pollution is from non-point sources, cumulative in nature and occurs over long time spans. Thus, identifying a perpetrator is both difficult and in some cases, technically unfeasible.
Another problem appears with the principle itself – there is no clarity on how exactly the damages should be calculated. This means that a polluter may be asked to pay for the actual costs of clean-up, the damage caused to the victims of environmental damage, a fine or a penalty based on their ability to pay, a general levy aimed at a clean-up of the problem as a whole, or all of the above.
This ambiguity can cause problems and the principle tends to be used differently in different cases.
Polluter Pays is an important principle for environmental law and governance in India. However, rather than let the courts do all the work in cleaning the environment, it’s important for all of us to consider our environmental impact, and work towards mitigating it, however best we can.
(Shalini Iyengar is a lawyer and Research Associate at the International University College, Turin.)
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