SYNOPSIS

1. Introduction
2. Meaning of polluter pays principle
3. Origin of polluter pays principle
4. Place of PPP in International Environment law
5. Functions of polluter pays principle
6. Implementation of PPP
7. Importance of principle
8. Flaws of PPP
9. Polluter Pays Principle in context of India
10. Conclusion

 

1.    Introduction

 

Polluter pays principle is a policy of environmental law. It is framed for the protection of environment from pollution. The aim and objective behind this policy is to attain sustainable environment globally. Environment includes land, water and air. Pollution means contamination of all the substances which create environment.

2.    Meaning of polluter pays principle

 

• Polluter pays principle (PPP) means the person whosoever will cause pollution to the environment in either way will bear the cost of its management. This principle imposes a duty on every person to protect the natural environment from pollution.

 

• In case of the non-adherence of this duty polluter is responsible to pay the cost for the damage caused to the environment.

 

• For example, there is a manufacturing unit of leather products such as purse, belt, garments, and shoes etc. it is confirm that that factory must be producing various kind of waste and hazardous substance which are harmful to the environment. In this situation, in order to protect the environment, polluter pays principle imposes a duty on that factory for bearing the cost of management of such waste.

3.    Origin of the polluter pays principle[i]

 

• This principle has become a widely accepted practice for the protection of environment from damage. It has a global application. This principle is a base of many laws and regulations related to the environment protection.

 

• This principle was formally expressed and accepted in 1972 by the Council of the Organization for Economic Co-operation and Development (OECD).

 

• According to the historians of environment polluter pays principle is not a new concept it was already there for regulation of pollution in nineteenth century with a different name. Now it has come with a globally recognized name and it is being practiced on a large level.

 

• Polluter pays principle has been adopted under many international instruments as a management mechanism and it has been ratified by over 175 countries across the globe.

 

• Some of the international environmental instruments which have included polluter pay principle are-
• Agenda 21
• The Rio Declaration on Environment and Development
• The International Convention on Oil Pollution Preparedness, Response and Co-operation
• The Convention on the Transboundary Effects of Industrial Accidents
• The Paris Agreement

4.    Place of PPP in International Environment law

 

• The ‘polluter pays’ principle has been supported by most countries of the Organization for Economic Co-operation and Development (OECD) and from the European Community (EC) as well. Polluter pays principle is mentioned in Principle 16 of the 1992 Rio Declaration on Environment and Development which is adopted by many countries of the world.

 

• The Kyoto Protocol which is also accepted widely is another example of the polluter pays principle. According to that parties have been imposed with the obligations to reduce their greenhouse gas emissions and bear the costs of reducing (prevention and control) such polluting emissions in order to protect the environment.

5.    Functions of polluter pays principle[ii]

• Functions of PPP principle as recommended by the Organization for Economic Co-operation and Development (OECD) are as follows:

 

• There must be allocation of cost of pollution prevention and control measures for the purpose of promoting the rational use of resources.

 

• The cost of the measures which will be taken by public authorities for the protection of environment should be borne by the polluter.

 

• Functions of PPP principle provided under Rio declaration is given in principle no. 16 which says that PPP should be applied for the interest of international trade. The environmental cost should be internalized to protect the international trade and investments

 

• In the present world, concept of PPP not only covers the pollution prevention and control measures of pollution but it also covers liability of the polluter. It means costs for the clean-up of damage caused to the environment by pollution be borne by polluter. This way it has a curative function as well.

 

6.    Implementation of PPP

• There can be some instruments for the wide implementation of polluter pays principle-
• Command and control- some steps can be taken through law. Authorities may make procedure for different licenses, orders and sanctions by authorities. Rules can be made regarding prohibitions and limits can be set for emissions.

 

• Market based- some steps can be taken through market based instruments for the implementation of PPP. There can be rules regarding the liability, taxes. Provisions can be made for subsidies and feed in tariffs. Different type of certificates can be issued.

 

• Soft laws- it is also a type of instrument by which PPP can be implemented. Though it is not much effective instrument in comparison to the instrument of command and control. This instrument comprises voluntary agreements, environmental management systems etc.

 

7.    Importance of principle

• Polluter pay principle has been playing a positive role in reducing the environmental pollution. This principle is the based on many international environmental laws. It has been used specifically to the emissions of green houses gases which cause the climate change.

 

• Polluters could not be held liable for climate change through green house gases emission as environment belongs to all and everyone shares the atmosphere. Role of such polluters could not be identified.

 

• This principle is a widely accepted practice around the world which is required to be followed to attain the sustainable development and protection of environment.

 

• Some of the developing countries are extending this principle by making an obligation to state to provide compensation to the victim of such environmental harm.

8.    Flaws of PPP[iii]

• Though PPP is playing effective role in reducing the pollution but it can also be seen that this principle is relevant to the pollution which occurred in the time of industrial activities but it is not effective in reducing the preexisting historical pollution. There are certain loop holes in this principle because of which implementation of such principle is difficult practically.

 

• The term polluter is not specific. Liability is to be attached to the polluter only but there is no specific definition of polluter provided. According to legal terminology polluter is the one who directly or indirectly damages the environment or who creates conditions relating to such damage. This definition may not be always correct and suitable.

 

• There are poor households, small farmers and small firms who are not in position to bear additional charges for the waste management or so. Here the principle cannot be implemented.

 

• Small and medium sized firms who operate in home market cannot put extra cost burden to its domestic end user of their product.

 

• In international market exporters of developing countries cannot burden foreign customers for their internal cost due to elastic and irregular demands.

 

• In developing countries problem occurs due to the over exploitation of common resources. By implementation of polluter pays principle access to such resources can be made limited by way of assigning the rights but this may lead to the distribution conflicts.

 

• Above mentioned are the loopholes or the reasons due to which the principle cannot be applied strictly. Some economists termed it as a vague idea.

 

9.    Polluter Pays Principle in context of India[iv]

• In India polluter pays principle includes environmental costs and direct costs to people or property. The principle has been recognized by judiciary while deciding many cases. Supreme Court is of the view that PPP is meant not only to compensate the victim of pollution but also the cost of environment degradation.

 

• Indian Council for Enviro-Legal Action v. UOI & Ors.[v] In this case, there were five chemical industries producing H-acid (1-napthol-8-amino, 6- disciphonic acid). They were discharging untreated toxic waste material into the open compound which, in due course of time, flowed through a canal and the rainwater took the waste deep into the bowels of the earth. Due to this water of river got polluted and underground water also got contaminated up to 70 feet below the ground within a radius of seven miles of the village Bicchari. It made the agricultural fields nearby infertile, as a result of which residents had to leave the village.

 

• Supreme Court of India recognized the principle and held that it should be simple, practical and suitable to the conditions of the country. In this case a private company which was found to be the polluter of soil pollution was ordered to compensate the villagers of the area where such company was operating. Court ordered for the remedial measures to be taken by the company for the purpose of removing pollutants from such area.

 

• Court held that under Environment Protection Act, 1986 provisions are there in section 3 and 5which empower the Central Government for giving directions and for taking measures for giving effect to this principle. It was also held that Central government may take the help of State governments and other agencies for the same purpose.

 

• In the case of C. Mehta v. UOI[vi] Supreme Court applied the principle of PPP and observed that new laws and new principles should be evolved so that they can deal with the problems of the highly industrialized economy.

 

• Court directed Calcutta tanneries to relocate or to develop a green belt before starting the industry. It was also directed to pay compensation for the loss caused to ecology and environment of the affected areas and to the residents who suffered because of the Oleum gas leakage from the Sri Ram Food and Fertilizer Corporation in the same area.

 

• The Supreme Court provided an innovative remedy by indirectly recognizing the polluter pays principle.

 

• The Supreme court in the case of Vellore Citizens Welfare Forum v. Union of India[vii] held and declared in clear terms that ‘the precautionary principle and the polluter pays principle are an important part of the environmental law of this country. Article 21 of the Indian Constitution guarantees the right to life and personal liberty. By accepting these principles as a part of the law of the land it has been tried to protect the right under article 21.

 

• Articles 48-A and 51-A (g) of Indian constitution provides for protection and improvement of the environment.

 

• Court ordered for creation of an “Environment Protection Fund” to be used for the purpose of compensating the victims and restoration of the damaged environment.

 

• In Taj Mahal case also court applied this principle and ordered for the shutdown of the factories with immediate effect which were operating in Taj trapezium and were causing decay and creation of a yellow layer due to air pollution.

 

10.                   Conclusion

Polluter pay principle is a recognized policy of environmental law which is effectively being followed in many countries of the world. In respect of India as the pollution is increasing day by day it is required to follow this principle more diligently. It has not been implemented properly due to many reasons. More guidelines need to be framed for such purpose.