Nature and Scope of Environment laws

This article discusses the significance of Environment Laws and the principles followed throughout the world. In addition to this, the effectiveness and concerns of environment laws of different countries are also analysed. The evolution of science and technology and the expansion of industries has accelerated the environment pollution, which has led to immense changes within the nature of legislations.

The term environment means the surrounding of an individual, this is inclusive of everything that impacts a living-being during the term of this life. The word environment has been obtained from the French word “Environ” which means “surrounding” or ‘en-circle’.

I. Introduction

Protection and safeguarding of the environment have been deep-rooted within the cultural and religious ethos of most countries and been of uttermost importance from a historical perspective. The comprehensive recognition and understanding of the existing environmental issues across the globe is precedent to the framing of effective and efficient national policies, to deal with domestic issues.

There is a rapid increase in accepting the urgent need to address the ecology at large, which thereby increase the willingness of the politician to include environment protection on their agendas and manifestos. [1]

Environment protection and sustainable development have been of great international concern. The customary international laws do not comprise any specific rules for safeguarding and conserving of the environment. Hence apart from the general principles of state responsibility, regulatory norms and management practices, international treaties are considered as an important mechanism for regulating liberties and duties of the state.[2]

The doctrine of ‘sic utero tuo ut alienum non laedas’ (one must use his own right so as not to injure others) is considered as a guide for abolishing pollution and environmental damage between various nations.[3]

The concept of Corporate Social Responsibility is a significant aspect in environment protection where companies consolidate their social and environmental concerns in their business ventures and within their interaction with stakeholders on a voluntary basis.[4]

One of the principles within CSR, sustainable development provides a structure for humans to exist and prosper in concord with nature rather than living at the sole expense of nature. Although there are various existing environmental and natural resource laws which exist at present, sustainability does not have proper and supportive legal founding. There can be significant progress towards sustainability only on the development and implementation of laws and legal institutes.

There are a huge demand and scope of sustainability since the government, business and non-government organizations are increasingly demanding legal work to address these issues. One of the growing concern within environmental issues is the growing needs to address climate change.[5]

II. Distinct Principles of Environment Laws

A significant achievement of the Indian Judiciary is the establishment of certain new principles and new doctrines and implementing the same within the domestic legal system. Some of these principles are similar to that of international law relating to the protection of the environment:

• Principle of Absolute Liability

The principle of absolute liability was established by the Supreme Court for harm that is generated by hazardous and dangerous industries by re-accessing the scope of power under Article 32 of the Constitution of India. This principle of absolute liability is exempted from the exception to the rule of strict liability under the Common Law principle of England.

The evolution of this rule started in the case of M.C. Mehta v. Union of India[6], also referred to as the ‘Oleum gas leakage case. Another important legislation which grants damages for strict liability, arising out of accidents while controlling the hazardous substance is the National Environment Tribunal Act, 1995.

• Polluter Pays principle

The Polluter Pays Principle (PPP) has been accepted as customary international law, hence applicable for India as well. The Polluter Pays Principle was initially considered as an economic and administrative measure to curb and limit the pollution problem, this principle has become an important legal mechanism to combat environmental pollution and environment-related problems.

The Supreme Court applied this principle explicitly in the case of Indian Council for Enviro-Legal Action v. Union of India[7]. The court held that industries cause pollution are “absolutely liable to compensate for the harm caused by them to the villagers in the affected area, the soil and to the underground water and hence they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas.” [8]

• Precautionary Principle

Pre 1972, the concept of ‘assimilative theory’ existed at the international level. The principle worked on the understanding that the environment can handle continuing pollution to a certain limit, after that limit it can cause severe damage. According to this theory, the role of law begins only after the limit is crossed. However, increasing pollution cannot be postponed till the time the examination of quality, concentrations etc is determined. Hence there was a shift from the assimilative theory to the precautionary principle concept.[9]

• Doctrine of Public Trust

The Doctrine of Public Trust was codified 1500 years ago, by the Roman Empire and was acknowledge and preserved by the legal scholars. The doctrine expresses a similar steady notion as that of ‘Environmental Human Rights’. [10]

This was later recognised by the Supreme Court of India, in the case of M.C. Mehta v. Kamalnath [11] where the doctrine of Public Trust was explained. It focused on the principle, that there exists certain resources such as air, water, sea, forests etc which are of major importance to the people as a whole and it would not be considered justified to make these subjects of private ownership. [12]

• Doctrine of Sustainable Development

The Principle of Sustainable Development as defined by the 1987 Brundtland Report‘, as the development which met the needs of the present without compromising the efforts of the future generations to meet their own needs.[13]

III. Environment management: Authorities and Legislations in different countries

A. India

The Union Ministry of Environment and Forest (MoEF), which was formulated in the year 1985 is considered as a nodal agency at the central level for planning, promoting, coordinating programmes; along with constructing legislation for environmental management and reducing pollution.

The Central Pollution Control Board (CPCB) exercises executive and advisory functions at the central level and State Pollution Control Board (SPCB) perform identical executive functions, at the state level. Both of these authorities are charged with a statutory duty to take cognizance of offences which lies within different environmental laws and move to courts for prosecution.

The continued pollution problem in India led to an increase in development and industrialization of the country, which started in the early 1960s. UK was also battling with similar pollution problems, the infamous London smog in the year 1954 was considered as a large environmental issue.

B. The United Kingdom

In the UK, the powers to regulate laws and policies, regarding the environmental matter are granted to the central government, through the Department of the Environment, Food and Rural Affairs (DEFRA), in addition to this there are various other departments playing activate role in eradicating pollution, Department of Trade and Industry, now replaced by the Department for Business, Enterprise and Regulatory Reform and Department for Innovation, Universities and Skills, the department is responsible for business, science and innovation.

Major emphasis was laid on knitting policies revolving around common goals, reduce imposing irrelevant burdens, involving other is policy formulating and gathering knowledge with experience.

The Environment Act, 1995 gave birth to the Environment Agency, which was an autonomous corporate body and did not possess Crown immunity. However, the immunity was granted partially for the agency to perform ministerial functions. The mechanism of regulation and setting relevant standards by the public bodies remained the primary tool for safeguarding the environmental issues in the UK. The British minimalistic system, brings about flexibility and showcases the absence of statutory standards and flexible enforcement strategy. [14]

With regards to the enforcement, Britain had three styles- compliance approach (or conciliatory or cooperative); deterrence approach; and responsive approach containing verbal warning, notices and revocation of consents etc. The broad definition within principle statutes and informal guidance to interpret the same, considerable reliance on self-regulation and compliance using discretionary powers; depicts the flexible approach towards environmental issues.

C. Bangladesh

The environmental issues faced by Bangladesh are solely based on poverty, illiteracy and ignorance towards the larger population. The problem of unsuitable environmental conditions is a consequence of lack of development, rather than any result of any development strategy. Till now, Bangladesh has one primary law for handling, preventing and diminishing environmental pollution which is the Environmental Pollution Control Ordinance of 1977.

In addition to this, there are approximately 100 other laws which address various other sectorial aspect of the environment. (For example fisheries, forestry, foodstuff, human health, black smoke, sanitation, local administration, urban facilities, industrial pollution, wildlife protection etc.)[15]

The environmental laws of Bangladesh can be divided into four segments-

1. Laws concerning the duties of local authorities

This comprises of the Pourashava Ordinance 1977[16], the Local Government (Upazila Parishad and Upazila Administration (Reorganization) Ordinance 1982, and the Local Government (Union Parishads) Ordinance 1983.

2. Laws concerning the protection of environmental health

The Acts formulated and passed within this segment revolves around environmental health in industrial areas, Factories Act of 1965 and The Factory Rules of 1979 would be some example which fall within this category.

3. Laws concerning the conservation of natural resources

Protection of natural resources such as forest, wildlife, fishery are significant to bring about balance in the environment and also ensure sustainability. A few of the examples would be the Bangladesh Wildlife (preservation) Order, 1973, East Bengal protection and Conservation of Fish Act was passed in 1950, Conservation of Fish and other Aquatic Resources in the inland waters bodies of Bangladesh.

4. Laws concerning the control of environmental pollution

The Water Pollution Control Ordinance, 1970, was the first time the issue of pollution control was brought to light. Post-independence, a few changes were brought within the ordinance by the Water Pollution Control (Amendment) Order of 1973.

The vow of Bangladesh to create a sustainable approach of safeguarding the environment. This led to the creation of a separate Ministry for Environment and Forest in 1989 and a new act called, Bangladesh Environment Preservation Act in the year 1995 was formulated

D. The United States

The concept of ‘Environmental justice’ first appeared at the US Federal level in the year 1994. Initially, most of the environmental movement circled around safeguarding nature, management of resources, reducing and restricting pollution.

In the US, the Congress distributed the rulemaking powers to expert federal agencies such as Environment Protection Agency[17], US Department of the Interior and the US Army Corps of Engineers, etc which thereby publishes any proposals to the Federal Register which can be accessed by the public. Any interested person can put forth a proposal to amend it.

The agency then brings a final rule after taking these comments into consideration and the people can appeal to the court and challenge the constitutionality of it. These rules possess similar powers (force and effect) as that of legislations. [18]

In the US, as per the National Environment Policy Act, 1969, it is necessary for the violators to pay compensation. Any provision relating to the imprisonment of the violators are absent and there are hardly any arrests. Contrary to India, where there are statutory impositions are high. In addition to this, India does not have any other analogous rule-making bodies and the excising committees and subcommittee are not functional and the powers solely delegated to the CPCB and SPCB by the Ministry. [19]

IV. Conclusion

Environmental development has been of increasing concern in the modern world, this has a connection to the post-second world war era. During this time period, there has been a steady development of productive forces which has resulted in an increase in human intervention within the natural environment. Therefore, the balance between man and the environment has been affected deeply.

The fear of additional damage and deterioration of the natural resources and imbibing the concept of sustainable living, in order to create harmony; are of one of the major concern nationwide and also in regional and international forums.[20] Creation of Environment Courts and active participation of these courts to operate in more than hundred countries all over the world has led to resolving a lot of environmental issues which affects both the individual and the society on a holistic level.

India has taken different measures legally to protect and improve the environment. According to a survey, apart from the constitutional provisions, there are various central and state legislative enactments in India. However, these laws still fail to identify and address issues of environmental degradation and imbalances in the ecosystem. Courts of India have played a significant role in interpreting environmental jurisprudence, due to the lack of precise and comprehensive environmental law.

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[1] SCC Online, (2013) 8 NSLR 122, “A Comparative Analysis of Environmental Judicial Activism in India and the U.S.”

[2] SCC Online, (2013) PL January 50, “Corporate Social Responsibility: Rationale, Scope and Legislation regarding Environment issues in UK and India”

[3] SCC Online, 43 JILI (2001) 358, “Origin and Growth of Environmental Law in India”

[4] Vashchenko, Marina. “Organizational CSR Portfolio: Exploration and Evaluation.” Business & Professional Ethics Journal, vol. 33, no. 4, 2014, pp. 351–369., Available Here

[5] John C. Dernbach and Joel A. Mintz, Sustainability, “Environmental Laws and Sustainability: An Introduction” (2011)

[6] 1987 AIR 1086

[7] (1996) 3 SCC 212.

[8] SCC Online, 5.2 NLIU LR (2016) 117, “An Overview of Environmental Jurisprudence in India”

[9] Ibid

[10] 16 New York University Environmental Law Journal 711 (2008), David Takacs, “The Public Trust Doctrine, Environmental Human Rights and the Future of Private Property”

[11] (1997) 1 SCC 388.

[12] SCC Online, 5.2 NLIU LR (2016) 117, “An Overview of Environmental Jurisprudence in India”

[13] ILSA Journal of Int’l & Comparative Law, Vol. 3, Max Valverde Soto, “General Principle of International Environmental Law. ”

[14] The University of Birmingham, Govind Narayan Sinha, “A Comparative Study of the Environment Laws of India and the UK with Special Reference of their Enforcement”

[15] (1993) 4 DULJ 85, Mohd. Nazrul Islam, “Rights to Healthy Environment: Legal Efforts in Bangladesh”

[16] The Paurashava Ordinance, 1977 (Ordinance), Available Here

[17] “Our Mission and What We Do”, EPA (last viewed on 15 August 2020), Available Here

[18] (2013) 8 NSLR 122, Salmoli Choudhuri, “A Comparative Analysis of Environmental Judicial Activism in India and the U.S.”

[19] Ibid.

[20] SCC Online, (1993) 4 DULJ 85, Mohd. Nazrul Islam, “Rights to Healthy Environment: Legal Efforts in Bangladesh”

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