National Green Tribunal invokes 'polluter pays' principle while imposing penalty to restore dump site
The National Green Tribunal (NGT) has penalised the Bareilly city municipal corporation for dumping solid waste in an unscientific and unlawful manner near Razau Paraspur village in Bareilly district of Uttar Pradesh. In its order passed last Thursday, NGT observed the action of the municipal body has caused environmental damage and is a public health hazard. NGT slapped a penalty at the rate of Rs1 lakh per day on the municipal body for restoration of the site to its original condition as well as to prevent further damage to the environment.
While imposing the penalty, NGT invoked the “polluter pays” principle. The bench, however, noted that since an appeal on the matter of legal operations of the municipal solid waste management plant at the site near the village is pending before the Supreme Court, the orders of the tribunal shall not take effect till the order of the apex court is pronounced.
The appellants in the case, Rayons-Enlighting Humanity, Invertis University and Jyoti Mishra and other residents of the village, had complained that the solid waste site of the municipal body is in close proximity to institutions, hospitals and village communities, and that it was adversely affecting the local environment and health of the people. The appellants requested effective compensation and restoration of the site.
The bench said that the corporation had not complied with the earlier orders of the tribunal passed in May and July this year for closing the solid waste management plant and prohibiting further dumping of waste at the site. The tribunal orders observed that the plant had not been given the mandatory environmental clearance, and that the dumping of solid waste at site started without obtaining permission from the Uttar Pradesh State Pollution Control Board (UPSPCB).
Polluter pays
The “polluter pays” principle is important for determining punitive costs of damages caused by environmental violations. It is primarily a market-based approach for environmental protection where the costs of mitigating environmental damage are internalised by the industry or the individual found liable. It is an important mean of tackling environmental pollution and consequent public health hazard by holding the defaulter company or the individual liable for their actions, but its effectiveness depends on the severity of the penalty and ensuring long term deterrence.
In 1972, the Organisation for Economic Cooperation and Development (OECD) adopted the principle as a recommendable method for pollution cost allocation. In 1987, the principle was acknowledged as a binding principle of law as it was incorporated in European Community law (body of treaties and legislation applicable to EU member states) through the enactment of the Single European Act, 1987. In 1989, OECD extended its application to include costs of accidental pollution. The principle is now widely recognised in various countries, and most of the countries have adopted this doctrine in their legal system.
Cases in point
The use of the principle supports the Superfund site clean-up programme of the Unites States. In 1978, discovery of toxic chemicals beneath the suburban infrastructure of Love Canal, a neighbourhood in Niagara Falls in New York for the first brought to light toxic discharge by industries and consequences of environmental neglect. Further investigation revealed that for decades many businesses had disposed of hazardous waste improperly, contaminating thousands of sites in the United States. Accidents, spills, and leakage of hazardous materials from these areas contributed to land, water, and air pollution that posed immediate and potential threats to environment and public health. Strong protests by citizens led to the US Congress establishing the Superfund Program in 1980, an initiative designed to locate, investigate, and clean up the most hazardous sites nationwide. The Environment Protection Agency (EPA) is responsible for administering the Superfund Program in cooperation with individual states and local governments.
The Superfund Program came under the purview of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), enacted in 1980. The law authorises two kinds of response actions, short-term removals in which actions should be taken to address releases requiring prompt response, and long-term remedial response actions, that will permanently and significantly reduce the dangers associated with releases or threats of releases of hazardous substances that are serious, but may not be immediately life threatening.
The Superfund has been successful in a hefty recovery of cost of environmental and public health damages.
In a classic case in 2009, W R Grace and Company had to pay a fine of 260 million dollars to the federal government for cleaning up of asbestos contamination in their vermiculite mine site in Libby Montana. Though the company closed the mine in 1990, the company and three of its executives were acquitted in federal court in 2009 of charges that they had knowingly contaminated Libby with asbestos and then conspired to cover up the deed.
In India, the principle of polluter pays was incorporated as a legal doctrine to decide on issues of environmental pollution following the case of Indian Council for Enviro-Legal Action v Union of India in 1996. The matter involved the negative environmental and health impacts caused by a chemical industrial plant of Hindustan Agro Chemicals Ltd in Bichhri village of Udaipur District, Rajasthan.
The Court in its judgment noted that once an activity that is being carried on is recognised as being “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”. It was further stated that the polluting industries are "absolutely liable to compensate for the harm caused by them”. The absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the damaged environment, the court said.
NGT interventions
Of late, NGT has been dealing with a number of cases involving polluter pays principle. In July this year, the bench ordered imposition of Rs 5 lakh fine on any one found dumping debris on the banks of the Yamuna river. In its order NGT observed that dumping of debris has been a source of persistent pollution on the banks of the Yamuna, and that this affects the flow of the river.
Two other matters pending before the Tribunal—Jaiprakash Power Ltd v State of Himachal Pradesh and Abhishek Rai v State of Himachal Pradesh & Ors—also relate to disposal of solid waste, untreated sewage, effluent and other materials into the river Beas. The tribunal is proceeding in these cases on the basis of this principle. In these cases, the tribunal bench has directed local authorities to keep strict vigil and has issued directions, saying “whosoever is found throwing or dumping any such waste material, untreated sewage, effluent, directly or indirectly into the river, its tributaries or even on the banks, will have to pay a sum of Rs 1 lakh as compensation for causing pollution on the basis of the polluter pays principle.”
How effective?
Applying “polluter pays” principle for deciding cases on environmental and public health nuisance by industries and individuals is an important remedial action. Section 20 of the NGT Act of 2010 specifies, “the Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, precautionary principle, and the polluter pays principle.”
But so far the NGT has not been adopting uniform approach. While the decision to penalise Municipal Corporation of Bareilly is strict, in other matters such as dumping of garbage and debris on river banks, the fines approved appear to be not so severe.
Given the scale of environmental violations in India, polluters should be made to pay so that it not only compensates for the immediate damage caused, but also proves a deterrent. If the penalty is not considerable, and the principle is not combined with strict regulatory measures, it can remain as a measure for providing a speedy one time relief to the affected people or place. According to environment advocate Abhimanue Shrestha, “if this is not taken care of, violators will pay the fine and keep on operating in a business as usual manner.”
Order of the National Green Tribunal on dumping of solid waste, 22/08/2013
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