Environmental Law

SUBMITTED TO– Dr. Chandreshwari Minhas

SUBMITTED BY- VAIBHAV KATOCH

B.B.A. LL.B. (8th SEM.)

1120171829
 ACKNOWLEDGEMENTS

Every project big or small is successful largely due to the efforts of a number of
wonderful people who have always given their valuable advice or lent a helping hand. I
sincerely appreciate the inspiration; support and guidance of all those people who have been
instrumental in making this project a success.

I, VAIBHAV KATOCH, the student of H.P. NATIONAL LAW UNIVERSITY

(SHIMLA), is extremely grateful to H.P. NATIONAL LAW UNIVERSITY (SHIMLA), for
the confidence bestowed in me and entrusting my ability.

At this juncture I feel deeply honored in expressing my sincere thanks to honorable

vice chancellor, Prof. Dr. NISHTHA JASWALs, for making the resources available at the
right time and providing valuable insights leading to the successful completion of my
assignment.

I also extend my gratitude to my project guide, Asst. Prof. Dr. CHANDRESHWARI

MINHAS, who assisted me in compiling the project.
 MEANING AND CONCEPT OF SUSTAINABLE DEVELOPMENT IN
NATIONAL AND INTERNATIONAL PERSPECTIVE

Sustainable development is the idea that human societies must live and meet their needs
without compromising the ability of future generations to meet their own needs. The term
“Sustainable Development” has been coined by the world commission on Environment and
Development (WCED) popularly known as Brundtland Commission in its report “Our Common
Future”. The report defined the term “Sustainable Development” in the following words:-

“Sustainable development is the development that meets the needs of the present without
compromising the ability of the future generations to meet their own needs.”1

The above definitions contained two key concepts i.e. the concept of the essential needs of the
present generation and the idea of limitation exposed by the state of technology and social
organization on the environment is ability to meet present and future needs.

The commission in its report further stated that sustainable development is not a fixed state of
harmony, but rather a process of change in which the exploitation of resources, the direction of
investments, the orientation of technological development, and institutional changes are made
consistent with future, as well as present needs. It altered the world to the urgency of making
progress towards economic development that could be sustained without depleting natural
resources or harming the environment.

The report also suggested that social equity, economic growth and environmental maintenance
are simultaneously possible and that each nation is capable of achieving its full economic
potential whilst at the same time enhancing its resource base. However, it recognized that
achieving this equity and sustainable growth would require technological and social change.

Stockholm Declaration
1
World commission on Environment and Development, ‘Our Common Feature’, p. 46
The concept of sustainable development further received impetus in the Stockholm Declaration
on Human Environment resulting from the United Nation Conference on Human Environment in
1972. The UN Conference on human environment marked a watershed in international relations
as it placed the issue of protection of biosphere on the official agenda of international policy and
law. The initial stages of the conference saw the emergence of two conflicting approaches. The
first approach insisted that the primary concern of the conference should be regarding the human
impact on the environment with emphasis on control of pollution and conservation of natural
resources, whereas the second approach laid emphasis on social and economic development as
the real issue. The two seemingly opposite approaches were bridged by the evolution of a
concept that environment protection was an essential element of social and economic
development. Environment protection and development were conceptualized as two sides of a
coin inseparable from each other.
Principle 1 of the Stockholm Declaration on Human Environment (1972) declares that "Man has
the fundamental right to freedom, equality that permits a life of dignity and well-being and he
bears as solemn responsibility to protect and improve the environment for the present and future
generations..."
Principle 2 of the Stockholm Declaration on Human Environment (1972) points out that "the
natural resources of the earth including the air, water, land, flora and fauna and especially
representative samples of natural ecosystems must be safeguarded for the benefit of present and
future generations through careful planning or management, as appropriate."
Principle 3 of the Rio Declaration on Environment and Development (1992) provides that "The
right to development must be fulfilled so as to equitably meet developmental and environmental
needs of present and future generations."

The Montreal Protocol (Ozone Treaty)

The Montreal Protocol, 1987 which came into force from January 1, 1989 was aimed at the
elimination of ozone-depleting substances like CFCs (Chlorofluorocarbons) at a uniform rate
irrespective of the development status of a country. The pact was signed by 48 nations, mostly
developed countries. India and other developing nations like Malaysia and China refused to sign
it because of pragmatic considerations and discriminatory clauses in Protocol namely:

(a) Per capita consumption of CFC’s.-US accounts for 37% of the whole consumption of
CFC’s, while poorer countries of Asia and Africa only 5%. So, rate of elimination should
be faster in developed countries, but the Protocol provides for a uniform rate.

(b) Patterns of consumption of CFC’s.-In India, CFC’s mainly used for essential purposes
like food processing, vaccines, space research, etc. while in US, a lot of CFC’s used for
luxury consumption e.g., car air-conditioning.

(c) Massive switch over costs.-Very high costs needed for developing CFCs substitutes, but
in Protocol a miniscule amount specified for developing nations.

Brundtland Commission and Sustainable Development

The Brundtland Report highlighted the three fundamental components of sustainable

development, i.e. (1) environment (2) economy and (3) society, and observed that sustainable
development aims to establish a balance among these three. The balance among these three
pillars is dependent upon each individual’s local circumstances.

Five year after the Brundtland Report, the UN General Assembly asked for a report on progress
made towards sustainable development and convened the United Nations Conference on
Environment and Development (UNCED), popularly known as earth summit which was held
from 3-14th june, 1992, at Rio de Janeiro, wherein more than 150 government participated. This
was the largest UN conference ever held and it put the world on a path of sustainable
development, which aims at meeting the needs of the present without compromising the ability
of future generations to meet their own needs.

The objectives of the conference were to build upon the hopes and achievements of the Burtland
Report, in order to respond to pressing global environmental problems and to agree major
treaties on biodiversity, climate and forest management.
The Earth Summit forced the people worldwide to rethink how their lives affect natural
environment and resources and to confront a new environment that determines the surrounding
in which they live.

The Earth Summit resulted in the adoption of the following documents:-

1. The Rio Declaration on Environment and Development: A series of principles

defining the responsibilities of state in this area.
2. Agenda 21: A comprehensive blue print for global actions to effect the transition to
sustainable development.
3. Forest Principles: A set of principles to support the sustainable managements of forests
worldwide.
4. Two Legally Binding Conventions: The convention on Climate Change and Convention
on Biodiversity, which are aimed at preventing global climate change and the protection
of biologically diverse species.

Perhaps this was the first time, that a major environmental conference adopted a more nature-
centred approach towards environmental problems.

World Summit on Sustainable Development (WSSD), Johannesburg (Rio+ 10, 2002)

Ten years after the Earth Summit, United Nations convened the World Summit on Sustainable
Development (WSSD) in Johannesburg, from 26 August to 4 September 2002 to review the
achievement of Earth Summit and to future reinvigorate a global commitment to sustainable
development. The Summit was attended by 21,000 participants from 191 governments,
intergovernmental, non-governmental organizations, private sector, civil society, academia and
the scientific community.

The WSSD negotiated and adopted two main documents: the Johannesburg Plan of
Implementation (JPOI), and the Johannesburg Declaration on Sustainable Development. The
JPOI laid down some basic requirements, which were as follows:
 1. The basic requirement of sustainable development is clean water, sanitation, adequate
shelter, energy, health care, food security and the protection of biodiversity.

2. The sustainable development includes: eradication of chronic hunger malnutrition;

foreign occupation; armed conflict; illicit drug problem; et organized crime; corruption;
natural disasters; illicit arms trafficking; trafficking in persons; terrorism; intolerance and
incitement to racial ethnic, religious and other hatreds; xenophobia; and endemic
communicable and chronic diseases, in particular HIV/AIDS, malaria and tuberculosis.

Although this plan advanced the developing countries' developmental concerns more clearly than
its predecessor conferences in Stockholm and Rio, it could not bring about any substantial
progress in bridging the North- south divide.

United Nations Conference on Sustainable Development NCSD), (Rio+ 20, 2012)

The United Nations Conference on Sustainable Development Rio de Janeiro (Brazil), from 13-22
June 2012. During the ten days in Rio, government delegations concluded negotiations on the
Rio Outcome Document, titled The Future We Want. Representatives from 191 UN member
states and observers, including 79 Heads of State or Government, addressed the general debate,
and approximately 44,000 people attended the official meetings. Participants at Rio+20 were
encouraged to make voluntary commitments for actions to implement the conference's goals,
with financial commitments from governments, the private sector, civil society and other groups.
The Future We Want calls for the UNGA to take decisions on, inter alia: designating a body to
operationalize the 10-Year Framework of Program; identifying the format and organizational
aspects of the High Level Political Forum which is expected to replace the Commission on
Sustainable Development; strengthening United Nations Environment Program with universal
membership; constituting an Open Working Group on Sustainable Development Goals to be
agreed by the UNGA; establishing an intergovernmental process under the UNGA to prepare a
report proposing options on an effective sustainable development financing strategy and
considering a set of recommendations from the Secretary-General for a facilitation mechanism
that promotes the development, transfer and dissemination of clean and environmentally sound
technologies.

Constitution of India and Sustainable Development

The Constitution of India and relevant amendments that have incorporated over the years,
reinforce the policy and legal basis of sustainable development in India. The National
Environmental Policy (NEP) of 2006 articulates the spirit of sustainable development'; it states
that only such development is sustainable, which respects ecological constrains and the
imperatives of social justice. The NEP, 2006 highlights the consensus around the sustainable
development concept through three foundational aspirations first, that human beings should
enjoy a decent quality of life; second, that human beings should become capable of recognizing
the finiteness of the biosphere, and third, that neither the aspiration of a good life, nor the
recognition of the limits of the biophysical world should preclude the search for greater justice in
the world. The NEP, 2006 also asserts that the most viable basis of environmental conservation
is to ensure that people gain better livelihood from the act of conservation of natural resources
than from environmental degradation.

Indian Judiciary on the term Sustainable Development

The Supreme court and High Court in India have recognized the principle of sustainable
Development as a basis for ecological imperatives with development goals.

Rural Litigation and Entitlement Kendra, Dehradun v. State of U.P. AIR 1987 SC 359
(popularly known as Dehradun QuarryingCase) was the first case in India involving issues
relating to environment and development. The decision of the Court in this case reaffirmed and
reiterated that development is not antithetical to environment. The Court observed that "we are
not oblivious of the fact that natural resources have got to be tapped for the purposes of the social
development but one cannot forget at the same time that tapping of resources have to be done
with the requisite attention and care so that ecology and environment may not be affected in any
serious way. There may not be depletion of water resources and long term planning must be
undertaken to keep up the national wealth. It is always to be remembered that these are
permanent assets of mankind and/or not intended to be exhausted in one generation.

In Kinkari Devi v. State of H.P. (AIR 1988 HP 4) relying on Dehradun quarrying case the
Himachal Pradesh High Court observed that if industrial growth sought to be achieved by
reckless mining resulting in loss of life, loss of property, loss of amenities like water supply and
creating of ecological imbalance then there may ultimately be no real economic growth and no
real development.

In People United for Better Living in Calcutta v. State of W.B. (AIR 1993 Cal 215) the
Calcutta High Court observed that it is true that in a developing country there shall have to be
developments, but that developments must be in harmony with the environment. There has to be
a proper balance between the economic growth and environment. So that both of them can exist
without affecting each other.

In Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446 (popularly
known as Coastal Zone Protection case) the Supreme Court emphasised the importance of the
Doctrine of Sustainable Development in the following words:

"While economic development should not be allowed to take place at the cost of ecology or by
causing wide spread environmental destruction and violation; at the same time, the necessity to
preserve ecology and environment should not hamper economic and other developments. Both
development and environment must go hand in hand, in other words, there should not be
development at the cost of environment and vice-versa, but there should be development while
environment". taking due care and ensuring the protection of

In Vellore Citizen's Welfare Forum v. Union of India (AIR 1996 SC 2715), the Supreme
Court of India recognised the Principle of sustainable development as a basis for balancing
ecological imperatives with developmental goods. Rejecting the old notion that development a
environment cannot go together, the Supreme Court observed that though the leather industries is
of vital importance to the country as it generates foreign exchange and provides employment
avenues, it has no right (i) destroy the ecology (ii) degrade the environment and (iii) pose a
health hazard. It cannot be permitted to expand or even to continue with the present production
unless it tackles by itself the problem of pollution created by the said industry". The Court
further pointed out that "the traditional concept that development and ecology are opposed to
each other is no longer acceptable". The Supreme Court further observed that sustainable
development has come to be accepted as a viable concept to eradicate poverty and improve the
quality of human life while living within the carrying capacity of the supporting eco-system.

In A.P. Pollution Control Board v. M.V. Nayudu (AIR 1999 SC 812) Supreme Court held that
in order to ensure that there is neither damage to the environment nor to the ecology and, at the
same time ensuring sustainable development it can refer scientific and technical aspects for
investigation and opinions to statutory expert bodies having combination of both judicial and
technical expertise in such matter.

In M.C. Mehta v. UOI (AIR 2004 SCW 4033) the Supreme Court held that the development
and the protection of environment are not enemies. If without degrading the environment or
minimizing adverse effects thereupon by applying stringent safeguards, it is possible to carry on
development activity applying the principles of sustainable development, in that eventuality, the
development has to go on because one cannot lose sight of the need for development of
industries, projects, etc. including the need to improve employment opportunities and the
generation of revenue. Thus a balance has to be struck.

In K.M. Chinnappa v. Union of India, AIR 2003 SC 724, the Supreme Court held that
"Sustainable development is essentially a policy and strategy for continued economic and social
development without detriment to the environment and natural resources on the quality of which
continued activity and further development depend. Therefore, while thinking of the
developmental measures the needs of the present and the ability of the future to meet its own
needs and requirements have to be kept in view. While thinking of the present, the future should
not be forgotten. We owe a duty to future generations and for a bright today, bleak tomorrow
cannot be countenanced. We must learn from our experiences of past to make both the present
and the future brighter. We learn from our experiences, mistakes from the past, so that they can
be rectified for a better present and the future. It cannot be lost sight of that while today is
yesterday's tomorrow, it is tomorrow's yesterday."
In a nutshell sustainable Development is a commitment of resource conservation for future
generation or the judicious use of the available resources which is possible by practicing a habit
of regeneration. In the words of Blewitt, J. “Sustainable Development is about protecting and
conserving the planet’s natural environment and promoting social equity and a degree of
economic equality within and between nations’.

Salient Features of Sustainable Development

The concept of sustainable development has grown since its inception at the international fora
and it has acquired different dimensions in terms of economic growth, development and
environment protection. However, some of the salient principles of sustainable development as
culled out from Brundtland Report and other international documents such as Rio Declaration
and Agenda 21 are as under:

1. Inter-generational equity
2. Equitable Use of National Resources i.e. Intra-generational equity.
3. The Precautionary Principle
4. The Polluter Pays Principle
5. Use and Conservation of Natural Resources
6. Obligation to Assist and Co-operate
7. Eradication of poverty &
8. Financial Assistance to the Developing Countries.

Inter-generational Equity

Inter-generational Equity implies Inter-generational fairness and mandates that the present
generation should not look at the earth and its resources as mere investment opportunity but as
trust passed on to them by the ancestors, to be enjoyed and passed on to the future generations
for their use.

As the member of the present generation, we hold the earth and its resources for future
generations. At the same time we are beneficiaries entitled to use and benefit from it. Thus, the
present generation being trustee, has the right to benefit from the use of natural resources which
constitute trust property. The present generation has also the corresponding duty to maintain the
quality of the natural system.

Intra-generational Equity

Intra-generational Equity signifies equity within and between the countries. It underlies
intergenerational equity and is a condition precedent to achieve intergenerational equity. The
problem of intra-generational equity must be approached in the light of different economic,
environmental, cultural and political circumstances prevailing within and between the countries.
The inequality between people as a result of greed and the maldistribution of power is a major
obstacle in achieving sustainability. Unsustainable behaviour of the poor people is almost always
due to factors such as loss of land, growing indebtedness, or loss of access to markets that leave
them unable to support themselves properly. When wealthier people appropriate resources for
themselves at cost far below their value for production, poor people who lose by such
appropriations are powerless to hold the wealthy accountable. Having no resource, they place
greater stress on their environment by moving deeper into the forest, occupying marginal land
unsuitable for agriculture or herding or adopting some other way of staying alive.

The Brundtland Report also recognises the inequalities between countries and stresses that
several problems arise from inequalities and access to these resources. The Report maintains that
inequitable land ownership structures can lead to overexploitation of resources in the smallest
holdings with harmful effects on both environment and development. Accordingly, the
Brundtland Report asserts that the future cannot be common in the sense of being equal, fair and
just when the economic and ecological situation of lower and higher income countries are
compared. Undoubtedly, the inability of the mankind to promote the common interest in
sustainable development is often a product of the relative neglect of economic and social justice
within and amongst nations. Thus, the Brundtland Report emphasises that the reduction of
poverty is a precondition for environmentally sound development in lower income countries.

Precautionary Principle (PP)

Precautionary Principle' means that the required envrionmental measures should be taken by the
State and statutory authorities and the lack of scientific certainty cannot be a ground for
postponing such measures where there are serious threats to ecology. That the State and statutory
authorities must anticipate, prevent and address the causes of environmental degradation and the
'onus of proof is on the industry to show that its actions are environmentally benign.

Basically, precautionary principle is a rule of evidence which deals with burden of proof in
environmental cases. This principle shifts the burden on the polluter i.e. individual/ industrial/
entrepreneur-to prove that his activity/ industry/ process/ operation is not a health hazard,
damaging the environment and his action is "environmentally benign."

A basic shift in the approach to environmental protection occurred initially between 1972 and
1982. Earlier, the concept was based on the "assimilative capacity" rule as revealed from
Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972.
The said principle assumed that science could provide policy-makers with the information and
means necessary to avoid encroaching upon the capacity of the environment to assimilate
impacts and it is presumed that relevant technical expertise would be available when
environmental harm was predicted and there would be sufficient time to act in order to avoid
such harm.

Polluter Pays Principle (PPP)

'Polluter Pays Principle' means that the absolute liability for harm the environment extends not
only to compensate the victims of pollution but also the cost of restoring the environmental
degradation. Remediation of environment is part of the process of 'Sustainable Development' and
as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of
reversing the damage to the environment.

The World Commission on Environment and Development (WCED) in its report Our Common
Future (1987) has suggested that the environment cost of economic activity shall be internalised
by the enterprises.' The Organisation of Economic Cooperation and Development (OECD)
Guiding Principles concerning international economic aspects of environmental policies Council
Recommendations (1972) for the first time agreed to base their environmental policies on
"polluter pays principle" and it was recommended as an "essentially economic efficiency
measure to internalize environmental costs".