These are frequently asked questions in environmental law on the topic principles of sustainable development viz: Inter-generational equity, Polluter pays principle, Precautionary principle.

Type – II: Write Short Notes on the following (3 M / 4 M / 5 M)

a) Sustainable Development:

In 1987, the United Nations released the Brundtland Report, defined Sustainable Development as: “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. This definition sometimes also referred as Intergeneration Equity Principle. Thus, Sustainable Development refers to development which is in harmony with environmental considerations. According to the same Report, the above definition contains within it two key concepts: the concept of ‘needs’, in particular, the essential needs of the world’s poor; and the idea of limitations imposed by the state on technology and social organization on the environment’s ability to meet present and future needs. This means we have to meet the needs of all sections of society particularly the underprivileged. While meeting the needs we have to make sure that what we take from nature does not increase the degradation of the earth’s natural resources and threatens biodiversity. There is a need for a strategic approach to maintaining a balance between social, economic and environmental challenges.
Sustainability recognizes the fact that an economy exists within the society which in turn exists within the environment of the earth’s ecosystem. The view emphasizes the fact that humans are a part of nature. For ‘Sustainable Development’ the government has to ensure that there are institutional mechanisms in place to achieve sustainable development in all three areas. The Sustainable Development can be achieved by a sustained, organized and coordinated efforts at all levels to bring about socio-economic development and environmental sustainability.

• Economic sustainability involves creating economic value out of whatever project or decision which are undertaken.
• Social sustainability is based on the concept that a decision or project promotes the betterment of society.
• Sustainable Environment is an ecosystem which would maintain its populations, biodiversity, and overall functionality over an extended period of time.

Different Principles of Sustainable Developments are as follows:

• Inter-generational equity
• Use and conservation of natural resources
• Environmental protection
• Precautionary principles
• Polluter pays principle
• Public trust doctrine
• Obligation to assist and co-operate
• Eradication of poverty
• Financial assistance to developing countries

b) Precautionary Principles:

Principle 15 of the Rio Declaration, 1992 declares “Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.”

The Precautionary Principle is one of the important principles under the concept of sustainable development. The principle states as follows – “In order to protect the environment, the Precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”. Thus, the precautionary principle states that if there is a risk of severe damage to humans and/or the environment, absence of incontrovertible, conclusive, or definite scientific proof is not a reason for inaction. It is a better-safe-than-sorry approach. It is a proactive approach.

When the impacts of a particular activity such as emission of hazardous substances are not completely clear, the general presumption is to let the activities go ahead until the uncertainty is resolved completely. This approach is reactive approach. The Precautionary Principle counters such general presumptions. When there is uncertainty regarding the impacts of an activity, the Precautionary principle advocates action to anticipate and avert environmental harm. Thus, the Precautionary principle favours monitoring, preventing and/or mitigating uncertain potential threats. It is proactive approach.
In Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 case, the Supreme Court accepted that the Precautionary Principle is part of the environmental law of the country and shifted the burden of proof onto the developer or industrialist who is proposing to alter the status. They found it “necessary to explain the meaning of the principles in more detail so that courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them.

As an offshoot of judicial recognition, the National Environmental Policy adopted the precautionary principle as a guiding principle. However, it is still a long way to go before the precautionary principle takes its rightful place in Indian environmental laws and even more importantly gets effectively implemented.

c) Inter-generational Equity Principle:

We can say that there are three basic principles of intergenerational equity. These principles of intergenerational equity form the basis of a set of intergenerational obligations and rights, planetary rights and obligations that are held by each generation. These rights and responsibilities derive from each generation’s position as part of the inter-temporal object of human society.

• Principle of Conservation of Options: Each generation should be required to preserve the diversity of the natural and cultural resource base, so that it does not excessively restrict the options available to future generations in solving their problems and satisfying their own values and should also be allowed to diversity comparable to that enjoyed by previous generations.
• Principle of Conservation of Equality: Each generation should be required to maintain the quality of the planet so that it is passed on in no worse condition than in which it was received and should also be entitled to planetary quality comparable to that enjoyed by previous generations.
• Principle of Conservation of Access: Each generation should provide its members with equitable rights of access to the legacy of past generations and should conserve this access for future generations.

It is the duty of present generations to hold the natural resources in trust and maintain their usefulness for future generations to ensure Sustainable Development. The interests of future generations impose a cost on people living now, it can be explained with the following examples.

• Abating greenhouse gas emissions lower current well-being but leaves future generations with a better climate.
• Preserving biodiversity lowers current well-being but widens options for future generations.
• Exploiting soil and water resources with caution also lowers current well-being but increases the potential for future food production.
• Using antibiotics with care lowers current well-being but reduces future health problems.

In Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh, AIR 1987 SC 359, 364, case, the Court, observed that “It has always to be remembered that environmental assets are permanent assets of mankind and are not intended to be exhausted in one generation”.

d) Polluter Pays Principle:

The Rio-Declaration adopted in 1992 also recognizes the polluter pays principles. According to principle 16 of the Declaration – “National authorities should endeavour to promote the internalization of environmental costs and use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution,  with due regard to the public interest and without distorting international trade and investment”.

Thus the principle means:

• The polluter should pay for the administration of the pollution control
  system; and
• The polluter should pay for the consequences of the pollution- for example, compensation and clean-up”.

Under this Principle, it is not the role of Government to meet the costs involved in either prevention of damage caused by pollution or in carrying out remedial measures. If the Government do so it would shift the financial burden to the taxpayer. It may be accepted that the shift in environmental liability principle from criminal sanction to economic and financial deterrence is the driving force which has paved the way for the incorporation of polluter pays principle in most of the countries in the world.

In M. C. Mehta v. Kamal Nath (1997) 1 SCC 388 case also known as Span Motel case, the Court opined that “one who pollutes the environment must pay to reverse the damage caused by his acts”. It was proved that the Motel administration changed the course of the river in order to save the Motel from future floods. The Court held that the Motel should pay compensation by way of cost for the restitution of the environment and ecology of the area. The pollution caused by various constructions made by the Motel in the riverbed and the banks of River Beas has to be removed and reversed”. The Court asked the National Environmental Engineering Research Institute, Nagpur (NEERI) to submit an assessment of the cost which was likely to be incurred for reversing the damage caused by the Motel to the environment and ecology of the area.

With the rapid development of technology and industries, environmental degradation is inevitable and dealing with it becomes vital for human existence. The problem escalates when economic aspects of dealing with it become dominant, and the polluters pay principle helps in dealing with the later. We need the strict implementation of the principle, to the polluters which can change the situation to a very large extent.

e) Public Trust Doctrine:

The origins of the public trust doctrine are traceable to Roman law concepts of common property. Under Roman law, the air, the rivers, the sea, and the seashore were incapable of private ownership; they were dedicated to the use of the public. Under the English common law, however, the sovereign could own these resources, but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interest in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public.

Private ownership of the natural resources can lead to undue deprivation of natural resources for a large section of society. Therefore, the modern state is mandated to hold them in public trustee and ensures the equal distribution for a sustainable social structure of the human beings.  Public trust doctrine serves two purposes: it mandates affirmative state action for effective management of resources and empowers citizens to question ineffective management of natural resources. The Public Trust Doctrine may provide the means for increasing the effectiveness of environmental impact assessment laws.

In M. I. Builders v. Radhey Shyam Sahu, AIR 1999 SC 2468 case, the Court held that the Lucknow Mahanagar Palika (Municipal authority) by allowing an underground shopping complex to come up below a public park violated the doctrine of Public Trust and ordered the demolition of the structures and restoration of the park. Writ of mandamus was issued to the Mahapalika to restore back the park in its original position within a period of three months from the date of the judgment and till that was done, to take adequate safety measures and to provide necessary safeguard and protection to the public, users of the park.

f) Principle of Equity and Equality:

Economic growth can only be sustained when it is based on the principle of equity and equality. Common ownership of resources and their equitable distribution is a fundamental tenet of the idea of the modern welfare state.

The Constitution of India vide in its article 39 also provided the policy of sustainable development to be adopted by the state. The state is the legal owner and trustee of its people, and it must ensure that the process of distribution is guided by the doctrine of equality and the larger public good. Sustainable development can happen only when it happens for all. Right to livelihood has been declared by the constitutional courts of India as a part and parcel of the fundamental right to life guaranteed under Article 21 of the constitution of India. To ensure the fundamental right to livelihood is fundamental to the state policy and it must be ensured through equitable distribution of resources.

Main objects of the principle are as follows:

• To guarantee equitable access to natural resources and environmental sinks. The equitable distribution of the socio-economic benefits from the use of natural resources depends critically on how initial rights to resource use are granted. Equally efficient distributions of rights to resources may lead to very different outcomes in terms of equity.
• To safeguard the vulnerable section during development. If the poor are directly dependent on natural resources such as forests for firewood, pastures for grazing or scarce water resources for survival, then the environmental degradation aggravates poverty, and thereby accentuates inequity in society.
• To guarantee a fair allocation of resource rights so that it would result in individuals and communities cooperating in the collective management of the resource.

In Nagesh v. Union of India, 1993 JLJ746 case, the Court ruled that “in its initial stage the directive principles were approached, considered and treated in a pure legalistic approach but there have been cases pointing to bold steps towards a social welfare concept of the State in an era of judicial activism giving new dimension to these directive principles. Article 39(b) of the Constitution provides for equitable distribution of material resources. And this word ‘distribution’ used in Article 39(b) need to be liberally construed so as to give full and comprehensive effect to the mandate of equitable distribution as contained in Article 39(b) of the Constitution”.