Introduction:
The polluter pays principle in environmental law does not refer to a fault but it favours an approach which is concerned with curing the repairing ecological damages. This principle is in international law where the party who is polluting the environment has to pay for the damage he has done to the environment. It has received a lot of support from the Organization for Economic Co-operation and Development (OECD) and European Countries (EC). Nowadays the polluter pays principle is viewed as a way of internalizing pollution. The country’s environmental policy and its overall socio, economic policy are closely related to each other. According to this principle to meet the prevention of damage done to the environment or remedy taken to cure it is not the responsibility of the government. The government is not responsible to meet the cost because the financial burden of the incident which has caused the pollution will be shifted to the taxpayer. The fact that all the costs of de-pollution should be one by polluter is not supported by the state especially when there is the involvement of transactional dispute. Due to the industrial revolution, more and more factories were set up and they were discarding their waste of factory in the nearby areas of the environment. This caused a lot of pressure on the surrounding environment and hence the need of polluter pays principle arose.
History
In 1972, in Organization for Economic Co-operation and Development Guiding Principle Concerning International Economic Aspects of Environmental Policies, the reference was made regarding polluter pays principle. The polluter pays principle is important because some countries were facing a lot of complaints from National Firms regarding rising costs and loss of International Competitiveness which were following the implementation of the polluter pays principle within the Nation and within their boundaries. As there is a catchphrase which is very popular nowadays “If you make a mess, it is your duty to clean it up’ the polluter pays principle is on the basis of this slogan. In order to achieve and maintain the accepted state of environment the cost of it should be boned by the polluter which is determined by the public authorities. The Organization for Economic Co-operation and Development Guiding Principles also state that there should be no subsidies accompanying it as it would create a lot of distortions in trade and investment Internationally. The polluter pays principle does not require the polluters to pay for the residual pollution nor for the damages caused due to accident.
Functions of Polluter Pays Principle
With the passing of the time, the cost which the polluter has to bare has expanded. In 1989, the Organization for Economic Co-operation and Development extended the polluter pays principle to cover the cost of prevention of accident and to internalized environmental costs which are cost by the accident. In 2001, Organization for Economic Co-operation and Development joined the working party on agricultural and environment stated that according to the polluter pays principle the polluter who damages the environment should be responsible and should pay for the damage where both productive and consumptive activities causing the damage of the environment are not covered by the properties rights.
After one year, the European Community followed the example of the Organization for Economic Co-operation and Development by adopting the Environment Action Program (EAP). Since 198, the polluter pays principle is a part of European law and is included in article 174 of European Union Treaty 1997, since 1990 the International Maritime Organization (IMO) agreed to International Convention on Oil Pollution Preparedness, Response and Co-operations, the polluter pays principle got acknowledgement as the principle of International Environment Law. The Rio Declaration (UNCED) in 1992 included polluter pays principle in principle 16 :
“ National Authority should endeavour to promote internalization of environmental cause 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.”
The principle has a lot of positive effects to reduce pollution, it is very relevant for pollution which is taking place during industrial activities but is not relevant in the case of historical pollution. Polluter pays principle is not subscribed as the main environmental policy guideline in most of the developing countries because of the adverse economic conditions. There are certain flaws in polluter pays principle they are :
- There is ambiguity in determining “who the polluter is” as its definition is very broad and unsupportive in many situations. In legal terms, a polluter is a person who directly or indirectly causes damage to the environment or is a person who creates conditions which cause damage to the environment.
- A large number of informal sector firms, poor households and subsistence farmers are not in a position to bear any additional charges for energy or for disposal of the waste.
- The small and medium-sized firms serving the home market from the formal sector are finding it difficult to pass high costs to domestic end-users of their products.
- Due to elastic demands, in developing countries, the exporter cannot usually shift the burden of cost internalization to foreign customers.
- The largest environment problem which developing countries are facing is caused by overexploitation of common-pool resources. In some cases, access to common-pool resources can be limited by assigning private property rights but this solution can lead to severe distributional conflict.
The above flaws are posing a very huge problem in developing countries in making it very difficult to implement the polluter pays principle as a guideline for environmental policy. The polluter pays principle was initially publicized by early conversationalist to reduce environmental pollution. Under the polluter pays principle the obligations are fulfilled by the polluter when he is paying some administrative expenses of the agencies who are regulating the activities of the pollution.
Implementation and Enforcement by Supreme Court
India not just interested in development but it also wants the implementation and enforcement of the law. From the judgment which was delivered by the Supreme Court in India in Writ petition number 657 of 1995, there was an indication that Indian Judiciary is also recognizing the polluter pays principle. In its order dated February 4, 2005, the Supreme Court stated that polluter pays principle means the absolute liability of harm to the environment not only extends to compensate to the victims of pollution but it also means to the cost of restoring environmental degradation. As a part of the process of sustainable development remediation of the damaged environment is necessary.
Supportive Case
In Indian Council for Enviro- Legal Action v. Union of India, the polluter pays principle is holding to be a sound principle. The court said that they were of the opinion that whichever principle is evolved in this behalf should be simple, practical and suit to the conditions obtaining in the country. In this case, there were a number of companies operating privately as chemical companies were causing hazardous ways in soil, thus polluting the area situated nearby and they were also running without licenses, so environmental NGO under Article 32 of Indian Constitution filed writ petition sorting from the court to compel State Pollution Control Board (SPCB) and Central Pollution Control Board (CPCB) to recover the cost of remedy from these companies. The court said that once the activity carried is hazardous, the person who is caring out this activity is liable for compensating for the loss even if they had carried out the activity very carefully. This rule depends upon the nature of the activity which is being carried out. So, the industries which are polluting are completely liable to compensate for harm which was caused by them to the nearby village areas, to the soil and also to the underground water. So it is the responsibility of the company to remove sludge and other pollutants lying in the affected areas. The court further said that as per polluter pays principle the repairing of the damaged responsibility is of the offending industry. Section 3 and 5 empowers the Central Government to give directions and take measures so that the principle is properly implemented. The task of undertaking remedial measures is bestowed to Central Government according to the provisions of Environment (Protection) Act, 1986. For its implementation, the Central Government can take help and assistance of State Government, RPCB or any authority or agency.
In1986, the Supreme Court applied the principle in case of M.C.Mehta V. Union Of India. the court declared that we have to evolve new principles and put forward new norms which will deal with new problems arising in a highly industrialized economy. The Court also directed the industry to shift from the present location or to evolve a green belt around it as a condition to restart the industry. The industry was also asked to deposit an amount of Rupees.35,00,000 in Bank and also a guarantee of Rupees. 15,00,000 with the court as compensation to be paid to the person who can proof before a court of law that he suffered due to Oleum Gas Leakage from Sri Ram Food and Fertilizer Corporation. This was the most innovative remedy which the Supreme Court of India had evolved. This case was indirect recognition and application of the polluter pays principle. This was the first time in Indian Council for Enviro-legal action V. Union of India the polluter pays principle was applied.
In M.C.Mehta.v.Union of India,1997, case is also known as Calcutta Tanneries case, the polluter pays principle was applied by Court. The Court involved the issues concerned with the pollution which was caused by 550 tanneries which were located in adjoining areas in the eastern fringe of Kolkata. The direction given by the court to the State Government was to appoint the Authority or Commissioner to assess the loss to the environment in the areas affected by pollution which was caused by tanneries. The authority must determine the compensation which has to be recovered from tanneries to reverse the cost of damaging the environment.
In S.Jagannath V. Union of India (1997) case is also known as Shrimp Farming Case the court applied the polluter pays principle. The court passed an order against the Shrimp Farming Culture Industry who were found guilty of polluting coastal areas. So the court said that the Shrimp Culture industry was liable to compensate the people who were affected on the basis of polluter pays principle. The court directed the central government to constitute an authority under section 3(3) of the Environment (Protection) Act, 1986 to deal with the pollution caused by Shrimp Culture Industry in Coastal areas and Union territories. The court further said that the Authority must assess the loss which was a cost to the environment in the affected areas and to identify the individuals of families who suffered due to the pollution and also to assess the compensation to be paid to them. The authority was also asked by the court to determine the compensation that had to be recovered from polluters as the cost of reversing the damage caused in the environment.
Conclusion
The globally recognized and much-celebrated environment law polluters pays principle is. The main function of this principle is to help in allocating the cost and in repairing the damage between different stakeholder, for the harm which they have caused. This principle is revolutionary because it places the responsibility of paying the damages to the person who has to pay it and also who has the ability to pay it. In the case of environmental pollution, the polluter pays principle can be applied to require the producer and the resource user to meet the costs of implementing the standard of environment. The polluter pays principle is setting up a system of charges by which polluters are bearing the financial burden of the policy of the public to protect the environment. The principle means :
- The polluter must pay for administration of pollution control system.
- The polluter must pay for the consequences of the pollution.
The polluters pay principle is recognized both internationally and domestically. With the rapid development of technology and industries, our environment is getting degraded and it is very important to deal with it so that human existence can occur. It is also known as the principle of extended producer responsibility. There is a need for strict implementation of the principle.
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