INTRODUCTION TO

ENVIRONMENTAL
LAW
DR. SAIRA GORI

ASSISTANT PROFESSOR OF LAW

DEAN, TRAINING DIVISION

GUJARAT NATIONAL LAW UNIVERSITY

MOB.:-+91-8128650867

EMAIL: SGORI@GNLU.AC.IN
 • Do not harm the environment;
Do not harm the water and flora;
Earth is my mother, I am her son;
May the waters remain fresh, do not harm the waters...
Tranquility be to the atmosphere, to the earth,
to the waters, to the crops and to the vegetation'
• This Vedic wisdom manifests a philosophy of law and human
governance based upon the idea of peaceful co-existence of the
community. Welfare of each element of our eco-system is the welfare of
each member of the community and ultimately, survival of each of us
and of the earth is dependent upon it.
SCHEME OF PRESENTATION

• Introduction
• Nature is the common heritage of mankind.
• Constant efforts are required for preservation and
conservation.
• Environmental pollution as old as the evolution of
homosapians on the planet.
• Development of Science and Technology
BACKGROUND

• History of Environmental Law

• Preservation and Conservation of Human Environment
• Stockholm Conference 1972
• Impact of International Environmental Law
• Doctrine of Sic utere tuo ut alienum non laedas
• (use your own property in such a manner as not to injure that of
another) stands for the proposition that one State’s sovereign
right to use its territory is circumscribed by an obligation not to
cause injury to, or within, another State’s territory.
• Trail Smelter Arbitration Case
• (United States v. Canada)
• Citation. Arbitral Trib., 3 U.N. Rep. Int’l Arb. Awards
1905 (1941)
• Issue. Is it the responsibility of the State to protect
other states against harmful acts by individuals from
within its jurisdiction at all times?
• Held. Yes. It is the responsibility of the State to protect
other states against harmful act by individuals from
within its jurisdiction at all times. No state has the
right to use or permit the use of the territory in a
manner as to cause injury by fumes in or to the
territory of another or the properties or persons therein
as stipulated under the United States (P) laws and the
principles of international law.
 HISTORICAL BACKGROUND

• Today, most discussions on environmentalism in our country begin with the

Stockholm Conference (1972).
• But, some ancient texts tell us that our society paid more attention to protecting the
environment than we can imagine.
• These texts tell us that it was the dharma of each individual in society to protect
Nature, so much so that people worshipped the objects of Nature. Trees, water,
land and animals had considerable importance in our ancient texts; and the
Manusmriti prescribed different punishments for causing injury to plants.
• Kautilya is said to have gone a step further and determined punishments on the
basis of the importance of a particular part of a tree. Some important trees were
even elevated to a divine position
• The dharma of protecting the environment was to sustain
and ensure progress and welfare of all. The effort was not just to
punish the culprit, but to balance the eco-system as well. In this
attempt, the ancient texts acted as cementing factors between the
right to exploit the environment and a duty to conserve it - which
is now internationally recognized as the concept of ‘sustainable
development’.
• Emphasis on the care for the natural resources
• Learnt to live with 5 elements of nature i.e. earth, water, air,
light and cosmos.
• The Vedas, Upanishadas, Puranas and other scriptures
emphasized on maintaining the ecological balance.
• Likewise in Holy Quran, Budhhism, Jainism and Guru
Granth Sahab emphasized on conservation and protection
of natural environment.
• Constant degradation of environment affects all the nations.
• Hence regulatory measures at national and international
level are mandatory to protect and preserve it.
• To understand the emergence & growth of environmental
law in India, a brief background of the international
environmental law is necessary.
“...NATURE PROVIDES A FREE
LUNCH, BUT ONLY IF WE
CONTROL OUR APPETITES...”
William Ruckelshaus, Business Week, 18 June 1990
 DEVELOPMENT DURING BRITISH ERA

• The British conquest in India brought about a plunder of natural resources coupled
with a complete indifference towards environmental protection. A general survey
of early environmental legislation reveals that apart from the forest laws, nineteenth
century legislation also partially regulated two other aspects of Indian environment
water pollution and wildlife.
• These laws, however, had a narrow purpose and limited territorial reach. Some of
the early efforts include the enactment of the Shore Nuisance (Bombay and
Kolaba) Act of 1853 and the Oriental Gas Company Act of 1857.
• The Indian Penal Code, enacted in 1860, imposed a fine on a person who
voluntarily fouls the water of any public spring or reservoir.
• In addition, the Code penalized negligent acts with poisonous substances that
endangered life or caused injury and proscribed public nuisances.
• Laws aimed at controlling air pollution were the Bengal Smoke Nuisance Act of
1905 and the Bombay Smoke Nuisance Act of 1912.
• In the field of wildlife protection, early legislation was limited to specific areas
and particular species, thereby aiming at the conservation of biodiversity.
• It is clear that legislative measures were taken by the British Government for
prevention of pollution and for conservation of natural resources.
• Although critics point out that the British enacted these legislations, not with the
object of protecting the environment but with the aim of earning revenue for
themselves, it should be regarded as the first step towards the scientific
conservation of natural resources.
• Despite the fact that these measures were made with ulterior motives, British-
enacted legislations have contributed significantly to the growth of environmental
jurisprudence in India.
 DURING THE BRITISH REGIME

• Shore Nuisance (Bombay and Kolaba) Act, 1853

• The Indian Penal Code, 1860
• The Indian Easements Act, 1882
• The Fisheries Act, 1897
• The Factories Act, 1897
• The Bengal Smoke Nuisance Act, 1905
• The Bombay Smoke Nuisance Act, 1912
• The Elephant's Preservation Act, 1879
• Wild Birds and Animals Protection Act, 1912.
 POST-INDEPENDENCE OF INDIA

• Setting up of National Council for Environmental Policy and Planning was set up in 1972 which was later
evolved into Ministry of Environment and Forests (MoEF) in 1985.
• Policy Statement for Abatement of Pollution and the National Conservation Strategy and Policy Statement
on Environment and Development brought out by the MoEF in 1992
• EAP (Environmental Action Programme) was formulated in 1993 with the objective of improving
environmental services and integrating environmental considerations into development programmes.
• National Environment Policy, 2006
• Water (Prevention and Control of Pollution) Act, 1974
• Water (Prevention and Control of Pollution) Cess Act, 1977
• Air (Prevention and Control of Pollution) Act, 1981
• Atomic Energy Act of 1982
• Motor Vehicles Act ,1988
• The Wildlife (Protection) Act, 1972
• The Forest (Conservation) Act, 1980
• Environment (Protection) Act, 1986 (EPA)
• The National Environment Appellate Authority Act, 1997
• Public Liability Insurance Act (PLIA), 1991
• National Environment Tribunal Act, 1995
• Environment Impact Assessment (EIA) Notifications, 2006
 A MODEST BEGINNING

• Environmental jurisprudence in India made a beginning in the mid-seventies when Parliament enacted
the Water (Prevention and Control of Pollution) Act, 1974.

• But soon, there was a quantum leap with the amendment of our Constitution in 1976 and
incorporation of Article 48-A in the Directive Principles of State Policy ('Protection and improvement
of environment and safeguarding of forests and wildlife. The State shall endeavour to protect and
improve the environment and to safeguard the forests and wildlife of the country’) and Article 51-A(g)
in the Fundamental Duties (which deals with Fundamental Duties of the citizens states: “It shall be the
duty of every citizen of India to protect and improve the natural environment including forests, lakes,
rivers and wildlife and to have compassion for living creatures.”) of every citizen of India. Both these
Articles unequivocally provide for protection and improvement of the environment.

• Inevitably, Parliament enacted the Air (Prevention and Control of Pollution) Act, 1981 and the
Environment (Protection) Act, 1986. With this core group of three enactments, a modest beginning
was made by Parliament.
• List III(Concurrent list) of schedule VII also provides power to the
Indian Parliament on various aspects related to the environment.
This includes subjects like forests, protection of wild life, mines,
minerals development, population control and family planning and
factories. Parliament has passed various laws on these subjects.
Example- Factories act 1948, the Industries Development and
Regulation act 1951 & others.
• Development has been gradual
• International law and developments at the international
level have influenced Indian law
• Legislation
• Judicial decisions
• Executive decisions
INDIAN ENVIRONMENTAL LAW

• Trigger Events
• Stockholm Conference, 1972
• “Are not poverty and need the greatest polluters?...How
can we speak to those who live in villages and slums
about keeping the oceans, the rivers and the air clean
when their own lives are contaminated at the source?”
• Smt. Indira Gandhi
• Bhopal gas tragedy
• “Social transformation occurs only when thinking humanity remains
capable of suffering and the suffering humanity begins to think.”
• Rio Conference, 1992
INTERGENERATIONAL
EQUITY & SUSTAINABLE
DEVELOPMENT
INTERGENERATIONAL EQUITY

• Intergenerational equity is a concept that says that humans

'hold the natural and cultural environment of the Earth in
common both with other members of the present generation
and with other generations, past and future‘.
• It means that we inherit the Earth from previous generations
and have an obligation to pass it on in reasonable condition to
future generations.
• ESD (Ecologically Sustainable Development Working Group)
working groups have argued that, unless substantial change
occurs, the present generation may not be able to pass on an
equivalent stock of environmental goods to the next
generation. This would be due to three factors:
• Firstly, the rates of loss of animal and plant species, arable
land, water quality, tropical forests and cultural heritage are
especially serious.
• Secondly, and perhaps more widely recognized, is the fact that
we will not pass on to future generations the ozone layer or
global climate system that the current generation inherited.
• A third factor that contributes overwhelmingly to the anxieties
about the first two is the prospective impact of continuing
population growth and the environmental consequences if
rising standards of material income around the world produce
the same sorts of consumption patterns that are characteristic
of the currently industrialized countries.
• The other way is to view the environment as offering more
than just economic potential that cannot be replaced by man-
made wealth and to argue that future generations should not
inherit a degraded environment, no matter how many extra
sources of wealth are available to them. This is referred to as
'strong sustainability'.
OUR COMMON FUTURE

• In 1987, the World Commission on Environment and Development

(WCED), which had been set up in 1983, published a report entitled
«Our common future». The document came to be known as the
«Brundtland Report» after the Commission's chairwoman, Gro Harlem
Brundtland. It developed guiding principles for sustainable development
as it is generally understood today.
• The Brundtland Report stated that critical global environmental
problems were primarily the result of the enormous poverty in south
and the non-sustainable patterns of consumption and production in
the North. It called for a strategy that united development and the
environment – described by the now-common term «sustainable
development».
• Sustainable development is defined as follows:
• «Sustainable development is development that meets the
needs of the present without compromising the ability of
future generations to meet their own needs.»
• In 1989, the report was debated in the UN General Assembly,
which decided to organize a UN Conference on Environment
and Development.
• The theoretical framework for sustainable development evolved
between 1972 and 1992 through a series of international
conferences and initiatives. The UN Conference on the Human
Environment, held in Stockholm in 1972, was the first major
international gathering to discuss sustainability at the global scale.
• The conference created considerable momentum, and a series of
recommendations led to the establishment of the UN
Environment Program (UNEP) as well as the creation of
numerous national environmental protection agencies at the
national level.
• The recommendations from Stockholm were further
elaborated in the 1980 World Conservation Strategy—a
collaboration between the International Union for the
Conservation of Nature, the World Wildlife Fund (WWF),
and UNEP—which aimed to advance sustainable
development by identifying priority conservation issues and
key policy options.
• The Brundtland report provided the momentum for the
landmark 1992 Rio Summit that laid the foundations for the
global institutionalization of sustainable development.
Marking the twentieth anniversary of the Stockholm
Conference, the Earth Summit adopted the Rio Declaration on
Environment and Development and Agenda 21, a global plan of
action for sustainable development.
• The Rio Declaration contained 27 principles of sustainable
development, including principle 7 on “common but
differentiated responsibilities,” which stated:
• “In view of the different contributions to global environmental
degradation, States have common but differentiated
responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit of
sustainable development in view of the pressures their societies
place on the global environment and of the technologies and
financial resources they command.”
• Agenda 21 included 40 separate chapters, setting out actions in
regard to the social and economic dimensions of sustainable
development, conservation and management of natural
resources, the role of major groups, and means of
implementation.
• In Agenda 21, developed countries reaffirmed their previous
commitments to reach the accepted UN target of contributing
0.7 percent of their annual gross national product (GNP) to
official development assistance, and to provide favorable access
to the transfer of environmentally sound technologies, in
particular to developing countries.
• Three seminal instruments of environmental governance were established at the Rio Summit:
• the UN Framework Convention on Climate Change (UNFCCC),
• the Convention on Biological Diversity (CBD), and
• the non legally binding Statement of Forest Principles.
• Following a recommendation in Agenda 21, the UN General Assembly officially created the Commission
on Sustainable Development (CSD) The Rio Summit was very successful from a political standpoint: it
had the world’s attention and active engagement and attendance by virtually every national leader.
• Its challenges lay in two areas: first, too much of an emphasis on the “environment pillar” in the
negotiations and secondly, all too little implementation of goals established under Agenda 21, particularly
those related to development aid and cooperation.
• Since that time a number of important international
conferences on sustainable development have been held—
• including the 1997 Earth Summit+5 in New York and the
2002 World Summit on Sustainable Development (WSSD) in
Johannesburg. These meetings were primarily reviews of
progress; and reported that a number of positive results had
been achieved, but implementation efforts largely had been
unsuccessful at the national and international level.
GENERAL PRINCIPLES AND RULES

• Permanent Sovereignty over Natural

Resources
• Precautionary Principle
• Sustainable Development
SOVEREIGNTY OVER NATURAL
RESOURCES
• States’ sovereign right to exploit natural
resources and the duty not to cause trans
boundary environmental damage
• Principle 21 Stockholm Declaration
• States have, in accordance with the Charter of the
United Nations and the principles of international
law, the sovereign right to exploit their own
resources pursuant to their own environmental
policies, and the responsibility to ensure that
activities within their jurisdiction or control do
not cause damage to the environment of other
States or of areas beyond the limits of national
jurisdiction.
• Principle 2 Rio Declaration
• States have, in accordance with the Charter of the United Nations
and the principles of international law, the sovereign right to
exploit their own resources pursuant to their own environmental
and developmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage
to the environment of other States or of areas beyond the limits of
national jurisdiction.
• Centre for PIL v. Union of India (2012) 3 SCC 1
• At the outset, we consider it proper to observe that even though there is no universally accepted definition of
natural resources, the same can be understood as naturally occurring elements which have an intrinsic utility. They
may be renewable or non renewable.

 They are thought of as the individual elements of the natural environment

that provide economic and social services to human society and are
considered valuable in their relatively unmodified, natural, form. A natural
resource's value rests in the amount of the material available and the
demand for it. The latter is determined by its usefulness to production. As
the State in which a natural resource is located benefits immensely from this
value, natural resources are considered national assets.
 The ownership regime relating to natural resources can be ascertained
from international conventions and customary law, common law and
national constitutions. In international law it rests upon the concept of
sovereignty and seeks to respect the principle of permanent
sovereignty (of peoples and nations) over (their) natural resources as
asserted in the 17th Session of the United Nations General Assembly and
then affirmed as a customary international norm by the International
Court of Justice in the case opposing the Democratic Republic of Congo
to Uganda.
 PRECAUTIONARY PRINCIPLE

• Principle 15 of Rio
• 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.
Vellore Citizen’s Welfare Forum v. Union of India (1996)
Environmental measures by the State Government and the statutory
Authorities must anticipate, prevent and attack the causes of
environmental degradation.
Where there are threats of serious and irreversible damage lack of
scientific certainty should not be used as a reason for postponing,
measures to prevent environmental degradation.
The “onus of proof" is on the actor or the developer/industrialist to
show that his action is environmentally benign.
• Narmada Bachao Andolan v. Union of India, AIR 1999 SC 3345
• It appears to us that the precautionary principle and the corresponding
burden of proof on the person who wants to change the status quo will
ordinarily apply in a case of polluting or other project or industry where
the extent of damage likely to be inflicted is not known.
• When there is a state of uncertainty due to lack of data or material about
the extent of damage or pollution likely to be caused then, in order to
maintain the ecology balance, the burden of proof that the said balance
will be maintained must necessarily be on the industry or the unit which
is likely to cause pollution
• On the other hand where the effect on ecology or environment of setting
up of an industry is known, what has to be seen is that if the
environment is likely to suffer, then what mitigating steps can be taken to
off set the same
• Merely because there will be a change is no reason to presume that there
will be ecological disaster. It is when the effect of the project is known
then the principle of sustainable development would come into play
which will ensure that mitigative steps are and can be taken to preserve
the ecological balance
• Sustainable development means what type or extent of development can
take place which can be sustained by nature/ecology with or without
mitigation.
 “In the present case we are not concerned with the polluting industry which is being
established. What is being constructed is a large dam. The dam is neither a nuclear
establishment nor a polluting industry.
 The construction of a dam undoubtedly would result in the change of environment but it
will not be correct to presume that the construction of a large dam like the Sardar Sarovar
will result in ecological disaster. India has an experience of over 40 years in the construction
of dams. The experience does not show that construction of a large dam is not cost effective
or leads to ecological or environmental degradation.
 On the contrary there has been ecological upgradation with the construction of large dams.
What is the impact on environment with the construction of a dam is well-known in India
and, therefore, the decision in A.P. Pollution Control Boards case will have no application in the
present case.”
 POLLUTER PAYS PRINCIPLE

• Polluter pays principle

• Cost of pollution should be born by the person causing
pollution
• Doubtful as to whether reached the status of a customary
principle of international law
• Principle 16 Rio
• Compromise language
SUSTAINABLE DEVELOPMENT

• Brundtland Report (1987)

• Four recurring themes
• The need to preserve natural resources for the benefit of
future generations (the principle of inter-generational equity)
• the aim of exploiting natural resources in a manner
which is ‘sustainable’, or ‘prudent’, or ‘rational’, or ‘wise’,
or ‘appropriate’ (the principle of sustainable use);
 PRINCIPLES OF SUSTAINABLE
DEVELOPMENT
• “Health and quality of life”: People, human health and improved quality of life are
at the centre of sustainable development concerns. People are entitled to a healthy
and productive life in harmony with nature;
• “Social equity and solidarity”: Development must be undertaken in a spirit of intra-
and inter-generational equity and social ethics and solidarity;
• “Environmental protection”: To achieve sustainable development, environmental
protection must constitute an integral part of the development process;
• “Economic efficiency”: The economy of any regions must be effective, geared
toward innovation and economic prosperity that is conducive to social progress
and respectful of the environment;
• “Participation and commitment”: The participation and commitment of citizens
and citizens' groups are needed to define a concerted vision of development and
to ensure its environmental, social and economic sustainability;
• “Access to knowledge”: Measures favourable to education, access to information and
research must be encouraged in order to stimulate innovation, raise awareness and
ensure effective participation of the public in the implementation of sustainable
development;
• “Subsidiarity”: Powers and responsibilities must be delegated to the appropriate level
of authority. Decision-making centers should be adequately distributed and as close as
possible to the citizens and communities concerned;
• “Inter-governmental partnership and cooperation”: Governments must collaborate to
ensure that development is sustainable from an environmental, social and economic
standpoint. The external impact of actions in a given territory must be taken into
consideration;
• “Prevention”: In the presence of a known risk, preventive, mitigating and
corrective actions must be taken, with priority given to actions at the source;
• “Precaution”: When there are threats of serious or irreversible damage, lack of
full scientific certainty must not be used as a reason for postponing the adoption
of effective measures to prevent environmental degradation;
• “Protection of cultural heritage”: The cultural heritage, made up of property,
sites, landscapes, traditions and knowledge, reflects the identity of a society. It
passes on the values of a society from generation to generation, and the
preservation of this heritage fosters the sustainability of development. Cultural
heritage components must be identified, protected and enhanced, taking their
intrinsic rarity and fragility into account;
• “Biodiversity preservation”: Biological diversity offers incalculable advantages and must
be preserved for the benefit of present and future generations. The protection of
species, ecosystems and the natural processes that maintain life is essential if quality of
human life is to be maintained;
• “Respect for ecosystem support capacity”: Human activities must be respectful of the
support capacity of ecosystems and ensure the perenniality of ecosystems;
• “Responsible production and consumption”: Production and consumption patterns
must be changed in order to make production and consumption more viable and more
socially and environmentally responsible, in particular through an eco efficient
approach that avoids waste and optimizes the use of resources;
• “Polluter pays”: Those who generate pollution or whose actions otherwise degrade
the environment must bear their share of the cost of measures to prevent, reduce,
control and mitigate environmental damage;
• “Internalization of costs”: The value of goods and services must reflect all the
costs they generate for society during their whole life cycle, from their design to
their final consumption and their disposal.
• These principles and other comparable ones are integrated into the practices of a
growing number of government agencies, non-profit or private organizations and
those working in fields such as education , business , architecture and construction,
research and development, management, etc. They draw inspiration from these
principles to improve their methods with regard to access to knowledge,
production and consumption, citizen participation and involvement, ecological
responsibility, and the ideas to develop new areas of intervention.
 ROLE OF INDIAN JUDICIARY

• In the process of adjudication on the environmental matters, the

Supreme Court has actually come up with the new pattern of "judge-
driven implementation" of environmental administration in India. The
court has played a pivotal role in interpreting those laws and has
successfully isolated specific environmental law principles upon the
interpretation of Indian statutes and the Constitution, combined with
a liberal view towards ensuring social justice and the protection of
human rights. So, when one analyses the Indian environmental law's
development path, one will surely have to keep in mind the concept of
judicial law making.
• There is much that can be done. Addressing climate change means
small, medium and big actions. We can act in the full range of roles
that we occupy – as workers, students, consumers, investors,
educators, entrepreneurs and as citizens. And we can act in all of our
spheres of influence – our homes, schools, work places and in public
life. We can all work to get out the message that climate change is
real, it is happening and we need to take action now to address it.
CONCLUDING REMARK

• Think and act now, tomorrow may be too late.

"Whatever I dig from thee, O Earth,
may that have quick recovery again.
O purifier, may we not injure thy vitals or thy heart".