(Environmental Law)

Research Paper
Polluter pays principle- A comparative study on India, Sweden and the USA)
Abstract
This research paper elucidates on the polluter pays principle and as to how the same has
developed and as to what function it performs when it comes to adjudicating suits against
environmental degradation, caused majorly by rapid industrialization and lack of sustainable
development.
Furthermore, the paper will compare the development and functionality with that of the USA as
it is considered one of the pioneers in the industrial revolution and may give a valuable insight as
to what legal action they have taken to curb mass environmental degradation and promote
sustainable development and that of Sweden, as well as they have implemented stringent
conditions on the persons responsible, the country has been taking action on the same. Since the
1970s, it has kept the issue of environmental preservation and prevention of degradation on the
forefront of its national policy. It has also implemented additional measures such as EPR to
further the cause.
Introduction
Simply put, the Polluter Pays Principle states, "If you make a mess, you must clean it up." This is
the foundation upon which the doctrine is built. It advocates for a restorative technique that
focuses on repairing natural damage caused by people. It is a norm in international
environmental law that states that the polluting party is responsible for any injury or damage to
the natural environment. In Rylands v. Fletcher1, the court held that “whoever brings or keeps
something on his property for his purpose that is likely to do mischief if it escapes, must retain at
his own risk, and if he fails to do so, he is prima facie responsible for the damage caused by the
escape.” If escaping causes any harm or is likely to cause any harm or damage, then the person in
charge is liable to compensate for the damage caused.
Pollution is defined as the damage or destruction of the environment, which makes it impossible
to live a healthy lifestyle. The industrial revolution aided our economy's rebirth from the ashes,
and it provided people with a plethora of options. However, our environment continues to suffer
as a result of this development. We are poisoning the air we breathe in the name of improving
human lives, and the trees that offer that pure air are being chopped down for building and other
uses. The majority of individuals do environmental damage and then go on without feeling bad.
The Environmental Protection Act2 was created in 1986 to punish all of these people and to
safeguard our environment.
The polluter pays concept might be taken to mean that whomever makes a mess is responsible
for cleaning it up. The polluter pays concept requires a person who pollutes the environment and
attempts to destroy it to repay for the harm they have created. It makes no difference whether a
person is conscious or not that the actions they are carrying out are destroying the environment;
they must pay and assist in the restoration of the environment to its natural state. This idea aids
the government in assisting those whose livelihoods and lives are being ruined by those who
pollute the environment.
1
24 Nev. 251, 52 P. 274,1898 Nev.
2
(Act No.29 of 1986)
It does not place the entire burden of responsibility on the government, but rather on the person
who was responsible for environmental destruction, therefore reducing the government's
financial load. For example, if a business is involved in the manufacturing of products that need
potentially harmful toxic chemicals, it is the factory's obligation to develop a strategy for their
safe disposal. While manufacturing, industries release huge volumes of hazardous effluents into
the air and water.
The fundamental goal of this concept is to hold these factories accountable for the harm they do.
The Organization for Economic Cooperation and Development (OECD) established the polluter
pays concept in 1972. It said that the polluter should be held liable for the damages he or she has
caused. Pollution is defined as pollution of the environment on land, in the air, or in the sea.
Principle 163 of the Rio Declaration's larger recommendations for sustainable development states
that authorities have a duty to encourage the industrialization of environmental costs, taking into
consideration that the polluter should bear all costs for producing pollution in the public good.
The polluter pays principle (PPP) was originally stated in the OECD proposal of May 26, 1972,
and was reiterated in the recommendation of November 14, 1974. The PPP is defined by the
OCED Guiding Principles as a tool for "allocating costs of pollution preventive and control
measures."
Later on, the polluter pays idea was included into a larger set of principles to govern global
sustainable development known as the 1992 Rio Declaration.
The overarching principles for guiding sustainable development Principle 16 of the Rio
Declaration states that governments must support the industrialization of environmental costs,
keeping into mind that the polluter should pay all costs associated with pollution in the public
interest. Principle 16 further emphasises that the polluter pays principle must be applied
especially to greenhouse gas emissions, which are responsible for a variety of climatic impacts.
A greenhouse gas absorbs and emits radiant radiation, resulting in the greenhouse effect.
The Rio Declaration states in Principle 164 that:
"National authorities should continue to strive to promote the understanding and acceptance of
environmental costs and the use of economic instruments, taking into account the principle that
the polluter should, in principle, bear the cost of pollution in the public interest and without
distorting international trade and investment," says the report.
The polluter pays concept states that the person who causes pollution, known as the polluter,
should pay for pollution control administration, and that the polluter is also liable for the expense
of pollution that causes damage to others. This idea relieves the government of financial burdens
by removing the government's obligation to pay for environmental damage or compensate those
who are harmed as a result of it. The polluter pays idea was adopted into Indian environmental
law by the Indian judiciary.
Research Methodology
3
A/CONF.151/26 (Vol. I)
4
Ibid
The paper has been written by referencing multiple authors and government recognized websites.
The cardinal mode of acquiring information in this paper which has been put forth for a holistic
understanding of the topic is by referencing numerous secondary sources, both foreign and
domestic.
Content
Indian situation
Article 215 of the Indian Constitution recognizes every Indian citizen's essential right. Article 21
mentions that the right to life and personal liberty is a fundamental right. Simply said, damaging
a community at large surroundings would deprive its residents of their most fundamental right.
Because pollution is an unavoidable consequence of industrialisation, every person has a
responsibility to safeguard the environment. As a result, Article 21 of the Indian Constitution is
seen as granting the right to community participation in environmental preservation. According
to Section 206 of the National Green Tribunal Act, while making any order, award, or judgement
for balanced development without damaging the mother earth, the tribunal can use the concepts
of sustainable development, polluter pays principles, and precautionary principle.
The Indian courts applied the polluter-pays concept to ensure that those who were harmed
received justice. The polluter pays concept is based on the economic theory of externality
integration. "The societal costs paid by public bodies responsible for inspecting, regulating, and
managing pollution are imposed on the polluters," according to this idea. The polluter pays
concept holds the operators of hazardous installations responsible for the expense of appropriate
efforts to avoid and control accidents caused by those installations.
The idea of polluter pays is included in Indian jurisprudence and is regarded to be the most
significant element of environmental law. According to Indian law, the polluter pays concept
covers environmental expenses as well as direct costs to those who are harmed and property.
"Remediation of the damaged environment is a component of the process of sustainable
development," the Supreme Court said, "and as such, the polluter is responsible to pay both the
cost to individual victims and the cost of reversing the damaged ecosystem."
The Apex court, in M.C Mehta v. Union of India (1986) 7, used the polluter pays concept and
declared that the Indian government has to develop additional legislative measures that can
effectively cope with the new challenges that are occurring as a result of a highly industrialised
economy. In this case, a business called Delhi Cloth Mill Limited had a subsidiary called
Shriram Food and Fertilizer that was generating caustic chlorine and oleum at a factory in the
middle of a densely populated area. A public case was filed in the court to address the issue in
order to control and regulate the effect of this.
In this decision, the Supreme Court established the strict responsibility concept, which states that
anybody who engages in hazardous or intrinsically dangerous actions and retains or accumulates

5
Constitution of India
6
(Act No.29 of 1986)
7
1987 AIR 1086, 1987 SCR (1) 819
such chemicals must pay those who are damaged or impacted. This concept only applies to non-
natural land users, not to acts that occur naturally or as a result of Force Majeure. The court also
stated that if a business is engaged in a hazardous industry, it is required to care for the safety
and health of those who work in the factories as well as those who live near the location where
all such risky activities take place.
The year 1986 was a watershed moment in environmental and tort law, since two significant gas
leaks occurred within two years, the Bhopal gas disaster (On the night of December 2, 1984, a
chemical called methyl isocyanate (MIC) leaked from Union Carbide India Ltd's (UCIL)
pesticide facility, transforming Bhopal into a massive gas chamber. It was India's first significant
industrial tragedy. The Bhopal gas tragedy is regarded as the world's greatest industrial disaster.
More than 15,000 individuals were murdered and 600,000 employees were harmed by the
methyl isocyanate gas spill. Stillbirth and newborn death rates climbed by up to 300 and 200
percent, respectively.) and the Shriram gas leak case 8 (Oleum gas from Shriram Foods and
Fertilizers, a fertiliser factory, spilled, causing damage to a large number of individuals. In this
instance, the Ryland v. Fletcher rule9 was applied. J. Bhagwati argued that the aforementioned
rule is 100 years old and is insufficient to resolve situations like these since science has advanced
significantly in these years, which is why the Supreme Court took a step further and established
the absolute responsibility rule.). These two instances raise the fundamental question of who is
responsible for environmental damage. To safeguard the environment, the court said, "we must
create a new concept and introduce new standards to address these new challenges produced in a
modern highly industrialised economy."
As a result, the court established a new notion of 'absolute responsibility' to the environmental
law discourse. The Environment Protection Act of 1986 10, the Public Liability Insurance Act, and
the National Environment Tribunal Act of 199511 were all passed by the legislature. The
Supreme Court, in the Indian Council for Enviro-Legal Action v. Union of India case, for the
first time applied the doctrine. Sec. 3 of the EPA 12 empowers the central government to "take all
accountable measures that are deemed necessary for protecting and improving the quality of the
ecosystem." The offending industry is responsible for fixing the harm, while the central
government is responsible for calculating the sum to be recovered for the loss sustained.
In the Indian Council for Enviro-Legal Action v. Union of India,199613, the Court defined
polluter pays as an absolute liability that a person bears for harming the environment, which
includes not only compensating those who are harmed but also bearing the cost of restoring the
environment to its original state. In addition, the court reversed the "polluter pays concept" in the
Taj Trapezium case, which included the "yellowing and rotting of the Taj Mahal." Based on the
NEERI Report of 1993 and the Vardhrajan Report of 1995, the court determines that hazardous
industries and the Matura refinery were the primary causes of the yellowing of the historic
8
1987 SCR (1) 819; AIR 1987 965
9
24 Nev. 251, 52 P. 274,1898 Nev.
10
(Act No.29 of 1986)
11
(Act No.29 of 1986)
12
Supra
13
1996 AIR 1446, 1996 SCC (3) 212
monument. The court ordered the companies to relocate from the Taj trapezium zone or abandon
the traditional way of utilising as a source of energy. Industries that refused to comply were
compelled to cease operations by December, 1997.
However, in this situation, the PPP Concept was given a fresh spin, with manufacturers being
ordered to compensate tier employees under the principle.
This new point of view by Justice Kuldeep Singh clearly demonstrates that neither employees
nor the environment should feel the brunt of polluting businesses' actions. Workers are not
damaging the environment in any way. They're all working on behalf of their boss.
If polluting companies dismantle or relocate due to a breach of environmental protection
provisions, the people employed by those industries should not be pushed out without any
economic or employment security.
Thereby, the PPP concept has developed rapidly through the course of the past 40 years in India
due to the contributions of M.C Mehta, the Environmental protection tribunal and the hon’ble
courts as well who had interpreted PPP in a manner so as to protect the environment.
Swedish situation
Despite Sweden's low population density and modest economic development during the 1970s
and 1980s, environmental problems were at the forefront of the country's agenda. Environmental
concerns in Sweden have a significant international component in addition to a national one.
Because of regional economic and environmental interdependencies, this is the case. Sweden
organised the inaugural United Nations Conference on the Environment in Stockholm in 1972 14,
with the goal of identifying the most pressing environmental issues and reaching an agreement
on how to address them. Sweden got more active in global environmental concerns in the second
half of the 1980s. Sweden has devised techniques that are based on specific, quantifiable goals
and regular monitoring of environmental performance. The Riksdag, the country's parliament,
keeps a careful eye on the different actions implemented and offers policy direction.
Sweden has established successful and frequently extremely creative environmental regulations
during the last 25 years. Developing appropriate legal and administrative instruments;
introducing a wide range of economic instruments; broadening the scope of physical planning to
include environmental protection and sustainable management of natural resources; and applying
the principles of Swedish democratic functioning to environmental matters, particularly abundant
and accessible information, separation of powers, expanded role of NGOs, and special roles for
women.
Nonetheless, there is a need in Sweden to improve the cost-effectiveness of environmental
policies while addressing a number of remaining issues, such as ensuring that environmental
regulations resulting from the case-by-case approach are harmonised with EU laws based on
quality or emission standards, harmonising the integrated pollution control system (applied to
emissions into water and air) with industrial waste management, and ensuring a complementary

14
UN Doc. A/CONF. 48/14, at 2 and Corr. 1 (1972)
usability of environmental policies. environmental impact assessment, environmental
information, and physical planning).
These extraordinary feats have been made possible by a variety of factors. Air pollution
management has been based on fuel quality regulations and a case-by-case licencing system for
stationary sources; ongoing attempts have been made to enhance licence requirements through
monitoring of available technologies. Since 1989, vehicle emission rules have been in force,
requiring the installation of three-way catalytic converters on automobiles.
The reduction of atmospheric emissions was aided by energy policies that encouraged a
transition from oil to electricity and biofuels, as well as increased energy efficiency and the use
of district heating.
Several economic instruments were introduced recently; they include a CO2 tax, a sulphur tax on
fuel, a NOx charge/refund system for larger power/heat plants, an emission charge on domestic
aircraft and environmental classification of fuels and vehicles, with differentiated taxation.
All North Sea and Baltic Sea coastal municipalities with more than 10,000 people have been
scheduled to be equipped for denitrification by 1998, in response to an EU mandate on urban
waste water. Despite substantial reductions in pollutant discharges (such as AOX), industry
remains the primary source of oxygen-demanding chemicals. Heavy metal emissions to water
(such as arsenic and chromium) have been drastically decreased. Polluters and consumers of
water pay for treatment, but there are no resource costs for extracting water or dumping
contaminants into natural waterways.
Sweden is a proponent of sustainable development and is working on methods to combine
environmental and other policies. Sweden's stated position is that "development must occur
without causing more harm or depletion to the national environment." Long-term environmental
and physical planning strategies with measurable goals have been created. The ecocycle idea was
created to make comprehensive responses to hazardous chemicals easier. Environmental goals
are being factored into sectoral strategies.
For forestry, biodiversity conservation, and transportation, long-term strategies have been
created. The first steps have been taken to minimise traffic congestion in the city.
The Environmental code15 was passed in 1999, which comprises of over 500 sections. The
current Swedish environmental legislation is made up of several statutes. Those who perform
operations that may be detrimental to the environment are subject to a number of laws. Different
statutes provide regulations governing how an activity should be carried out as well as
permission requirements. The regulatory framework is difficult to grasp for people performing
operations, public authorities, and others. The Environmental Code has made a significant
advance by combining the major environmental legislation. Currently, some of the most
ecologically damaging businesses are unnecessarily regulated. Roads and railways are two
examples that fall into this category.

15
Riksdag (Swedish Parliament)
Sweden has long been a leader in the field of environmental protection. For over thirty years, for
example, there has been a satisfactory control of point discharges from industry and other
ecologically harmful activities. However, in recent years, attention has shifted to the cumulative
environmental impact of various diffuse sources of pollution, such as transportation. The
Environmental Code governs any activities that have a negative impact on the environment.
Chapter 216 covers standardised provisions with regard to all measures, with the exception of
those that are of minor importance in the specific instance. In comparison to the present statute,
this is a significant shift. Currently, such laws are only found in a few sectors, such as
ecologically hazardous operations, water endeavours, and chemical management. Furthermore,
the current regulations do not impose the same obligations as the Environmental Code's
consideration rules.
Regardless of whether or not a governmental entity intervenes, every person within the territory
of Sweden must follow the norms of consideration. The regulations provide uniform criteria for
all activities that have the potential to harm the environment.
The party carrying out the activity is responsible for demonstrating that the general norms of
consideration of the Environmental Code are followed through the review of permits and other
comparable processes and supervision. As a result, the burden of proof is shifted. The
fundamental rule for consideration in the Environmental Code states that anybody taking a
measure must take the necessary protective measures, adhere to the restrictions, and take the
precautionary steps to ensure that the action does not impair the environment's health. The rule is
a logical outgrowth of the OECD's Polluter Pays Principle (PPP) from the early 1970s. The
precautionary principle, which is globally recognised, is also strongly connected to the
responsibility to take preventive actions. Precautionary precautions must be implemented as soon
as there is cause to believe that a measure may harm human health or the environment, according
to this idea.
The Swedish government has taken step further in ensuring environmental conservation by
implementing EPR. Extended Producer Responsibility (EPR) is an environmental protection
approach that makes the producer of a product liable for the full life-cycle of the product,
particularly the take-back, recycling, and final disposal of the product. The Extended Producer
Responsibility is accomplished using administrative, economic, and educational tools. The
particular shape of the Extended Producer Responsibility is determined by the composition of
these instruments.
The EPR concept is in line with the polluter pays principle and, moreover, is a fundamental
prerequisite for representing the product's key life cycle costs in its price. It is not assured that
even those environmental expenses that have been priced will be reflected in the ultimate price
of the product and therefore notify the customer that these attributes exist without an EPR
method. Costs associated with trash collection, recycling, or final disposal, for example, are not
included in the price of the products, with the exception of a few EPR systems. As a result, these
charges run the danger of being overlooked by the customer when making a purchase.

16
Environmental code, 1999
The primary goal of EPR is to encourage product and system improvements. Various policy
tools must be employed in order to achieve this goal. The feedback loops for product
development are built by attaching the economic responsibility to individual producers.
Allocating duties alone will not be sufficient to ensure the essential feedback systems, and
further study is required to determine the optimum way to organise the feedback loops.
USA situation
The United States' position on the PPP Principle is ambiguous. Although the idea has never been
legislated in the United States, several federal and state environmental laws, as well as common
law rules, ensure that the polluter pays, at least in some cases. The PPP is implemented through
judicial judgments that maintain legislation and regulations that impose responsibility on
polluters.
The Clean Air Act17, the Clean Water Act18 , and other important environmental legislation, such
as CERCLA (the "Superfund" law), all mandate pollution control and levy penalties for failing to
comply. CERCLA, which assigns responsibility for hazardous chemical cleanup, is perhaps the
clearest illustration of the PPP in the United States. In the instance of the Exxon Valdez oil
disaster19 in 1989, the polluter pays concept was applied in the United States. In this example, an
oil ship carrying thousands of barrels of crude oil spilled the oil into an Alaskan river, causing
significant pollution and financial damage to the people who live there. Exxon was required to
pay a fine of USD 125 million to the US Federal Government and USD 900 million to the state
of Alaska for civil claims under the polluter pays principle, in addition to certain cleaning costs.
A lengthy process of court cases is required to make polluters accountable for their actions, and
the poor population may not be able to fight for their rights. To keep them out of court, these
large corporations sometimes offer them less money.
CERCLA holds "potentially responsible parties" liable for damages caused by hazardous
discharges and allows for coercive measures to force the polluter to pay. Many environmental
laws in the United States are resource-specific, and legislation and regulations allow and execute
pollution-control measures. Environmental prescriptive laws such as the Clean Air Act and
Clean Water Act set environmental standards, require permits that impose those requirements on
individual polluters, mandate ambient and compliance monitoring, and empower enforcement of
rules, regulations, and responsibilities imposed in permits.
The United States also imposes a variety of taxes, including:
Cars with high gas consumption are subject to a tax called the "Gas Guzzler Tax." The Internal
Revenue Service collects this sort of tax, which is levied on low-fuel-efficiency vehicles due to
their higher consumption of fuel, in order to balance the amount of pollution produced by these
vehicles.

17
42 U.S.C. 7401 et seq.
18
92-500,86 Stat. 816
19
270 F.3d 1215 (9th Cir. 2001)
Average Corporate Fuel Economy: It works in the same way as the gas guzzler tax in that it
influences how far a car can travel on a gallon of gas.
The Law of the SuperFund : This form of legislation guarantees that polluters are held
accountable for the cleaning of hazardous, toxic, or poisonous places. The Comprehensive
Environmental Response, Compensation, and Liability Act, or CERCLA, creates a Federal
"Superfund" to clean up unmanaged or abandoned hazardous waste sites, as well as accidents,
spills, and other emergency releases of pollutants and toxins into the environment. The EPA was
granted the authority under CERCLA to seek out people responsible for any leak and ensure
their participation in the cleanup.
When potentially responsible parties cannot be found or located, or when they refuse to act, the
EPA cleans up orphan sites. EPA secures private party cleanup using different enforcement
mechanisms including as orders, consent decrees, and other small-party settlements. Once a
response action is finished, the EPA recovers expenses from financially viable people and
businesses.
The Act's implementation is allowed by the EPA in all 50 states and U.S. territories. The state
environmental protection or waste management agencies coordinate Superfund site
identification, monitoring, and response operations.
Environmental quality is "considered a type of 'non-market' good that is highly significant in
consumer choices" by Americans. Many environmental regulations in the United States exclude
some damaging agricultural operations from other restrictions that apply to other businesses.
In the USA, environmental law takes a resource-specific approach. Various statutes put in place
pollution-control initiatives. Legal regulations such as the Clean Air Act of 1963 and the Clean
Water Act of 1972 are used to establish environmental standards and provide recommendations
to polluters on how to monitor their activities that cause pollution and what their responsibilities
are.
Conclusion
After taking into consideration the various actions taken by all three countries to reduce
environmental degradation and to ensure its preservation Sweden has ensured that it further is the
cause of environmental preservation by not only promoting polluter pays principle but also and
extended producer responsibility to ensure your that the environment is not just preserved at a
superficial level but the root of the problem is resolved in the near future by the country and the
persons who produce products which are in use of the general public. Thereby, Sweden has
implemented multiple provisions to reverse the damage done to the environment. Whereas, the
USA has had quite the laissez-faire attitude towards the environment, which has led to the
leading nation in the industrial revolution which has been the root cause for a majority of the
environmental pollution at a global level to seem as if it has an overly callous attitude. The
implementation of the few provisions has just scratched the surface of environmental
preservation. Whilst, India on the other hand has learnt from its fair share from making mistakes
which has led to the judiciary narrowing the interpretation of multiple legal aspects which could
have led many to escape responsibility for the actions caused leading to multiple casualties in its
wake. Although multiple avenues still exist wherein the legal machinery can deliberate to further
the cause of environmental preservation.