Abstract
In India, the idea of the polluter pays principle (PPP) is frequently used in environmental court cases. Though it is widely used, little scholarly research has been done on its conceptual limits and the difficulties it faces when applied to the Indian judicial system. This chapter examines decisions made by the National Green Tribunal (NGT) to close this information gap. This research examines three important aspects of PPP that can be identified from NGT examples. First, it explores how the definitions of “pollution” and “polluter” have changed over time, as demonstrated by several examples. Second, the chapter examines the techniques used by the NGT to determine compensation. Finally, it analyzes the justification for PPP implementation, as explained by the NGT in various instances.
TopIntroduction
The Polluter Pays Principle (PPP), a pivotal environmental policy demanding those responsible for pollution to bear the associated costs and responsibilities, transcends the traditional free market approach by holding polluters accountable for the entire social cost of their actions (Shastri, 2000). Introduced implicitly by the Organisation for Economic Cooperation and Development (OECD) in 1972, the PPP gained prominence due to escalating environmental threats from industrialization (Boyd & Ingberman, 1996). Through the Council on Guiding Principles Recommendation concerning Economic Aspects of Environmental Policies, the OECD emphasized that polluters must cover expenses mandated by public authorities to maintain an environmentally acceptable state. Globally, there is unanimous recognition of atmospheric pollution as an undeniable negative externality resulting from human activities in the global commons, coupled with an acceptance of the limited sink capacity of the atmosphere. However, a contradiction arises within the United Nations Framework Convention on Climate Change (UNFCCC), as the PPP’s rational economic and policy sense is not explicitly included in its provisions, highlighting the influence of material power in climate regime formation (Ambec & Ehlers, 2016). As the world grapples with the urgency of addressing climate change, countries, including major emitters, are contemplating the adoption of the PPP in various forms, prompting a global debate on equitable application (Shastri, 2000). This chapter endeavors to analyze the PPP as an economic, ethical, and legal principle, underscoring its potential to comprehensively address climate change issues, encompassing both mitigation and necessary adaptations for the foreseeable future, despite challenges in establishing a timely mitigation regime under the Adhoc Working Group on Durban Platform (ADP).
The Polluter Pays Principle (PPP) is a widely acknowledged concept in environmental law, endorsed internationally and within India. Numerous multilateral environmental treaties on the global stage have integrated PPP, and at the national level, it has been a component of Indian environmental law since the Supreme Court’s affirmation in the mid-1990s. The National Green Tribunal Act of 2010 explicitly incorporates PPP into an environmental statute (Centre for Science and Environment, 2018). Despite its apparent clarity, PPP’s conceptual boundaries and practical application have evolved complexly, as emphasized by Professor Sadeleer. This chapter delves into the understanding, elaboration, and application of PPP in India, focusing on judgments rendered by the National Green Tribunal (NGT). The analysis spans national judgments from various NGT benches, covering September 2011 to December 2019. The methodology employs a chronological examination of judgments gathered using keywords such as ‘polluter pays,’ ‘polluter pays principle,’ ‘liability,’ ‘compensation,’ and ‘damages’ from databases like SCC OnLine and Manupatra. The chapter is structured into five key sections: an introduction and a conclusion; the first section introduces PPP in the Indian domestic context and globally.
The subsequent section addresses definitional challenges related to terms like ‘pollution’ and ‘polluter,’ drawing insights from NGT judgments. The chapter then explores the methods the NGT employs to calculate compensation for individual victims and restitution costs for damaged property and the environment due to pollution. These approaches range from rough estimations due to data limitations to establishing high-powered committees for precise calculations. The final substantive section examines instances where the NGT extends the scope of PPP beyond its restorative intent, incorporating punitive measures. The concluding section summarizes the key discussions within the chapter. The chapter scrutinizes the nuanced application of PPP in India through the lens of NGT judgments, shedding light on its evolving interpretations and practical implications.
Key Terms in this Chapter
Polluter Pays Principle (PPP): This environmental policy holds those responsible for pollution accountable for all its social costs and responsibilities, ensuring that they bear the financial burden of their actions.
Corporate Criminal Liability: The concept of holding corporations accountable for crimes committed by individuals connected to the organization has gained importance in environmental law discussions.
UNFCCC (United Nations Framework Convention on Climate Change): An international treaty addressing climate change, and while it doesn't explicitly mention the PPP, it plays a role in forming global climate regimes.
OECD (Organisation for Economic Cooperation and Development): An international organization that implicitly introduced the PPP in 1972 and emphasized the need for polluters to cover expenses mandated by public authorities to maintain an environmentally acceptable state.
Cost Internalization: A principle related to the PPP, where polluters are made to pay for the social costs of their actions, ensuring that the prices of goods reflect the societal costs associated with pollution.
NGT (National Green Tribunal): A specific body in India created by the National Green Tribunal Act of 2010 to address environmental issues, explicitly guided by the PPP in making orders, judgments, and awards.
Negative Externality: The harmful side effects or consequences of an activity that affect third parties who did not choose to be involved in that activity, often used to describe environmental harm caused by pollution.