Above: In 2016, Sri Sri Ravi Shankar’s Art of Living Foundation organised a three-day event on the Yamuna floodplains, involving mammoth operations/Photo: Anil Shakya
The dilemma of implementation of the Polluter Pays Principle lies in the fact that many administrative set-ups have not been sensitised and made aware of how it can be put into practice in Delhi
By Papia Samajdar
Polluter Pays Principle (PPP), as the name suggests, is to make those who pollute the environment pay for the damages caused by them. It was embodied in the Rio Convention of 1992, to which India is a signatory. In a 2011 landmark case, the Supreme Court of India, in Indian Council for Enviro-Legal Action v Union of India & Ors, expanded the definition of the PPP to not only compensate the victims of pollution but also include the costs of clean-up and rectifying the environmental damage caused.
Though the principle was part of the law by precedence, it was explicitly included only in the National Green Tribunal Act in 2010. It is one of the three main principles that the NGT relies on for delivering orders, the other two being the principle of sustainable development and the precautionary principle. PPP aims to internalise the cost of mitigating environmental damage by a polluter, be it an individual or industry.
However, polluters often find a way to skirt the fine slapped under the PPP by the National Green Tribunal. On January 13, 2015, the NGT while hearing the case Manoj Misra & Anr. vs Union of India & Ors had held the people of Delhi accountable for the pollution of the Yamuna.
In its order, it had directed the Delhi government and its agencies to levy an environment compensation charge (ECC) on residents of the capital who generated sewage, irrespective of connection with the sewage system.
The fine was to be calculated by the Delhi government and agencies based on the size of the construction and the sewage generated and this amount was to be added to either their water or electricity bill. The task of creating a policy for the collection of the ECC was left to the Delhi government. The court did not give any clear directive regarding the amount of the fine to be imposed, but gave a range of Rs 100 to Rs 500.
The funds thus raised from the ECC were to be used for constructing additional sewage treatment plants, so that no untreated water is released into the Yamuna.
Till now, the AAP government and the Delhi Jal Board (DJB) have not been able to arrive at an agreement on how to levy the ECC. The tussle between the two has slowed down the plan of “Maily se Nirmal Yamuna revitalisation project, 2017.”
The judgment also penalised anyone who dumped any debris in or around the Yamuna with a fine of Rs 50,000. Anyone dumping puja materials will be liable to pay Rs 5,000.
Both these fines were based on the Polluter Pays Principle and the Precautionary Principle. Though a few fines were levied, it became impossible to identify as to who dumped materials in the 22-kilometre stretch that the river cuts across the city. Constant monitoring calls for installation of special devices, which is cost-intensive. As such, this direction of the green court is also not easy to implement.
The judgment also directed the DJB, which is responsible for the city’s sewage, to make the existing sewage treatment plants (STPs) become 100 percent operational. None of the existing plants were being optimally utilised. Additionally, the judgment directed the DJB to create an action plan for installing new STPs on 32 major drains. Phase 1 of the project aimed at reducing pollution at the Najafgarh and Delhi Gate drains and Phase 2 at the Shahdara, Barapullah and other drains.
The “Maily se Nirmal Yamuna” project anticipated 55 fully functional STPs would be in place by March 2017, where the treated water from them was to be recycled and used for irrigation and industrial purposes. Though the deadline has been extended, a clean and pure Yamuna remains a distant dream.
“The NGT has directed the Delhi Government and its agencies to put in place an action plan to put the PPP into practice and a report is to be submitted to the NGT by March 2019. The issue here is that many of the local administrations have not yet been sensitised and made aware about how the principle can be put in practice in Delhi. Hence, they are clueless about how to implement it. The first step that is being considered is sensitising of the local and district level authorities,” said Souparno Banerjee, senior director, outreach, Centre for Science and Environment, a Delhi-based advocacy NGO, to India Legal.
In 2016, the NGT had slapped a Rs 5 crore fine on Sri Sri Ravi Shankar’s Art of Living (AoL) Foundation. The Foundation had organised a three-day event on the Yamuna floodplains, causing extensive damage to the ecosystem. The fine was to be used for mitigating the damage caused.
The head of the Foundation appealed to the Supreme Court against the payment, calling the NGT verdict unjust. An expert committee pegged the cost of environmental restoration at Rs 42.4 crore. The committee’s recommendation, however, was not taken up by the NGT which stuck to a negligible amount. Even this paltry sum was ignored by the polluter.
The fine slapped by the green tribunal is sometimes contested by an industry or individual. As the NGT is unable to assess the exact punitive cost of damage to the environment in individual cases, the amount is mostly based on guesswork.
This was the issue in the 2015 case of DSM Sugar Distillery Division Asmoli V Shailesh Singh & Ors in which the latter had invoked the jurisdiction of the NGT to challenge the distillery which was said to be a major polluter and was allegedly operating contrary to the terms and conditions of its consent order. Polluters slapped with high fines often appeal to the high court against the NGT order, resulting in an interim stay.
“There is a need for a better implementation of the Polluter Pays Principle. Seeing a polluter being made to pay for offences instils confidence and a sense of justice in society. Therefore, it is important that it is applied in a fair and objective manner,” says Chandra Bhushan, deputy director general, Centre for Science and Environment, in a report which took a look at NGT orders that involved the PPP.
Fortunately, there exist PPP orders that have been scrupulously adhered to.
In the Vardhaman Kaushik V Union of India & Ors case on air pollution, the NGT bench levied an environmental compensation charge on vehicles entering Delhi, as they were environmentally hazardous.
This fine ranged from Rs 500 to Rs 1,000, depending on the number of axles, and is over and above the toll tax charges. The Supreme Court of India and the various High Courts have used the PPP to slap fines on polluting industries to not only compensate the victims but also undo the damages caused.
Internationally, the PPP is widely used to curb environmental damage. The introduction of international “carbon price” in 2018 to combat climate change uses the basic idea of the PPP to reduce emissions.
This is a charge imposed on industries emitting greenhouse gases equivalent to the corresponding potential cost caused due to climate change.
This method is also seen by experts as a warning for any industry to reduce its emissions. However, there exists the real danger of polluters moving their operations to countries with weak environmental regulations.
In 2010, the European Commission under the Environment Liability Directive, introduced an EU-wide financial liability scheme forcing companies to pay for environmental damage. This directive was made weak by heavy negotiations against the inclusion of maritime pollution, nuclear contamination and Genetically Modified Organisms. The directive covered only companies and not society or individuals.
In 2010, a deep-water horizon oil spill off the coast of the Gulf of Mexico polluted approximately 1,770 km of shoreline. The deep-water drill was being operated by British Petroleum (BP) and the spill caused billions of dollars of losses to the ecosystem and businesses. Following the leak, a moratorium on off-shore drilling left almost 12,000 people temporarily unemployed. Cleaning up the oil took months and though gradually the beaches and business were considered safe, oil slicks continued to show up where cleaning was difficult.
BP paid $63.4 billion as clean-up costs and legal fees. This included a $20 billion fund for those affected. By 2011, nearly a third of the fund had been paid out. But lack of understanding of the cost of the loss allowed government entities to submit inflated claims, depleting the fund by 2013.
The PPP is a powerful tool to be used as a precautionary and preventive measure. But, as often happens, underestimating the cost of the environmental damage, faulty calculation of fines, and mishandling of funds does little justice to this principle.
Therefore, it is important that a method to calculate compensation be followed which is transparent and easily comprehended by all.