Environmental Torts: The Four Heads of Liability, and the Five Principles That Have Overtaken Them

Environmental harm was traditionally litigated through the ordinary torts: nuisance, negligence and the rule in Rylands v. Fletcher. Each proved inadequate to industrial pollution, for reasons that are worth stating precisely. Since the 1980s the Supreme Court has developed a set of constitutional and environmental principles which now do most of the work: the polluter pays principle, the precautionary principle, sustainable development, the public trust doctrine and intergenerational equity. They are applied in the writ jurisdiction and before the National Green Tribunal rather than in a suit.

The four heads of liability and the five principles

1. The Four Heads of Liability

• Nuisance and negligence remain useful for the individual victim, and are the right framing where a particular occupier has been harmed by an identifiable neighbour.
• They are useless for the environment itself, because neither gives a remedy to a river, a forest or a generation not yet born, and because the person best placed to complain is frequently the person least able to litigate.
• That gap is what the constitutional jurisdiction filled, by relaxing standing, by treating a clean environment as part of Article 21, and by framing relief as restoration rather than as damages.

2. The Constitutional Foundation

• The Supreme Court has drawn the environmental principles from these provisions read with the statutes, and has held that they are part of the environmental law of the country even where no statute states them.
• Article 48A and Article 51A(g) are not directly enforceable, but they are used to inform the content of Article 21, which is.
• Standing is relaxed. Public interest litigation allows a person or organisation with no personal stake to move the court, which is essential where the victims are dispersed, poor and unorganised.

3. The Polluter Pays Principle

• The cost of reversing environmental damage is part of the cost of the activity that caused it, and not an externality to be borne by the public.
• It covers two distinct things: compensating the individual victims of the pollution, and restoring the damaged environment. The second is the more important and is what distinguishes the principle from ordinary tort damages.
• It was accepted as part of the law of the land in Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647, and applied in the same year in the Bichhri case.
• It is not a licence to pollute on payment. The principle fixes liability for damage done; it does not authorise the activity, which remains subject to the regulatory law.

4. The Precautionary Principle

• Environmental measures must anticipate, prevent and attack the causes of degradation.
• Lack of full scientific certainty is not a reason for postponing measures to prevent environmental degradation where there are threats of serious and irreversible damage.
• The burden of proof lies on the developer or industrialist to show that his action is environmentally benign. That reversal is the principle's most important practical consequence, and was laid down in A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.), (1999) 2 SCC 718.
• The reversal answers a real difficulty. In an environmental case the evidence is technical, the effects emerge slowly, and the material is in the hands of the polluter. To require the objector to prove harm would be to guarantee that harm occurred before anything was done.
• Scientific uncertainty is therefore a reason for caution and not for permission, which reverses the intuition that a project should proceed until it is shown to be dangerous.

5. Sustainable Development

• Development that meets the needs of the present without compromising the ability of future generations to meet their own needs.
• The Supreme Court in Vellore accepted it as a balancing concept between ecology and development, and as part of the customary international law incorporated into Indian law.
• Development and environmental protection are not treated as opposites to be traded off, but as objectives to be reconciled, and a project is not to be stopped merely because it has an environmental cost, nor permitted merely because it is economically useful.
• Its practical content lies in the principles that implement it, which are the precautionary principle, the polluter pays principle and the requirement of environmental impact assessment.

6. The Public Trust Doctrine and Intergenerational Equity

• The public trust doctrine holds that certain resources, the air, the sea, the waters and the forests, have such importance to people as a whole that it would be wholly unjustified to make them a subject of private ownership. The State is the trustee of these resources, is under a legal duty to protect them, and may not transfer them to private ownership or commercial use.
• It was adopted into Indian law in M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388.
• Its importance is that it operates as a restriction on the State itself, and not merely on private polluters. A government that leases a river bank for a hotel is answerable as a trustee, whatever the terms of the lease.
• Intergenerational equity holds that the present generation holds the natural resources of the earth in trust for succeeding generations, and must pass them on in no worse condition than it received them.
• The two doctrines are closely related, the first identifying the trustee and the second identifying the beneficiaries, and together they explain why a court will grant relief at the instance of a person who has suffered no personal loss at all.

7. The Position Stated Shortly

1. Environmental harm may be litigated through nuisance, negligence, Rylands v. Fletcher and absolute liability, and each of the first three has a weakness that the last was framed to remove.

2. Nuisance requires an interest in land or special damage; negligence requires proof the plaintiff cannot obtain; Rylands has its exceptions and requires non natural use.

3. The constitutional foundation is Article 21 read with Article 48A and Article 51A(g), and the right to a healthy environment is part of the right to life.

4. The polluter pays principle makes the cost of reversing the damage part of the cost of the activity, and covers restoration of the environment and not merely compensation.

5. The precautionary principle requires anticipation and prevention, and holds that scientific uncertainty is no reason to postpone measures.

6. It shifts the burden of proof onto the developer to show that his action is environmentally benign: A.P. Pollution Control Board v. M.V. Nayudu.

7. Sustainable development reconciles development with environmental protection, and was accepted as part of the law of the land in Vellore.

8. The public trust doctrine holds that the State is trustee of the air, sea, waters and forests, and may not convert them to private ownership: M.C. Mehta v. Kamal Nath.

9. Intergenerational equity holds that the present generation holds natural resources in trust for those who come after.

10. These principles are applied in the writ jurisdiction and before the National Green Tribunal, and the relief is framed as restoration rather than as damages.