Environment protection and law of torts

PROJECT REPORT ON-

ENVIRONMENT PROTECTION AND LAW OF TORTS

PROJECT SUBMITTED TO-

Ms. Stuti Nanda

(FACULTY OF ENVIRONMENTAL LAW)

PROJECT SUBMITTED BY-

Himanshu Kunjam

ROLL NO 60

SEMESTER IV

SECTION C

DATE 30-04-2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR

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ACKNOWLEDGEMENTS

This is not just a customary acknowledgement of help that I received but a sincere
expression of gratitude to all those who have helped me to complete this project
and made it seem apparently more readable than otherwise it would have been.

I am in debt to my faculty advisor Ms. Stuti Nanda for giving such an interesting
and wonderful topic ENVIRONMENT PROTECTION AND LAW OF
TORTS and who has been extremely kind to make space for all my enthusiasm
& endeavors and making it seem easy by clearly explaining its various
aspects.

I am also grateful to all my friends and seniors who have given their valuable
suggestions pertaining to the topic and have been a constant source of help and
support.

Thanking everyone.

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TABLE OF CONTENTS

ACKNOWLEDGEMENTS_________________________________________________________ 2

INTRODUCTION ________________________________________________________________4

RESEARCH OBJECTIVES __________________________________________________________5

RESEARCH METHEDOLOGY AND SOURCES OF DATA ________________________________5

CONSTITUTIONAL AND LEGISLATIVE MANDATE FOR A RIGHT TO

HEALTHYENVIRONMENT________________________________________________________6

HAZARDOUS AND DANGEROUS ACTIVITIES_____________________________________6

ENVIRONMENTAL
NUISANCE______________________________________________________________________7

IMPORTANT LEGILATIONS ________________________________________________________9

ENVIRONMENT TORT FROM INDIAN PERSPECTIVE ___________________________________9

CONCLUSION___________________________________________________________

REFERENCE________________________________________________________________________

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INTRODUCTION

The intersection between environmental law and tort law

Litigation related to environmental contamination and toxins has grown at a rapid pace, as
businesses come under greater scrutiny for their environmental practices and face potentially
costly claims. Industrialization has posed serious concern for the protection of environment. If
we follow the development around the world in last two decades or so, it is clear that both
judicial and legislative processes have applied the yardstick of Strict or Absolute Liability to
judge the conduct of the polluters.

A toxic tort is a special type of personal injury lawsuit in which the plaintiff claims that exposure
to a chemical caused the plaintiffs toxic injury or disease. Environment, a subject matter of
utmost importance, has, undoubtedly, attracted a great deal of deliberation in the past. However,
several issues remain unanswered till date. The environmental policy of the country remains full
of loopholes failing to provide an appropriate forum for environment protection, especially
against private individuals. The need of the hour is legislative policy based on tort law as an easy
method to redress grievances against violating the Constitutional mandate of clean and healthy
environment.

Environment An issue that has been perpetually juxtaposed with the existence of all life forms
on Earth. It is this Nature under whose watchful eyes human beings have evolved. But such has
been the magnanimity of mans evolution that it has brought him in a position where he stands
face to face with Nature and challenges her divine powers to alter the world. So expeditious are
mans endeavours that he has completely outstripped his biological development by his
technological advancements. In nearly every region, air is being befouled, waterways polluted,

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soil washed away, the land desiccated and wildlife destroyed. Rivers, lakes and oceans have
become so polluted that in many places they can no longer support life.1

However, Indian Environmental Law has seen considerable development in the last two decades,
with the constitutional courts laying down the basic principles on which the environmental
justice system stands. The Indian Legal System began to draw its reins on the polluters after
attaining independence beginning with the 4th plan2 of the Planning Commission of India that
took cognizance of the problems of pollution, even before the Stockholm Conference on the
Human Environment that saw an active participation of India in pollution curbing maneuvers.
Since then, India has seen a plethora of legislations covering various aspects of the environment
to ensure its conservation. However, due to loopholes in the laws or perhaps, the slack of the
authorities imposing the laws, these legislations have merely remained a compendium of
powerless phrases that have lost their teeth during the course of time. There is no excuse good
enough, no obstacle obtrusive enough, and no circumstance restrictive enough to exonerate the
government from failing to perform its statutory duty to arrest environmental decline.

1
Sinha S.B. and Bhandari M.C., Memorial Lecture- Environmental Justice in India, Supreme Court Cases (J), 7(8),
(2002).

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RESEARCH OBJECTIVES

The objectives of the project are:

1) To study the standard view of environmental protection by analyzing various areas of law of
torts.

2) To examine the role of the environmental tort as a whole by understanding its intersection
value aspects by considering areas in tort law.

RESEARCH METHEDOLOGY AND SOURCES OF DATA

This project work is descriptive & analytical in approach, which I have followed thereby
putting heavy reliance on: (i) Primary sources: Legislations, Case Laws etc. and (ii) Secondary
sources: websites and other web sources. The primary sources will look in to domestic case laws,
Governmental websites etc.The secondary sources will look into blogs as well as websites, news
paper reports etc.

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Constitutional and legislative mandate for a right to healthy environment

The SC has interpreted the right to life and personal liberty as under Article 21 to mean a right
to have pollution free environment2 Article 48 A, added by the 42nd Amendment, 1978 provides
that the State shall endeavour to protect and improve the environment and to safeguard the
forests and wild life sanctuary of the country while Article 51 A (g) imposes a duty on the
citizens of the country to protect and improve the natural environment. All of which is borne in
mind when an environmental matter is brought before the Court.3

PILs boon or bane Public-interest litigation, a brainchild of judicial activism has played a
critical role in expanding environmental jurisprudence in India over the last twenty-five years. It
was the procedural mechanism that allowed for citizens claims against the government and
polluters, and the tool that the Court continues to use to protect our fundamental constitutional
rights.4 There are a few limitations to PILs. Firstly, the use of judicial independence, so far one
of the benefits of PILs, is slowly becoming its key limitation because if a PIL appears before a
judge who is hostile to the idea of PIL writ petitions, it can immediately be dismissed. Secondly,
PILs and PIELs can only be filed against the government or government agencies. They cannot
be filed against private industries or private landowners, limiting the extent of environmental
protection that can be implemented..

Of late, many of the PIL activists in the country have found the PIL as a handy tool of
harassment.Frivolous cases can be filed without investment of heavy court fees as required in
private civil litigation and deals can then be negotiated with the victims of stay orders obtained in
the so-called PILs. The lowering of the locus standi requirement has behaved as a double-edged
sword and has permitted privately motivated interests to pose as public interests. The abuse of
PIL has become more rampant than its use and genuine causes have either receded to the

2
E.G. Rural Litigation Entitlement Kendra, Dheradun v. State of Uttar Pradesh, AIR SC 2187, M.C.Mehta vs., Union
of India, AIR SC 1037, (1998).
3
Sachdanand Pandey v., State of West Bengal, AIR SC 1109 (1987).
4
Mehta M.C., The Accountability Principle: Legal Solutions to Break Corruptions Impact on Indian Environment, J.
Envtl. L. and Liti, 21 (141) (1987).

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background or are being viewed with suspicion owing to the spurious causes being mooted by
privately motivated interests.

Over the years, PIL has degenerated into Private Interest Litigation, Political Interest Litigation,
and above all, Publicity Interest Litigation. This prompted the SC to issue guidelines to restrain
abuse of PIL, however, this has only resulted in PILs with a genuine cause being dismissed on
the pretext of it being used as a measure of settling private interests. It goes without saying that
the environmental challenges which the country will be facing in the coming years shall be far
greater then anything witnessed so far.

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HAZARDOUS AND INHERETLY DANGEROUS ACTIVITIES

Strict liability for ultra-hazardous activities might also be considered a general principle of law
as it is found in the national law of many states in relation to ultrahazardous activities. Under the
English law, a person who for his own purposes brings on his own land and collects and keeps
there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not
do so, is prima facie answerable for all the damage which is the natural consequence of its
escape as laid down by the landmark judgment of Ryland v. Fletcher

Absolute liability for the harm caused by industry engaged in hazardous and inherently
dangerous activities is a newly formulated doctrine free from the exceptions to the strict liability
rule in England. The Indian rule was evolved in MC Mehta v. Union of India, which was
popularly known as the Oleum gas leak case. It was public interest litigation under Article 32 of
the Indian constitution.

In the judgment, on the substantive law it was emphasized that the principle of absolute liability
should be followed to compensate victims of hazardous and inherently dangerous activity.
Industries engaged in such activities are absolutely liable to compensate those who are affected
by the harm arising from such activities.

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ENVIRONMENTAL NUISANCE

An environmental nuisance is something that has an adverse effect on the amenity of an area
that:

is caused by noise, smoke, dust, fumes or odour; and

unreasonably interferes with or is likely to unreasonably interfere with the enjoyment of
the area by persons who occupy a place within the area or are otherwise lawfully in the
area; or
is an unsightly or offensive condition caused by contaminants or waste.

This type of environmental damage or harm entails the interference with your quality of life and
the enjoyment of your own property due to the actions of a third party. This could through means
such as rubbish dumping, excessive noise nuisance, odour nuisance and other actions that can
adversely affect the way that you use and enjoy your own property. The damages awarded in this
type of lawsuit can include damages for loss of value of the property due to the nuisance,
damages for personal injury or harm, and damages for loss of use and enjoyment of your
property.

It is an offence to cause an environmental nuisance under s83(5) of the Waste Management and
Pollution Control Act. The Waste Management and Pollution Control Act does not apply to
mining sites, petroleum operations and pipeline operations but similar offences of causing an
environmental nuisance exist under different legislation:

The Mining Management Act sets up an offence for doing an act or failing to do an act
that is in breach of an environmental obligation under the Act and causes environmental
nuisance on a mining site.4An environmental nuisance under the Mining Management
Act means:

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a) An adverse effect on the amenity of land caused by noise, smoke, dust, fumes or odour; or

(b) An unsightly or offensive condition on the land.

The Petroleum Act sets up an offence for doing an act or failing to do an act at a
petroleum operation that causes the release of a contaminant or waste material on, above
or under land, if the contaminant or waste material causes an environmental nuisance to
land all of which is within one kilometre of the site where the contaminant is released.An
environmental nuisance under the Petroleum Act means an adverse effect on the amenity
of the land caused by noise, smoke, dust, fumes or odour; or an unsightly or offensive
condition on the land.

The Energy Pipelines Act also has an offence for causing an environmental nuisance. A
person must not, during the conduct of an authorised pipeline operation do an act, or fail
to do an act, that causes the release of a contaminant or waste from a pipeline, if the
contaminant or waste causes an environmental nuisance to land all of which is within one
kilometre of the pipeline.

PUBLIC NUISANCE

Pollution or waste may also be considered to be a risk to public health or environmental health under the
Northern Territory Public and Environmental Health Act 2011 and Regulations. The Public and
Environmental Health Act 2011has two offences relating to public health nuisances. A public health
nuisance is anything that puts, has put or will put at risk or damages, has damaged or will damage public
health. Public health means the physical, mental and social wellbeing of the community.16 For example,
a public health nuisance could relate to a place, dust, fumes, vapour or other emissions, water, or refuse.It
is an offence to intentionally or recklessly engage in conduct which results in a public health nuisance. It
is also an offence to knowingly allow a public health nuisance and intentionally fail to remove it or
prevent it.

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Under the Public Health (Nuisance Prevention) Regulations certain activities are deemed to be
nuisances.20For example, chimneys which emit lots of smoke (except from houses) and
premises or workplaces in such as state as to be a nuisance or injurious to health are nuisances.

If you are affected by a public health nuisance, you can complain to an authorized officer of the
Department of Health. An authorized officer must investigate your complaint and decide whether
or not a public health nuisance exists. The Chief Health Officer of the Department of Health may
issue a public health notice or public health order to direct a person to rectify a public health
nuisance. Enforcement of breaches of the Public and Environmental Health Act 2011may only
be started by an authorized officer of the Department of Health or by a person authorized by the
Minister for Health. Proceedings may only be started within two years of the offence.

In addition to public health nuisances, the common law of public nuisance may also be relevant
to dealing with nuisances. This applies when members of the public at large suffer injury, loss or
damage as a result of a nuisance.

PRIVATE NUISANCE

Some pollution or waste might also constitute a private nuisance. A private nuisance is a
substantial and unreasonable interference with the use and enjoyment of land. Private nuisances
affect individuals rather than the public at large.

A nuisance is an act or omission which interferes with, disturbs or annoys a person in the
exercise or enjoyment of his or her ownership or occupation of land or of some easement, profit,
or other right used or enjoyed. Common private nuisances include the spread of dust, smells and
noise.To bring a civil claim for nuisance, the pollution must be actually harmful to a persons
property or in some way reasonably affect the enjoyment of it. Some nuisances may also give
rise to trespass or negligence, where for example, pollution escapes from someone elses land
onto private land.

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The remedies for nuisance are injunctions and damages.An injunction is an order made by a
court to stop a person doing something, or in some cases, to require them to do something.
Damages are an award of money to be paid by a person as compensation for loss or injury.

Trespass

Pollution incidents may also give rise to common law claims in trespass. This occurs when a
person intentionally or recklessly wrongly allows something to enter onto another persons
land. For example, by dumping waste or spraying toxic chemicals onto another persons land.
The remedies for trespass are injunctions and damages. An injunction is an order made by a
court to stop a person doing something, or in some cases, to require them to do something.
Damages are an award of money to be paid by a person as compensation for loss or injury.

This type of environmental damage or harm entails the invasion or contamination of your
property by the third party. Whether the third party physically invades your property or takes
action that could be construed as contamination and invasion (such as rubbish dumping on
your property) this would all come under the umbrella of trespass law. Damages for trespass
include the recover of either the market value of the property or the cleanup of the pollution.
This can differ from state-to-state, and some states will award the cheaper of the two options
whereas others will award clean up costs regardless.

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Negligence

A person must take reasonable care to avoid a reasonably forseeable risk of causing damage to
property or injury to a person. If land has been damaged or people have been injured by pollution
caused by someones negligence, it may be possible to claim compensation or damages for the
loss or damage suffered. It may also be possible to restrain activities which are causing damage
by seeking an injunction.

This type of environmental damage or harm entails damage or injury to you or your property
through contamination caused by the actions of a third party. Whether it was action or lack of
action from the third party that caused your exposure, injury or damage, you can still bring a
claim. However, this is if the third party used the contaminating substance in what is deemed an
unreasonable manner. Damages can include compensation for clearing the contamination,
damages, decreased property values and personal injury.

To being a claim in negligence four things need to be proven:

The person who was responsible for the injury or damaged owed the person bringing the
claim a duty of care. This will usually be proven if the person responsible should have
reasonably foreseen that his or her conduct may have been likely to cause loss or damage
to the person bringing the claim
the person responsible breached that duty by failing to take reasonable care
the breach of duty caused injury or damage to be suffered by the person bringing the
claim damage includes personal injury, such as illness or disease or property damage or
economic loss
the injury or damage suffered was not too remote a consequence of the breach of duty
usually this means that a reasonable person should have foreseen that the damage could
have been caused.
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IMPORTANT LEGISLATIONS

Legislation in the late 80s and the 90s reflect the laws growing recognition of the
capacity of hazardous substances to cause damage to person, property and the
environment. The Bhopal Gas Disaster and the judgement of the court in the Oleum Gas
Leak case were the prelude to the Environment (Protection) Act 1986, the Factories
(Amendment) Act 1987 and the Public Liability Insurance Act, 1991 (PLIA). The UN
Conference on Environment and Development held at Rio de Janeiro in 1992 provided
further spurt, as did environmental activism and environmental litigation.

The National Environmental Tribunal Act, 1995 (NETA) is the most recent in the field of
accident law. The long title to the Act suggests that it is enacted to provide for strict
liability for damages arising out of any accident occurring while handling any hazardous
substance and for establishing a National Environmental Tribunal. The NETA and PLIA
are both concerned with the aftermath of the same occurrences. While the PLIA deals
with interim compensation, the NETA established a tribunal, and provides guidelines, to
adjudicate all claims arising out of accidents.

There are points of convergence as well as difference, between the two Acts. The
principles of liability and of compensation according to an enacted schedule are common
to the PLIA and the NETA. Both legislations provide for no fault liability, making the
owner liable for paying compensation assessed under the Acts. Both legislations

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exclude workman who is covered by the Workmens Compensation Act. However,

while PLIA resorts to the device if insurance to spread risk and cost and requires the
owner to go deep only where it goes beyond the limits set in the PLIA rules and the
capacity of the Environment Relief Fund (ERF), the NETA appears to leave it to the
owner to find the resources to pay compensation. There is a penal provision in the NETA
which provides for a term of imprisonment up to three years , or fine which may extend

to Rs. 10 Lakhs or both, where any person fails to comply with a order made by the
Tribunal.

Confronted with the possibility of mass torts resulting in injury, and loss to a number of
victims, the more visible efforts of the state are in the direction of expediting the
computing and payment of compensation. There is a consequent delinking of these issues
from questions of culpability, answerability and of safety. The schedule to the Act lists
out the heads under which compensation may be claimed. It includes harm caused to the
person, damage, loss or destruction of private property, expenses incurred by the
government in the aftermath of an accident claims connected with harm, damage or
destruction of fauna, flora and the soil, air, water, land and ecosystems; loss of business
or employment and a residual head to cover any other claim arising out of, or connected
with, any activity of handling of hazardous substance.

It is significant that there is no priority of claims. The crediting of the amount ordered to be paid
on the ground of damage to the environment into the ERF merits scrutiny, particularly since the
amounts in the ERF are intended to be used as a buffer between the exhaustion of insurance
payments and the liability of the owner to cover the difference under the PLIA.

The unresolved questions of liability of the state as a joint tortfeasor, and of compensation
resurfaced in Naresh Dutt Tyagi v. State of U.P. In this case, the Primary Cooperative Society,
Garh Mukteshwar, District Ghaziabad, said to be a federating unit of the U.P. Cooperative Union
Ltd. stored certain chemical pesticides in a godown. Fumes emanating from the pesticides leaked

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to the contiguous property through the ventilators killing three children and causing the
petitioners wife to miscarry. Proceedings to establish fault were on when the Supreme Court
was approached to rule on whether such large scale stocks of hazardous chemicals are
permissible to be stored in a residential block, whether the storage is regulated by statutory
provisions, if not , whether any breach of common law duty has occurred and whether the
governmental authorities are liable in damages.

ENVIRONMENT TORT FROM INDIAN PERSPECTIVE

Post 9os there is a tremendous and rapid growth witnessed by our country. In order to stimulate

and sustain the growth wagon of the country, the government has in many ways overlooked the

general mass at large. India employs a range of regulatory instruments to preserve and protect its

natural resources. Across the country, government agencies wield vast power to regulate

industry, mines and other polluter but are reluctant to use their power to discipline violators.

There are over 200 central and State statutes which have at least some concern with

environmental protection, either directly or indirectly. The plethora of such enactments has,

unfortunately, not resulted in preventing environmental degradation which, on the contrary, has

increased over the years.

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CASE STUDY ON VAPI, GUJARAT

Potentially Affected People: 71,000

Type of Pollutant: Chemicals and heavy metals
Source of Pollution: Industrial estates
The Problem:
The town of Vapi marks the southern end of India's "Golden Corridor", a 400 km belt of
industrial estates in the state of Gujarat which includes Nandesari, Ankleshwar, and Vapi. There
are over 50 industrial estates in the region including more than 1,000 individual industries that
extend over more than a thousand acres. Many of these are chemical manufacturing estates
producing petrochemicals, pesticides, pharmaceuticals, textiles, dyes, fertilizers, leather
products, paint, and chlor-alkali. The waste products discharged contain heavy metals, cyanides,
pesticides, complex aromatic compounds (such as polychlorinated biphenyls or PCBs), and other
toxics. Vapi and the Ankleshwar area were declared critically polluted by the Central
Pollution Control Board of India (CPCB) in 1994. This followed a survey that revealed that there
was no system in place to dispose of industrial waste at these estates. Down to Earth, an
environmental magazine based in India, conducted an analysis on the groundwater and found
exceedingly high levels of mercury, lead and zinc. Mercury in Vapis groundwater is reported to
be 96 times higher than WHO health standards. Effluents drain directly into the Damanganga
and Kolak Rivers; water downstream of the Kolak is now unable to support much biological life.
Active dumping is also reported in at least one industrial site. Air pollution results from
emissions due to the improper handling of chemicals by industries.
Local produce has been found to contain up to 60 times more heavy metals (copper, chromium,
cadmium, zinc, nickel, lead, iron) than non-contaminated produce in control groups. Heavy
metal analyses have revealed that both the effluents and sediments collected were contaminated
with cadmium, chromium, copper, lead, mercury, nickel and zinc. Sediment samples were found
to contain 17 organohalogen compounds, including chlorobenzenes and PCBs as well as a range
of other organic compounds including benzene derivatives and pesticides.

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Health Impacts:
Many residents have no choice but to drink contaminated well water as other clean water sources
are more than a mile away. The Indian Medical Association reported that most of the drinking
water supplies are contaminated, because of the absence of a proper system for disposing
industrial effluents. This has resulted in very high incidences of respiratory diseases, chemical
dermatitis, carcinoma, skin, lung and throat cancers. Women in the area report exceedingly high
incidences of spontaneous abortions, bleeding during pregnancy, abnormal fetuses, and
infertility. Childrens ailments include respiratory and skin diseases and retarded growth.

Finally, on February 16, 1995, the 11 villages filed a public interest petition in the Gujarat High
Court.5

5
article first appeared in Down To Earth, April 15, 2000

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CONCLUSION

The project has tried to highlight some possible ways to approach tort and environmental
protection. Environmental decision-making is dominated by regulation, and tort is dominated
by individual rights, interests and relationships. It is certainly fair to say that tort is only partially
and coincidentally green. But then, given the general dominance of economic frames of
thinking that is hardly unique to tort. There may well be advantages in exploring torts positive
contribution to environmental decision-making. And it is certainly important to try to improve
our understanding of both torts contribution to environmental decision-making and
environmental regulations contribution to tort.

existence of environmental policy, the constitutional mandate of environment protection, flurry

of legislations and administrative infrastructure of implementation, the problem of environmental
pollution still remains a great cause of concern in our country. The future must be seen as a great
challenge to be overcome by society as a whole, by evolving new means and mechanisms in
tackling complex problems arising out of rapid Industrial advancement. The new means and
mechanisms, as one proposed by us, will introduce the greatest possible transparency and
accountability in the functioning of the Government and modes and measures of enforcing laws
effectively in dealing with offences against environment which is the greatest wealth shared by
all citizens.

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REFERENCE

Atiyah PS, The Damages Lottery (Hart Publishing, 1997)

Cane P, The Anatomy of Tort Law (Hart Publishing, 1997)
Cane P, Are Environmental Harms Special? (2001) 13 Journal of Environmental Law 3
Raja A.V. and Xavier Francis, Economic Efficiency of Public Interest Litigations (PIL)
Ministry of Environment and Forests, Government of India, Policy Statement for
Abatement of Pollution, 18(3), 3, (1992).
Lecture : Environmental Justice in India, J.Supreme Court Cases, 7(8), (2002).
Shastri S.C., Environmental Law in India, Eastern Book Company, Lucknow,23 , 339,
(2005).
Sinha S.B. and Bhandari M.C., 186th Law Commission Report on Proposal to Constitute
Enviromental Courts cited from www. law commissionofindia.nic.in (2004).

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