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How Enforcement Of Law Of Torts Can Save Environmental Degradation

Environmental degradation or ecological despoliation is significantly known to be an umbrella concept. It covers a wide variety of issues like deterioration of environment through depletion of natural resources, pollution which in turn results in loss of biodiversity, extinction of animals, deforestation, desertification, global warming etc. The foremost cause of environmental decay can be narrowed down to two things-one being human negligence and other being human greed.

These two things are further coupled with the adverse effects of industrialization, urbanization, modernization, population and economic growth along with increase in energy consumption and agricultural intensification. Furthermore the lack of environmental value has made us to over-exploit the free natural resources - which are definitely not free and unlimited. Owing to all these reasons, Environmental degradation has been listed as one of the ten threats officially cautioned by the High-level Panel on Threats, Challenges and Change of the United Nations.

In India, due to increased national concern for environmental conservation, authorities have over the last couple of decades started taking steps to increase the scope and impact of environmental laws, local government laws, criminal laws, tort laws and other protection schemes.

Tort Law and Environment

In simple language one can say that tort implies a civil wrong. It is to be understood here that the law of torts whose main objective is to rectify a private wrong by providing compensation or damages, is it potential enough to be employed in the prevention of environmental degradation? According to Stephan Shavell[1] a renowned professor and economist:
Risk control measures and compensation goals are to be met separately but the case is different in torts where both can be harnessed simultaneously on equal footing and while considering environmental concerns. Tort liability for harm rests on risk creators. It is in the link between compensation and risk-control that the distinctiveness of tort law resides. Tort law is two sided, looking both to harm and to the compensation of harm.

Because of this unique bilateral structure the tort law is said to be best suited in the environmental law context.Now on analyzing the law of torts it is seen that the majority of the cases relating to environmental harm falls under the five specific kinds of torts. They are nuisance, negligence, trespass, strict liability and absolute liability.

Nuisance:

In tort law nuisance is defined as the unlawful interference with the plaintiff's use or enjoyment of land. It can also be explained as something that annoys, hurts or offends the comfort, health and safety of the plaintiff[2]. Nuisance can be used as a strong weapon against environmental pollution including pollution to water, land and air which is caused due to escape of smoke, dust, fumes, gas, noise, heat, vibrations from mills and factories.

Nuisance is of two kinds: the first is public nuisance, which is mostly a crime but can also be used as tort if special damages can be proved[3] and the second being private nuisance which is substantial and unreasonable interference with the use and enjoyment of one's private land.

In Ram Baj Singh v Babu Lal[4] the Allahabad High Court held that the generation of noise and dust from the brick grinding machine located opposite to a doctor's chamber amounted to private nuisance because it had caused inconvenience, physical discomfort and annoyance to the medical practitioner and his patients. Exposure of unwilling persons to dangerous and disastrous levels of noise amounts to noise pollution or noise nuisance and it comes under the purview of law of torts.

The main drawback in using the tort of nuisance as a remedy for preventing environmental damage is the fact of the unreasonableness of the defendant's conduct which is often difficult to prove and the plaintiff's lack of standing to sue. However once proved nuisance is quite an easy way to protect the environment from polluters.

Negligence:

Tort law defines negligence as the failure to exercise the normal duty of care that a reasonably prudent man would exercise in like circumstances. In order to bring an action of negligence, the plaintiff must show that:
  • The defendant was under a duty to take reasonable care to avoid the damage complained of;
  • There was a breach of duty by the defendant;
  • It was this breach of duty by the defendant that resulted in some loss or damage to the plaintiff.

Generally causal relationship must be shown by the plaintiff between the negligence of the defendant and the injury caused to the plaintiff. But it was decided in Greherend Corporation v. Blackely (1958) causal relationship between the negligent act and the injury suffered is not necessary to be proved by the plaintiff when a deadly pollution like carbon monoxide is discharged in the air admittedly under the defendant's exclusive control.

A prominent difficulty faced in cases of negligence is the ability to prove the connection between the acts of negligence by the person and the damage caused to the plaintiff. When the pollutant is highly toxic like methyl-iso-cyanate as in the Bhopal Gas Leak case, the impact and the harm caused is easier to prove specifically because the pollutant acts fast and is widespread over a same area. But in most environmental situations it becomes harder specifically because some contaminants take time to have an effect on their surroundings because of being slow poisons. It is also hard because during that period of time, the same area could have faced a various number of other contaminants.

Trespass:

Trespass requires intentional invasion of the plaintiff's property by means of a tangible or a non-tangible object. An example of trespass in an environmental situation might be if a person deliberately sprays pesticides or dumps waste on another's property or continuously discharges waste in the river. However, a trespass action will not be successful unless the interference is deliberate.

For example
if pesticides being used on A's property accidentally blow onto B's land, it is unlikely that this would constitute trespass.

In the case of Martin v. Reynolds Metal Company (1959 ) the court modified the original definition of trespass to bring industrial pollution within the ambit of liability. The case defined trespass as the invasion of land owners right to exclusive possession, whether by visible or invisible substance.

Strict Liability

The concept of strict liability first came upon in the United Kingdom when many accidents took place during the Industrial revolution, which were going un-redressed and the courts were paralyzed in penalising the people who were committing the crimes. The rule of strict liability was evolved while deciding the case of Rylands v. Fletcher (1868).

The rule has the following components which need to be essentially fulfilled before it is applied:

  1. A person (defendant) must bring and collect material on his own land;
  2. The thing that is brought onto the land must be likely to do mischief if it escapes;
  3. The thing stored must be non-natural;
  4. Escape of such thing from the defendant's land must cause some damage to the plaintiff;

This sort of liability has only a few exceptions

  1. An act of God
  2. An act of a third party (sabotage)
  3. Plaintiff's prior consent is taken by the defendant before such thing is stored.
  4. Plaintiff's own mistake
  5. Statutory authority
The doctrine of strict liability is also known as the rule of no-fault liability as it considers liability without fault on the part of the defendant and particularly this aspect of the doctrine has significant relevance in the matters related to environmental pollution. It is related to variety of things like water, fire, gas, explosions, electricity, oil, noxious fumes, colliery spoil, poisonous vegetation etc.

Absolute Liability

The Indian rule of absolute liability was evolved in M. C. Mehta v. Union of India (AIR 1987) which is popularly known as the Oleum gas leakage case. There was leakage of Oleum gas from one of the units of Shriram Food and Fertilizer Industry on December 4, 1985 which resulted in serious consequences. The Supreme Court could have avoided a decision on the applications by asking parties to approach the subordinate court by filing suits for compensation. Instead, the Court proceeded to formulate the principle of absolute liability.

The principle of absolute liability states that when an enterprise is engaged in any hazardous and inherently dangerous activity and due to its operation severe harm is caused then the enterprise will be strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions of the rule of strict liability.

The court also held that compensation must be correlated to the magnitude and capacity of the enterprise. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it.

The Bhopal Gas leak tragedy in which 40 tons of methyl isocyanate (MIC) escaped into the atmosphere and caused death of 3,500 people and injured nearly 2,00,000 permanently ,occurred two years before the Mehta judgment but it was decided after Mehta case by applying the new rule of absolute liability. Separate settlements were decided for the fatal cases, disability cases, temporary or partial disabilities and other problems.

It is important to mention here that in the MC Mehta v. Kamal Nath & Ors[5] the court put pollution in the category of civil wrong and stated that polluting the environment is a tort committed against the whole community. The Court was also of the view that “the person who is responsible for damaging the ecology and environment may be forced to pay exemplary damages also so that such award may prove as an example for others to prevent them from repeating the same mistake again”.

Of all the torts mentioned above, the principle of liability has been the most effective in making polluters take responsibility for their actions. With the birth of Public Interest Litigation, liability has become a primary aid to those who are suffering due to increase in industrial pollution.

However, apart from these due to the widespread increase in judicial activism some basic proactive concepts and environment principles like Sustainable Development, Polluter pays Principle, Precautionary Principle and Life-Cycle Assessment are also followed to control, prevent and punish the wrongdoers.

Conclusion:
The environment and Earth's biome is not anyone's personal property but if we want to gift our future generation a better life we surely have to change the paradigm of our interaction with the environment. The nature doesn't owe us anything so we must understand that it is not our job to control and manage it either but can surely protect and prevent it from further decay. In order to reduce any future impacts on the environment city planners, industry developers and resource managers must consider the long term effects of development on the environment. With sound planning, public awareness and community participation, future environmental degradation can be prevented.

Nevertheless while evaluating the potential of tort law in matters related to environment protection as a compensation and risk control mechanism it is important to understand how interpretation of tortious liability rules is done by the Indian judiciary in cases related to environment protection. Although we may find that there is a dearth of environmental torts litigation in India, but the recent developments in the past three decades have been found to be quite satisfactory.

After combining tort law with rights under the Constitution and extending its enforcement under Article 32, it is now easier for the general public to get a remedy than compared to the scenario before MC Mehta. Similarly, with the emergence of bodies like National Green Tribunal (NGT) and Forest Survey of India, keeping a check on the issues of environmental harms and degradation has become very efficient and works of these bodies are also helpful in increasing the awareness of the general public. Overall, the effectiveness of remedy with the advent of Deep-Pocket theory had revolutionized environment related to tort litigation in India.

End-Notes:
  1. Stephan Shavell, Economic Analysis Of Accidental Law 279 (Harvard University Press, 1987)
  2. Durga Prasad v. State, AIR 1962 Raj. 92
  3. Ryan v. Victoria (City) (1999)
  4. AIR 1982 All 285
  5. (1997)1 SCC 388

References:
  • http://notesforfree.com/2018/01/30/tort-law-remedies-environment-law-notes/
  • http://docs.manupatra.in/newsline/articles/Upload/1B0960FF-9DFE-4A43-917D-065ED5E6EE03.pdf
  • https://blog.ipleaders.in/environmental-pollution-as-a-tort-overview-and-analysis/
  • Dr. R.K. Bangia's Law of torts

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