Transboundary Pollution and Law of Crimes and Enviornment | Environmental Law - CLAT PG PDF Download

Basel Convention on Trans-boundary Pollution

In the late 1980s, rising environmental awareness and stricter regulations in industrialized nations led to increased public opposition to hazardous waste disposal, known as the NIMBY (Not In My Back Yard) syndrome. 
This resulted in escalating disposal costs, prompting some operators to seek cheaper disposal options in Eastern Europe and developing countries where environmental awareness and regulations were less stringent. In response to this issue, the Basel Convention was negotiated to combat the "toxic trade" and entered into force in 1992.

Objective

• The primary goal of the Basel Convention is to safeguard human health and the environment from the harmful effects of hazardous wastes.
• It applies to a wide range of wastes classified as "hazardous" based on their origin, composition, and characteristics, as well as certain types of "other wastes," such as household waste and incinerator ash.

Aims and Provisions
The Convention's provisions focus on:

• Reducing hazardous waste generation and promoting environmentally sound management of hazardous wastes, regardless of disposal location.
• Restricting trans-boundary movements of hazardous wastes, except when aligned with environmentally sound management principles.
• Establishing a regulatory system for permissible trans-boundary movements.
• The first aim is addressed through general provisions requiring states to adhere to principles of environmentally sound waste management (Article 4).
• Prohibitions, such as banning hazardous waste exports to Antarctica, non-party states, or parties with import bans, support the second aim (Article 4).
• Parties can enter into bilateral or multilateral hazardous waste management agreements, provided they are "no less environmentally sound" than the Basel Convention (Article 11).
• Trans-boundary movements, when not prohibited, must represent environmentally sound solutions and adhere to management and non-discrimination principles.

The regulatory system, a cornerstone of the Basel Convention, is based on prior informed consent. It mandates that authorities in the exporting state notify authorities in the importing and transit states before an export occurs, requiring their written consent for the movement (Articles 6 and 7).
The Convention also emphasizes cooperation among parties, including information exchange and technical assistance, particularly to developing countries (Articles 10 and 13). The Secretariat facilitates this cooperation and addresses illegal transboundary movements of hazardous wastes by attributing responsibility to involved states and ensuring safe disposal (Articles 8 and 9).

Additionally, the Convention allows for the establishment of regional or sub-regional centers for training and technology transfers related to hazardous waste management and minimization, with 14 such centers established to address specific regional needs (Article 14).

Common Law and Environment

Remedies under Tort Law

Tort law is founded on the principle of using your property without causing harm to others. Although tort law does not directly address pollution control, rules for pollution control can be derived from certain aspects of the law. In India, most environmental pollution cases under tort fall into four main categories:

• Nuisance
• Trespass
• Negligence
• Strict Liability

Nuisance

• Nuisance refers to anything that annoys, harms, or offends someone. Under common law, nuisance involves unlawful interference with a person's rights over their land. For an interference to be actionable, the defendant's conduct must be unreasonable.
• Nuisance can be public or private in nature. It covers acts that interfere with comfort, health, or safety, such as smells, noise, fumes, gas, heat, smoke, germs, and vibrations. In private nuisance, the action is based on unreasonable and unnecessary inconvenience caused by the defendant's use of their land.
• An individual can have a private right of action in public nuisance if they suffer particular injury beyond what the rest of the public experiences, and this injury must be direct and substantial.
• A public nuisance is an unreasonable interference with a right common to the general public, affecting the reasonable comfort, convenience, health, safety, and quality of life of a group of people. Activities causing offensive smells, intolerable noises, dust, vibrations, or the collection of filth affecting health or habitability fall under public nuisance.

Case Laws

• In this case, the fumes from the defendant's manufacturing work damaged the plaintiff's trees and shrubs. The Court held that such damages, being an injury to property, gave rise to a cause of action. In cases of damage to property, any sensible injury is sufficient to support an action.

Dilaware Ltd.v Westminister City Council, (2001) UKHL 55

• In this case, the respondent owned a tree growing in the footpath of a highway. The roots of the tree caused cracks in the neighboring building. The transferee of the building, upon discovering the cracks, was entitled to recover reasonable remedial expenditure for the damage caused by the ongoing nuisance from the tree.

Ram Baj Singh v Babu Lal, AIR 1982

• In this case, a person installed a brick grinding machine in front of a medical practitioner's consulting chamber. The machine generated significant dust and noise, polluting the atmosphere and causing physical inconvenience to the practitioner and his patients. The Allahabad High Court ruled that this constituted private nuisance, causing injury, discomfort, or annoyance to a person.
• Exposure to excessive and dangerous noise levels constitutes noise pollution, also known as noise nuisance, and is subject to control under tort law. Citizens cannot exercise their constitutional freedoms in a manner that creates a nuisance and poses health risks to others.

Free Legal Aid cell v Govt. of NCT of Delhi, AIR 2001 Delhi 455

• In this case, a petition was filed on behalf of public activists in the public interest. The main concern was that the use of fireworks during festivals and marriages, as well as the indiscriminate use of loudspeakers, was causing physical and mental health hazards for adults and children. The Delhi High Court noted that the impact of noise on health had not received adequate judicial attention.
• Noise pollution, being a form of wrongful environmental contamination causing material injury to individuals' rights, is considered a pollutant. Noise, like other pollutants, contaminates the environment, causes nuisance, and affects individuals' health when it exceeds reasonable limits.

Lakshmipathy v State, ILR 1991 KAR 1334

• In this case, the petitioners opposed the establishment and operation of industries in a residential area, alleging violations of the Karnataka Town and Country Planning Act, 1961. The Karnataka High Court ordered the cessation of such industrial activities in the residential locality.
• The court directed the removal of encroachments on public lands and roads in the area and mandated the authorities to implement the order within sixty days. The petitioners were also awarded costs of Rs. 3000/- from the respondents.

Section 133 of Cr.P.C. Conditional order for removal of nuisance

• Whenever a District Magistrate, Sub-divisional Magistrate, or any other Executive Magistrate empowered by the State Government receives a report from a police officer or other information and, after taking evidence (if any), considers that any unlawful obstruction or nuisance should be removed from a public place or any way, river, or channel used by the public, or that the conduct of any trade or occupation is harmful to the community's health or comfort, or that the construction or disposal of any building, tank, well, or tree poses a danger, they may issue a conditional order.
• The conditional order may require the person causing the obstruction or nuisance, or carrying on the trade or occupation, or owning a building, tank, well, or tree, within a specified time to remove the obstruction or nuisance, desist from carrying on the trade or occupation, or remove or regulate the keeping of goods or merchandise.
• Any order made under this section cannot be questioned in any Civil Court. A "public place" includes state-owned property, camping grounds, and unoccupied grounds for sanitary or recreational purposes.

Executive magistrate should diligently exercise powers under S. 133.

• Commissioner shall satisfy himself about immediate need to issue orders to abate nuisance.
• This legal tool shall not be abused to fulfill personal agendas.

Conflicting Laws and Jurisdiction

• Whether there is implied repeal of S. 133 of Cr.P.C. by provisions of Water Act and Air Act.
• Though Water Act and Air Act are later in time and are special legislations, there is no direct conflict between the said provisions.
• Hence there is no implied repeal of S. 133 of Cr.P.C.
• If implied repeal is accepted it would make no good as Pollution Control are located in capitals and there is procedural delays with regard to special legislations whereas relief under S. 133 is handy and provides quick remedy.

Environmental Crime and the Indian Penal Code

Environmental crime involves violating laws aimed at protecting the environment and human health. These laws regulate air and water quality and govern the disposal of waste and hazardous materials. Both individuals and corporations can be found guilty of such crimes.

Various Provisions of IPC Protecting Environment

• The Indian Penal Code (IPC), 1860, categorizes various acts affecting the environment as offenses. It can be used to prevent atmospheric pollution. For instance, no trade, business, or manufacturing process that produces noxious and offensive odors can be conducted in residential areas.
• Chapter XIV of the IPC, encompassing Sections 268 to 290, addresses offenses impacting public health, safety, convenience, decency, and morals. The aim is to protect public health and safety by penalizing acts that pollute the environment or endanger people's lives.

Public Nuisance

• Section 268 & 290: Defines public nuisance and prescribes a punishment of up to Rs. 200 for causing public nuisance. Any act or omission causing injury to another by polluting the environment falls under this provision.
• Section 269 & 270: These sections deal with spreading infections dangerous to life. Punishments range from imprisonment of up to six months to six years, or fines, or both.
• Section 277: Punishes voluntary fouling of public water sources, making them less suitable for their intended use, with imprisonment for three months, a fine of five hundred rupees, or both.
• Section 278: Punishes voluntary pollution of the atmosphere, making it harmful to health, with a fine of up to Rs. 500.
• Section 284: Punishes rash or negligent acts involving poisonous substances endangering human life with imprisonment for six months, a fine of up to Rs. 1000, or both.
• Section 285: Punishes rash or negligent acts with fire or combustible materials endangering human life with imprisonment for six months, a fine of up to Rs. 10000, or both.
• Section 286: Punishes rash or negligent acts involving explosive substances endangering human life with imprisonment for six months, a fine of up to Rs. 10000, or both.
• Sections 426, 430, 432: Address general pollution caused by mischief, making it punishable under IPC.

Mens Rea or Strict Liability

• Mens Rea: In some environmental offenses, proving the defendant's mens rea (guilty mind) is necessary for a conviction. However, in many cases where the charge is simply about having "caused" the prohibited act, liability is strict.
• Strict Liability: Strict liability offenses make securing a conviction easier as only proof of the defendant's act is required, without needing to prove their mental state. However, the mental state may still be considered in prosecution decisions or sentencing.
• Discretion in Enforcement: Enforcement agencies' discretion is important in addressing potential harshness in strict liability cases, as empirical research suggests.

Non-effective sanctions

• There is a strong consensus in environmental law circles that fines for environmental offenses are generally too low.
• Insignificant fines do not deter further environmental crimes and do not reflect the seriousness of the offense.
• Environmental crime is often not regarded as a 'real' crime, leading to low conviction rates.
• As a result, environmental crimes persist, and companies that frequently pollute view fines as a manageable cost of production, easily passed on to consumers.

Conclusion

• The concepts outlined in the third unit emphasize the importance of environmental protection.
• From International Conventions to sustainable development and criminal law aspects related to the environment, there is a clear mandate for everyone to consciously enjoy their right to a healthy environment and to avoid causing harm to the planet.