LAW COMMISSION OF INDIA ONE HUNDRED EIGHTY SIXTH REPORT ON PROPOSAL TO CONSTITUTE ENVIRONMENT COURTS SEPTEMBER, 2003 2 JUSTICE M. JAGANNADHA RAO LAW COMMISSION OF INDIA Chairman SHASTRI BHAWAN NEW DELHI-110001 TEL. : 3384475 FAX: 3073864,3388870 Residence: 1, JANPATH NEW DELHI-110011 TEL. : 3019465 DO No.6(3)84/2003-LC(LS) September 23, 2003 Dear Sri Arun Jaitley ji, I have great pleasure in forwarding the 186th Report of the Law Commission on 'Proposal to constitute Environment Courts'. Pursuant to the observations of the Supreme Court of India in four judgments, namely, M.C. Mehta vs. Union of India, 1986 (2) SCC 176; Indian Council for Environmental-Legal Action Vs Union of India: 1996(3)SCC 212; A.P. Pollution Control Board Vs M.V. Nayudu:1999(2)SCC 718 and A.P. Pollution Control Board Vs M.V. Nayudu II: 2001(2)SCC62, the Law Commission has undertaken a detailed study of the subject of "Environmental Courts". In the 3rd of the above judgments, reference was made to the idea of a "multi-faceted" Environmental Court with judicial and technical/scientific inputs as formulated by Lord Woolf in England recently and to Environmental Court legislations as they exist in Australia, New Zealand and other countries. Having regard to the complex issues of fact of science and technology which arise in environmental litigation and in particular in the elimination of pollution in air and water, it is now recognized in several countries that the Courts must not only consist of Judicial Members but must also have a statutory panel of members comprising Technical or Scientific experts. We may in this context refer to the recent Report of Dr. Malcolm Grant in UK(2000) and also to the Report of the Royal Commission (23rd Report , March 2002). With Judicial and Technical inputs on the Bench, the Environmental Courts in Australia and New Zealand function as appellate Courts against orders passed under the corresponding Water Acts, Air Acts and Noise Acts and various Environment related Acts and also have original jurisdiction. They have all the powers of a Civil Court. Some have even powers of a Criminal Court. The Commission has, therefore, prepared a Report (copy enclosed) containing Chapters I to X reviewing the Laws on "Environment Courts" in each State (or for group of States) and suggested in Chapters IX and X that these Courts must be established to reduce the pressure and burden on the High Courts and Supreme Court. These Courts will be Courts of fact and law, exercising all powers of a civil court in its original jurisdiction. They will also have appellate judicial powers against orders passed by the concerned authorities under the Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981 and The Environment (Protection) Act, 1986 with an enabling provision that the Central Government may notify these Courts as appellate courts under other environment related Acts as well. Such a law can be made under Art. 253 of the Constitution of India, read with Entry 13A of List I of Schedule VII to give effect to decisions taken in Stockholm Conference of 1972 and Rio Conference of 1992. The proposed Environment Courts at the State level will, in the Commission's view, be accessible to citizens in each State. 3 It has been, however, reported in the press recently that Government has taken a decision that there will not only be regional authorities constituted under Section 3 of the Environment (Protection) Act, 1986 (for which there can be no objection) but that there will be a single appellate body (consisting inter alia, a Supreme Court Judge) at Delhi. It is also reported that the Union Cabinet has approved this proposal. The Commission is of the view that if there is a single appellate authority as proposed, at Delhi, it will be almost inaccessible to the citizens of the country in remote parts and serious issues relating to environment will remain un-addressed since there will not be an effective right of access to Courts. The appeal, it will be noticed, is the first opportunity for affected citizens to question decisions taken by the authorities. Further, in the proposal of the Government, there is no provision for technical/scientific inputs in the centralized Appellate Authority. Moreover, the proposal does not make the said Court at Delhi an appellate authority under the Water Act or Air Act but it remains an appellate authority only for purposes of the Environment (Protection) Act, 1986. As at present, the appellate authorities under the Water Act and Air Act are government officials and there are neither Judges nor Technical personnel involved in the decision making process under those Acts and orders passed thereunder are being questioned only under Art. 226 or Art. 32. There is no reason why the appeals under these two Acts should not go before a Judicial body within each State. The scheme proposed by the Law Commission in this Report, on the other hand, is very comprehensive. The Judicial body will be an Environment Court at State Level consisting of sitting/retired judges or members of the Bar with more than 20 years standing, assisted by a statutory panel of experts in each State. It will be a Court of original jurisdiction on all environmental issues and also an appellate authority under all the three Acts, viz., Water Act, Air Act and Environment (Protection) Act, 1986 and will reduce the burden of High Courts/Supreme Court. There will lie a further statutory appeal direct to the Supreme Court against the judgment of the proposed Environment Court. In our view, this scheme is preferable to the Government's proposal of a single appellate Court at Delhi, which will be beyond the reach of affected parties. We, therefore, request you to kindly take up the matter with the Ministry of Environment for further discussion at your earliest, before any law is passed in this behalf. With regards Yours sincerely, (M. Jagannadha Rao) Shri Arun Jaitley Union Minister for Law and Justice Government of India NEW DELHI. 4 INDEX Chapter Pages I Introductory 1-6 II Uncertainty of Science and Problems of Environment Courts 7-18 III. The Constitutional Mandate and Survey of Supreme Court's Judgments on Environmental Issues 19-49 IV Environmental Courts in other countries 50-86 V. Environmental Courts or Appellate Environmental bodies in India as at present 87-95 VI Two other Statutory Environmental Tribunals & Defects therein 96-100 VII Can a law made by Parliament under Art 252 (Like the Water (P&CP) Act, 1974), be amended by Parliament under a law made under Art. 253? What is the purpose of Art. 247? 101-116 VIII Environmental Courts to follow certain Fundamental Principles 117-135 IX Proposals for Environmental Courts in India 136-158 X Recommendations 159-164 ********
5 Chapter I INTRODUCTORY In the Judgment of the Supreme Court of India in A.P. Pollution Control Board vs. M.V. Nayudu: 1999(2) SCC 718, the Court referred to the need for establishing Environmental Courts which would have the benefit of expert advice from environmental scientists/technically qualified persons, as part of the judicial process, after an elaborate discussion of the views of jurists in various countries. In the subsequent follow-up judgment in A.P. Pollution Control Board vs. M.V. Nayudu: 2001(2) SCC 62, the Supreme Court, referred to the serious differences in the constitution of appellate authorities under plenary as well as delegated legislation (the reference here is to the appellate authorities constituted under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981), and pointed out that except in one State where the appellate authority was manned by a retired High Court Judge, in other States they were manned only by bureaucrats. These appellate authorities were not having either judicial or environment back-up on the Bench. The Supreme Court opined that the Law Commission could therefore examine the disparities in the constitution of these quasi- judicial bodies and suggest a new scheme so that there could be uniformity in the structure of the quasi- judicial bodies which supervise the orders passed by administrative or public authorities, including orders of the Government. For instance, these 6 appellate bodies can examine the correctness of the decision of a pollution control board to grant or refuse a no-objection certificate to an industry in terms of the Water Act. Environmental Courts were advocated in two earlier judgments also. One was M.C. Mehta vs. Union of India: 1986(2) SCC 176 (at page 202) where the Supreme Court said that in as much as environment cases involve assessment of scientific data, it was desirable to set up environment courts on a regional basis with a professional Judge and two experts, keeping in view the expertise required for such adjudication. There should be an appeal to the Supreme Court from the decision of the environment court. The other judgment was Indian Council for Enviro- Legal Action vs. Union of India, 1996(3) SCC 212, in which the Supreme Court observed (see p. 252) that Environmental Courts having civil and criminal jurisdiction must be established to deal with the environmental issues in a speedy manner.
We may also state that the National Environmental Appellate Authority constituted under the National Environmental Appellate Authority Act, 1997, for the limited purpose of providing a forum to review the administrative decisions on Environment Impact Assessment, had very little work. It appears that since the year 2000, no Judicial Member has been appointed. So far as the National Environmental Tribunal Act, 1995 is concerned, the legislation has yet to be notified despite the expiry of eight years. Since it was enacted by Parliament, the Tribunal under the Act is yet to be constituted. Thus, these two Tribunals are non-functional and remain only on paper.
7In view of the observations of the Supreme Court in the above said judgments, and having regard to the inadequacies of the existing appellate authorities, - which neither contain judges nor have the assistance of experts
- and their limited jurisdiction, - the Commission proposed to review the position with a view to bring uniformity in the constitution of these bodies and the scope of their jurisdiction. These bodies must, in our view, be called 'Environmental Courts' and should consist of judicial members assisted by technical experts. Our scheme as proposed in Chapter IX is that there should be an Environmental Court in each State (or in some cases for one or more States) which should be able to take on the burden of the environmental cases from the High Courts and at the same time decide these cases with the help of experts. An Environmental Court at the level of each State is proposed so as to be accessible to the litigants in each State. The said Court must have appellate jurisdiction over the authorities under Water Act, 1974, Air Act, 1981 and the Environment (Protection) Act, 1986. It is proposed that the Environment Court should exercise original as well as appellate jurisdiction. It should be able to grant all orders which a Civil Court could grant, including the grant of 'compensation' as visualized by the National Environmental Tribunal Act, 1995.
The alternative suggestion for having a single appellate Court at Delhi over the statutory authorities has not appealed to us inasmuch as practically no person or groups of persons residing in any local area who are aggrieved by orders of these authorities will be able to come all the way to Delhi to raise their grievances. If the Court is a single Court in Delhi, it will not be accessible and several environmental issues will remain stagnant, may not be pursued and will remain unadjudicated by a Court of law.
8Access to justice, particularly, in matters relating to environment, is an essential facet of Article 21 of the Constitution of India. The proposals for constitution of Environmental Court is dealt with in detail in Chapter IX.
While dealing with this subject of Environmental Courts, which is of great importance for the millions of our country, we have to keep in mind several aspects such as the following:
(a) The uncertainties of scientific conclusions and the need to provide, not only expert advice from the Bar but also a system of independent expert advice to the Bench itself.
(b) The present inadequacy of the knowledge of Judges on the scientific and technical aspects of environmental issues, such as, whether the levels of pollution in a local area are within permissible limits or whether higher standards of permissible limits of pollution require to be set up.
(c) The need to maintain a proper balance between sustainable development and control/regulation of pollution by industries.
(d) The need to strike a balance between closure of polluting industries and reducing or avoiding unemployment or loss of livelihood.
(e) The need to make a final appellate view at the level of each State on decisions regarding 'environmental impact assessment'.
(f) The need to develop a jurisprudence in this branch of law which is also in accord with scientific, technological developments and international treaties, conventions or decisions.
9(g) To achieve the objectives of Art. 21, 47, 48A and 51A(g) of the Constitution of India by means of a fair, fast and satisfactory judicial procedure.
In this context, several important questions arise for consideration:
(a) In as much as the proposed changes in law, in some respects, (like water) relate to entries in List II of the VII Schedule to the Constitution, can Parliament enact a law under Art 253 of the Constitution for constituting Environmental Courts both in the States as well as the Centre, without the need for legislation by States or even resolutions of State legislatures under Art. 252?
(b) Should there be one Environment Court in each State?
(c) Should these Courts oust the jurisdiction of the High Courts/Supreme Court or should it be left to the discretion of these superior Courts to direct parties to first exhaust (seek) the effective alternative remedy before the proposed Environmental Courts? Should the jurisdiction of normal civil and criminal courts be totally ousted?
(d) Is there need for a further Environmental Appellate Court at Delhi exercising jurisdiction over the State Environmental Courts or should there be a direct appeal to the Supreme Court from the State Environmental Courts?
(e) What should be the nature of the jurisdiction of the State Environmental Courts, - should it be only appellate jurisdiction against orders of administrative or public authorities and 10 government but also original jurisdiction, so as to reduce the burden of PILs in the High Courts?
(f) What should be the composition of the Courts and qualification of the Members?
(g) What should be the procedure of these Environmental Courts?
(h) Should public interest or class actions cases be allowed before the these Courts?
(i) What relief these Courts should be able to grant - ad interim, final, injunctions (permanent and mandatory), appointment of receivers, grant of compensation/damages etc.?
(j) Should they exercise civil as well as criminal jurisdiction?
(k) What is the mode of execution of the orders? (l) Should the Court have power to punish wilful disobedience of its orders by exercising power of contempt of Court? (m) Should the National Environment Tribunal Act, 1995 and the
National Environment Appellate Authority Act, 1997 be repealed and powers and jurisdiction of the tribunals thereunder be vested in the proposed State Environmental Courts?
These and various other aspects concerning Environmental Courts are proposed to be discussed in the following Chapters.
11Chapter II UNCERTAINTY OF SCIENCE AND PROBLEMS OF ENVIRONMENTAL COURTS While the advances in science and technology in the last few decades have been extraordinary, the fact remains that in certain areas concerning environment, where the data play a crucial role, results of experiments conducted by scientific institutions have remained tentative. The results are accurate in proportion to the accuracy of data and to the extent that experiment by use of technology has been able to eliminate all chances of inaccurate conclusions. In a recent book, it is stated:
"Faced with the growing complexity and globality of ecological phenomenon, science has ceased to be omnipotent. Strictly speaking, it is no longer possible to have so-called technical standards that express the facts in a definitive manner. Complete scientific certainty is the exception, rather than the norm. As pointed out in Hans Jones' 'The Imperative of Responsibility', a paradigm of uncertainty has taken the place of certainty; "whereas Descartes recommended that we hold as false everything that can be questioned, faced with planetary risks, it would, on the contrary be advisable to treat doubt as a possible certainty and thus as a fundamentally positive element in any decision. ....no longer omniscient, science will not have the power categorically to express single truth....... Henceforth, however, when scientists are committed, they will inform the 12 decision-maker that their knowledge is incomplete and express doubts and differences, even ignorance.....The disappearance of the alliance between knowledge and power will shatter the Weberian myth of the expert providing indisputable knowledge to a politician who takes decisions that reflect the values he defends."
(Environmental Principles by Nicolas de Sadeleer, Ch.3, 'Precautionary Principle', p. 177-178, Oxford University Press, 2002) The U.S. Supreme Court, in its landmark judgment in Daubert vs. Merrel Dow Pharmaceuticals Inc: (1993) 113 S.ct. 2786 while referring to the different goals of science and law in the ascertainment of truth observed as follows:
"...there are important differences between the quest for truth in the court-room and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly."
On the same lines, Mr. Brian Wyne states in his article 'Uncertainty and Environmental hearing: (Vol.2, Global Envtl. Change p 111)(1992) as follows:
"Uncertainty, resulting from inadequate data, ignorance and indeterminacy, is an inherent part of science."
Uncertainty becomes a problem when scientific knowledge is institutionalized in policy-making or used as a basis for decision-making by 13 agencies and Courts. Scientists may refine, modify or discard variables or models when more information is available: however, agencies and courts must make choices based on existing scientific knowledge. In addition, agency decision-making evidence is generally presented in a scientific form that cannot be easily tested. Therefore, inadequacies in the record due to uncertainty or insufficient knowledge may not be properly considered. (Charmian Barton: The Status of the Precautionary Principle in Australia: (Vol 22, Harvard Environmental Law Rev. p 509 at pp 510-511 (1998).
The reason for scientific inaccuracies can be summarized as follows:
'The inadequacies of science result from identification of adverse effects of a hazard and then working backwards to find the causes. Secondly, clinical tests are performed, particularly where toxins are involved, on animals and not on humans,- that is to say, are based on animal studies or short term cell-testing. Thirdly, conclusions based on epidemiological studies are flawed by the scientists' inability to control or even accurately assess past exposure of the subjects. Moreover, these studies do not permit the scientists to isolate the effects of the substance of concern. The latency period of many carcinogens and the toxins exacerbates problems of later interpretation. The timing between exposure and observable effect creates intolerable delays before regulation occurs' (see Alyson C. Flournay: Scientific Uncertainty in Protective Environmental Decision-Making' (Vol 15, 1991. Harv. Environmental Law Rev. p 327 at pp 333-335).14
From the above survey of views, it is quite clear that the opinions as to science which may be placed before the Court keep the Judge always guessing whether to accept the fears expressed by an affected party or to accept the assurances given by a polluter.
In an earlier case, namely, Vincent vs. Union of India: (AIR 1987 SC
990), a direction was sought in public interest, for banning import, manufacture, sale and distribution of certain drugs as recommended by the Drugs Consultative Committee. In this case the Supreme Court did not think of referring the matter to an independent scientific body but felt compelled to accept the Committee's Report. It said:
"Having regard to the magnitude, complexity and technical nature of the enquiry involved in the matter and keeping in view the far- reaching implications of the total ban of certain medicines for which the petitioner has prayed, we must at the outset clearly indicate that a judicial proceeding of the nature initiated is not an appropriate one for determination of such matters."
The Court felt that once the experts had approved or disapproved the drugs, the Court will not go into the correctness of their decision.
But, in a latter case, the Supreme Court made an effort to refer the issues to an independent committee of experts. In Dr. Shivrao vs. Union of India: AIR 1988 SC 953, 7500 cartons (200 MT) of Irish Butter were imported into India under the EEC Grants-in-Aid for Operation Flood Programme and supplied to Greater Bombay. The use of the imported 15 butter was challenged on the ground that the butter was contaminated by nuclear fallout. The Bombay High Court dismissed the writ petition relying on the report of the Atomic Energy Regulatory Board, a statutory body. The Report however referred to 'permissible limits'. Fortunately, when the matter came to the Supreme Court, the Court 'thought it desirable' to appoint a committee of three experts (1) Prof. M.G.K. Menon, (2) Dr. P.K. Iyengar and (3) G.V.K. Rao to go into the correctness of the so called 'permissible limits' and to give its report on the following question:
"Whether milk and dairy products and other food products containing man-made radio-nuclides within permissible levels by the Atomic Energy Regulatory Board on 27th August, 1987, are safe and /or, harmless for human consumption."
The Committee of Experts gave a Report stating that the 'permissible limits' laid down by the Atomic Energy Regulatory Board were arrived at after due consideration of 'ICRP limits for the General Population', that the said Board had, in fact, allowed a further safety margin and that the levels fixed were 'safe and harmless'. The Court accepted the Report of Experts and confirmed the dismissal of the writ petition.
In like manner, in A.P. Pollution Control Board vs. M.V. Nayudu 1999(2) SCC 718, the Court proceeded to have the claims of the party tested by experts. There the question was whether the industry was a hazardous one and whether, in case it became operational, the chemical ingredients produced would sooner or later percolate into the substratum of the earth, get mixed up with the underground waters which flow into huge lakes 16 which are the main sources of drinking water to two metro cities. The issue was whether the oil derivatives such as hydrogenated castor oil, 12- hydroxystearic acid, dehydrated castor oil, methylated 12-HAS, DCO, fatty acids and by-products like glycerine, spent bleaching earth, carbon and spent nickel catalyst would enter the underground water streams flowing into the water lakes. Nickel, which was part of the residue, it was common ground, would be poisonous, if it percolated into the lakes. The industry filed a report of an expert which was accepted by the appellate authority constituted under sec. 28 of the Water Act, 1974 manned by a retired High Court Judge. The learned Judge, basing his decision on the opinion of a single scientist which was produced by the industry, came to the conclusion that if the industry became operational, it would not pose any hazard to the drinking water. This decision was affirmed by the High Court in writ jurisdiction under Art 226 of the Constitution of India. The High Court too simply went by the opinion of the expert scientist which was produced by the industry. But the Supreme Court felt that the opinion of the scientist was not tested or scrutinized by any expert body and required it to be thoroughly examined. The Supreme Court sought expert advice from the National Environmental Appellate Authority (NEAA), which consisted of a retired Judge of the Supreme Court and other experts. The NEAA was permitted to take evidence and obtain technical help from other scientific institutions.
The NEAA visited the site, took oral evidence, examined various technical aspects and gave an elaborate report, containing vast scientific data, as to why the industry should not be permitted to operate. It also consulted the Central Ground Water Board. The NEAA Report went 17 against the industry. When the matter again came before Court, the industry relied upon an earlier order of the A.P. Pollution Control Board that the industry could be permitted to function if certain safeguards were complied with. The industry sought a further opportunity on this limited contention. The Court then referred the matter to the University Department of Chemical Technology, Bombay, to be assisted by the National Geophysical Research Institute, Hyderabad (NGRI). This was done. The reports of these institutions contained an exhaustive detailed discussion of the scientific data which they freshly procured. The NGRI which is the highest scientific body on geology examined the flow of the underground water streams, and its final conclusion "from results of multi-parameter investigations (i.e. field investigations, hydrogeological studies, geophysical investigations, electric resistivity investigation, magnetic survey and tracer studies) carried out in the areas, is that hydraulic connectivity exists across the dolerite dyke located between Choudergudi and Sirsilmukhi facilitating the groundwater movement..... In the post-monsoon scenario, the groundwater table will go up and thereby may result in more groundwater flow across the dyke."
It stated that there was sufficient scope for poisonous residual substitutes like nickel percolating underground and reaching the drinking water sources. On that basis, the Supreme Court set aside the judgment of the High Court and the order of the Authority given under sec. 28 of the Water Act and refused permission for the industry to operate. (A.P. Pollution Control Board vs. M.V. Nayudu: 2001(2) SCC 62). The case is a clear 18 example of the benefit of extensive scientific investigation. If this scientific investigation was not done, the life of millions of citizens in the two cities could have been endangered. The precautionary principle clearly applied here. Because the Appellate Authority and the High Court did not have the benefit of the opinion of any scientific bodies to test the correctness of the report of the single scientist whose report alone was there available to the appellate authority and the High Court, the decision went in favour of the Industry. But, as the Supreme Court had the benefit of the Reports of these institutions, it could arrive at a different conclusion.
As stated earlier, scientific conclusions are based on the 'data' and 'procedures' applied by the scientific institutions concerned. The conclusions are correct to the extent of the data available or to the extent of the efficacy of the procedure or technology adopted for analysis. With more data and by application of better scientific procedures, or better technology, a more accurate conclusions can always be arrived at.
Instead of leaving it to the discretion of the Courts to refer or not to refer scientific issues to independent experts, we propose to provide a statutory mechanism to provide scientific advice to the Court concerned.
Complex issues of science and technology arise in court proceedings concerning water and air pollution. For example, we have serious problems of cleansing our rivers, streams and lakes, and cleansing, disposal or recycling of waste and sewage, disposal of toxic waste, hospital waste, nuclear waste, radio active material, removal of the effect of detergents, waste-oils, dealing with genetically modified organisms, adverse effects of 19 pesticides, asbestos etc. A variety of industries like steel, textiles, leather pose different types of problems of pollution. Air pollution from industries and from traffic today is quite grave. Then we have problems of climatic changes, depletion of ozone etc. We have serious problems of noise both at the work place and in residential areas. There are no proper systems for Environment Impact Assessment. There are problems faced in the matter of protection of forests and wild life. The list of issues is unending.
Technical and scientific problems today arise in a variety of ways and at various stages before the Courts. Some questions arise at the stage of initial establishment of an industry. Other issues arise when the effluent- prevention/cleansing mechanisms or the pollution-prevention or pollution- reduction systems are installed by the industry. The industry would say that these safeguards are sufficient but the Pollution Control Boards may say that they are not sufficient. Even where both may agree that the safeguards are sufficient, members of the public may still find water pollution or air pollution unbearable to bear. Then the question would arise whether the running industry has to be closed or be allowed to continue with better safeguards. There would be need for short-term as well as long term remedies. The point here is that if the industry is closed, it may lead to unemployment of hundreds of employees. It may also result in loss of excise duty or sales tax to the Government. If the industry is to be shifted out, land elsewhere may have to be provided, though for a price. In many cases, the plant itself may have to be shifted. Enormous costs will be involved. If the polluting industry is not shifted, there could be serious danger to the health and well being of citizens in that locality. The Supreme Court in several cases has been going into all these aspects and giving 20 directions for shifting of industries outside the cities, by framing schemes for payment of compensation for workmen, and for their re-employment and providing land for the industry elsewhere etc. Prevention of pollution and environmental damage is one side of the story. But, we cannot, at the same time, lose sight of the need for development of our industries, irrigation and power projects. Nor can we ignore the need to improve employment opportunities. There is also the need for generation of revenue by way of excise duties or sales tax and increase our exports to other countries. The Courts must therefore be able to perform a balancing task. That cannot be done effectively, unless the Court gets judicial as well as scientific inputs. The Courts cannot simply close down industries based on the evidence produced by the industry concerned We may here advert to another problem. There are also many who file public interest cases (PILs) against industries as a measure of black- mail. There are industrialists who would think of abusing the legal procedures for their own gain. Some polluting industries would like to close down under Court orders and would thereby want to escape the statutory procedures which otherwise have to be followed for "closure" of industries as contained in the Industrial Disputes Act, 1947 and want to escape paying compensatory wages to workmen. Some others would like to close down or dismantle the plant and sell away prime land to builders. Some others would want concessions from government for shifting their industries to other places. These problems which are like under-currents, should also be taken care of by the proposed Environmental Court.
21It is true that the High Court and Supreme Court have been taking up these and other complex environmental issues and deciding them. But, though they are judicial bodies, they do not have an independent statutory panel of environmental scientists to help and advise them on a permanent basis. They are prone to apply principles like the Wednesbury Principle and refuse to go into the merits. They do not also make spot inspections nor receive oral evidence to see for themselves the facts as they exist on ground. On the other hand, if Environmental Courts are established in each State, these Courts can make spot inspections and receive oral evidence. They can receive independent advice on scientific matters by a panel of scientists.
These Environmental Courts need not be Courts of exclusive jurisdiction. However, the High Courts, even if they are approached under Art. 226 either in individual cases or in PIL cases, where orders of environmental authorities could be questioned, may refuse to intervene on the ground that there is an effective alternative remedy before the specialist Environmental Court. As of now, when we have consumer Courts at the District and State level, the High Courts have consistently refused to entertain writ petitions under Art 226 because parties have a remedy before the fora established under the Consumer Protection Act, 1986. We have also the example of special environmental courts in Australia, New Zealand and in some other countries and these are manned by Judges and expert commissioners. The Royal Commission in UK is also of the view that if environmental courts are established, the High Courts may refuse to 22 entertain applications for judicial review on the ground that there is an effective alternative remedy before these Courts.
It is for the above reasons we are proposing the establishment of separate environmental courts in each State. In Chapter IX, we propose to give the details of the constitution, power and jurisdiction of these Courts.
23Chapter III THE CONSTITUTIONAL MANDATE AND SURVEY OF SUPREME COURT'S JUDGMENTS ON ENVIRONMENTAL ISSUES:
In a very significant manner, the Supreme Court of India observed in Tarun vs. Union of India (AIR 1992 SC 514) in regard to the importance of environmental issues as follows:
"A great American Judge emphasizing the imperative issue of environment said that he placed Government above big business, individual liberty above Government and environment above all."
Such is the importance of the subject under consideration. We shall first refer to the constitutional provisions relating to environment and then to the judgments of the Supreme Court only to show the range of environmental issues that are today being handled by our constitutional Courts.
Constitutional provisions:
The Indian Constitution contains several provisions which require the State and the citizens to protect environment. Though in the Constitution as it stood on 26.1.1950, there was no specific provision for environmental protection, there were other significant provisions. The following provisions in the Constitution as it originally stood, have a bearing on environment:
24"Art 21: Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.
Art 42: Provision for just and humane conditions of work and maternity relief: The State shall make provisions for security just and humane conditions of work and for maternity relief.
Art. 47 : Duty of the State to raise the level of nutritional and the standard of living and to improve public health: The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
Art. 49: Protection of monuments and places and objects of national importance: It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament, to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be."
The Stockholm Declaration of 1972, however, resulted in several amendments to the Constitution. Under the Constitution (Forty-second Amendment) Act, 1976 (which came into force on 3.1.1977), Art. 48A was 25 introduced in Part IV which is the chapter dealing with Directive Principles. It read as follows:
"Art. 48A. Protection and improvement of environment and safeguarding of forests and wild-life: The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."
Art 51A(g) was brought into Part IVA of the Constitution which deals with 'Fundamental Duties'. That Article reads as follows:
"Art. 51A: Fundamental Duties: It shall be the duty of every citizen of India -
(a) to (f): ............
(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures."
Under the same Forty-Second Amendment, Forest and protection of wild animals and birds were brought into the Concurrent List as entries 17A and 17B.
Judgments of the Supreme Court:
The Supreme Court of India has made immense contribution to environmental jurisprudence of our country. It has entertained quite a lot of genuine public interest litigation (PIL) cases or class-action cases under Art.
2632 of the Constitution. So have the High Courts under Art. 226 of the Constitution. These Courts have issued various directions on a number of issues concerning environment as part of their overall writ jurisdiction and in that context they have developed a vast environmental jurisprudence. They have used Art. 21 of the Constitution of India and expanded the meaning of the word 'life' in that Article as including a "right to a healthy environment".
We shall refer to some of the important decisions of the Supreme Court of India.
The first case of considerable importance is the one in Ratlam Municipality vs. Vardhichand AIR 1980 SC 1622 where the Supreme Court gave directions for removal of open drains and prevention of public excretion by the nearby slum dwellers. The matter came up by way of a criminal appeal. The Court relied upon Art 47 which is in the Part IV of the Constitution relating to the Directive Principles. That Article refers to 'improvement of public health'. In that judgment, the Supreme Court gave several directions to the Ratlam Municipality for maintenance of 'public health'. That judgment was followed in B.L. Wadhera vs. Union of India AIR 1996 SC 2969 and directions were issued to the Municipal Corporation of old Delhi and New Delhi, for removal of garbage etc. Long before the Court enlarged its levels of scrutiny, the Supreme Court, in Sachidanand Pandey vs. State of West Bengal: AIR 1987 SC 1109, laid down rules which unfortunately sound like Wednesbury rules applied in administrative law. It said:
27"Whenever a problem of ecology is brought before the Court, the Court is bound to bear in mind Art. 48A of the Constitution ..... and Art. 51A(g).....When the Court is called upon to give effect to the Directive Principles and the fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy-making authority. The least that the Court may do is to examine whether appropriate considerations are borne in mind and irrelevancies excluded. In appropriate cases, the Court may go further but how much further must depend on the circumstances of the case. The Court may always give necessary directions."
This limited nature of scrutiny is no longer followed today by the Courts. Today the Courts appoint independent experts and test the claims of parties on the basis of the expert advice that is given to the Court.
The Court referred to the ancient civilization of our country in Rural Litigation & Entitlement Kendra vs. State of UP AIR 1987 359. There the exploitation of limestone from the Himalayas and its adverse effect on the ecology and environment came up for consideration. The Supreme Court stated: "Over thousands of years, man had been successfully exploiting the ecological system for his sustenance but with the growth of population, the demand for land has increased and forest growth has been and is being cut down and man has started encroaching upon Nature and its assets. Scientific developments have made it possible and convenient for man to approach the places which were hitherto beyond his ken. The consequences of such interference with ecology and environment have now 28 come to be realized. It is necessary that the Himalayas and the forest growth on the mountain range should be left uninterfered with so that there may be sufficient quantity of rain. The top soil may be preserved without being eroded and the natural setting of the area may remain intact. ..... tapping of (natural) resources have to be done with requisite attention and care, so that ecology and environment may not be affected in any serious way, (and) there may not be any depletion of the water resources and long term planning must be undertaken to keep up the national wealth. It has always to be remembered that these are permanent assets of mankind and are not intended to be exhausted in one generation.... Preservation of the environment and keeping the ecological balance unaffected is a task which not only Governments but also every citizen must undertake. It is a social obligation and let us remind every Indian citizen that it is his fundamental duty as enshrined in Art. 51A(g) of the Constitution." The Supreme Court then referred to the Stockholm Declaration of 1972.
Indian scriptures were quoted again in the case of Rural Litigation & Entitlement Kendra vs. State of UP AIR 1988 SC 2187. While stopping mining in the forest area in Doon Valley, the Supreme Court quoted from the Atharva Veda (5.30.6) to the following effect:
"Man's paradise is on earth; This living world is the beloved place of all; It has the blessings of Nature's bounties; Live in a lovely spirit."
It was pointed out that it was in these forests in the Himalayas that thousands of years ago, our saints did penance and lived. In ancient times, the trees were worshipped as gods and prayers for the upkeep of forests 29 were offered to the Divine. With the developments in science and outburst of population, the degradation of forests started. The earth's crust was washed away and places like Cherapunji in Assam which used to receive an average rainfall of 500 inches in one year started facing drought occasionally. After referring to the contribution of forests for rainfall, pure- air, good health and to the unfortunate cutting of forests which was responsible for the washing away every year, of nearly 6000 million tones of soil, the Supreme Court referred to the Amendment of the Constitution in 1976 when Art. 48A and 51A(g) were inserted and 'Forests' were shifted from Entry 19 of List II to the List III. The Court also referred to the constitution of the National Committee of Environment and Planning and Coordination by the Government of India in 1972, and to the passing of the Forest (Conservation) Act, 1980.
In State of Bihar vs. Murad Ali Khan, AIR 1989 SC, page 1, the Supreme Court was dealing with an appeal concerning protection to wild life in Kundurugutu Range forest in Bihar. The Supreme Court quoted from a decree issued by Emperor Asoka in the third century BC, that has a particularly contemporary ring in the matter of preservation of wild life and environment. The decree said:
"Twenty six years after my coronation, I declared that the following animals were not to be killed: parrots, mynas, the arunas, ruddy- geese, wild geese, the nandimukha, cranes, bats, queen ants, terrapins, boneless fish, rhinoceroses... and all quadrupleds which are not useful or edible....forests must not be burned."30
The Supreme Court observed:
"Environmentalists' conception of the ecological balance in nature is based on the fundamental concept of nature as 'a series of complex biotic communities of which a man is an inter-dependent part' and that it should not be given to a part to trespass and diminish the whole. The largest single factor in the depletion of the wealth of animal life in nature has been the 'civilized man' operating directly through excessive commercial hunting or, more disastrously, indirectly through invading or destroying natural habitats."
In 1987, the Court laid down principles of strict liability in the matter of injury on account of use of hazardous substances. Under the rule in Rylands vs. Fletcher (1868) LR 3 HL 330, absolute liability for negligence could be imposed only for non-natural use of land and for 'foreseeable damage. However, such exceptions were held by the Court as no longer available in the case of injury on account of use of hazardous substances. Hazardous industries which produced gases injuring the health of the community took a beating in M.C. Mehta vs. Union of India AIR 1987 SC 1086 (the Oleum gas leak case) where the rule in Rylands vs. Fletcher was modified, holding that the 'enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of persons working in the factory and residing in the surrounding areas, owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken...the enterprise must be absolutely liable to compensate for such harm and it should be no 31 answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part...The larger and more prosperous the enterprise, greater must be the amount of compensation payable for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise.
Ganga river pollution by tanneries was supposed to be stopped in M.C. Mehta vs. Union of India: AIR 1988 SC 1037. Adverting to Art. 48A and 51A(g) the Supreme Court observed:
"...it is necessary to state a few words about the importance of and need for protecting our environment. Art. 48-A of the Constitution provides that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Art 51-A of the Constitution imposes as one of the fundamental duties on every citizen, the duty to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures."
The proclamation adopted by the United Nations Conference on the Human Environment which took place at Stockholm from 5th to 16th of June, 1972 was set out in the judgment. After summarizing the recommendations pertaining to the need for the State to stop exploitation of natural resources, the Supreme Court pointed out that Parliament had thereafter significantly passed the Water (Prevention and Control of Pollution) Act, 1974 and the Environment (Protection) Act, 1986 for preventing environmental pollution.
32Declaring that the "right to life" referred to in Art. 21 of the Constitution included the right to free water and air which is not polluted, the Supreme Court stated in Subhash Kumar vs. State of Bihar AIR 1991 SC 420 that applications in the nature of a public interest litigation under Art. 32 would be maintainable by persons or groups genuinely interested. But if the applicant has a motive of personal gain or personal vendetta, such applications must be dismissed.
While restraining 400 licensees who had mining licences granted in Rajasthan to mine lime and dolmite stones in the 'Sariska Tiger Park', the Supreme Court, in Tarun Bharat Sangh, Alwar vs. Union of India AIR 1992 SC 514, observed that this kind of litigation should not be treated as the usual adversarial litigation. Petitioners were acting in aid of a purpose, high on the national agenda. Petitioners' concern for the environment, ecology and the wild life should be shared by the Government.
Holding that the Government had no power to sanction lease of the land vested in the Municipality for being used as 'open space for public use', the Supreme Court in Virendra Gaur vs. State of Haryana 1995(2) SCC 577 observed, after referring to the Stockholm Declaration of 1972 and Principle 1 laid down in that Conference and after referring to Art. 48-A, Art. 47 and Art 51A(g), and Art. 21, as follows:
"The word 'environment' is of broad spectrum which brings within its ambit, "hygienic atmosphere and ecological balance". It is, therefore, not only the duty of the State but also the duty of every citizen to maintain hygienic environment. The State, in particular has 33 duty in that behalf and to shed its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance and hygienic environment. Art. 21 protects right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contra acts or actions would cause environmental pollution. Environmental, ecological, air, water, pollution etc. should be regarded as amounting to violation of Art. 21. Therefore, hygienic environment is an integral facet of right to healthy life and it would be impossible to live with human dignity without a humane and healthy environment. Environmental protection, therefore, has now become a matter of grave concern for human existence. Promoting environmental protection implies maintenance of the environment as a whole comprising the man-made and the natural environment. Therefore, there is a constitutional imperative on the State Government and the municipalities, not only to ensure and safeguard proper environment but also an imperative duty to take adequate measures to promote, protect and improve both the man-made and the natural environment."
The case in Indian Council for Enviro-Legal Action vs. Union of India 1996(3) SCC 212 is again one of the landmark judgments of the Court. The case concerned serious damage to mother Earth by certain industries producing toxic chemicals. It was found that the water in wells and streams turned dark and dirty rendering it unfit for human consumption 34 or even for cattle and also for irrigation. The Court gave several directions including the closure of industries. The decision in the M.C. Mehta vs. Union of India 1987(1)SCC 395 (Oleum Gas Case) as to absolute liability in the case of pollution or damage to life by hazardous industries, was re- affirmed. The view of one of the Judges (Ranganatha Misra CJ) in Union Carbide Corpn. vs. Union of India 1991(4) SCC 584, that the principle of absolute liability laid down in Oleum Gas Case was obiter was held to be wrong. A Committee of experts appointed by the Supreme Court concluded that there was direct correlation between the sludge from the industries, contamination in the wells and streams. Objections to the expertise of the members of the Committee for arriving at the above conclusion, were rejected by the Court. The Court referred to Art. 48A and Art. 51A(g) of the Constitution of India and to the Statement of Objects and Reasons appended to the Bill which later became the Water (Prevention and Control of Pollution) Act. 1974, to the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 and to its preamble and finally to the Hazardous Wastes (Management and Handling) Rules, 1989. The Court then referred to the 'Polluter Pays' principle. It said that ss 3 and 5 of the Environment (Protection) Act, 1986 enabled the Central Government to provide remedial measures in this behalf. The Court gave a number of directives. Item 6 of the directions given by the Court (see p
252) refers to the need for establishment of environmental courts 'manned by legally trained persons/judicial officers'.
Foundation for applying the Precautionary Principle, the Polluter Pays Principle and the new Burden of Proof was laid down by the Supreme Court in Vellore Citizens' Welfare Forum vs. Union of India 1996(5) SCC 35 647 which dealt with pollution from tanneries. The Court also referred to the concept of 'Sustainable Development' and to the Stockholm Declaration of 1972 and to the Rio Conference of 1992. After referring to Arts. 47, 48A and 51A(g) and Art. 21, and to the various statutes from 1974 to 1986, the Court observed:
"The traditional concept that development and ecology are opposed to each other is no longer acceptable. 'Sustainable Development' is the answer. In the international sphere, 'Sustainable Development' as a concept came to be known for the first time in the Stockholm Declaration of 1972. Thereafter, in 1987 the concept was given a definite shape by the World Commission on Environment and Development in its report called 'Our Common Future'. The Commission was chaired by the then Prime Minister of Norway, Ms. G.H. Brundtland and as such the report is popularly known as 'Brundtland Report'. In 1991, the World Conservation Union, United Nations Environment Programme and Worldwide Fund for Nature, jointly came out with a document called "Caring for the Earth" which is a strategy for sustainable living. Finally, came the Earth Summit held in June 1992 at Rio which saw the largest gathering of world leaders ever in the history- deliberating and chalking out a blueprint for the survival of the planet. Among the tangible achievements of the Rio Conference was the signing of two Conventions, one on biological diversity and another on climate change. These Conventions were signed by 153 nations. The delegates also approved by consensus, three non-binding documents, namely, a Statement on Forestry Principles, a declaration of principles on 36 environment policy and development initiatives and Agenda 21, a programme of action into the next century in areas like poverty, population and pollution."
The Court further observed:
"During the two decades from Stockholm to Rio, 'Sustainable Development' has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. 'Sustainable Development' as defined by the Brundtland Report means 'Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs." We have no hesitation in holding that 'Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalized by the international law jurists."
In the same case, after referring to the Polluter Pays principle, the Supreme Court observed that remediation of the damaged environment is part of the process of 'Sustainable Development'. It then referred to the Precautionary Principle and the Polluter Pays Principle and New Burden of Proof and supported them on the basis of Art. 21, 47, 48A and 51A(g) of the Constitution. It declared that they have become 'part of the environmental law of the country'.
37In M.C. Mehta vs. Kamal Nath: 1997(1) SCC388, the Supreme Court referred to the 'Public Trust' doctrine and stated that it extends to natural resources such as rivers, forests, seashores, air etc. for the purpose of protecting the ecosystem. It held that by granting a lease to a motel located at the bank of the river Beas which resulted in interference by the Motel, of the natural flow of the water, the State Government had breached the above doctrine. The prior approval granted by the Government of India was quashed, the Polluter Pays Principle was applied and the public company was directed to compensate the cost of restitution of environment and ecology in the area.
The adverse effect of 'Shrimp Culture' in the Coastal Zone notified under the Coastal Zone Regulation Notification dated 19.2.91, under the Environment (Protection) Rules, 1986, came up for consideration in S. Jagannath vs. Union of India: AIR 1997 SC 811. The employers were directed to close the Shrimp Culture industry in view of the ecologically fragile coastal areas and the adverse effect on the environment. The Court directed the employees to be paid six years' wages. It referred to Art. 48A of the Constitution, the damage by aquaculture and shrimp culture in several States resulting in wells and streams in coastal areas becoming saline resulting in pure water not being available for irrigation and for drinking purpose. The Court called for and considered the requests from the Marine Products Export Development Agency (MPEDA), and the State Government. It also considered the Report of the Central Pollution Control Board on 'Coastal Pollution Control', report of the Food and Agriculture Organisation (FAO) of the UN, the Alagiraswamy Report, another Report of team of scientists, the reports of the Neeri (Nagpur), report of Justice Suresh 38 Committee, the report by Mr. Solon Barraclong & Andrea Finger-Stitil of UN, and then applied the provisions of the Water (Protection and Control of Pollution) Act, 1974, the Polluter Pays principle, the new onus of proof, and referred to the concept of sustainable development. It finally directed the constitution of a high powered 'Authority' under that Act to scrutinize each and every case from the environmental point of view, under sec. 3(3) of Environment (Protection) Act and confer on the authority the requisite power under sec. 5. The authority should be headed by a retired Judge of the High Court and members having expertise in the field of aquaculture, pollution control and environment protection. The Government should confer powers under sec. 5 on the said authority to take appropriate measures. The Authority should implement the 'Precautionary Principle' and the 'Polluter Pays' principle. All aquaculture industries should be closed.
In the course of the discussion, the Supreme Court referred to Art. 253 of the Constitution and the legislative powers of Parliament to make laws in respect of matters in the State List in the VII Schedule. The Court observed: (page 846) "At this stage, we may deal with a question which has incidentally come up for our consideration. Under para 2 of the CRZ notification, (of the Government of India) the activities listed thereunder are declared as prohibited activities. Various State Governments have enacted coastal aquaculture legislations regulating the (industries) set up in the coastal areas. It was argued before us that certain provisions of the State legislation including that of the 39 State of Tamil Nadu are not in consonance with the CRZ notification issued by the Government of India under sec. 3(3) of the Act. Assuming that or so, we are of the view that the Act being a Central Legislation, has the overriding effect. The Act, (the Environment Protection Act, 1986) has been enacted under Entry 13 of List I of Schedule VII of the Constitution of India. The said entry is as under:
"Participation in international conferences, associations and other bodies and implementing of decisions made thereat".
The preamble to the Act clearly states that it was enacted to implement the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June 1972. The Parliament has enacted the Act under Entry 13 of List I of Schedule VII read with Art. 253 of the Constitution of India. The CRZ notification having been issued under that Act shall have overriding effect and shall prevail over the law made by the legislators of the States."
In M.C. Mehta vs. Union of India: 1997(11) SCC 312, the Supreme Court dealt with 'ground water' management. It directed the Ministry of Environment & Forests, Government of India to appoint Central Ground Water Board as an authority under sec. 3(3) of the Environment (Protection) Act, 1986 permitting it to exercise powers for regulating and control of ground water management. Central Government should confer powers on that authority under sec. 5 to issue directions.
40Use of pesticides and chemicals causing damage to health came up for consideration in Ashok (Dr) vs. Union of India: 1997(5) SCC 10. The Supreme Court directed a committee of senior officers to be appointed to look into the matter by gathering information through internet and take suitable measures in future in respect of any other insecticides and chemicals which is found to be hazardous for health.
In Animal and Environment Legal Defence Fund vs. Union of India:1997(3) SCC 549, the activity of fishing in reservoirs within the areas of the National Park, Madhya Pradesh, came up for consideration. The Court referred to the Wildlife (Protection) Act, and to permits issued thereunder, and observed that the livelihood of tribals should be considered in the context of maintaining ecology in the forest area. If there is shrinkage of forest area, the Government must take steps to prevent any destruction or damage to the environment, the flora and fauna and wild life under the Act, keeping Art 48A and Art. 51A(g) in mind.
The Calcutta tanneries' discharge of untreated noxious and poisonous effluent into Ganga river came up for consideration in M.C. Mehta (Calcutta tanneries matter) vs. Union of India: 1997(2) SCC 411. Referring to the Water (Protection and Prevention of Pollution) Act, 1974 and the Environment (Protection) Act, 1986, and the Pollutor Pays principle, the Supreme Court directed closure of the tanneries, relocation and payment of compensation to the employees.
In M.C. Mehta vs. Union of India: 1997(11) SCC 327, in an elaborate judgment, the Supreme Court dealt with shifting, relocation, closure of 41 hazardous/noxious/heavy/ large industries from Delhi, and to the utilization of land available as a result thereof and payment of compensation to workmen.
As to preservation of forests, a series of orders were passed by the Supreme Court in T.N. Godavarman Thirumalpad vs. Union of India: 1997 (2) SCC 267; 312 etc. The case concerned the unlawful felling of trees in all forests in the country. Directions were given under the Forest (Conservation) Act, 1980. In 1997(7) SCC 440, the Court appointed a High Powered Committee.
The preservation of the tourists spots near Delhi at the Badkal and Surajkund lakes (located in Haryana, bordering Delhi) came up in M.C. Mehta (Badkal and Surajkund Lakes Matter) vs. Union of India: 1997(3) SCC 715. The Supreme Court referred to Art. 47, 48A and 51A(g) as well as Art 21, the concept of 'sustainable development' and the 'Precautionary Principle' and banned construction activities within the radius of 1 km from the Lakes. It clarified that, in view of the reports of experts from NEERI and the Central Pollution Control Board, it was not advisable to permit large-scale construction activity in the close vicinity of the lakes because if such construction is permitted, it would have an adverse impact on the local ecology. It could affect water levels under the ground and could also disturb the hydrology of the area. NEERI had recommended a green belt of 1 km radius. The Court, however, clarified that where plans were already sanctioned, they should have the further clearance of the Central Pollution Control Board and the Haryana Pollution Control Board..
42Preservation of Taj Mahal came up in M.C. Mehta (Taj Trapezium Matter) vs. Union of India 1997(2) SCC 353 = AIR 1997 SC 734. The Court, after accepting the report of NEERI, directed that, with a view to balance industry and environment, the coke/coal industry within Taj Trapezium Zone must changeover to the use of natural gas or otherwise the industries should stop functioning or shift. The Court gave directions regarding the compensation payable to workmen who may be discontinued pursuant to the directions. It relied upon the Dr. Varadarajan Committee Report of 1995.
Vehicular pollution in Delhi city, in the context of Art 47 and 48 of the Constitution came up for consideration in M.C. Mehta vs. Union of India: 1998(6) SCC 60 and 1998(9) SCC 589. It was held that it was the duty of the Government to see that the air was not contaminated by vehicular pollution. The right to clean air also stemmed from Art 21 which referred to right to life. Lead free petrol supply was introduced in M.C. Mehta vs. Union of India 1998 (8) SCC 648 and phasing out old commercial vehicles more than 15 years old was directed in M.C. Mehta vs. Union of India 1998(8) SCC 206. These judgments are important landmarks for the maintenance of clean air in Delhi.
The Supreme Court observed that illegal mining in Doon Valley was to be assessed by a Committee appointed by the Court and matter had to be investigated. (T.N. Godavarman Thirumalpad vs. Union of India 1998(2) SCC 341 and 1998(6) SC 190). Felling and removal of felled trees in the State of J&K was prohibited by the Court in T.N. Godavarman Thirumalpad vs. Union of India: AIR 1998 SC 2553.
43In regard to the poor efficiency of the Common Effluent Treatment Plants (EFTPs) at Patancheru, Bolaram and Jeedimetla in Andhra Pradesh, the Supreme Court, in India Council for Environ-legal Action vs. Union of India: 1998(9) SCC 580, gave directions that the industries should not be allowed to discharge effluents which exceeded permissible levels and they should install systems which would release effluents upto the permissible levels. The areas concerned had showed tremendous ground water pollution by industrial effluents.
Similar directions were issued in case of UP industries which were discharging effluents beyond the permissible limits and directions were issued in World Saviour vs. Union of India: 1998(9) SCC 247.
Issue of Urban solid waste management came up for consideration in Almitre H. Patel vs. Union of India: 1998(2) SCC 416 and the Court appointed a committee to go into the questions.
The appointment of a Committee by the Supreme Court for management of hazardous wastes lying in the docks/ports/ICDS came up in Research Foundation for Science vs. Union of India: 1999(1) SCC 223. The authorities having custody of wastes were directed not to release or auction the wastes till further orders. This was in the context of the Hazardous Wastes (Management and Handling) Rules, 1989.
44Pollution from effluents from distillery attached to a Sugar industry came up for consideration in Bhavani River Sakthi Sugars Ltd. RE: 1998(6) SCC 335.
In M.C. Mehta vs. Union of India: 1998(2) SCC 435, the Court criticized the casual manner in which the Pollution Control Board gave consent. The Supreme Court referred to the constitution of the appropriate authority under section 3(3) of the Environment Protection Act for the National Capital Territory. Regarding such committees for other States, directions were again issued in T.N. Gudavarman Thirumalpad vs. Union of India: 1999(9) SCC 151.
Right to clean air and the need for slowly eliminating 'diesel' for motor vehicles came up in M.C.Mehta vs. Union of India (matter regarding diesel emissions) 1999(6) SCC 9. Right to life was held to include right to good health and health care. M.C. Mehta vs. Union of India 1999(6) SCC
9. Hot mix plants meant to supply hot mix for the runways in airports and the pollution by the smoke emitted by them came up for consideration in M.C. M`ehta vs. Union of India 1999(7) SCC 522.
Coastal Regulation Zone for Mumbai came up for discussion in P. Navin Kumar vs. Bombay Municipal Corpn: 1999(4)SCC 120.
Deficiencies of the judicial and technical inputs in environmental appellate authorities were elaborately discussed in A.P. Pollution Control 45 Board vs. Prof. M.V. Nayudu 1999(2) SCC 718. (This case has been elaborately discussed in Chapter II.) It referred to uncertainties in scientific evidence, to the Precautionary Principle, the new Burden of Proof and Polluter Pays Principle, and required a detailed study into the question whether environmental courts which should comprise not only of judges but also as to scientists/environmentalists to effectively assess expert evidence.
Preservation of the environment around Beas river in Himachal Pradesh came up for consideration in M.C. Mehta vs. Kamal Nath 1999(1) SC 702. Court's power to impose fine or special damages came up in M.C. Mehta vs. Kamal Nath 2000(6) SCC 213. Providing clean drinking water for Agra town came up for consideration in D.K. Joshi vs. Chief Secretary, State of UP: 1999(9) SCC 578.
Need to bring about awareness of environmental issues came up for consideration in M.C. Mehta vs. Union of India: 2000(9) SCC 411.
Denotification of Chinkara Sanctuary by the State Legislature under sec. 26A(3) of the Wildlife (Protection) Act, 1972 was upheld in Common Education & Research Society vs. Union of India 2000(2) SCC 599. The denotification resulted in permitting a restructured and controlled mining in an area of 321-56 km of Narayan Sarovar Chinkara Sanctuary. It was held that the economic development of an impoverished and backward area, was equally important - Environmental protection and economic development would have to be balanced.
The Supreme Court observed that the Pollution Control Board and their appointees or experts were accountable for the wrong advice. (Pollution Control Board vs. Mahabir Coke Industry: 2000(9) SCC 344).
46Three experts who gave a clean chit to certain industrial units, in respect of levels of emissions while advising the Pollution Control Board, were given show cause notices by the Supreme Court as their report was not in conformity with the evidence which showed existence of severe air pollution.
In the matter of criminal prosecution for offences relating to environmental pollution, the liberal attitude of the High Court in the matter of the quantum of punishment was seriously criticized by the Supreme Court in U.P. Pollution Board vs. Mohan Meakins Ltd.: 2000(3) SCC 745. It was observed that the Courts could not afford to deal lightly with cases involving pollution of air and water. The Courts must share the parliamentary concern on the escalating pollution levels of our environment. Those who discharge noxious polluting effluents into streams appear to be totally unconcerned about the enormity of the injury which they are inflicting on the public health at large, to the irreparable impairment it causes on the aquatic organisms, and to the deleterious effect it has on life and health of animals. Courts should not deal with the prosecution for pollution-related offences in a casual or routine manner.
There was a serious dispute about the correctness of a latter Report of the Central Pollution Control Board, in regard to pollution, as it contained certain adverse findings which were not pointed out by it in an earlier inspection Report. The Court then felt, in the facts of the case, that another independent agency should inspect the site, in the presence of the officers of the Central Pollution Control Board, and file a report. (Imtiaz Ahmed vs. Union of India 2000(9) SCC 515).
Processing of hazardous waste and finding out the number of industries releasing such waste came up for consideration in Research 47 Foundation for Sciences vs. Union of India 2000(9) SCC 41. Directions were issued to the Union Government to file particulars.
One of the major irrigation projects in the country relating to construction of Dam on Narmada river came up for consideration in Narmada Bachao Andolan vs. Union of India: 2000(10) SCC 664. We shall deal with this case in some detail. In that case there was a final award by the Tribunal constituted under the Inter-State Water Disputes Act, 1956 published on 12.12.79. The Dam was to be of the height of 455 feet. The Tribunal gave its directions regarding submergence, land acquisition and rehabilitation of displaced persons. It stipulated that no submergence of any area should take place unless the oustees were rehabilitated. The Tribunal allocated the utilizable water stream to four States. The Narmada Control Authority (NCA) was directed to be constitute for implementation of the award. Eight years later, on 24.6.1987, the Ministry of Environment and Forests granted 'environmental clearance' to the Sardar Sarovar Project subject to the following conditions:
1. NCA will ensure that environmental safeguards are planned and implemented pari passu with progress of work on the project.
2. Detailed surveys/studies will be carried out as per the schedule proposed.
3. The rehabilitation plans which have to be drawn up should be completed ahead of the filling up of the reservoir.
Initially a letter of one B.D. Sharma was treated as a PIL and a direction was given on 20.9.91 by the Supreme Court to constitute a committee to monitor the rehabilitation of oustees. But in April 1994,- seven years after the Ministry gave clearance - the Narmada Bachao Andolan filed a writ petition to stop the construction of the dam and prayed for not opening the sluices.
48The Supreme Court called for various reports. The construction was halted in May 1995 and the case was finally decided in the year 2000. (Narmada Bachao Andolan vs. Union of India: 2000(10) SCC 664. The project involved construction of a network of over 3000 large and small dams. The three learned Judges were unanimous that the PIL of April 1994 was belated and could not be allowed to seek to stop the project itself. Two learned Judges found that Environmental Impact Assessment Notification under the Rules made under the Environment (Protection Act), 1986 was issued much later on 27.1.94 and was not retrospective and applicable for the purpose of grant of clearance by the Ministry earlier on 24.6.87. The clearance given on 24.6.1987 in fact required that the NCA could ensure that 'environmental safeguard measures' be taken and therefore the project did not require any further environmental impact assessment to be done. Adverting to the Precautionary Principle laid down in Vellore Citizens' Welfare forum vs. Union of India 1996(5) SCC 647 and distinguishing A.P. Pollution Control Board vs. M.V. Nayudu: 1999(2) SCC 718, the Supreme Court said that the Precautionary Principle and the Burden of Proof rule - (which shifted the burden to the person or body which was interfering with the ecology, to prove that there is no adverse impact) - would apply to a polluting project or industry where the extent of damage likely to be inflicted, is not known. But where the effect on ecology or environment on account of the setting up of an industry is known, what has to be seen is whether the environment is likely to suffer, and if so, what mitigative steps have to be taken to efface the same. Merely because there will be a change in the environment is no reason to presume that there will be ecological disaster. Once the effect of the project is known, then the principle of sustainable development would come into play and that will ensure that mitigative steps are taken to 49 preserve the ecological balance. Sustainable development means what type or extent of development can take place which can be sustained by nature/ecology with or without mitigation. In the present case, the dam is not comparable to a nuclear establishment nor to a polluting industry. No doubt, the construction of a dam would result in the change of environment but it will not be correct to presume that the construction of a large dam like this will result in an ecological disaster. India has an experience of 40 years in construction of dams. Those projects did not lead to environmental disasters but have resulted in upgradation of ecology. On the above reasoning, two learned Judges (out of three) felt that inasmuch as rehabilitation was provided by the award, there was no violation of Article
21. The court issued directions as to allotment of land to oustees. There was no need to have another authority to monitor rehabilitation. The NCA could itself do this. Its decision could be reviewed by the Review Committee. (One of the three Judges however felt that environmental impact assessment was necessary and the construction work should stop till such assessment was made).
The provision of s.3 (2) (v) of the Environment Protection Act, 1986 and ss. 2 (e), 2(k) and 17, 18 of the Water (Prevention and Control of Pollution) Act, 1974 came up for consideration again in A.P. Pollution Control Board (II) v. Prof. M. V. Naidu (2001) 2 SCC 62. The court relied upon Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 and A.P. Pollution Control Board (I) v. Prof. M. V. Naidu (1999) 2 SCC 710 and held that once the State Government issued an order prohibiting location of any industry within 10 km radius of the lakes which were providing drinking water to two cities, the State Government ought not to 50 have granted exemption as it offended the precautionary principle. Without permission of the Pollution Control Board, no industry could be established.
While dealing with the construction of a hotel in Goa for a sea-beach resort, the Supreme Court in Goa Foundation v. Diksha Holdings Pvt. Ltd. (2001) 2 SCC 97 held that economic development had to be maintained. The permission granted by the State Government was based upon a proper consideration of the Coastal Regulation Zone (CRZ) notification dated 19.2.1991 issued by the Ministry of Environment and Forests, Government of India under ss.3 (1) and 3 (2) (v) of the Environmental Protection Act, 1986 and Rule 5 (3) (d) of the Rules and approved by the Coastal Zone Management Plan of the State of Goa. The plot of land allotted to the hotel fell within an area ear-marked as settlement (beach/ resort) by notification of the Governor of Goa under the Goa, Daman and Diu Town and Country Planning Act, 1974 and situated in category CRZ-III.
Need for balance between development and preservation of ecology was again stressed in Live Oak Resort (Pvt.) Ltd. v. Panchgani H.S. Municipal Council (2001) 8 SCC 329.
With reference to vehicular pollution in Delhi and implementation of the orders for introduction of CNG, the court passed a series of orders in M.C. Mehta v. Union of India (2001) 3 SCC 763, 756 and (2002) 4 SCC
356. Smoking cigarettes in public places was prohibited by the Supreme Court in Murli S. Deora v. Union of India (2001) 8 SCC 765. The right to clean air was part of the right to life under Article 21.
In Hinch Lal Tiwari v. Kamla Devi (2001) 6 SCC 496 the Supreme Court held that healthy environment enables people to enjoy a quality of life which is the essence of the rights guaranteed under Article 21.
51Concern for safety and well-being of wildlife in zoos came up for consideration in a case where a tiger was skinned alive in a zoo. The provisions of Article 48-A of the Constitution and the Wildlife (Protection) Act, 1972 (ss.38 (a), 38 (c), 38 (h) and 38 (j)), the provisions of the Forest Act, 1927 also were considered. (Navin M. Raheja v. Union of India (2001) 9 SCC 762) The Supreme Court pulled up the Madhya Pradesh State Pollution Control Board for not taking any interest and, in fact, acting negligently in the matter of discharging its functions since various industries were discharging pollutants in contravention of the provisions of the laws: State of M.P. v. Kedia Leather and Liquor Ltd. (2001) 9 SCC 605.
In Bittu Seghal v. Union of India (2001) 9 SCC 181 (Judgment dated 31.10.1996) the court gave a direction to the State of Maharashtra in regard to the protection of Dahanu Taluka, regarding CRZ - notification of the Government of India dated 19.2.2001 and the Regional Development Plan as approved by the Government of India (subject to conditions) on 6.3.1996. The court directed the Central Government to constitute an authority under s.3 (3) of the Environment Protection Act, 1986 to be headed by a retired Judge of the High Court and to confer on the authority powers required to protect the region, control pollution and issue directions under s.5 and for taking measures as stated in s.3 (2) (v) 2 (x) and (xii) of that Act. The said authority was to bear in mind the Precautionary Principle and the Polluter Pays Principle.
Cleaning and developing ponds which had dried up was part of the duty of the Government under Article 21. (Hinch Lal Tiwari v. Kamla Devi (2001) 6 SCC 496).
52Closure, shifting, re-location of polluting industries in the residential areas of Delhi came up again in M.C. Mehta v. Union of India (2002) 9 SCC 481, 483 and 534.
Protection of monuments and religious shrines came up in Wasim Ahmed Saeed v. Union of India (2002) 9 SCC 472. The court held that shifting of 24 licensed shops from the vicinity of the religions shrine of Dargah of Salim Chishti in Agra as recommended by the Archaeological Department, did not violate Article 21.
In M.C. Mehta v. Union of India (2002) 4 SCC 356, the Supreme Court held that one of the principles underlying environmental law is that of sustainable development. The principle means that such development which also sustains ecology can take place. The essential features of sustainable development are (a) precautionary principle and (b) the polluter pays principle.
In N.D. Jayal vs. Union of India: (dt. 1.9.2003), the Supreme Court considered the issues arising out of construction of the Tehri Dam. One of the important issues related to environment impact assessment, rehabilitation of oustees etc. Summary The above judgments of the Supreme Court of India will show the wide range of cases relating to environment which came to be decided by the said Court from time to time. The Court has been and is still monitoring a number of cases. It will be noted that the Court constantly referred environmental issues to experts, and the Court has been framing schemes, issuing directions and continuously monitoring them. Some of these 53 judgments of the Supreme Court were given in original writ petitions filed under Art. 32 while the others were decided in appeals filed under Art 136 against judgments of the High Courts rendered in writ petitions filed under Art 226.
These cases have added tremendous burden on the High Courts and the Supreme Court. The proposal for Environmental Courts is intended to lessen this burden, as already stated. But that as it may, the Supreme Court has, in the various cases referred to above, laid down the basic foundation for environmental jurisprudence in the country.
CHAPTER IV ENVIRONMENTAL COURTS IN OTHER COUNTRIES We had referred to the need for establishing environmental courts in Chapter II. In this Chapter, we shall refer to the constitution or proposals for constitution of environmental Courts in other countries. Australia and New Zealand have taken the lead in establishing Environmental Courts which are manned by Judges and Commissioners. The Commissioners are generally persons having expert knowledge in environmental matters.
Australia:
New South Wales In Australia, in the State of New South Wales, the Land and Environmental Court was established by legislation in 1980 under the Land 54 and Environment Court Act 1979. (At the same time, the Environmental Planning and Assessment Act, 1979 was also enacted.) It is a superior court of record and is composed of Judges and nine technical and conciliation assessors. Its jurisdiction combines appeal, judicial review and enforcement functions in relation to environmental and planning law. Proceedings can be commenced by anyone.
We shall refer to the provisions of the NSW Act of 1979 in some detail. The broad outlines of that Act, rather than certain details, are important for us. We find that, in certain respects, the classification of various classes of cases and the mode prescribed for filing appeals is quite complicated under the NSW law. We would however be only adopting the broad scheme of the NSW Act.
Under sec. 7 of the NSW Land and Environment Court Act, 1979 of New South Wales, it is stated that the Court shall consist of the Chief Judge and such other Judges as may be appointed by the Governor. Section 12 contemplates appointment of Commissioners of the Court by the Governor and the qualifications prescribed for them are as follows:
"(a) Special knowledge of and experience in the administration of local government or town planning;
(b) Suitable qualification and experience in town or country planning or environmental planning;55
(c) Special knowledge of and experience in environmental science or matters relating to protection of the environment and environmental assessment;
(d) Special knowledge of and experience in the law and practice of land valuation;
(e) Suitable qualifications and experience in architecture, engineering, surveying or building construction;
(f) Special knowledge of and experience in the management of natural resources or the administration and management of Crown lands, lands acquired under the Closer Settlement Acts and other lands of the Crown, or
(g) Suitable knowledge of matters concerning land rights for Aborigines and qualifications and experience suitable for the determination of disputes involving Aborigines, or
(h) Special knowledge of and experience in urban design or heritage."
Section 12 further states as follows:
"In appointing Commissioners, the Minister should ensure, as far as practicable, that the Court is comprised of persons who hold qualifications across the range of areas specified in this subsection."
Clause (2A) of sec. 12 states that a person may be appointed as a full-time Commissioner or a part-time Commissioner. Clause (2B) of sec. 12 states that a part-time Commissioner will be treated as guilty of misbehaviour if, 56 during the term of his or her appointment, the person appears as an expert witness, or acts as the representative of any party, in proceedings before the Court. Clause (3) states that one of the full-time Commissioners may, by the instrument of the Commissioner's appointment or by a subsequent instrument, be appointed to be Senior Commissioner. Clause (4) points out that Schedule 1 contains the conditions of service of Commissioners.
Section 13 permits appointment of Acting Commissioners for a time not exceeding 12 months to be specified in the instrument of appointment.
Section 14 refers to disqualifications of Commissioners. Section 15 deals with appointment of other officers of the Court.
Section 16 (in Division 2 of Part 3) deals with the jurisdiction of the Court generally. It reads as follows:
"Section 16. (1) The Court shall have the jurisdiction vested in it by or under this Act or any other Act.
(1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.
(2) For the purposes of this Act, the jurisdiction of the Court is divided into 7 clauses, as provided in this Division."57
Section 17 to 21, 21A and 21B deal with these 7 clauses of jurisdiction. Section 17 deals with appellate jurisdiction under various Acts relating to planning and production. Section 18 deals with appeals under statutes relating to local government, miscellaneous appeals and applications which are listed in various clauses of the sections. Section 19 deals with land- tenure, valuation, rating and compensation matters - viz. appeals and references or proceedings under various Acts. Section 20(1) deals with proceedings under various Acts relating to environmental planning and protection and, development contract, civil enforcement. Section 20(2) states that the Court has the same civil jurisdiction as the Supreme Court would have, but for section 71, to hear and dispose of proceedings:-
"(a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,
(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,
(c) to make declaration of right in relation to any such right, obligation or duty or the exercise of any such functions, and
(d) whether or not as provided by section 68 of the Supreme Court Act, 1970, to award damages for a breach of a development contract."
Subsection (3)(a) gives a list of various Acts as falling within the meaning of as 'planning or environmental law'. Subsection (3)(b) and (c) include within the meaning of 'planning or environmental law', the following, namely:-
58"(b) any statutory instrument made or having effect thereunder or made for the purposes thereof, including any deemed environmental planning instrument within the meaning of the Environmental Planning and Assessment Act 1979 or
(c) as respectively in force at any time, whether before, on or after 1 September, 1980".
Subsection (4) states that the provisions of the Supreme Court Act, 1970 and the rules thereunder, relating to the enforcement of judgments and orders of the Supreme Court apply to the enforcement of any judgment or order of the Court in proceedings referred to in class 4 of its jurisdiction. Subsection (5) states that 'development contract' means an agreement implied by sec. 15 of the Community Land Management Act 1989, sec. 281 of the Strata Schemes (Freehold Development) Act, 1973 or sec. 49 of the Strata Schemes (Leasehold Development) Act, 1986.
Section 21 refers to Class 5 'environment planning and protection' summary enforcement. It states that the Court has jurisdiction to hear and dispose of in a summary manner, proceedings under various statutes (a) to (hb) and clause (i) refers to "any other proceedings for an offence which an Act provides may be taken before, or dealt with by, the Court."
Section 21A (class 6) deals with appeals from convictions relating to environmental offences. It states that the Court has jurisdiction (referred to in this Act as Class 6 of its jurisdiction) to hear and dispose of appeals under Part 5B of the Justices Act, 1902, other than appeals under Division 3A of that Part.
59Section 21B (class 7) deals with 'other appeals relating to environmental offences' It states that the Court has jurisdiction (referred to in this Act as class 7 of its jurisdiction) to hear and dispose of appeals under Division 3A of Part 5B of the Justices Act, 1902.
Section 22 deals with the jurisdiction to determine the matter 'completely and finally' to avoid multiplicity of actions while sec. 23 refers to jurisdiction to pass orders, including interlocutory orders. They are as follows. Section 22 reads as follows:
"Section 22: The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters, may be avoided."
Section 23 refers to 'making of orders' and reads as follows:
"Section 23: The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate."60
In sections 24, 25 of Division 2 of Part 3, 'claim for compensation' (i.e. compulsory land acquisition) has also brought within the purview of the Court including determination of estate, interest and amount.
Sections 25B to 25D of Division 3 of Part 3 deal with orders of conditional validity for certain 'development consents'. It permits invalidation of consents to development for not taking steps or complying with conditions of the consent granted by the Minister under the Environmental Planning & Assessment Act, 1979.
Sections 26 to 28 in Division 2 of Part 4 refer to the 'Distribution of business among the Divisions' of the Court. These are:
(a) Environmental Planning and Protection Appeals Division.
(b) Local Government and Miscellaneous Appeals Division.
(c) Land Tenure, Valuation, Rating and Compensation Division.
(d) Environmental Planning and Protection and Development Contract Civil Enforcement Division.
(e) Environmental Planning and Protection Summary Enforcement Division and (f) Environmental Appeals Division.
Section 29 in Division 3 of Part 4 permits the Court to sit at such places as the Chief Justice may direct. Sec. 30 vests the power to distribute business in the various Divisions of the Court, in the Chief Judge. Provision is made in sec. 31 for transfer from one Division to another.
61What is of special significance is that sec. 33 states that the jurisdiction in classes 1, 2, 3 can be exercised by the Judge, or one or more commissioners (i.e. environmental planning and protection appeals (Class II) and land tenure, valuation, rating and compensation matters (Class III)).
But only a Judge according to sec. 33, can exercise jurisdiction under classes 4, 5, 6 (i.e. environmental planning and protection and development contract civil enforcement (class 4); environmental planning and protection summary enforcement (class 5); appeals from convictions relating to environmental offences (class 6)).
There is a special situation, referred to in sec. 33, that jurisdiction under sec. 16(1A)(i.e. ancillary matters) has to be exercised by a Judge but he may be assisted by one or more Commissioners in accordance with sec.
37. Under sec. 37, the jurisdiction under Class 1, 2, 3 can also be exercised by the Judge - assisted by one or more commissioners. Various other provisions are made in sec. 37.
Section 34A refers to proceedings in Class I relating to Environmental Planning and Assessment Act of 1979. Sec. 34B refers to on-site hearing - sec. 34C to arrangements in dealing with court-hearing matters; sec. 35 refers to Inquiries by Commission in cl. 3, sec. 36 refers to delegation to Commission by the Court in respect of matters falling under sec. 97 of Environmental Planning and Assessment Act, 1979. Under sec. 36(1A), the Government may, by Regulation, add to or alter or omit items in Schedule 2 or insert a new Schedule.
62Section 37 refers to places where Commissioners sit with a Judge and the procedure relating thereto.
Section 38 states that proceedings in class 1, 2, 3 shall be conducted with as little formality and technicality as possible and with as much expedition. The Court is not bound to follow rules of evidence. It may obtain assistance of any person having professional or other qualifications relevant to any issue. Sec. 39 refers to power of Court of Appeal - which can take additional evidence. Various other details are referred to in other sub sections. Section 39A refers to joinder of parties in appeals. Sec. 40 refers to additional powers of Court - protection of easements. Section 48 refers to procedure where defendant does not appear, sec. 49 as to what would happen if either party does not appear and sec. 50 as to what should happen if both parties appear. Section 51 gives power to consolidate cases; Section 52 to payment of costs, sec. 53 to enforcement of fines or orders. Section 55 to the effect of aiding, abetting, counseling or procuring commission of offences.
Finality of the Court's orders is referred to in Part 5 in secs. 56 etc. Under sec. 56 orders will be final except as stated in Division 2 of Part 5 or except in regard to criminal appeals.
Division 2 of Part 5 (sec. 56A) permits appeal to the Court in class 1, 2, 3 matters against the Commissioners. Otherwise appeals from classes 1, 2, 3 to the Supreme Court. Sec. 58 refers to powers to appellate Court including suspension, etc. Part 5A refers to 'Mediation and neutral evaluation' by the Court. Referral is only by consent of parties. Various details as to confidentiality etc. are referred to.
63Part 6 of Division 2 deals with miscellaneous matters, e.g. proceedings to be in open Court, issue of process, costs which may be awarded by the Court but not by Commissioners, except with consent of Court; interest payable on deposits, vexatious litigants and transfer from Supreme Court, Rules, Regulations.
The above are broadly the provisions of the N.S.W. Act, 1979 regarding Environmental Courts. While certain broad features commend themselves to us, we find that the classification of cases and the proceedings into various classes appears to be quite complicated. In our view, a simpler method is necessary so far as procedure in the Indian Environmental Courts is concerned.
New Zealand:
The N.Z. Environment Court was established under the Resource Management (Amendment) Act, 1996 by amending the 1991 Act and it replaced the former Planning Tribunal. Prior to the introduction of the Resource Management Act, 1991 (RMA), the statute that applied was the New Zealand's Town and Country Planning Act, 1977 which was based on the British Model. (A detailed account by Mr. Mark Southgate is available from the Supplementary Memorandum published by the Royal Society (UK) (2000) for the protection of Birds (PI. 19(a)) and is adopted hereunder (with minor changes) in view of its precise and correct assessment of the provisions of the New Zealand Act).
64The Environmental Court in New Zealand under the Amendment Act of 1996 is an independent specialist Court consisting of Environment Judges (who are at the level of the District Judge) and the Environment Commissioners (technical experts). They are appointed for a period of five years each time by the Governor-General on the recommendation of the Minister of Justice. In appointing the Judges and Commissioners, the Governor-General is to have regard to the need to ensure a mix of knowledge and experience - including commercial and economic affairs; local government; community affairs; planning and resource management; heritage protection; environmental science; architecture; engineering; minerals; and alternative disputes resolution processes.
The Environment Court encourages mediation and arbitration and a high proportion of cases are resolved by such agreement, usually presided by an Environmental Commissioner alone. However, all such agreements are not given effect unless they have been looked at by the Court, which may alter the settlement. Where adversarial processes do occur in the Court, they are primarily aimed at developing high quality information to allow the Court to reach a decision.
The New Zealand Environment Court usually consists of one Environmental Judge and two Commissioners, - except in enforcement proceedings which are matters of law and are presided over by a Judge alone. (Even under the NSW Act of 1979, enforcement is always by the Judge or with his consent).
65The New Zealand Environment Court is not bound by rules of evidence and it is free to establish its own rules of procedure. Consequently, the proceedings are often less formal than those in other Courts. Lawyers do normally represent the parties but anyone may appear in person and the Court encourages individuals and groups to represent themselves.
The right of appeal, on resource-consent decisions, to the Environment Court extends to any person who makes a submission on that consent, i.e. to third parties, and to applicants. Third parties may also apply to the Court for an order to enforce the RMA against anyone else. The Environmental Court decisions may be appealed to the High Court on questions of law only.
The Environment Court of New Zealand also hears references on regional and district statements and plans (development plan equivalents) and appeals from resource-consents (planning application equivalents); it can make declarations, i.e. interpret the law; and it can enforce the RMA through Civil or Criminal proceedings. Local authorities are obliged to make necessary amendments in the plans to give effect to the Court's decisions. Decisions by the Court on consents given by local authorities can be taken afresh, after taking new evidence. The Court's duties include avoiding, remedying or mitigating adverse effects on the environment and a general duty to promote sustainable management, in accordance with the RM Act.
66Even policy judgments and decisions are the 'daily diet' of the New Zealand Environmental Court as stated by Mr. B. Birdsong in his Oxford Fellowship Report (1998), Auckland, on "Adjudicating sustainability (1998) New Zealand's Environment Court and the Resource Management Act."
On the positive side, the N.Z. Environment Court provides environmental expertise, both legal and technical, and a track record of environmental decision-making, in public interest. The Court has also a duty to promote sustainable management when hearing cases afresh, as stated in the Act. The environmental expertise would help address the need for greater environmental expertise within the Inspectorate also in certain planning cases.
Another advantage is that the Court itself hears cases relating to enforcement and views breaches of environmental legislation seriously. It can impose and does impose significant fines. It can also hear enforcement cases referred to it by third parties, - enforcement is not at the discretion of the local authorities, as it is in the UK. In fact, the criticism of the Magistrate's Courts in UK and other Courts is that sometimes they fail to impose appropriate punishment for breaches of planning control or environmental legislation. The seriousness of environmental offences are better appreciated by Environmental Courts in New Zealand.
The NZ Act encourages alternative dispute resolution - e.g. Mediation, conciliation or other procedures to facilitate the resolution of disputes before the initial hearing of the case. These provisions have proved very successful.
67However, there is some criticism of the Court's power to impose costs against unsuccessful parties but imposition of costs is a normal feature of litigation except where plans or policy statements or public interest is involved. It is however pointed out by critics as to why costs could go as high as $8,500 upto $20,000, and that for that reason threats by developers about costs could discourage genuine objections. The criticism against taking a vast range of evidence is not correct because the experts on the Bench could always cut short unnecessary evidence.
The 1999 Amendments to the New Zealand Act of 1991, have been summarized as follows: (See Angelo Rego). The Bill was aimed to address several components of the law. Firstly, it was designed to reduce unnecessary delays and costs in the procedure without undermining the objectives. Secondly, there are a number of provisions relating to heritage and archaeology, which recognize the protection of historic heritage as a matter of national importance and brings archaeological controls from the NZ Historic Places Act, 1993. In addition to this, the Bill aims at strengthening the national environmental standards and national policy statement provisions. The Bill introduces a new definition of 'environment' which focuses more closely on the biophysical environment and narrows the human element to health, safety, amenity and cultural values.
Three other important amendments are those relating to the 'resource consent processing', the 'direct referral to the Environmental Court' and the 'use of Environment Commissioners' to hear cases and take decisions. These changes allow applicants to choose whether their applications will be 68 processed by the Council or by a private consent processor and to have complex or contentious applications referred directly to the Environmental Court. Applicants and those who oppose applications will also be able to choose whether they want the Council or an independent commissioner to hear the case and make the decision. This was designed to improve the impartiality of decision-making and remove any appearance of bias or conflict on the part of the decision-maker.
The NZ Bill was introduced in the House in July 1999, and the Report of the Select Committee came on 8.5.2002, and further changes were suggested by the Report of the Business-compliance-Costs Panel, Government announced further changes.
The NZ Resource Management Act, 1991 consists of 433 sections and 11 Schedules and consists of 15 parts. After Parts 1 to 10, we have the Environmental Court in Part II (sections 247 to 308). Part 11 deals with 'Declarations, Enforcement and Ancilliary Powers' (section 309 to 343D).
There are in all 110 sections from section 297 to 343D which deal with the Environmental Court, as per the 1999 Amendment to the NZ Act of 1991. We shall briefly refer to some of the sections and to the sub headings in Part 11 and 12.
Section 247 names the erstwhile Planning Tribunal as the Environment Court, sec. 248 deals with its Membership, sec. 249 with the eligibility for appointment as an Environment Judge or alternate Environment Judge; sec. 250 deals with the appointment of not more than 8 69 such Judges. Basically they are District Judges in service; sec. 251 deals with the Principal Environment Judge. Section 252 states when an alternate Environment Judge may act.
Environment Commissioners and Deputy Environment Commissioners are contemplated by the Act. Sec. 253 refers to their eligibility. It states that the Environment Commissioner must have knowledge and experience in
(a) Economics, commercial and business affairs, local government, and community affairs;
(b) Planning, resource management and heritage protection;
(c) Environmental sciences, including the physical and social sciences;
(d) Architecture, engineering, surveying, minerals technology, and building construction;
(da) Alternate dispute resolution processes;
(e) Matters relating to Treaty of Waithangi & Kaupapa Maori, and sec. 254 refers to the appointment of a Commissioner for not more than 5 years. Sec. 255 mentions when a Deputy Environment Commissioner may act. Section 256 with the oath of office for the Commissioner or Deputy Commissioner.
Sections 257, 258 deal with procedure for resignation and removal of members by the Governor-General, including the Judge for inability or 70 misbehaviour. Removal of a Judge will not amount to cancellation of his appointment as a District Judge.
Section 259 refers to special advisors, sec. 260 to 'officers of the Environment Court' i.e. Registrar and other offices. Sec. 261 refers to 'Protection from legal proceedings'. Sec. 262 refers to members of the Environment Court who are rate-payers and it is made clear that it is not a disqualification to be a rate-payer if one is proposed to be appointed to the Environment Court. Sec. 263 deals with remuneration of Environment Commissioners and special advisors. Sec. 264 refers to Annual Report of Registrar to be submitted to the Minister concerned in charge of Courts.
In the NZ Act, procedure of the Environment Court is dealt with separately. Sec. 265 refers to the sittings of the Court and its quorum. Quorum will be one Judge and one Commissioner, except in relation to some sections, where quorum consists of the Judge alone. The decision of the majority of members of the Court will hold good and if there is no majority, the decision of the presiding member will prevail; sec. 266 says constitution of Court is not to be questioned; sec. 267 refers to conferences and procedure and powers; sec. 268 to 'Alternative Dispute Resolution by one of the Members by way of mediation or conciliation or other procedure. These persons are not disqualified to act as Judges later.
Powers of the Court and procedures are defined in several sections. Sec. 274 deals with 'representation at proceedings'; Section 274(1) states that in proceedings before the Court under the Act, the Minister, any local authority, any person having any interest in the proceedings greater than the 71 public generally, any person representing some relevant aspect of public interest, and any party to the proceedings, may appear and may call evidence on any matter that should be taken into account in determining the proceedings. Others must give 10 day notice to the Court, if they wish to appear; sec. 275 refers to appearance in person or representative, and section 276 with 'Evidence'. It states that the Court may receive any evidence which it considers appropriate or it may call for any evidence which it considers will assist in the making of a decision or a recommendation and call any person before it for that purpose. The Court is not inhibited by the principles of law about evidence that apply to judicial proceedings. Sec. 277 states that hearings and evidence has to be public subject to certain specific exceptions. Sec. 278 states that the Environment Court to have powers of s District Court; sec. 279 to powers of an Environment Judge sitting alone. He may strike off vexatious proceedings. Sec. 280 refers to powers of Environment Commissioners sitting without Environment Judge and section 281 to waivers and directions; sec. 282 invests the Court with power to commit for contempt, sec. 283 take action for non-attendance or refusal to co-operate; sec. 284 to witnesses allowances, sec. 285 to costs through the District Court, sec. 286 to enforcing order as to costs; sec. 287 permits reference of question of law to the High Court; sec. 288 refers to privileges and immunities of witnesses and counsel.
Appeals, inquiries and other proceedings before the Environment Court are dealt with by sections 289 to 291. Sec. 289 deals with 'Reply to Appeal or request for inquiry'. Sec. 290 refers to powers of Environment 72 Court in regard to appeals and inquiries; sec. 291 refers to other proceedings before the said Court.
With regard to Plans and Policy statements, the Environment Court is given special powers. Sec. 292 deals with 'Remedying defects in Plans', sec. 293 to the power of the Court to order changes to policy statements and plans. Sec. 294 refers to review of decision of Environment Court if new and important evidence becomes available or there has been a change in circumstances which might affect the decision.
Sec. 295 states that decision of the Environment Court is final; sec. 290 states that 'No review of decisions unless right of appeal or reference to inquiry exercised'. The section states that if there is a right to refer any matter to the Environment Court or to appeal to that Court against a decision of a local authority or any person under the Act, any other Act or regulation, no application for review under Part I of the Judicature Act, 1972 can be made and no proceedings seeking a writ of mandamus, prohibition or certiorari or a declaration may be heard by the High Court, "unless the right has been exercised by the applicant in the proceedings and the Environmental Court has made a decision." Sec. 297 says that decision of Court has to be in writing; sec. 298 to judicial notice of documents.
The next question is as to appeals from decision report or recommendation of the Environment Court. Sec. 299 states that appeal shall be 'on a question of law' to the High Court. Sections 300 to 307 refer to the procedure in the High Court in the appeals against the Environment Court, sec. 308 deals with appeals to Court of Appeal.
73Part 12 deals with declaration, enforcement and ancillary powers which have to be exercised only by the Judge or Court. Section 309 says proceedings have to be heard by an Environment Judge (i.e. not a Commissioner/Dy. Commissioner). Sections 310 and 311 & 312, 313 deal with nature of declarations and procedure; sec. 314 to 321 with Enforcement orders by the Environmental Court; sec. 322 to 325B with 'Abatement notices' (i.e. Abatement of nuisance) and appeal to Court and stay; section 326 to 328 with 'Excessive Noise', sec. 329 with 'Water shortage', section 330 to 331 to 'Emergency Works', sec. 332 to 335 to 'power of entry and search', sec. 336 to 'Return of Property', section 337 to return of property seized under warrant'.
Offences are dealt with in sec. 338 to 343. Section 338 refers to 'offences against this Act', sec. 339 to 'Penalties' like imprisonment for 2 years or fine up to 200 thousand dollars and if the offence is a continuing one, upto 1000 dollars per day. Violation of some sections results in summary convictions; sec. 339A refers to 'Protection against imprisonment for dumping and discharges offences involving foreign ships', sec. 339B to 'additional penalty for certain offences for commercial gain' upto three times the said gain, sec. 339C to the 'Amount of fine or other monetary penalty recoverable by distress and sale of ship or from agent'; sec. 340 deals with 'liability of principal for acts of agents', sec. 341 refers to strict liability and defences'. Subsection (1) of sec. 341 states that, in any prosecution for an offence in respect of certain sections (sections 9, 11, 12, 13, 14, 15) it is not necessary that defendant intended to commit the offence. Subsection (2) permits exceptions in case (a): (i) action or event was 74 necessary for saving or protecting life or health or preventing serious damage to property or avoiding actual or likely adverse-effect on the environment; and (ii) the conduct of the defendant was reasonable in the circumstances, and (iii) the effects of the action or event were adequately mitigated or remedied by the defendant after it had occurred or (b): the action or event was due to an event beyond the control of the defendant - including natural disaster, mechanical failure or sabotage and in each case
(i) the action or event could not reasonably have been foreseen or been provided against by the defendant; and (ii) the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred. Subsection (3) states that the above defences can be raised only by leave of Court if applied for within 7 days after service or notice. Sec. 341A refers to 'liability and defences for dumping and storage of waste or other matter' with similar defences, sec. 341B to 'liability and defences for discharging harmful substances'. In the case of discharge of harmful substances, contaminants, or water in breach of sec. 15B, it is not necessary that defendant intended to commit the offence. Defences, in relation to discharges from shops are similar to those under sec. 341. Sec. 342 to 'fines to be paid to local authority instituting prosecution'; sec. 342 refers to 'Discharge from ships' (repealed).
Infringement offences are defined in sec. 343A. Infringement offence means an offence specified as such in regulations made under sections 360 (1)(ba). 'Infringement fee' in relation to the above offences means the amount fixed by regulations made under sec. 300(1)(bb) as the 'infringement fee' for the offence. Sec. 343B refers to 'commission of infringement offence' and states that any person who is alleged to have 75 committed an infringement offence may either be proceeded against for the offence under the Summary proceedings Act, 1957 or be served with an infringement notice as provided in sec. 343C; sec. 343C refers to 'infringement notices' and sec. 343D refers to 'Entitlement to infringement fees' of the local authority.
These are basically the provisions of the Act relating to Environmental Courts in Part 11 and 12.
In New Zealand, the statutes which deal with environment are the 'Water and Soil Conservation Act, 1967; the Clean Air Act, 1972; the Noise Control Act, 1982; Marine Farming Act, 1971; Harbour Act, 1950; Forests Act; Historic Places Act; Local Government Act; Transit NZ Act; etc. Schedule 1 deals with 'Preparation, changes and review of Policy statement and Plans', Schedule 2 refers to 'Matters that may be provided for in Policy statement and Plans; then comes Schedule 3; Schedule 4 with Assessment of effects on the Environment. (Other Schedules upto 11 deal with certain other aspects'.
Summarising the functions of the NZ Environment Court, it is seen that it consists of Environmental Judges, who are also District Court Judges in office and of Environmental Commissioners. The Court has a Central Registry at Wellington and holds sittings throughout New Zealand. Normally, the panel will consist of one Environment Judge and two Environment Commissioners (except where enforcement proceedings involve questions of law). Parties before the Court are usually represented 76 by lawyers, but anyone may appear in person, or be represented by an agent. The Court is not bound by the rules of evidence and the proceedings are often less formal than the general Courts. Most of the Court's work involves public interest questions. The jurisdiction of the Environmental Tribunal consists of matters arising under (1) the Resource Management Act, (2) References about the consents of regional and district statements and plans; and appeals arising out of applications for resource consent; (3) The consents applied for may be for a land use, for a sub-division, a coastal permit, a water permit or a discharge permit or a combination of these.
The Environment Court's work includes:
(1) issue of directions authorizing public works such as energy projects, hospitals, schools, prisons, sewage works, refuse landfills, fire-stations, major roads and bypasses; and also major private projects - for example, dairy, factories, tourist resorts, timber-miles and shopping centers.
(2) Classification of water, water permits for dams and diversions, taking of geothermal fluids, discharges from sewerage works, underground mines; maximum and minimum levels of lakes and flows of rivers, and minimum quality standards; and water conservation orders.
(3) Land sub-division approvals and conditions, development levies, car-parking contributions, reserve contributions, development levy fund distribution, road upgrading contributions, regional roads, limited access to roads and stopping roads.
77(4) Environmental effects of prospecting, exploration and mining, including underground, open pit and alluvial mining. (5) Enforcement proceedings (including interim enforcement orders, declarations about the legal status of environmental activities and instruments, existing and proposed, and appeals against abatement notices.) Some of the issues that arise before the N.Z. Environment Court are:
(1) Water and hydrothermal resources, including use for electricity generation.
(2) Levying and distribution of public funds (reserves and development levies).
(3) The physical environment, including the coast, bush, landform, lakes, rivers, productive soil.
(4) Noise environment and cost of protecting the environment from noise nuisance.
(5) Public safety, e.g. bulk LPG installations, exposure to earthquake risk, flooding, erosion.
(6) Mining in reserves, developments in coastal environment, regional planning.
(7) Social issues including social effects of mining or other industrial projects.
United Kingdom:
78In UK, the Department of Environment was set up in Nov. 1970. The statutes governing environment are the Wildlife and Countryside Act, 1981, the Water Act, 1989, the 1990 Planning Acts and the Environment Protection Act, 1990 (EPA). The Town and Country Planning Act, 1990 consolidated the legislations for England and Wales and amendments were made to the Planning and Compensation Act, 1990. The Scottish legislation is the Town and Country Planning Act, 1997. The Scottish Environment Protection Agency was established in 1996.
The Environment Agency in England and Wales was established in 1996 to bring together functions previously exercised by the National Rivers Authority (created in 1989) and Her Majesty's Department of Pollution. Then came the Environment Act, 1995 which deals with the Agency's powers.
The House of Lords held in R vs. Secretary of State for Environment, Transport and the Regions exparte Alconbury Development Ltd. & Others" 2001 UKHL 23 that the role of the Secretary of State, as both policy-maker and a decision-maker in individual planning cases (such as call inns) was, (when taken together with the right of Judicial review), compatible with the requirement under the European Convention on Human Rights.
The above decision of the House of Lords (according to the Royal Commission on Environmental Pollution)(23rd Report on Environmental Planning, March 2002 para 5.33) dealt only with the position of the Secretary of State, and recognized that planning decisions in general raise questions of civil rights. The judgment had significantly left open the 79 position of planning inspectors making delegated decisions, the extent to which third parties have rights, and the extent to which other areas of environmental regulations are equally subject to such principles.
The Magistrate Courts, the Crown Courts (Appellate Courts) the Court of Criminal Appeals; the Country Court and the High Court were and are dealing with the planning and environmental cases. It was felt that there should be one Court or Tribunal to deal with the whole range of planning and appeal and enforcement work, including the levy of penalties. This was pointed out in the report 'Enforcing Planning Control' (HM SO May 1989) by Robert Carnworth Q.C. (See "Environmental Enforcement: the need for a Specialist Court" Journal of Planning & Enforcement, 1992 p. 798). While some of the other recommendations were accepted in bringing forward the Planning and Compensation Act, 1991, there was no response in regard to the need for a unified system of Courts.
At that juncture, Lord Woolf, in his Garner lecture to U.K.E.L.A. on the theme 'Are the Judiciary Environmentally Myopic' summed up the problems of increasing specialization in environmental law and on the difficulty of Courts, in their present form, moving beyond their traditional role of detached 'Wednesbury' review. (The speech of Lord Woolf is printed in 1992 J.E.L. Vol 4, No.1, p.) He went on to discuss the benefits of "...having a Tribunal with general responsibility for overseeing and enforcing the safeguards provided for the protection of the environment...The Tribunal could be granted a wider discretion to 80 determine its procedure so that it is able to bring to bear its specialist experiences of environmental issues in the most effective way."
The Tribunal, according to Lord Woolf, should have the benefit of architects, surveyors and a 'multi-disciplined adjudicating panel' with broad discretion over rights of appearance; power to instruct independent counsel on behalf of the Tribunal or members of the public; resources for direct investigation by the Tribunal itself; incorporation into the Tribunals of the existing Inspectorate to deal with 'cases of lesser dimensions'. Lord Woolf concluded:
"I hope...I have said enough...to indicate that what I am contemplating is not just a Court under another name, nor is it an existing Tribunal under another name. It is a multi-faceted and multi- skilled body which would combine the services provided in existing Courts, Tribunals and Inspectorate in the environmental field. It would be a 'one stop shop' which should lead to faster, cheaper and the more effective resolution of disputes in the environmental area. It would avoid increasing the load on already overburdened lay institutions by trying to compel them to resolve issues with what they are not designed to deal. It could be a forum in which Judges could play a different role. A role which enabled them not to examine environmental problems with limited vision. It could however be based on our existing experience, combining the skills of the existing inspectorate, the lands Tribunal and other administrative bodies. It could be an exciting project."81
In the article by Robert Carnworth, Q.C., referred to earlier, the author has dealt with the strength and weakness of the existing jurisdictions in England in the areas of (i) enforcement procedures, (ii) the public inquiry, (iii) judicial review and statutory appeals, (iv) local ombudsman, and (v) Lands Tribunal and stated "With the impetus given by Sir Harry Woolf, there is now an opportunity to review the structure of the Courts and agencies concerned with the supervision of environmental law. Such a review should start by a pooling of ideas and experiences of all those involved in the practical working of the present system - specialist Judges and lawyers; the local ombudsman; the planning inspectorate, local authorities and other relevant public agencies; voluntary groups, business organizations etc. The aim should be a pragmatic evolution towards a logical and simplified structure, incorporating the best of existing practice and procedure."
Lord Woolf again, in another lecture in May 2001, suggested that there was a case for some new form of Environment Court or Tribunal. This was in his 'Environmental Law Foundations Prof. David Hall Medical Lecture' while speaking on the subject 'Environmental risk: the responsibilities of the law and science'.
It was at that stage that a major study was undertaken by Prof. Malcolm Grant of Cambridge in what is known as the "Environment Court Project". The Report on the project was published on February 18, 2000. It was prepared by the Dept. of Land Economy, University of Cambridge. The 82 project initiated and supported by the Dept. of Environment Transport and Regions (IETR) and had the support of the Financial Management and Performance Review of the Planning Inspectorate made in 1995-96. The purpose of the project was to study the concept of an Environment Court in the background of experience in other countries, such as Australia and New Zealand. The Report identified the following ten characteristics that help define the concept though it did not firmly recommend such a Court for UK (see 2000 JPL p 453 'The Case for an Environmental Court'). These are:
(a) a specialist and exclusive jurisdiction;
(b) a power to determine merits appeals;
(c) vertical and horizontal integration - (by which is meant a wide environmental jurisdiction which integrates both subject matter and different types of legal proceedings);
(d) the hallmarks of a court or tribunal;
(e) dispute resolution powers - (even disputes over the formulation of policy as well as a more traditional adjudication.);
(f) expertise - (the members would be specialists in environmental issues);
(g) access - (there would be broad rights of access to the Court);
(h) informality of proceeding (such as use of alternative dispute resolution procedures);
(i) costs (this is linked to the need for access and involves means of overcoming the problem of high costs inhibiting access); and 83
(j) capacity for information.
Comment has been made that the above ten criteria are quite general and that they lack clarity. While it is true that the above criteria may be common to several types of modern Courts or Tribunals not necessarily dealing with 'environment', the fact remains that these general criteria are equally suitable and applicable for Environmental Courts also.