Decoding air pollution concerns in Delhi-NCR

In Delhi’s National Capital Region (NCR), vehicular emission is the primary source of air pollution, especially in terms of fine particulate matter (PM2.5) and toxic gases such as carbon monoxide, benzene and nitrogen oxides. Unfortunately, officials, un-official agencies, citizens and the higher judiciary have held stubble burning farmers of neighbouring Punjab and Haryana responsible for Delhi’s deteriorating air quality.

On PPP

The principle widely recognised to determine liability for polluted water, air and land is the ‘polluter pays principle’ (PPP) which envisages that the person or firm who damages the environment must bear the cost of such damage. In Vellore Citizens Welfare Forum vs Union Of India and Ors. (1996), the Supreme Court of India held that the PPP is part of the law of the land, which paved the way for statutory recognition of the principle in the National Green Tribunal Act, 2010. The application of the principle of PPP (a principle of cost allocation and cost internalisation) is replete with complexity in a situation consisting of both multiple point and non-point sources of pollution that are directly or indirectly involved in the air pollution. The latter has a transboundary angle which cannot be addressed by PPP alone which is contingent on cooperation among neighbouring entities.

The jurisprudence laid down in the Standley case decided by the European Court of Justice in 1999 is very relevant. The case was about the implementation by the United Kingdom government of the so-called EU Nitrates Directive. This directive was aimed at reducing water pollution from nitrates discharged into waters from agricultural sources. In the U.K., the action programmes initiated by the local authorities in certain nitrate vulnerable zones led to a limitation on the agricultural activities in those areas. The farmers of these areas opposed it on the ground that they could not be held liable for nitrates released from the industrial sources into waterbodies.

The Standley judgment adds the proportionality dimension to the PPP which amounts to saying that seasonal stubble burning by the farmer cannot be held liable for the air pollutants created by other sources.

The narrative relating to the long-range trans-boundary effect of air pollution in India and in this part of the world has yet to acquire traction that air pollution is not simply local in nature but is subject to regional and global influences. The Trail Smelter case (1941) held sulphur spewing smelters based in British Columbia (Canada) responsible for damage of properties in the State of Washington, U.S. There is growing evidence of the global and regional impacts of air pollution (Q Zhang et al., Nature, 2017).

Zhang mentions that the trans-boundary health impacts of PM2.5 pollution related to international trade are even higher than those linked with long-distance atmospheric transport of pollution. The Convention on Long-Range Trans-boundary Air Pollution (CLRTAP, 1979) (51 parties and eight protocols), and the Association of South East Asian Nations (ASEAN) Agreement on Trans-boundary Haze Pollution (2002) are examples of air pollutants travelling long distance. The Gothenburg Protocol to the CLRTAP Convention was amended in 2012 to include PM2.5 as a pollutant, making it clear that PM2.5 is also a long-distance air pollutant.

Government-Pays Principle

The judiciary in India has not been able to suggest precise contours in terms of the valuation choice to be deployed to determine the quantification of exact damage. In the Indian Council for Enviro-Legal Action case, the Court recognised that the precise scope of the principle and its implications for those involved in polluting activities have never been satisfactorily agreed. Instead, the Court, in Indian Council For Enviro-Legal Action vs Union Of India and Ors. Etc. (1996), Vellore Citizens Welfare Forum vs Union Of India and Ors., and S. Jagannath vs Union Of India and Ors., leaned on the formula of compensation to human victims of pollution and environmental restoration. This is more aligned with corrective justice and less with PPP.

In India, PPP has shifted to the government-pays principle. India has used the Water Act 1974, Air Act 1981, the Environment Protection Act 1986 and Articles 48A and 51A(g) incorporated through constitutional amendments, to create specialised authorities and vested them with wide powers. These include the closure of industries and the power to give any directions to protect the environment.

Activist judiciary

These authorities suffer from administrative failures like the rest of the bureaucracy and the executive. In India, the increasingly activist judiciary tends to take greater note of these standards and creates an obligation on governments to bear the entire costs of monitoring air pollution and only secondarily to impose liability on the polluters.

On counts of welfarism, the Indian judiciary takes special interest in such matters, since most of the victims of such environmental degradation have little means possible of individually suing polluters to enforce the PPP. This approach projects the government’s welfare-maximising nature but does not fully internalise the costs of pollution prevention and public health benefits to the people. Last but not the least, the environmental duties of individuals as compared to their rights are seldom discussed in detail in India.

Anwar Sadat is an Associate Professor in International Environmental Law at the Indian Society of International Law (ISIL)