UNIT 5 : ENVIRONMENT PROTECTION ACT OF 1986

In the wake of Bhopal tragedy, the government of India enacted the

environment protection act of 1986 under article 253 of the constitution. The
purpose of the Act is to implement the decisions of the United Nations
Conference on the Human Environment of 1972, in so far as they relate to the
protection and improvement of the human environment and the prevention of
hazards to human beings, other living creatures, plants and property.1

 The EPA is an ‘umbrella’ legislation designed to provide a framework for

Central Government coordination of the activities of various central and
state authorities established under previous laws, such as Water Act and
Air Act.
 It is also an ‘enabling’ law which articulates the essential legislative
policy on environmental protection and delegates wide powers to the
executive to enable bureaucrats to frame necessary rules and regulations.
Since the time it entered the statute book, the Act has served to back a
vast body of subordinate environmental legislation in India.

THE SCOPE OF THE ACT

The scope of the EPA is broad, with ‘environment’ defined to include water,
air and land and the interrelationship which exist among water, air and land
and human beings and other living creatures, plants, micro-organisms and
property. (Section 2a).

 ‘Environment pollution’ is the presence of any environmental

pollutant, defined as solid, liquid or gaseous substance present in such
concentration as may be or may tend to be injurious to the
environment.(section 2(b) and (c).
 Hazardous substances include any substance or preparation which
may cause harm to human beings, other living creatures, plants,
micro-organisms, property or the environment. (section 2(e).
 Section 3 (1) of the Act empowers the Centre ‘to take all such
necessary measures as it deems necessary or expedient for the
purpose of protecting and improving the quality of environment and
preventing, controlling and abating environmental pollution.

1
Shyam Divan and Armin Rosencranz, environmental Law and policy in India, 2013.
 Section 23 of the Act empowers the Centre to delegate it powers and
functions to any officer, state government or other authority.
 Section 24 of the Act ensures that the provisions of this Act and
subordinate rules or orders override any other law.
 A broad rule making power is conferred on the Central Government
under section 6 and 25.

Constitution of authority2

The central government has the authority under section 3(3) not only to delegate
the powers and functions contained in section 3, sub-clause (1) and (2), but also
its most essential and vital powers to issue directions under section 5 of the Act
which have stringent penal effects.

 A person aggrieved by any direction issued under section 5 on or after the

commencement of the National Green Tribunal Act, 2010, may file an
appeal to the National Green Tribunal established under section 3,
National Green Tribunal Act, 2010, in accordance with the provisions of
that Act.

EPA AND JUDICIAL INTERPRETATION3

There are a few landmark cases in which courts have examined the scope
of EPA. Does the provision in EPA for the appointment of authorities,
read with the power of the Central Government to protect and improve
the quality of environment, contain a power coupled with duty? Can the
government allow EPA to be operated for a long time with the sole
mechanics of delegated legislation and delegation of powers?

Provisions of EPA4
2. In Jagannath v UOI, where aquaculture industry was ordered to be
closed because it was environmentally hazardous, the Supreme Court
directed that under Section 3(3) of the EPA, an aquaculture authority has
to be established with ‘all the powers necessary to protect the

2
Gurdip Singh, environmental law, page 218.
3
P.LEELAKRISHNAN, ENVIRONMENTAL LAW, PAGE 192.
4
Same as above Ibid
ecologically fragile coastal areas and specially deal with the situation
created by the shrimp culture industry in the coastal states.
 According to the court EPA being central legislation enacted under the
external affairs clause of the Constitution (article 253) would have an
overriding effect over the state laws.
 The court referred to the Hazardous wastes Management and handling
rules 1987 and the Coastal Regulation Zone (crz) notification 1991,
framed under EPA and held that the aquaculture industry which was
being carried out in isolation of both the Rules and Notification , should
compensate the affected persons on the basis of polluter pays principle
and should also meet the cost of reversing the damaged environment.

PUNITIVE MECHANISMS
Section 15 of the Act provides for penalties for contravention of the
provisions of the Act and the rules, orders and directions.
 The Act does not provide for different punishments for the contravention
of various provisions of the Act. It provides for common punishment for
all offences under the Act.
 The common punishment being imprisonment for a term which may
extend to 5 years or with fine which may extend to 1 lakh Rs. Or both.
 The Air and Water Act provide for different punishments for various
offences under these legislations.

Environmental Impact Assessment (EIA)5

Unforunately, the Environment(Protection) Act 1986 did not make it
mandatory to have an environment impact study before any development
project is designated or approved. The EIA gives the environmental
consequences and alternatives, including cost-benefit analysis.
 It is essential that the consequences of projects, plans or policies at
different levels be assessed before they are executed. EIA examines these
consequences and predicts future changes in the environment.
 It guides administrative agencies and balances conflicting social values
and environmental quality. It helps them to make the best choice among
various available options.

5
P.LEELAKRISHANAN, PAGE 279.
 Where during assessment, a development project, plan or policy is found
likely to result in adverse environmental impacts, it is either modified or
abandoned.
 EIA foresees and avoids potential dangers. According to it, the best
environmental policy is to prevent adverse impact, rather than
subsequently try and counteract it. Prevention is ecologically benign, and
also economically viable. Prevention is better than cure and, in many
cases cheaper.
 The Environmental Impact statement should identify the potential
environmental effects, namely, direct and indirect effects on human
beings, flora, fauna, soil, water, air, climate and landscape; the interaction
between these factors; the effects on material aspects and cultural heritage
and the safeguard mechanisms adopted to avoid, reduce or remedy these
effects.6
 It is absolutely essential that the environmental impact statement so filed
by the industrial unit must not be kept in the secret caves of the
government circles.
 The environment impact statement should be made a public document so
that it undergoes the necessary public scrunity.
 If only the people living in Bhopal knew of the dangers of the MIC
leakage and the scientists and doctors had any idea of effective antidotes
to the MIC poison, the menace would have been reduced considerably.
 Perhaps Bhopal disaster might not have occurred if there had been a
detailed prior study of the environmental impact before Union Carbide
was permitted to start a factory in a crowded city like Bhopal.

THE INDIAN MODEL

EIA Notification 1994

Institutionalisation of impact assessment in India took place in the early 80’s.

It had its origin in the ‘necessary and expedient’ clause sec.3(1) of EPA.

EIA Notification 2006;7

The EIA notification of 1994 gave way to a notification in 2006 with a

fundamental change. Both the central agency and the state agency are given the

6
Gurdip singh env law page 248.
7
P.LEELAKRISHNAN, PAGE 250.
power to make impact study for projects of separate types with prescribed
threshold limits.

 MOEF and the State Environment Impact Assessment Authority (SEIAA)

are the regulatory authorities to render clearance at the Centre and the
state respectively.
 The notification provides for prior environmental clearance before
undertaking projects and activities scheduled therein.
 The projects or activities are categorised as “A and B in the schedule.
This categorisation is based on the spatial extent of potential impact on
human health and natural and man made resources.
 Category A projects and activities require clearance from MOEF on the
recommendations of an Expert Appraisal Committee (EAC) constituted
by the Central Government.
 Category B projects and activities require prior clearance by State
Environment Impact Assessment Authority (SEIAA) on the
recommendation of the STATE EXPERT APPRAISAL COMMITTEE
(SEAC).

 New Projects:
 After identifying the prospective site but before commencing any
construction activities or preparing land at the site, the project proponent
makes the application for prior environmental clearance. A copy of the
pre-feasibility project report should accompany the application. In the
case of construction projects or area development or townships, the
conceptual plan is to be given instead of a pre-feasibility report.
(1) Screening: The SEAC screens and examines the nature, activities and
location specificity of category B projects to determine whether they do
require further studies for preparation of an EIA prior to the grant of
licence.
(2) Scoping: Scoping is needed for both category A and B1 projects. The
EAC or SEAC will determine detailed and comprehensive terms of
reference (TOR) addressing all relevant environmental concerns for the
preparation of EIA report.
(3) Public Consultation: The concept of ‘Public Consultation ‘ under the
notification of 2006 is a process by which the concerns of local affected
persons and others who have plausible stake in the environmental impacts
of the project or activity are ascertained with a view to taking into
account all the material concerns in the project or activity design as
appropriate.
(4) Appraisal : THE EAC and SEAC make the appraisal of all
materials and evidences available after screening, scoping and
public consultation.
 EIA should be carried out not only at the time of commencement of the
development project but even during the operation of the project. It
involves continuing assessment, monitoring and evaluation of the
environmental effects of the development projects as long as the project
is in operation and is not confined to pre-project evaluation of possible
environmental effects.8
 TWO MODELS OF EIA are Mandatory and discretionary model.???

Environmental Audit9

A separate and independent concept like the environmental audit finds its
way into the Environment Protection Rules. This was amended by the
amendment notification in the year 1992.

 Environment audit means self assessment of the environmental

performance of the developer. It is a concept which enables
developers to produce environmental strategies after reviewing their
environmental performance, i.e. whether there has been compliance
with legal and fiscal environmental regulations, conformity to
developers environmental policies, what reductions in waste have
been brought about, and what efficiency has been achieved in the use
of energy and raw materials.
 Environmental audit is a continual process and involves reviewing
both the organisation and management in relation to environmental
performance, following a systematic examination of operations in an
environmental context, considering emissions, effects on local
communities, landscapes and eco systems, and resulting in reports on
areas for improved performance.
 Like environmental impact assessment continuity is the basic feature
of environment audit which is based on principle of caution and
embodies the obligation of continuing watchfulness and anticipation .
8
Gurdip singh, env.law page 248.ss
9
Gudip singh page 251.
 The concept of environmental audit has two levels, namely self-
assessment of the environmental effects of the activities and external
verification of the audit by an independent body.
 The continual nature of the concept requires that the developers must
draw up annual environmental statement which shall be audited by
independent auditors. The environment authority concerned and the
public must have access to the reports of the environemtnal auditors.
 Recognising the importance of environmental audit, procedure for
environement audit was first notified under the EPA 1986 by MOEF.
Under this every person carrying on an industry, operation or process
requiring consent under section 25 of WATER ACT and under section
21 of AIR ACT or both or authorisation under the Hazardous Wastes
(Management and Handling Rules 1989, issued under EPA 1986 is
required to submit environmental audit report.
 However,the EPA 1986 does not provide for environmental audit.
Environmental audit must be made mandatory to make the Act more
effective.


HAZARDOUS SUBSTANCES AND ACTIVITIES

 With the expansion of chemical-based industries in India, increasing

number of enterprises store and use hazardous substances. These
activities are not banned because they have great social utitlity (e.g.,
the manufacture of fertilizers and pesticides).
 A hazardous substance is defined not only as a substance, but also as a
preparation, which by reason of its chemical or physio-chemical
properties or handling, is liable to cause harm human beings, other
living creatures, plants, micro-organisms, property or the
environment(SEC.2(e) of EPA).
 Specific provision is made in the Environment protection Rules for
handling hazardous substances.(Environment (Protection) Rules 1986,
Rule 13.

M.C.Mehta v UOI, 1987(Oleum Gas Leak case)

Absolute Liability10

 Traditionally, the doctrine of strict liability was considered adequate

to regulate such hazardous enterprises. The doctrine allows for the
growth of hazardous industries, while ensuring that such enterprise
will bear the burden of the damage they cause when a hazardous
substance escapes. Shortly after the Bhopal gas leak tragedy of 1984,
the traditional doctrine was replaced by the rule of ‘absolute’ liability,
a standard stricter than strict liability. Absolute liability was first
articulated by the supreme court and hence been adopted by
Parliament.
 Even chronologically speaking, in terms of event, Bhopal happened
much earlier than Shri Ram Oleum gas leak case,i.e in the intervening
night of 2-3 1984 where as shri Ram Gas leak happened in 1985,on 4,
december and was decided in 1986. Bhopal’s decision by the Supreme
court came only in 1992.
 The genesis of absolute liability was the Shriram Gas Leak Case
which was decided by the supreme court in December 1986. The case
originated in a writ petition filed in the supreme court by the
environmentalist and lawyer, M.C.Mehta as a PIL under article 32 of
the constitution. The petition sought to close and relocate Shriram’s
caustic chlorine and sulphuric acid plants which which were located in
Kirti Nagar, a thickly populated part of Delhi.

 While the case was pending, oleum gas leaking out from the factory
affected several persons.11
 One person living in the locality died. Applications were immediately
filed for award of compensation to the victims. The supreme court
could have avoided a decision on their application by asking the
parties to approach the appropriate subordinate court by filing suits
for compensation.
 Instead, the court took up the challenge and proceeded to formulate
the general principle of liability of industries engaged in hazardous
and inherently dangerous activity.

10
Shyam Divan and Armin Rosencranz, Environmental law and Policy in India, page 106.
11
P.LEELAKRISHNAN, PAGE 232.
It was held in this case that the supreme court can design remedies for
enforcement of fundamental rights, as the jurisdiction under Article 32 to
issue appropriate directions, orders or writs extends to preventive measures
against apprehended violation of fundamental rights as well as to remedial
measures against actual violation.

 The court held that the power to grant remedial relief may include the
power to award compensation in appropriate cases.
 The pronouncement of the supreme court on the substantive law of
liability is a remarkable milestone. The industries engaged in
hazardous and inherently dangerous activity are ‘absolutely liable’ to
compensate those who are affected by the harm arising from such
activity.
 The principle of strict liability evolved in England more than a century
ago in Rylands v Fletcher , was watered down to a large extent in that
country by adding exceptions such as act of God, act of default of the
plaintiff, consent of the plaintiff, independent act of a third party and
statutory authorisation for the tort.
 The supreme court held that the exception to the Rylands rule are not
applicable in India, in cases of determining liability for hazardous and
inherently dangerous industry.
 The supreme court of India was therefore developing an indigenous
jurisprudence free from the influence of English law. The court had its
inspiration from Article 32 , which guaranteed the right to move the
Supreme Court for ‘appropriate directions, orders, or writs.
 The scope of the power conferred on the court was so widely
interpreted as to include formulation of new remedies and new
strategies for enforcing the right to life, and awarding compensation in
an ‘appropriate’case.
 In the Bhopal Compensation case (1990) the UCC had hinted that the
Supreme Court had UCC in mind and prejudged their ‘absolute
liability’ when the Mehta principle of absolute liability was evolved,
even before the question of compensation to the victims of Bhopal
tragedy reached the court. Rejecting the contention, the Supreme court
made the following remarks:
 Deep pocket theory
 In sriram the court observed that in such cases, compensation ‘must be
correlated to the magnitude and capacity of the enterprise because
such compensation must have a deterrent effect. The larger and most
prosperous the enterprise, the greater must be the amount of
compensation payable by it.

UNION CARBIDE CORPORATION v. UOI AIR 1992(BHOPAL

CASE)

 ENVIRONMENTAL HAZARDS AND MASS TORT ACTION

 The Bhopal disaster, which took place just after midnight on 3

December 1984, is undoubtedly the worst industrial accident in
history. It occurred approximately two years before the supreme
court evolved the rule of absolute liability.

 Compensation to the victims of Bhopal gas leak disaster raised a

dilemma in Indian law of torts, which had its origin in English
common law and sustained its existence through various statutes
generating semblance of tort actions.12 It is not disputed that Indian
courts do not award punitive damages in civil cases to deter
wrongful conduct. It is against this background, that one has to
examine recent trends in Indian tort law as an instrument of
protection against environmental hazards.

 The absolute liability theory laid down by the supreme court in

Shriram was first applied by the Madhya Pradesh High court to
support its award of interim compensation to the Bhopal victims. In
light of SriRam, Justice Seth of M.P.High Court described the
liability of the enterprise to be ‘unquestionable’.
 However, soon thereafter the wisdom of the theory was questioned
by Chief justice Misra in this concurring judgment observed that
the issue before the ShriRam court was whether the delinquent
company came within the ambit of ‘state’ under Article 21 and to
proceedings under Article 32 of the constitution. Thus according to
12
P.LEELAKRISHNAN, PAGE 9
the Chief Justice, what was said about the departure from the
Rylands v Fletcher rule was essentially obiter.
 In recognising Carbide’s right to raise and urge defences the court
stepped back from the ‘without exception’ absolute liability
principle declared in Shri Ram.
 Meanwhile in Januray, 1991 Parliament enacted the Public
Liability Insurance Act, giving statutory recognition to no-fault
liability in small measure. The victims of a hazardous industrial
accident were now entitled to compensation at prescribed levels,
without proof of negligence.
 The absolute liability principle was examined by the supreme court
when deciding the Bhopal settlement review petitions, as well as
the Bichhri case. Next to Shri Ram the Bicchri case is the most
important judgment rendered by the Supreme court on hazardous
substance.13
 Forty tons of highly toxic methyl isocyanate(MIC), which had
been manufactured and stored in Union Carbide’s chemical plant in
Bhopal, escaped into the atmosphere and was wind-borne directly
towards the city centre.

13
Shyam Divan, page 536.