The Deontological Ethics Of "Polluter Pays Principle"

It might be prudent to state that the law, in all its glory, is sane, rational and logical (if not natural). One may argue that the aforementioned words are synonyms of each other; however, the larger point I am trying to make is that law stays true to its name when it produces a logical result through coherent and, legally tenable, reasoning. Similarly, the law protecting the environment, like any other law, must seem natural in the sense of being judicious. That is to say that the Kantian end it seeks to achieve (namely the idea of treating people as an end in themselves instead of a means to reaching the end, as elucidated by the 18^th century German philosopher Immanuel Kant) or the mischief law seeks to avoid, must be tenable in the eyes of law and well thought out. Once the established law, or a judicial decision forming the basis of a law, seems to flow naturally as a solution to the difficulty presented before it, the execution of such a law becomes easier. That is perhaps the foremost reason I have chosen the case of Samir Mehta vs. Union of India^[1]. It was decided by the National Green Tribunal (NGT) of India in 2016 and remains India's sole case law sufficiently in line with the 'extended responsibility' principle of the Organization for Economic Co-operation and Development (OECD). An incident of marine oil spillage into the Arabian Sea made the National Green Tribunal reiterate and employ into the Indian scenario a universally-accepted rule known as the Polluter Pays Principle. The pivot on which this principle revolves is that any entity responsible for causing damage to the environment, in any capacity, must bear the price of such damage.

The reason this judgment 'spoke' to me was because despite a varied set of parties trying their best to shirk off responsibility and prove no liability on their part, the NGT ,creases away all confusion and defines with surgical precision on whom the liability falls. It is not often that in a country like ours, gigantic domestic and multinational corporations are held accountable for the damage they cause to the environment; this is one such shining example of our courts doing just that. The corporation responsible for shipping (Delta group,) as well as the Adani group whom the shipment was supplied for, were both held liable to pay compensation to the Indian government (more particularly the Ministry of Shipping which cleaned the spillage).

As students of law we often witness environmental offenders getting away with catastrophic damage to the environment by slipping into the cracks between central, state and Tribunal legislations. This is not an example of one of those unfortunate incidents. Perhaps the foremost issue a court must examine is whether it has jurisdiction to try the petition presented before it. Time and again specialized environmental courts have raised a white flag due to lack of proper jurisdiction to try the matter. However, in the Samir Mehta case the NGT held that despite the fact that actual spillage occurred 20 nautical miles off the Indian coast (and since India has territorial jurisdiction only up to 12 nautical miles, beyond which lie international waters) the Indian Maritime Act bestows upon the NGT powers to "preserve and protect maritime environment" which makes the said tribunal perfectly competent to try the said matter. Considering the amount of damages that both Adani Group (Rs 5 crore) and the Delta Group (Rs 100 crore) were ordered to pay to the Ministry of Shipping, it is difficult to imagine a scenario wherein the NGT was unable to unearth its jurisdiction to try the matter at hand, it would have taken several years for the said petition to be listed and presented before the Supreme Court, and that would have only distanced India as a country in recognizing this simple and rather eloquent principle which holds every polluter responsible for every inch of environmental pollution that they cause.

Another reason why this particular judgment stands out from a sea of landmark, albeit inefficient judgments is, because although argued on facts and merits and less in terms of the law, this case-study makes a profound impact on our definition and understanding of maritime damage including loss and harm to ecology along with, and more specifically, consequent "restoration and restitution of the ecology". When viewed through a kaleidoscope of review, we realize that the guns of this deterrent principle go into action whenever there is degradation or contamination or damage (however small) to water, soil or air. Additionally, unlike other torts-based remedies that environmental law relies upon to deter offenders, this principle is a lot more stringent than the strict liability rule in torts law and a lot more detailed than the notion of "joint and several liability". That is to say, any party playing an active, as opposed to direct, role (including a far-fetched one) in damage to the environment will fall within the ambit of this principle.

Having said that, both the aforementioned judgment and the "polluter pays principle" seem to fall within the larger realm of deontological ethics. The idea, as Immanuel Kant's seminal work of moral philosophy, Kingdom of Ends, suggests, is simple: "treat each man as an end in himself and never as a means only". For the purpose of environmental law wherein the term 'environment' includes all biotic and abiotic beings, let us replace the word 'man', used by Kant, with 'environment' so as to avoid confusion. Following that trail of logic, we arrive at the conclusion that were we not only to treat with respect every aspect of what connotes 'environment', we are also to assume accountability for such disregard. To add to this mix is Kant's broader ethical notion of "duty for the sake of duty" which entails that it is our duty to protect, preserve and act with kindness towards the environment not because of some theological or a virtue-based reason but because we are rational beings. Consequently, any such disregard or contempt of one's duty is bound to attract a reprimand or penalty and thus emerges the "polluter pays principle". Simply put, you have a duty to treat the environment, at large, as an end in itself and not as a means to further your end. Should you choose to disobey such a duty you are bound in the shackles of the polluter pays principle which asks you to pay for your divergence from the said duty (of preserving the environment).

Views are personal only.

(Aaliya Waziri is a lawyer at the High Court of Delhi)