Environment Against Development
Chapter Twenty-Six
Syllabus topic 2, "Development"
Pages 103 to 106 of 595
In one line
Development consumes environment, and no legal doctrine has abolished the fact; what the doctrines do is decide who has to justify what.
In the wording a student can write in an exam: the conflict between environment and development arises because economic activity necessarily uses land, water, energy and materials, and returns waste. Indian law does not resolve the conflict by a rule. It manages it through the doctrine of sustainable development, through the requirement of prior environmental assessment, and through a case-by-case balancing which the Supreme Court has conducted since 1985 with results running in both directions.
Why the conflict is real
Three propositions that a candidate should be able to state without hedging.
Every project has an environmental cost. Not every project has an unacceptable one, but none has a cost of nil. A road takes land and fragments habitat; a power station takes water and emits; a factory does both; even a wind farm takes land and kills birds. An answer that assumes a technology exists with no cost has assumed the problem away.
Every environmental restriction has a human cost. A quarry closed is wages lost. A forest protected is fuel and fodder denied to the household beside it. A river left unpolluted may mean a tannery closed and a town's employment with it.
The two costs fall on different people. This is the part that makes it a legal problem rather than an economic one. The benefit of a project is usually diffuse and the cost concentrated; the benefit of protection is often diffuse and its cost concentrated too. Whoever the law protects, somebody identifiable pays.
Three Indian disputes
Dehradun: the quarries
Limestone quarrying in the Dehradun and Mussoorie hills, challenged in 1983 on the ground that it was destabilising the slopes, drying the springs and damaging the watershed.
What was at stake for development: the quarries supplied limestone to industry, the leases were valid, and closing them ended the livelihood of the lessees and of the workers.
What was at stake for the environment: the hills feed the springs and the rivers of a large area, and the damage was cumulative and hard to reverse.
What the Court did: it closed the most dangerous quarries and permitted a further category to work under conditions. It said in terms that closure would cause hardship to the lessees and to those dependent on the quarries, and that this was a price that had to be paid for protecting and safeguarding the right of the people to live in a healthy environment with minimal disturbance of the ecological balance.
The point for an answer: the Court did not pretend there was no cost. It identified who bore it and said why they had to.
Environment Against Development
The Narmada: the dam
The Sardar Sarovar project on the Narmada, challenged in the 1990s on the environmental studies behind its clearance and, above all, on the rehabilitation of those to be displaced.
What was at stake for development: irrigation for a large area, drinking water for districts that had none, and power.
What was at stake for the environment and for rights: submergence, displacement on a very large scale, and a clearance granted in 1987 on studies the petitioners said were incomplete.
What the Court did: it declined to stop the project, permitted construction to 90 metres and thereafter only pari passu with relief and rehabilitation, and held that once a considered policy decision has been taken by the Government the Court should not sit in appeal over it.
The point for an answer: this is the case that shows what sustainable development does not decide. It is the necessary counterweight to Vellore and an answer that cites only one of them is presenting a slope as a balance.
Goa: the mining
Iron ore mining in Goa, litigated after a commission of inquiry reported extraction outside lease areas, without clearances and beyond any assessed capacity.
What was at stake for development: mining was a very large part of the State's economy and of its employment, and the ore was being exported.
What was at stake for the environment: the extraction rate had no relation to what the State's ecology could absorb, and an exhausted mineral is exhausted permanently.
What the Court did: it held the leases to have expired in 2007 and mining after that date to be illegal, capped annual extraction pending an expert study of carrying capacity, and directed that a share of the proceeds go to a permanent fund for sustainable development and intergenerational equity.
The point for an answer: this is the case in which the conflict was resolved by a quantity rather than by a prohibition, and by a transfer across time rather than a stop.
The four ways law manages the conflict
Naming these is what turns a description of the conflict into an analysis of it.
By process. Require the environmental consequences to be identified before the decision is taken, through environmental impact assessment and public consultation. This does not decide the outcome; it decides what the decision-maker must have in front of them.
By burden. The precautionary principle puts the onus on the person proposing to change the position, so uncertainty no longer favours the developer.
By price. The polluter pays principle internalises the cost, so that the project bears the damage it does rather than passing it to the public.
Environment Against Development
By quantity. Caps, carrying capacity assessments and permanent funds, as in Goa. This is the least developed of the four in Indian law and it is the one that fits a non-renewable resource best.
What the doctrines do NOT do
Sustainable development does not decide cases by itself. It is a standard, and standards do not generate outcomes without facts. Vellore and Narmada were both decided under it and they went opposite ways.
Balancing is not a formula. When a judgment says the interests must be balanced, it has described what it is doing rather than justified the result. What justifies the result is the evidence about the particular place.
Nothing here removes the distributional problem. Every one of the four techniques still leaves somebody bearing the cost, and the honest answer says who.
Worked example
A cement plant with a captive limestone quarry is proposed in a district that has high unemployment. The limestone body underlies the catchment of the stream three villages draw from.
Apply the four techniques. Process: has the assessment studied the hydrology of the catchment, and was the public hearing held in the villages that draw the water? Burden: the effect on the springs is uncertain, and under the precautionary principle the promoter must show its operation is environmentally benign rather than the villagers proving it is not. Price: if there is damage, who restores the catchment, and is a bond required in advance? Quantity: is there a limit on extraction related to what the catchment can absorb, or only to what the lease allows?
Four specific questions rather than one general balance. That is the difference between an answer that has read this chapter and one that has not.
Distinctions that carry marks
| Case | What was in conflict | What the Court did | The lesson |
|---|---|---|---|
| Dehradun, 1985 | Quarry livelihoods against watershed | Closed the dangerous quarries and said the price had to be paid | The Court names who bears the cost |
| Narmada, 2000 | Irrigation and power against displacement and submergence | Allowed the project subject to rehabilitation pari passu; refused to sit in appeal on policy | Judicial restraint on a considered policy decision |
| Goa, 2014 | Mining revenue and employment against exhaustion of a finite resource | Held post-2007 mining illegal, capped extraction, created a permanent fund | The conflict resolved by quantity and by transfer across time |
Quick revision
- Three propositions: every project has an environmental cost, every restriction has a human cost, and the two costs fall on different people.
- Dehradun closed quarries and said the hardship was a price that had to be paid. Narmada allowed a dam and refused to sit in appeal on a considered policy decision. Goa capped a quantity and created a permanent fund.
- Four techniques: process through assessment and consultation, burden through the precautionary principle, price through polluter pays, and quantity through caps and carrying capacity.
- Sustainable development does not decide cases by itself: Vellore and Narmada were both decided under it and went opposite ways.
- Naming who bears the cost is part of a complete answer, not an optional extra.
Environment Against Development
Test yourself
1. Why is the environment and development conflict a legal problem rather than only an economic one?
Because the benefit and the cost fall on different people. The benefit of a project is usually diffuse and its environmental cost concentrated, and the benefit of protection is diffuse while its cost is concentrated too. Whichever way the law decides, somebody identifiable pays, and allocating that is a legal question.
2. Contrast what the Supreme Court did in the Dehradun quarrying litigation and in the Narmada case.
In Dehradun it closed the dangerous quarries and stated expressly that the hardship to lessees and workers was a price that had to be paid for the right of the people to live in a healthy environment. In Narmada it declined to stop the project, allowed construction up to 90 metres and thereafter only in step with relief and rehabilitation, and held that a court should not sit in appeal over a considered policy decision of the Government.
3. Name the four techniques by which law manages the conflict, with one word each on what they change.
Process, which changes what must be before the decision-maker. Burden, which changes who must prove what. Price, which changes who bears the cost. Quantity, which changes how much may be taken.
4. What was distinctive about the way the conflict was resolved in the Goa mining case?
It was resolved by a quantity rather than by a prohibition. The Court capped annual extraction pending an expert assessment of the State's carrying capacity, and directed that a share of the proceeds be set aside in a permanent fund for sustainable development and intergenerational equity, which transfers part of the benefit across time rather than stopping the activity.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.