The Modern Concept of Environment
Chapter Six
Syllabus topic 1, "The Idea of Environment"
Pages 22 to 25 of 595
In one line
The modern concept treats the environment as a single connected system that belongs to everyone and to nobody, and which the law must protect against risk rather than compensate after damage.
In the wording a student can write in an exam: the modern concept of environment is global rather than local in scale, ecological rather than merely physical in content, ecocentric as well as anthropocentric in the interests it protects, anticipatory rather than reactive in its method, and public rather than proprietary in the access it gives to a court.
Why the idea changed
Not because lawyers became more thoughtful, but because four things happened in the middle of the twentieth century that the old framework could not absorb.
The scale of industry changed. Synthetic chemistry produced substances that do not break down, and mass production put them into the world in quantities the earth had never had to absorb. A harm that used to stop at the boundary of a village now crossed continents.
The evidence changed. Science began to detect harm long before anyone could feel it, and to predict harm that had not yet happened. Once you can measure a part per billion in a bird's egg, the question of what to do about a risk that has not yet materialised becomes unavoidable.
Two disasters made the point. The Minamata poisoning in Japan and, in India, the Bhopal gas leak of December 1984 showed that a single industrial event could injure tens of thousands of people who had no relationship with the enterprise at all.
The developing world arrived at the table. Stockholm in 1972 was the first occasion on which the poorer countries told the richer ones that environmental protection could not be discussed as if poverty did not exist. That reframing is the origin of sustainable development.
The five changes
1. From local to global. The modern concept accepts that the environment is one system. Ozone depletion, climate change, the movement of persistent pollutants and the loss of species are problems no country can solve inside its own borders. Stockholm Principle 21 is the legal expression of this: States have the sovereign right to exploit their own resources, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond national jurisdiction.
2. From physical to ecological. The old idea counted the components: air, water, land. The modern idea counts the relationships as well, which is exactly what section 2(a) of the Act of 1986 does when it includes "the inter-relationship which exists among and between" them. A project that pollutes nothing may still be unlawful if it severs a dependency.
The Modern Concept of Environment
3. From anthropocentric to ecocentric. The old law protected nature because people used it. The modern position, at least in India, is that other species have a claim of their own. The shift is not complete and the two views coexist, which is why it is treated separately in its own chapter.
4. From reactive to anticipatory. This is the most important change for a lawyer, because it changes what has to be proved. The modern law acts on risk. Environmental impact assessment asks what a project will do before it is built. The precautionary principle says that where there are threats of serious and irreversible damage, lack of scientific certainty is not a reason to postpone measures. The burden of proof moves from the person complaining to the person proposing to act.
5. From proprietary to public. The old law let you into court if you owned something affected. The modern law lets in a citizen, an organisation, a newspaper report and the court itself. Indian public interest litigation is the extreme case: the Supreme Court has treated a letter as a writ petition and a newspaper article as a case.
Worked example
A cement plant is proposed on a plateau in the Konkan. It will employ two thousand people in a district that has no other industry. The plateau carries no forest and no protected species that anyone has recorded. It is, however, a lateritic plateau of the kind that holds rainwater through the dry months and feeds the springs on which four villages downhill depend, and it is the seasonal habitat of a plant found only on such plateaux.
Under the conventional idea there is no case at all. Nobody's land is being interfered with. Nothing is being polluted. The plateau belongs to the government, which has decided to allot it.
Under the modern idea there are four distinct questions, and each comes from one of the five changes.
The ecological question: does the plateau perform a function for the villages below it, and has anyone measured that function? This is the interrelationship clause of section 2(a) doing work.
The anticipatory question: has an environmental impact assessment been carried out, has it disclosed the hydrology and the plant, and has the appraisal committee applied its mind to what it disclosed? A clearance built on an assessment that omitted the hydrology is vulnerable.
The precautionary question: the effect on the springs is uncertain, and the uncertainty runs in the developer's favour only under the old law. Under the modern rule the developer must show that the project is environmentally benign.
The public question: who may raise all this? Not only the villagers. Any member of the public may move the High Court under Article 226, and a court may act on a letter.
The Modern Concept of Environment
None of those four questions could have been asked in 1970. That is the modern concept.
The challenges of the modern concept
MU asks for the modern concept "and its challenges", so the second half needs an answer of its own.
It has no natural stopping point. If everything is connected to everything, any project can be challenged on some ecological ground, and the law needs a way to distinguish a real objection from an obstruction. The doctrine of sustainable development exists to supply that limit and does not always succeed.
It asks courts to decide what they are not equipped to decide. Whether a dam is safe in a seismic zone, or what an acceptable concentration of a compound is, are not legal questions. The Supreme Court itself said so in the Nayudu case when it pressed for tribunals with scientific members, and the National Green Tribunal is the answer.
It transfers cost across generations and across classes. Closing a quarry protects a watershed and puts quarry workers out of work. The Dehradun litigation faced this squarely and said the price had to be paid; the Taj Trapezium orders faced it and provided for the workmen. A modern environmental decision that ignores the distribution of its costs is incomplete.
It depends on institutions that are weak. A precautionary principle administered by a Board with a third of its scientific posts vacant is a principle on paper.
It runs ahead of the political consensus. Much of Indian environmental law was made by courts rather than by Parliament, and law made that way is vulnerable to being undone by an amendment, a notification or simple non-implementation.
What the modern concept does NOT mean
It does not mean development is presumptively unlawful. The Supreme Court has refused that position repeatedly. The modern concept requires that environmental consequences be identified and weighed, not that they always prevail.
It does not abolish the old law. Nuisance, negligence and the magistrate's power to remove a nuisance all survive and are still used.
It is not a single doctrine. It is a set of changes that happened at different times for different reasons, and an answer that presents it as one idea will not be able to date any of it.
Distinctions that carry marks
| Change | Conventional | Modern | The instrument that carries it |
|---|---|---|---|
| Scale | Local | Global | Stockholm Principle 21, Rio Principle 2 |
| Content | Physical components | Components and their relationships | EPA 1986, s.2(a) |
| Interest protected | Human beings | Human beings and other species | Article 51A(g), and the ecocentric decisions |
| Timing | After damage | Before, on a risk | EIA notification; the precautionary principle |
| Standing | An interest in the land | Any member of the public | Articles 32 and 226, and public interest litigation |
The Modern Concept of Environment
Quick revision
- The modern concept is global, ecological, ecocentric, anticipatory and public, against a conventional idea that was local, physical, anthropocentric, reactive and proprietary.
- The four causes: the scale of industry, the sensitivity of science, the disasters at Minamata and Bhopal, and the arrival of the developing world at Stockholm in 1972.
- Stockholm Principle 21 is the legal form of the change of scale: sovereign right to exploit, and responsibility not to damage the environment of other States or of areas beyond national jurisdiction.
- The most important change for a lawyer is the anticipatory one, because it moves the burden of proof.
- The challenges: no natural limit, courts deciding scientific questions, costs falling on the poor, weak institutions, and law made ahead of the political consensus.
Test yourself
1. State the five changes that separate the modern concept from the conventional one.
Local to global in scale; physical to ecological in content; anthropocentric to ecocentric in the interests protected; reactive to anticipatory in timing; and proprietary to public in standing.
2. Which of the five changes matters most in practice, and why?
The anticipatory change, because it alters what has to be proved and by whom. Under the conventional law a complainant proved damage after it happened; under the precautionary principle a developer must show that a proposal is environmentally benign before it proceeds.
3. Give the substance of Stockholm Principle 21 and say which change it expresses.
That States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. It expresses the change from local to global scale.
4. Name three challenges the modern concept faces.
That an idea in which everything is connected has no natural stopping point, so the law needs a limiting doctrine; that it asks courts to decide scientific questions they are not equipped for; and that it depends on regulatory institutions which in India are under-resourced, so a principle can be perfectly stated and unenforced.
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.