The Modern Conflicting Dimensions
Chapter Seven
Syllabus topic 1, "The Idea of Environment"
Pages 26 to 29 of 595
In one line
The modern idea of environment contains several commitments that cannot all be honoured at once, and most environmental law is an attempt to decide which of them gives way.
In the wording a student can write in an exam: the conflicting dimensions of the modern idea of environment are the tensions internal to it: between development and conservation, between the present generation and future ones, between the rich world and the poor world, between livelihood and protection, and between the interests of human beings and those of other species.
Why these are conflicts and not merely difficulties
A difficulty is something you can solve with more money or more information. A conflict is a case where two things you are committed to point in opposite directions, and honouring one costs you some of the other.
The modern idea of environment is full of these, and pretending otherwise is the commonest weakness in an answer on this paper. A student who writes that sustainable development reconciles environment and development has restated the problem as though it were the solution. The examiner is asking, on this topic, for the problem.
The five conflicts
Development against conservation
A country that needs power stations, roads, ports and factories cannot build them without taking land, moving water and putting something into the air. A country that protects everything it has stays poor, and poverty is itself a cause of environmental destruction because a person with no fuel cuts a tree.
This is the conflict the whole paper is named after, and Indian law has never resolved it as a rule. It has been resolved case by case, and the results run both ways: quarries closed in Dehradun, a dam allowed in the Narmada valley, mining capped in Goa, an airport clearance suspended in Goa and then restored on conditions.
The present against the future
Every environmental decision distributes something across time. A forest cut now is income now and no forest later. Groundwater pumped now is a crop now and a dry well later. The people who bear the cost do not yet exist and cannot be consulted, and the people who take the benefit vote.
The law's answer is intergenerational equity, which the Supreme Court has applied to stop the licensing of forest-based industry and to require a percentage of mineral revenue to be set aside in a permanent fund. But equity with the future is a principle without a plaintiff, and it works only when a court is willing to supply one.
The rich world against the poor world
The countries that industrialised first put most of the carbon into the atmosphere and took most of the benefit. The countries industrialising now are asked to do it more expensively and more slowly. Whose emissions count, whose historical emissions count, and who pays for the difference, is the oldest argument in international environmental law, and India has been on the same side of it since 1972.
The Modern Conflicting Dimensions
The legal expression of the conflict is common but differentiated responsibilities, in Rio Principle 7 and in the climate treaties, and the expression of the underlying complaint is Rio Principle 6: the special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority.
Livelihood against protection
A protected area keeps people out. A ban on quarrying puts quarry workers out of work. A relocation order moves an industry and the households that depend on it. Environmental protection is not costless and its costs do not fall evenly: they fall on the people least able to absorb them.
Indian courts have handled this better than most, and the handling is worth citing. The Dehradun litigation said explicitly that closure would cause hardship and that this was a price that had to be paid for a healthy environment; the Taj Trapezium orders directed continuity of employment, a shifting allowance and a year's wages for workmen whose industry closed. The conflict is not resolved by either, but it is faced.
Human beings against other species
If the environment matters because people need it, then a species nobody needs may be traded away for a road. If it matters in itself, then a project may be stopped for a bird. Indian law now contains both propositions, and the Supreme Court has had to decide a case where the two collided with each other rather than with development: protecting a bustard by putting power lines underground would slow the renewable energy on which climate mitigation depends.
Two conflicts that a good answer adds
Certainty against precaution. A developer needs to know the rules before spending money. The precautionary principle is by definition a rule that operates in the absence of certainty. The more protective the principle, the less predictable the regime, and investment responds to predictability.
Centralised standards against local knowledge. A national standard is enforceable and blunt. A local rule fits the place and is capturable by whoever is locally powerful. India's environmental statutes are centralising; its panchayat and forest rights legislation pulls the other way.
Worked example
A State proposes a four-lane highway through a hill district. It will cut journey time to the nearest city from six hours to two, which changes what a farmer can sell and where a patient can be treated. It will require the felling of some thousands of trees on a slope, and the slope has failed before.
The Modern Conflicting Dimensions
Set the five conflicts against those facts.
Development against conservation: the road is not a luxury; it is the difference between a district that has a market and one that does not. The trees are not decoration; they are what holds the slope. Both statements are true.
Present against future: the journey time falls immediately. The landslide risk accumulates over decades and will be borne by people not yet living there.
Rich against poor: within the country, the hill district is the poor party and is being asked to carry an environmental cost for a benefit that is partly its own and partly the city's.
Livelihood against protection: the people who will lose land to the alignment are not the people who will gain from the road, and compensation at market value does not make a displaced farmer whole.
Human against non-human: the corridor crosses the range of an animal for which the district is one of the last habitats, and no realignment avoids it.
An answer that names all five, and then says how Indian law would approach each, is a complete answer. An answer that says the project must be sustainable has said nothing.
What this topic does NOT ask
It does not ask you to resolve the conflicts. They are not resolvable in the abstract, and an answer that claims to resolve them will be less impressive than one that maps them accurately.
It is not a question about pollution. The conflicting dimensions are dimensions of the idea, not a list of environmental problems.
Distinctions that carry marks
| Conflict | The two things pulling apart | The doctrine that manages it |
|---|---|---|
| Development against conservation | Economic growth, ecological integrity | Sustainable development |
| Present against future | Consumption now, availability later | Intergenerational equity |
| Rich against poor world | Historical responsibility, present need | Common but differentiated responsibilities |
| Livelihood against protection | Employment and use, restriction | Rehabilitation, compensation, phased closure |
| Human against non-human | Human need, the claim of other species | The ecocentric line of decisions |
| Certainty against precaution | Predictable regulation, action under uncertainty | Environmental impact assessment as a defined process |
| Central against local | Enforceable uniform standards, fit and consent | Federal division, panchayat and forest rights law |
Quick revision
- The conflicts are internal to the idea, not obstacles outside it, which is why the topic is set under "the idea of environment" and not under policy.
- Five to name: development against conservation, present against future, rich world against poor world, livelihood against protection, human against non-human.
- Two more that mark a strong answer: certainty against precaution, and central standards against local knowledge.
- Each conflict has a doctrine that manages rather than resolves it, and naming the doctrine beside the conflict is what turns a description into an answer.
- Rio Principle 6 and Principle 7 are the printed form of the rich-world conflict; intergenerational equity is the printed form of the second.
The Modern Conflicting Dimensions
Test yourself
1. Why is the tension between development and conservation described as a conflict rather than a difficulty?
Because it is not removed by more money or better information. Both commitments are genuine and honouring one costs part of the other, so every decision is a choice about which gives way and by how much.
2. Which conflict has no plaintiff, and what follows from that?
The conflict between the present and the future: the people who bear the cost do not yet exist. It follows that the principle protecting them, intergenerational equity, operates only where a court is willing to raise it, and that it is systematically under-enforced wherever litigation depends on a person with a personal grievance.
3. Give an Indian example in which a court faced the conflict between livelihood and protection rather than ignoring it.
The Dehradun limestone quarrying litigation, where the Supreme Court said in terms that closure would cause hardship to lessees and workmen and that this was the price to be paid for protecting the right of the people to live in a healthy environment. The Taj Trapezium orders went further and directed continuity of employment, a shifting allowance and a year's wages where an industry closed.
4. Name a case where two environmental goods conflicted with each other rather than with development.
The Great Indian Bustard litigation, where protecting an endangered bird by requiring power lines to be laid underground would have slowed the expansion of solar and wind generation on which climate mitigation depends.
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.