Sustainable Development as a Rule of Indian Law

Held. The traditional concept that development and ecology are opposed to each other is no longer acceptable, and sustainable development is the answer. The Court traced the concept from Stockholm through Brundtland and Caring for the Earth to Rio, listed the salient principles culled from those documents as including inter-generational equity, use and conservation of natural resources, environmental protection, the precautionary principle, the polluter pays principle, the obligation to assist and cooperate, eradication of poverty and financial assistance to developing countries, and held that the precautionary principle and the polluter pays principle are essential features of sustainable development. It held these principles to be part of the environmental law of the country. On the facts it held that an industry may not be permitted to expand or even to continue unless it deals with the pollution it creates.

Why it matters here. It is the case that makes sustainable development a rule an Indian court applies rather than a policy an Indian government announces, and the list of salient principles it gives is the standard examination answer to "what are the components of sustainable development".

What a tribunal actually does with it

Reduce it to questions and it stops being vague.

1. Is the resource being used at a rate that permits its renewal? A quarry, an aquifer and a fishery each have an answer.
2. Has the cost of the environmental damage been counted as a cost of the project, or externalised? This is the polluter pays principle in its planning form.
3. Where the science is uncertain, who bears the risk? This is the precautionary principle, and the answer is the developer.
4. What is left for those who come later? This is inter-generational equity.
5. Is there a less damaging way of achieving the same object, and was it considered? This is the work the environmental impact assessment process is meant to do.

A decision that has not asked those questions has not applied the principle, whatever it says about balancing.

A worked example

A company applies for clearance to draw twelve million litres of groundwater a day for a bottling plant in a district where the water table has fallen by eleven metres in fifteen years. It offers employment for four hundred people and a recharge programme it will fund.

The wrong analysis. Weigh jobs against water and pick the bigger number. That is the balancing exercise sustainable development replaced, and it collapses into whichever side is easier to quantify, which is always the jobs.

The analysis the principle requires. Is twelve million litres a day within the rate at which the aquifer recharges? If not, the project is not development at all in the relevant sense: it converts a renewable resource into a finite one and the plant closes when the water runs out, taking the four hundred jobs with it. If the recharge programme genuinely restores the balance, the objection falls away, and the burden of showing that it does is on the company under the precautionary principle. And if the science is uncertain, the uncertainty is resolved against the applicant.

Notice that the analysis does not require the tribunal to prefer the environment to the economy. It requires it to notice that a project which exhausts its own resource base is not economically sound either.

Distinctions

What it does NOT mean

It does not mean development must stop. Vellore Citizens says the opposite in terms: the concept that development and ecology are opposed is no longer acceptable. The principle is a test for how a project is done, not a presumption against doing it.

It does not mean any project with a mitigation plan is sustainable. The plan has to work, and after Alembic Pharmaceuticals the question is asked before the activity begins rather than after.

It does not mean the principle decides the case by itself. In Narmada Bachao Andolan the Court applied sustainable development and allowed the dam to proceed. A principle that had only one outcome would not be a principle.

Limits and criticism

It is criticised as too elastic to constrain anybody. Almost every project can be described as sustainable by someone, and courts have used the phrase to approve projects as often as to stop them. The answer is that section 20 gives it a forum that has to give reasons, and reasons can be examined.

And the more serious criticism is that it assumes the two can be reconciled. Sometimes they cannot: the resource is finite, the use destroys it, and one interest simply has to give way. The doctrine has least to say in exactly the cases where the conflict is sharpest.

Quick revision

• Definition, from Brundtland 1987: development that meets the needs of the present without compromising the ability of future generations to meet their own needs.
• The sequence: Stockholm 1972, Brundtland 1987, Caring for the Earth 1991, Rio 1992.
• Vellore Citizens Welfare Forum, AIR 1996 SC 2715: development and ecology are not opposed, sustainable development is the answer, and the precautionary and polluter pays principles are its essential features and part of Indian law.
• Salient principles listed in Vellore: inter-generational equity, use and conservation of natural resources, environmental protection, precautionary principle, polluter pays, obligation to assist and cooperate, eradication of poverty, financial assistance to developing countries.
• Section 20 of the NGT Act 2010 makes the Tribunal apply it. That is what makes it law.

Test yourself

1. Give the Brundtland definition and say why it has a second half. Development that meets the needs of the present without compromising the ability of future generations to meet their own needs. The second half is the whole of the content: without it the definition would describe any development at all, because every project meets somebody's present need. The constraint is temporal, and it is what connects the concept to inter-generational equity.

2. What did Vellore Citizens hold about the relationship between sustainable development and the other two principles? That the precautionary principle and the polluter pays principle are essential features of sustainable development, and that all of them are part of the environmental law of the country. The three are not alternatives: the precautionary principle tells you how to act under uncertainty and the polluter pays principle tells you who bears the cost, and together they are how sustainable development is applied.

3. Why does section 20 of the NGT Act matter to this chapter? Because it converts the principle from something a court may invoke into something a statutory tribunal must apply in every order, decision and award. A doctrine with a mandatory forum and a duty to give reasons can be argued about and appealed; a doctrine without one is a value. Section 20 is the difference.

4. Does applying the principle mean refusing the project? No. In Narmada Bachao Andolan the Supreme Court applied sustainable development and permitted the project to proceed. The principle asks whether the development can be carried on without destroying the resource base it depends on and whether the environmental cost has been counted and borne, not whether development should happen.