A highway cutting through Central India’s deep forests and a festival that was held along the banks of Delhi’s dying Yamuna river have thrown up related questions pertaining to the environment. In the first case, the “very dense forests”, as per the classification of the Forest Survey of India, connecting the Kanha and Pench tiger reserves are being cleared for the widening of >National Highway 7 (NH7). In the second case, a section of the Yamuna floodplain was flattened for an Art of Living-backed World Culture Festival. Both incidents involve environmental damage and in both cases, the court has ordered the respective polluters to pay for environmental degradation. The glaring question is, do polluters pay so they can pollute further? Do we need to make distinctions in the way environmental compensation is meted out? What safeguards should we put in place to prevent violations of existing laws which get sanitised by compensation?
Wrong precedents In the case of NH7, thousands of trees were cut even before forest clearance was granted. It is alleged that undue pressure was put on clearing one portion of forest land (a 37-km stretch which is part of the Kanha-Pench tiger landscape) as the rest of the highway had already been broadened. In the case of the Yamuna floodplains, the festival was held despite the >National Green Tribunal (NGT) finding that clearances were faulty. In both cases, the activities were eventually condoned under the polluter pays principle — while in the first case the National Highways Authority of India was asked to make contributions to the Compensatory Afforestation Fund, in the second the NGT gave its go-ahead to the festival after imposing an initial fine of Rs. 5 crore on the Art of Living foundation for damages caused to the plains. What we learn from this is that the polluter pays principle allows the project to go ahead and, given the illegal/predetermined nature of certain projects, the system in the current form has aided wrong precedents.
In essence, the polluter pays principle, when combined with a reading of fait accompli (predetermination), creates a complex nexus. In the case of NH7, activists point out that if the 37-km stretch was not widened, there would have been tailgating and bottleneck formations in the area, what with the rest of the highway broadened already. While clearances should have been granted to the project holistically instead of through this sort of pressure, the Art of Living case is even more problematic.
Citizens of the National Capital Region took the World Culture Festival organisers to court on their choice of location — acres of the active Yamuna floodplain. The NGT slammed the project, but eventually allowed it with an environmental compensation. Justice Swatanter Kumar observed that there was fait accompli in this case: several arrangements had already been made, and much of the set-up was ready at the time the matter was being heard. In allowing the festival, the court went against the spirit of its earlier judgment that did not allow any constructions, temporary or permanent, on the floodplain. There was simply no denying that the agency was paying to pollute in this case.
This also throws up a related question: on what grounds should there be differentiation between public and private bodies for activities that cause environmental degradation? The environment is understood through the lens of the public trust doctrine which India follows. The environment is a public entity which needs to be safeguarded for future generations. If a project causes pollution or environmental degradation, it is to be compensated for. But very broadly, this is usually restricted to activities which are to do with public interest. A national highway, even if bearing less traffic, is touted to be in public interest.
Ecosystem services Undoubtedly, there is a need to adopt an ecosystem services approach to understand damage and the cost of the damage to the environment. In the Art of Living case, the NGT is yet to impose final costs on the foundation. Apart from ecological damage or loss of ecosystem services, it is possible to further nuance environmental damage and amount of compensation according to the nature of activity. Should more costs be paid if an activity is only for limited or private gain, say, for instance, a music festival?
The courts stress that one cannot pay for the express purpose of polluting. The polluter pays principle in effect says that if found to be environmentally damaging, the actor/developer needs to compensate people as well as bear costs of environmental restoration. In Vellore Citizens Welfare Forum Versus Union of India (1996), the court found that the “onus of proof” is on the actor or the developer/industrial to show that his action is environmentally benign. In Research Foundation for Science (18) v Union of India (2005), the court found that the polluter pays principle means that the producer of goods and other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. In effect, this also implies that the principle also does not mean that the polluter can first pollute and pay for it.
The final problem remains: paying compensation gives some respectability to the polluter, while damage to the environment may not always get reversed. However, the most insidious scenario is when fait accompli gets tied in with the concept of compensation. The idea that nothing can be done to save the ecosystem is questionable. Even more questionable is the idea that paying cash as compensation is acceptable. Working out a metrics for measuring environmental damage and how it can be compensated will be of great importance and is urgent today.
It is a challenge to public policy to test not just the limits of payments but also the thresholds the environment or a particular ecosystem can handle before getting degraded.
Neha Sinha is with the Bombay Natural History Society. Views expressed are personal.
