IMPLEMENTATION OF POLLUTER PAYS PRINCIPLE IN
PAKISTAN’S CORPORATE LEGAL REGIME: A COMPARATIVE
ANALYSIS WITH USA AND INDI...
i
Table of Contents
DECLARATION…………………………………………………………………v
DEDICATION …………………... ………………………………………...…...vi
ACKNOWLEDGEME...
1.6.2.1 Rio Declaration ............................................................................................. 22
...
2.5.1.2 Forestry Sector Master Plan (FSMP) ............................................................ 50
2.6 CASES .......
4.3.2 Case Studies ..................................................................................................... 7...
v
DECLARATION
I HEREBY, declare that this dissertation is original and has never been
presented in any other university...
vi
DEDICATION
This thesis is dedicated to ALMIGHTY ALLAH who is the most merciful and
helpful and my precious and belov...
vii
ACKNOWLEDGEMENT
 Firstly, I would like to gratefully acknowledge Allah Almighty, who is
most merciful and helpful ...
 I will extend my thanks to my teacher and mentors Syed Asghar Hussain
Sabzwari and Sheikh Muhammad Khizar-ur-Rahsid the...
ix
LIST OF ABBRIVIATIONS
CERCLA Comprehensive Environmental Response, Compensation and
Liability Act of 1980
CrPC Crim...
x
ABSTRACT
Since its inception from economic to legal principle, the PPP is one of important notion
of International En...
xi
PREFACE
This disserttions describes the implementation od polluter pays principle (PPP) in
Pakistani corporate legal...
whether there is any clause which directly or directly or indirectly interpret this principle
or any glimpse for PPP. The...
1
CHAPTER # 1
INTRODUCTION OF POLLUTER PAYS PRINCIPLE (PPP) IN
INTERNATIONAL ENVIRONMENTAL LAW
“The difference between...
principle, for instance, Rio Declaration, OSPAR convention, Lugano, Barcelona and
2
many more.
There was divergence of ...
PPP was used for control measures its balance utilization prevention of pollution and
officially put some cost, to shun d...
legislations on national and international level draw attention toward implementing PPP
4
concerning environmental liabi...
The PPP elevate disagreement and settlement with the concept of environmental
justice same like preventive and precaution...
6
1.2 WHAT IS PPP?
PPP have different interpretations in specific context due to idea extensiveness.15 In
municipal law...
In 1972, OECD formally referred the PPP as guiding principle regarding the
“International Economics Aspects of Environmen...
8
1.3 WHAT IS INTERNALIZATION?
Internalization is a broad concept, which policy-makers used as interference for putting ...
9
1.3.1 External Environmental Costs through Internalization
The internalization of external environmental costs based o...
10
1.4 Evolution of PPP
1.4.1 International Environmental Law
In international law, the concept of environmental respon...
numerous conventions, local and global governmental declarations. This tendency gave
huge support to the principle all ov...
two approaches, liability and prevention may be expressed in identical legislative
measure. Furthermore, pollution victim...
When pollution takes place, PPP has dual role of remediation and pollution
prevention, if pollution take place. This prin...
MNC‟s destruction to environment has brutal and long-lasting effects on life of
the people in that particular area. Such ...
 Second, the instrument of soft laws is Corporate Social Responsibility (CSR)
which is reliant upon the ratification of ...
16
objectives contained in the Rio Declaration on Environment and Development, in
Agenda 21 (within the Rio Declaration)...
license, which mark a limit of emission. The concerned authority provides required
17
number of licenses for authorized ...
18
“Pollution charges and taxes on polluters are payments in connection with the use
of the environment, or damage to th...
allocation of costs. The protection cost for fuel and un-refined stuff are charged and on
19
the other hand water and ai...
 To adjudicate environmental disputes, in which members of international
20
community having responsibility.
 The dis...
21
1.7.1 United Nation
United Nations Conference on Environment and Development (UNCED) given
consensus on Rio Declarat...
22
1.7.2 International Agreements and PPP
Although several international agreements mentioned that PPP is rarely debated...
23
regard to the public interest and without distorting international trade and
investment.” 74
Furthermore, Principle ...
24
1.7.2.3 Lugano Convention
This convention is planned to make certain the compensation for environmental damages
to v...
Convention has not legal applicability. One jurist submits that certain states are uncertain
to contribute in strict liab...
26
CONCLUSION
Initially PPP was an economic principle used as tax, at the development of environmental
economics. After...
27
CHAPTER # 2
ANALYSIS OF PAKISTANI ENVIRONMENTAL LAWS IN PPP
PERSPECTIVE
2. INTRODUCTION
The first environmental re...
(SME),85 which caused pollution, like tanneries, bricks, cement and numerous other
pollution sources. Shortly, Pakistani ...
effective and PPP must be adopted and implemented in Pakistani environmental laws as
29
well as in corporate legal regim...
Constitution‟s Chapter 1, describes fundamental rights from Article 8 to 28,
which are permissible in Supreme Court and H...
31
 Part – VII, Article 184 (1, 2, 3)
1. “The Supreme Court shall, to the exclusion of every other court, have original...
32
2.2.2 Environmental Provision of Pakistan Penal Code (PPC)
Pakistan Penal Code (PPC), 1860,99 which is common penal l...
that if someone stinking water so law is there to have check and balance and make the
polluter accountable before law and...
community. These principles has inclusively discussed in ―Shehla Zia vs WAPDA” and
34
various other public interest liti...
There may be a number of dissensions which come out that parliament approved
the 18t amendment in swiftness to block fede...
of Initial Environmental Examination (IEE) and for some unpleasant environmental
36
cases, forwarded EIA.113
There are ...
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Polluter pays principle

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  • 1. IMPLEMENTATION OF POLLUTER PAYS PRINCIPLE IN PAKISTAN’S CORPORATE LEGAL REGIME: A COMPARATIVE ANALYSIS WITH USA AND INDIA. LLM (CORPORATE LAW) Supervised By Dr. MUHAMMAD MUNIR Submitted By ADNAN 218-FSL/LLMCL/F09 A thesis submitted in partial fulfillment of the requirement for the degree of LLM CORPORATE LAW (Faculty of Shariah and Law) in the International Islamic University Islamabad, November 12,2012. Department of Law Faculty of Shariah and Law International Islamic University, Islamabad.
  • 2. i Table of Contents DECLARATION…………………………………………………………………v DEDICATION …………………... ………………………………………...…...vi ACKNOWLEDGEMENT ……………………………………………..………vii LIST OF ABBRIVIATIONS …………………………………………………...ix ABSTRACT ……………………………………………………………………...x PREFACE ……………………………………………………………………….xi CHAPTER # 1: ................................................................................................................... 1 1. INTRODUCTION .......................................................................................................... 1 1.1 BACKGROUNG AND HISTORY OF PPP IN PERSPECTIVE OF OECD ...... 2 1.2 WHAT IS PPP? .................................................................................................... 6 1.3 WHAT IS INTERNALIZATION? ...................................................................... 8 1.3.1 External Environmental Costs through Internalization………….………….9 1.4 EVOLUTION of PPP ......................................................................................... 10 1.4.1 International Environmental Law .................................................................... 10 1.4.2 PPP As Principle Of Law ................................................................................. 10 1.4.3 Adoption of PPP .............................................................................................. 11 1.4.4 Implementation of PPP in Environmental law................................................. 11 1.4.5 Economic Perspective of PPP .......................................................................... 12 1.5 PARAMETER OF THE PRINCIPLE: ................................................................... 13 1.5.1 Corporate Environmental Responsibility Of MNC’S ...................................... 13 1.5.2 OECD Guidelines Regarding Corporate Liability of Environment ................. 15 1.5.3 Tradable Discharge Permit’s (TDP’S) ............................................................. 16 1.5.4 Fees And Taxes- Market Mechnisms .............................................................. 17 1.5.5 Externalities ..................................................................................................... 18 1.6 PRINCIPLE IN INTERNATIONAL ENVIRONMENT LAW: ............................ 19 1.6.1 United Nation ................................................................................................... 21 1.6.2 International Agreements and PPP .................................................................. 21
  • 3. 1.6.2.1 Rio Declaration ............................................................................................. 22 1.6.2.2 Agenda – 21 .................................................................................................. 23 1.6.2.3 Lugano Convention:...................................................................................... 24 1.6.2.4 OSPAR Convention ...................................................................................... 25 CONCLUSION ................................................................................................................. 26 CHAPTER # 2 .................................................................................................................. 27 ANALYSIS OF PAKISTANI ENVIRONMENTAL LAWS IN PPP PERSPECTIVE ... 27 2. INTRODUCTION .................................................................................................... 27 2.1 REVIEW OF PAKISTANI LAWS CONCERNING ENVIRONMENT ............... 29 2.1.1 Relevant Articles of Pakistan’s Constitution concerning Environment .......... 29 2.2.2 Environmental Provision of Pakistan Penal Code (PPC) ................................ 32 2.2.3 Criminal Procedure Coder (CrPC) ................................................................... 33 2.2.4 Environment And 18th Amendment ................................................................ 34 2.3 COMPREHENSIVE ANALYSIS OF PEPA, 1997 ............................................... 35 2.3.1 The Status of PEPA regarding PPP ................................................................. 37 2.3.2 PPP And PEPA Regulation .............................................................................. 38 2.3.4Command and Control under PEPA…………….………………………….…40 2.4 PPP AND ENVIRONMENTAL BYE-LAWS………………………………….....41 2.4.1 Motor Vehicles Rules, 1969…………………………………………...…..41 2.4.2 Pollution Charge for Industry (Calculation and Collection) Rules, 2001….42 2.4.3 Provincial Sustainable Development Fund (Utilization), Rules, 2003.........43 2.4.4 Hazardous Substances Rules, 2003………………………………………..44 2.4.5 Pakistan Bio-safety Rules, 2005…………………………………………...45 2.4.6 PPP and National Environmental Policy, 2005…………………………....45 2.4.7 The Capital Development Authority (Environmental Protection) Regulation, 2008……………………………………………………………………………....47 2.4.8 Some other Byelaws of Electricity and Export……………………….……48 2.5 NATIONAL POLICY OF ENVIRONMENT ........................................................ 48 2.5.1 Existing Policies............................................................................................... 49 2.5.1.1 National Forest Policy of Pakistan 2001 (NFPP) ......................................... 49 ii
  • 4. 2.5.1.2 Forestry Sector Master Plan (FSMP) ............................................................ 50 2.6 CASES .................................................................................................................... 51 CONCLUSION ................................................................................................................. 52 CHAPTER # 3 .................................................................................................................. 53 STATUS OF POLLUTER PAYS PRINCIPLE (PPP) IN PAKISTAN ........................... 53 3. INTRODUCTION .................................................................................................... 53 3.1 THE CONSEQUENCES FOR PAKISTAN TO EQUIVOCATE PPP .................. 53 3.2 PPP CONCEPTUAL STRUCTURE/ AGENDA ................................................... 55 3.3 ENVIRONMENTAL PRIORITIES FOR CLEANER PRODUCTION IN PAKISTANI INDUSTRY ............................................................................................ 56 3.4 INDUSTRIAL RESTRUCTURING IN PAKISTAN ............................................ 57 3.4.1 Corporate Responsibility in Pakistan ............................................................... 58 3.5 THE CONSEQUENCES OF NOT APPLYING PPP IN PERSPECTIVE OF ETP’s AND CETP’s .................................................................................................................... 60 3.5.1 Pessimistic Effects of not Applying PPP ......................................................... 60 3.5.2 Inadequate Construction of Effluent Plants ..................................................... 60 3.5.3 The International Benefactor and Government Fiscal Support for Required CETP’s ...................................................................................................................... 61 3.5.4 Operational Queries at Kasur and Korangi CETP’s ........................................ 61 3.5.5 Neglected Opportunities to erect CETP’s ........................................................ 62 CONCLUSION ................................................................................................................. 64 CHAPTER # 4 .................................................................................................................. 65 4 PRACTICES OF PPP IN USA & INDIA...................................................................... 65 4.1 APPLICATION OF PPP IN US ENVIRONMENTAL LAWS ............................. 65 4.2 USA AND PPP RELATED STATUTES ............................................................... 66 4.2.1 The United States And CERCLA Regulation .................................................. 67 4.2.2 Superfund: The Granddaddy Of PPP Policies ................................................. 68 4.2.3 Making The Violator Pay; An Economic View ............................................... 69 4.3 CORPORATE ENVIRONMENT LIABILITY ...................................................... 70 4.3.1 EPA’s Enforcement Policies On Environmental Auditing .............................. 71 iii
  • 5. 4.3.2 Case Studies ..................................................................................................... 72 4.3.2.1 Civil Cases .................................................................................................... 73 4.3.2.2 Cases of Criminal Nature .............................................................................. 74 4.3.3 USA Cases ....................................................................................................... 75 4.4 PPP IN INDIA ........................................................................................................ 75 4.4.1 Polluter Pays Principle And National Application .......................................... 76 4.4.2 Environment Protection In India ...................................................................... 77 4.4.3 Bhopal Gas Tragedy ........................................................................................ 78 4.5 ENVIRONMENT AND THE PUBLIC INTEREST LITIGATION ...................... 79 4.5.1 Indian Constitution........................................................................................... 81 4.5.2 Indian Supreme Court ...................................................................................... 81 4.5.3 PPP And Absolute Liability In India ............................................................... 82 4.6 PPP & ENVIRONMENTAL JURISPRUDENCE IN INDIA THROUGH CASE LAWS ........................................................................................................................... 84 4.6.1 Corporate liability via Indian Supreme Court Judgments................................ 87 CONCLUSION ................................................................................................................. 90 CHAPTER # 5 .................................................................................................................. 91 CONCLUSION AND RECOMMENDATIONS FOR PAKISTAN ................................ 91 RECOMMENDATIONS FOR PAKISTAN ................................................................ 94 BIBLIOGRAPHY ............................................................................................................. 99 RELATED BOOKS ...................................................................................................... 99 RELATED ARTICLES .............................................................................................. 101 REPORTS AND PAPERS:......................................................................................... 105 RELEVANT STATUTES: ......................................................................................... 106 RELATED CASES ..................................................................................................... 108 WEBLIOGRAPHY..................................................................................................... 111 iv
  • 6. v DECLARATION I HEREBY, declare that this dissertation is original and has never been presented in any other university or institute of learning. I also declare that this thesis has never been copied and any secondary information used has been duly acknowledged in this dissertation. ADNAN 218-FSL/LLMCL/F09 (NOVEMBER, 2012)
  • 7. vi DEDICATION This thesis is dedicated to ALMIGHTY ALLAH who is the most merciful and helpful and my precious and beloved parenets, my mother, brothers and aunti who grooms me and teaches me the way of life, for this unconditional love, moral and financial support and also for their care and prayers. May Allah always showered his blessing upon them.
  • 8. vii ACKNOWLEDGEMENT  Firstly, I would like to gratefully acknowledge Allah Almighty, who is most merciful and helpful to complete this work successfully by this countless blessing. Allah almighty always supported to me through out of my life in a number of ways and now also because of his blessing, I have been able to complete this thesis.  The most earnest acknowledgement must go to my supervisor Dr. Muahammad Munir for his patient guidance, encouragement, invaluable advice and many fruitful discussion throughout this study. His critical eyes and enlightened thoughts were instrumental and inspiring.  I am grateful to my worthy teacher and mentor Sir Ahmad Khalid Hatam who defined my direction in journey of this work, without whom I would not have been able to achieve this success and special thanks and prays to my friend Muhammad Akbar Khan whose company and guidance brought me to this level.  After that, I owe my deepest gratitude to my parents, brothers and aunti for supporting me throughout all my studies. They helped me in difficulties throughout the course of this thesis and also encouraged me with patience in my stressed mood. I would like to thnaks my whole family for providing a loving environment for me.
  • 9.  I will extend my thanks to my teacher and mentors Syed Asghar Hussain Sabzwari and Sheikh Muhammad Khizar-ur-Rahsid their appreciations to my work as well as their encouragemet and motivations. It is an honor for viii me to thanks them for all their best wishes for me.  It will be injustice if I don’t acknowledge and thanks my best friends and colleagues who have encouraged and support me. I am specially grateful to my friends Shoiab Ali Khan, Waqar Bangash, Sami Ullah, Dr.Adil Nawaz and Hafiz Ahmad Waqas . I sincerely thankful to them for providing me the envrionment fo fun and joy and for everything they brings me as a friend.  Lastly, I would like to thanks Allah Almighty and also to all praying and helping hands for me. ADNAN (NOVEMBER) 2012
  • 10. ix LIST OF ABBRIVIATIONS CERCLA Comprehensive Environmental Response, Compensation and Liability Act of 1980 CrPC Criminal Procedure Code CSR Corporate Social Responsibility CETP Common Effluent Treatment Plant CFCs Chlorofluorocarbons. EPA Environmental Protection Agencies EPO Environmental Protection Order EIA Environmental Impact Assessment EUAD Environment and Urban Affairs Division ESCO’s Pakistan is Energy Service Companies ETP’s Effluent Treatment Plants EMS Environmental Management System EU European Union FSMP Forestry Sector Master Plan IEL International Environmental Law IUCN International Union for Conservation of Nature IEE Initial Environmental Examination ICJ International Court of Justice IEC International Environmental Courts ISO International Standards Organization MEA’s Multilateral Environmental Agreements MNC’s Multinational Corporations. NAFTA North American Free Trade Agreement NAAEC North American Agreement for Environmental Cooperation. NEERI National Environmental Engineering Research Institute NCS National Conservation Strategy NEQS National Environmental Quality Standards NFPP National Forest Policy of Pakistan 2001 NEAMA National Environmental Assessment and Monitoring Authority NEAP National Environmental Action Plan OECD Organization of Economic Cooperation and Development PEPA Pakistan Environmental Protection Act PPC Pakistan Penal Code PEPO Pakistan Environmental Protection Ordinance PILs Public Interest Litigations. PRP Potentially Responsible Parties” PPP Polluter Pays Principle SME Small and Medium Enterprises TDP’s Tradable Discharge Permit’s UN United Nations UNCED Unite Nations Conference on Environment and Development () USA United States of America.
  • 11. x ABSTRACT Since its inception from economic to legal principle, the PPP is one of important notion of International Environmental Law (IEL). This principle is adopted at international, regional and national level. This thesis offer a detailed examination of how the PPP is adoptioning and funtioning in the IEL, talking the historical development, its application and adoption in IEL. This research work provides the PPP implementation in Paksitan after comparative analysis with USA and India. Both the countries have best legal practices in implementation of PPP, because the former is developed while the later is developing practice, which can be helpful to betterly derieved appropriate legal measure for Pakistan. The dissertation expose off that the existing IEL regarding PPP, which is limited in implementation in Pakistan. The dissertation identifies first the definition, history and parameter in the legal perspective, which was adopted in Rio Declaration. This research has been undertaken with the sole objective of introduction and implementing PPP in Pakistan. This is relatively a new concept in the ever-growing world of MNC’s environmental degradation and implementation of PPP in Pakistani perspective. The concept is special in the sense that besides being a means to check to unruly the MNC’s and other public bodies, who degrade the environment, so the the PPP is the effective norm of law to protect the environment as well as compenste the victims. It provides a platform to the victims and society to raise their voice and safegaurds their interests from the polluter assult on their rights.
  • 12. xi PREFACE This disserttions describes the implementation od polluter pays principle (PPP) in Pakistani corporate legal regime. The priniciple is part of envrionmental economics, policies and law. Though in our research work, we mainly focuses on legal aspects of this principle. A debate is undergoing in the world about the implementation of PPP in internationl, regional and domestic level. The world is divided in to two main approaches of legal and ecomomic aspects of this principle. So the implementation of this principle in developing states are dire specifically in Pakistan concerning industrial pollution. At one side developing states are facing tough challenges for PPP implementation, and on the other front they cant met the global criteria specially developed states. Following research will aspire to enable the reader to aware oneself about the PPP, its regulatory mechanism and its impacts regarding environmental protection. The goal of this dissertation is to introduce PPP implementation in corporate legal regime, specifically industrial pollutions and tanneries. For this purpose command and control mechanism and tradable discharge permits are used to allocated charges and taxes and licencing respectively. The purpose of this principle to make the polluter liable for environmetnal degradation, and for the internalization of external environmetnal costs. Every corporations are permitted to occur pollution to authorized limits, and if they violates, they will be stringently liable for it. There are numerous kinds of liabilites upon polluters according to nature and intensity of pollution. The polluter pays principle is most significant principle on environmenal protection which is not implemented in Pakistan nor interpreted in any environmental litigation. The basic theme of this thesis to review Pakistani environmental laws, and
  • 13. whether there is any clause which directly or directly or indirectly interpret this principle or any glimpse for PPP. The ultimate result of such exploration are the economic develompent, environmental protection, public health, compensation to victims and well being of the community of state or it just makes the corporations responsible for their xii pollution and the state treasury more packed. The first chapter presents an introduction and historical perspective of PPP in perspective of international environmental law. In the first part, it highlightes international treaties regarding PPP, which provides basic concept in economic and legal perspective, its nature and corporate environmental responsibility. Chapter two deals with environemtal laws and its history in Pakistan. In this chapter we discusses various statutes concerning environmental pollution and forums available to the complainant if there is any grave violations of environment or public nuisance. Chapter three based on detailed discussion about the status of non-implementation of PPP and its consequences for Pakistani environment. It also provides conceptual framework, corporate responsibility at Pakistani level, ETP and CETP’s for tanneries in Pakistan. Chapter four deals with the comparative study of this principle under the different laws with specil focus on USA and Indian environmental protection measures regarding PPP. First part of this chpter deals with USA practices while the second part of chapter deals Indian judicial practices of implementing PPP. This chapter also give a broad range of practical aspects of PPP and comparative analysis in courts by case law. Fifth and last chapter related to conclusion of the whole thesis and some recommendations for implemention of this principle in corporate legal regime in Pakistan.
  • 14. 1 CHAPTER # 1 INTRODUCTION OF POLLUTER PAYS PRINCIPLE (PPP) IN INTERNATIONAL ENVIRONMENTAL LAW “The difference between animals and humans is that animals change themselves for the environment, but humans change the environment for themselves”. 1 Ayn Rand 1. INTRODUCTION Polluter Pays Principle (PPP) is one of basic notion of modern International Environmental Law (IEL) and incorporated in many policies for sustainable development at various levels. It was incorporated in several international legal instruments and European Union (EU) incorporated this principle in their national laws. It simply states, that polluter should bear the cost of pollution and not the state. This principle introduces as an economic instrument for allocation of environmental cost of pollution. PPP became legal principle from economic instrument; it was firstly incorporated in 1968, in Article 6 of Draft Declaration of Principles on Air Pollution Control. In 1972, it was adopted by Organization of Economic Cooperation and Development (OECD). Though, in several international legal agreements the principle was discussed to incorporate PPP as legal principle. For the first time, it was implemented through civil remedy in perspective of curative approach. In 1990, PPP is considered as principle of international environmental law. Consequently, several agreements approved this 1 ―Ayn Rand: Her Life and Thought,” was a Russian-American novelist, philosopher, playwright, and screenwriter, accessed September 11, 2012, http://www.aristos.org/aynrand.htm.
  • 15. principle, for instance, Rio Declaration, OSPAR convention, Lugano, Barcelona and 2 many more. There was divergence of opinions regarding the applicability of PPP. This chapter will deal with various aspects of PPP. The second part scrutinizes historical developments through economic and legal perspectives. Thirdly, it will discuss international environmental law and implementation of PPP in EU. Lastly, it will discuss corporate environmental responsibility under ambit of United Nations (UN) norms and OECD guidelines. 1.1 BACKGROUND AND HISTORY OF PPP IN PERSPECTIVE OF OECD While the precautionary principle developed from national law, the Polluter Pays Principle (PPP) is also emerged from international law.2 The PPP is glowing in 1972 from OECD recommendations regarding environmental policies and environmental economics. In its recommendation, OECD refers, “Public measures are thus necessary to reduce pollution and to reach a better allocation of resources by ensuring that prices of goods depending on the quality and/or quantity of environmental resources reflect more closely their relative scarcity and economic agents concerned react accordingly”.3 2 Eric Larson, “Why Environmental Liability Regimes in the United States, the European Community, and Japan Have Grown Synonymous with the Polluter Pays Principle,” 38 Vand. J. Transnat‘l l. 541, (2005): http://www.jstor.org/stable/1228596, accessed Feburary 12, 2012. 3 Ole W. Pedersen, “Environmental Principles and Environmental Justice,” Environmental Law Review 12, no. 1 (2010), accessed May 16, 2012, http://ssrn.com/abstract=907456.
  • 16. PPP was used for control measures its balance utilization prevention of pollution and officially put some cost, to shun distortions in investment and trade. This principle emerged as an economic principle to shun unreasonable economic distortion from market, sooner than to restrict environmental harm. The OECD further pointed out PPP, 3 that it will not put subsidies which distort international trade and investment.4 When OECD recommended PPP, then it was incorporated in various significant international documents to overcome environmental hazards. The first Environmental Action Programme of European Community (EC) incorporated PPP in 1973, which discuss in their subsequent programme, like ECSC, EEC in March, 1975. This principle found application in TEFU under provision of 191(2) and many directives of EC. The PPP has application in international level, such as OSPAR convention5, principle of Rio Declaration and Baltic Sea Convention.6 PPP is not only a principle of cost allocation, but it has been used as principle of liability, tort, modification and violation of environmental laws.7 The OECD council adopted PPP in 1989 through a recommendation and applied this principle, “In matters of accidental pollution risks, the Polluter-Pays Principle implies that the operator of hazardous installations should bear the cost.” In recent times many directives and 4 Though, numerous tribulations are exists to interpretation of PPP. These tribulations create difficulties to understand the concept of environmental justice. First of all, main problem with the PPP is the identification of actual polluter. Even though, this question is related to ethical norms, social justice who is inbuilt in the concept of environmental justice. This principle efficiently works, where some pollution costs passed on to consumer to participate in incentive during shopping. This led certain goods or products which pollute environment become costly, in the end. On the other hand, environmental friendly products are costly in producing and buying. See also, Ole W. Pedersen, “Environmental Principles and Environmental Justice,” Environmental Law Review 12, no. 1 (2010), accessed May 16, (2012), http://ssrn.com/abstract=1156979. 5 OSPAR Convention above n. 70 Art. 2(2), (as quoted by, Ole W. Pedersen, “Environmental Principles and Environmental Justice,” Environmental Law Review 12, no. 1 (2010), accessed May 16, 2012, http://ssrn.com/abstract=907456.) 6 Baltic Sea Convention Art. 3(4). 7 Alan Griffiths and Stuart Wall, The move towards environmental taxes is in line with the ‗polluter pays‘ principle; Applied Economic, ed 11th (New York: Jstor, 2007), accessed March 12, 2012.
  • 17. legislations on national and international level draw attention toward implementing PPP 4 concerning environmental liability.8 The mechanism to implement PPP can led to altercation to environmental justice. De Sadeleer provides measures to implement the PPP through regularly principle barring damage or in the course of taxation. Regulatory principles comparatively planned to work effectively than tax because the later harms the environment. Example of Carbon tax upon rich and poor households in which rich are least affected than poor, because the later pay considerably. It seems odd about environmental justice because the poor get some unjust burden related to environment.9 On the other hand, there were some differences between environmental justice and PPP, but both have some common grounds.10 Most evident is the utility of PPP as principle of liability. The followers of environmental justice used this principle for reasonable allocation of damages of polluting activities. This indicates distributive function of the principle, which is foundation of environmental justice. The polluter not only pay the protection and prevention cost, but to cover social cost.11 8 Recommendation of the Council concerning the Application of the Polluter-Pays Principle to Accidental Pollution, C (89) 88 of 7 July 1989. 9 H. C. Bugge, “The Polluter Pays Principle: Dilemmas of Justice in National and International Contexts,” Environmental Law and Justice in Context, (2009): www.cambridge.org 10 In addition to above, the focal point of the PPP is investment and trade. The foremost, followers of environmental justice attacks on “free market”, main theme of which are environmental injustice. Additionally, governmental actions seems fundamental, to take measures for environment justice issues. Secondly, the main objection to aid and subsidies can be seen at odds with environmental justice. In these circumstances the opinions about environmental justice are applied in international settings. Here, measures for transfer of technology and abatement are acceptable on environmental justice ground, but PPP apparently disagree governmental abetment subsidies. The recommendations forwarded by OECD & EU permit exceptions, means it is not a supreme principle and deviation from PP on economic, social and environmental grounds are acceptable. See, however, U. Kettlewell, “The Answer to Global Pollution? A Critical Examination of Problems and Potential of the Polluter-Pays Principle” 3 Colo. J. Int‘l Envtl. & Pol‘y 429 (1992). 11 Ole W. Pedersen, “Environmental Principles and Environmental Justice,” 12.
  • 18. The PPP elevate disagreement and settlement with the concept of environmental justice same like preventive and precautionary principle. Former environmental justice point of view, ideal of free market is query of PPP, which is against environmental justice and taxable liability, which is an impediment for lower class. This principle mainly incorporated to attain allocation of costs and tribulation as liability rule to attain goal of environmental justice. It is used for rational application for corroboration of new liability 5 schemes about environment.12 Numerous functions which this principle can serves.  Damages for soothing or remediation, this is also called restorative or curative.  Damages to recompense or redistributive (distributive again or differently).  With internalization of external cost of polluting activities. It is preventive.  As a penal principle- penalizing or punitive measure. In Article 6 of Draft Declaration of Principles on Air Pollution Control in 1968,13 Committee of Ministers in European Council of State that, “The cost incurred in preventing or abating pollution should be borne by whoever causes pollution.”14 12 Ibid. 13 In August 1971, OECD held a seminar in Paris regarding environmental economies, where PPP was main topic of discussion. Envoys of developed and polluting states debated for the first time on the query of PPP. Many intellectuals in this seminar fvours to imposed charges for environmental costs on polluters. Prof Murare, talking about favors on efficient basis of the principle that “polluter must pay” while talking about “Anti pollution and cost allocation”. UN Stockholm conference in 1972 on environment also discussed PPP, just after 9 days of adoption of OECD, but was not incorporated. Muhammad Munir, The Polluter Pays Principle in International Environmental Policy and Law: Economic and Legal Analysis (Islamabad: Institute of Legal Studies, 1996). 14 Muhammad Munir, The Polluter Pays Principle in International Environmental Policy and Law: Economic and Legal Analysis (Islamabad: Institute of Legal Studies, 1996).
  • 19. 6 1.2 WHAT IS PPP? PPP have different interpretations in specific context due to idea extensiveness.15 In municipal law, the principle focuses on polluting industries and their financial and legal responsibility concerning pollution and their damaging activities.16 In international law, the application of PPP prescribed by OECD in shape of environmental taxation which is quasi-regulatory.17 The OECD further explains that companies are taxed according to their level of pollution they occur.18 In hypothetical terms, this principle having commonalty, like a model which allocate pollution costs and lessen environmental damage, which require responsible firm, state and individual to bear pollution cost.19 If there is no existence of PPP, the environmental responsibility upon the society is in the shape of lower quality standard of environment and taxation. In legal perspective, it is impartial rule that polluting industries should pay for their pollution, and this is theme of PPP.20 As a result, the principle becomes part of conventional economies and shapeless part of environmental economics. Not amazingly, there is debate concerning the scope of this principle and its justification as a principle of economic.21 15 Eric Larson, “Why Environmental Liability Regimes in the United States, the European Community, and Japan Have Grown Synonymous with the Polluter Pays Principle,” 38 Vand. J. Transnat‘l l. 541, (2005): http://www.jstor.org/stable/1228596, accessed June 19, 2012. 16 Stefanie Sommers, “The Brownfield Problem: Liability For Lenders, Owners, and Developers in Canada and the United States,” 19 Colo. J. Int‘l Envtl. L. & Pol‘y 259, no. 266- 67, 277-91 (2008): http://www.jstor.org/stable/3312323, accessed Jaunary 28, 2012. 17 OECD, Polluter-Pays Principle, at 234-35. 18 Mamlyuk, Boris N., “Analyzing the Polluter Pays Principle through Law and Economics,” Southeastern Environmental Law Journal Vol. 18, no. 1 (2010) : http://www.jstor.org/stable/1228596, accessed April 2, 2012, 19 Sumudu A. Atapattu, Emerging Principles Of International Environmental Law (Transnational: Publishers, 2006), 470, accessed December 25, 2011. 20 OECD, Polluter-Pays Principle, at 234-35: http://www.oecd.org/ccnm/sustdev, accessed June 6, 2012. 21 Alan Griffiths and Stuart Wall, The move towards environmental taxes is in line with the ‗polluter pays‘ principle; Applied Economic, ed 11th (New York: Jstor, 2007), accessed June 3, 2012.
  • 20. In 1972, OECD formally referred the PPP as guiding principle regarding the “International Economics Aspects of Environmental Policies”. Following is the main 7 heading of OECD recommendation; “The principle to be used for allocating costs of pollution prevention and control measures to encourage rationale use of scarce environmental resources and to avoid distortions in international trade and investment is the so-called PPP. This principle means that the polluter should bear the expenses of the above-mentioned measures (that is pollution prevention and control measures) decided by the public authorities to ensure that the environment is in an acceptable state.”22 The PPP has the efficacy to put environmental damaging cost on polluter.23 It also elaborated the duty of concerned authorities to recompense the victims as well as make the environment in acceptable condition. This principle declared the polluters legally responsible for the pollution they occurs and bound him to pay for pollution control and other curative measures.24 22 “OECD, Guiding Principles Concerning International Economic Aspects of Environmental Polices” accessed April 14, 2012, www.elaw.org/search/node/polluter+pays+principle. 23 The focal point regarding human activities is apparent in the concept of pollution which clears as the prologue of injurious substances or energy into the environment. These changes are seeks to dealt with international environment.23 A definition from EC environmental measure also includes these elements, “Pollution‟ shall mean the direct or indirect introduction as a result of human activity, of substances, vibrations, heat or noise into the air, water or land which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment”. See, Daniel Bodansky, The Art and Craft of International Environmental law(Harvard University Press Cambridge, Massachusetts, London – England, 2010), 10, . 24 In certain cases, polluters have been identified, especially in cases of waste generator or pollution from perilous installations. But on the other side, with airport , the originator of noise or authority which are participated in noise pollution, but its lack clarity identify the real polluter.24 In legal sense, PPP cannot allocate the pollution cost till the polluter is to be identified. When polluter recognized he should pay environmental cost and compensate the fatalities, polluter may pass liability to actual party if he is guarantor of compensation. He polluter can protect his financial safeguard or insurance, in case of non-payment f liable party. State surety is to pay victims, in case of failure of costs by polluter or liable party. Potential polluter can finance compensation. "Pollution Insurance and Compensation Funds, Environment Monograph No. 42,” Environment Directorate, OECD, 1992 (OCDE/GD(92)18), accessed April 14, 2012, www.elaw.org/search/node/polluter+pays+principle.
  • 21. 8 1.3 WHAT IS INTERNALIZATION? Internalization is a broad concept, which policy-makers used as interference for putting social costs of products in the original cost. The Policy-makers enforced the external costs and adopted numerous diverse methods to implement internalization,25 but the significant is intervention which depend price mechanism. For instance, Pigovian levied taxes, which is considered to be tool of internalization.26 In economic point of view, the concept of internalization is taken as cost endures by financial mediator and polluter is liable to internalize pollution cost with all other costs, which the polluter should pay.27 Full and partial internalization are restricted to many categories and certain categories costs are limited for cost internalization. Practically, full category internalization is not possible, because polluter compensate only those victims who are damaged.28 25 The tendency which forwarded the PPP steadily, because it is no so far final, and recognized with external costs of pollution in category of full internalization. In the end, the polluter must bear a portion or most of the costs of pollution which he pollutes. For implementation of PPP there are some economic tools compensatory instruments, economic measures and charges. These economic tools make stronger the environmental and supplementary policies of government through revenue. “OECD, Analysis and Recommendation :The Polluter-Pays Principle, Paris 1992,” accessed June 10, 2012, http://www.oecd.org/ccnm/sustdev. 26 Prof. Dr. Dieter Schmidtchen and Dr. Christian Koboldt and Dr. Jenny Monheim, The Internalisation of External Costs in Transport: From the Polluter Pays to the Cheapest Cost Avoider Principle (December 2007), 45, http://www.cambridge.org. 27 While, under PPP, is mandatory that polluter merely the person, who firstly to pay. He can share pollution costs with other potential polluter under insurance scheme or pass prices in case of cost of pollution. This mechanism can also pass to actual liable person who causes pollution. Finally, the person who pays in actual sense generally will be user or consumer. In certain circumstances, through, the pollution control mechanism through competition from passing the costs because of owner of polluting activity. “OECD, Analysis and Recommendation :The Polluter-Pays Principle, Paris 1992,” accessed June 10, 2012, http://www.oecd.org/ccnm/sustdev. 28 Ibid.
  • 22. 9 1.3.1 External Environmental Costs through Internalization The internalization of external environmental costs based on sustainable development, and the policy-makers for economic strategies, projects and programmes for development which possibly influence environment. This rule oblige long-standing and temporary external environmental costs measures, which can described in numeral ways as follows;  Adoption of PPP.  Assessment of resources and services for environmental issues.  User or consumer pays principle for utilizing, to utilize resources, natural reserves and vital discarding of waste.  The objectives regarding environment has been defined. To overcome environmental tribulations, to adopt market mechanism, incentives and other efficient solutions.29 The logic behind the internalization30 of environmental external cost is environment to be utilized and administered properly and not exploited carelessly.31 29 See s 6(2)(d) of the Protection of the Environment Administration Act 1991 (Cth); s 10(2) of the Contaminated Land Management Act 1997 (NSW) and s 3.5.4 of the Intergovernmental Agreement on the Environment 1992. 30 The scope of PPP has been defined that, the polluter should pay if he has been recognized as polluter. The suitable option is to differentiate between the principle in strict and wider. In strict sense, the pollution to accepted level is matter of partial internalization, while in wider sense to put social damages to pollution.30 This bridged the economic and legal aspects of principle. The theme of the principle to brings changes in investment and international trade in shape of limited internalization. They also support absolute internalization. According to environmental justice point of view absolute internalization is suitable. Ole W. Pedersen, “Environmental Principles and Environmental Justice,” Environmental Law Review 12, no. 1 (2010), accessed May 16, 2012, http://ssrn.com/abstract=1156979. 31 The Hon. Justice J PRESTON Brian, “Sustainable Development Law in the Courts: The Polluter Pays Principle,” The 16th Commonwealth Law Conference (2009), Hong Kong, http://www.lead-journal. org/content/08001.pdf, accessed June 12, 2012.
  • 23. 10 1.4 Evolution of PPP 1.4.1 International Environmental Law In international law, the concept of environmental responsibility and protection has a very vague place; that various environmental issues are unrecognized which must addressed by international law.32 Whereas, scope of environmental regulation increasing due to environmental problems like intimidation to health and security, but the main problem is the implementation of environmental laws in international level, which remains indefinite and uncertain. The additional complexity, that international environmental law is mostly adopted from human rights or economic laws, yet it lacking evident reference to environmental safety or rights. Thus international environmental law has adopted complete theme of public or private international law, applicable to environmental damages and problems. Relatively than suggesting a complete new branch of International law, which include the applicability of existing law to environmental problems besides international law directed at environment.33 1.4.2 PPP as Principle of Law PPP has been incorporated as general principle of international environmental law in 1990. Before this, PPP was recognized by Single European Act in 1987 and in the Treaty of Maastricht in 1992, which is in confirmation of its global recognition. The principle had formerly directed the EC directives and national legislation. It will be directed to 32 Aurelie Lopez, “The Protection of Environmentally-displaced Persons in International Law,” Environmental Law 37 (2007): 365-409, http://ssrn.com/abstract=1124804.accessed May 6, 2012. 33 Patricia Birnie and Alan Boyle, International Law and the Environment. (Oxford: Oxford University Press, 2002) 2nd ed, 1-2:
  • 24. numerous conventions, local and global governmental declarations. This tendency gave huge support to the principle all over the world, which influenced market economy and it 11 also have application related to environmental matters.34 1.4.3 Adoption of PPP PPP has been adopted at international, regional and national levels. The National Reports and various others about PPP has been point out that, this principle has implied as well as explicit approaches towards liability for pollution and rationale for environmental regulation. That‟s why in a number of international environmental laws incorporated this principle, or possibly this concept impliedly or expressly. While others set up rules that polluter should pay environmental damages which are necessitated. 35 1.4.4 Implementation of PPP in Environmental law In numerous states, PPP implementation and acceptance in international environmental law has been debated and mentioned in their environmental reports. Certain states legislative measures for PPP indicate their approval regarding this principle. The PPP is incorporated in national laws of many states in numerous ways under the adoption theory. There are two approaches regarding PPP‟s implementation, which are preventive and curative approach. The preventive approach imposes charges, prohibitions, limitations and permits, while curative approach favors civil liability for environmental damage. The 34 “International Convention on Oil Pollution Preparedness, Response and Co-operation,” IMO, London, November 1990, accessed April 20, 2012, http://www.oecd.org/ccnm/sustdev, accessed March 3, 2012. 35 H. Ch. Bugge, The Principles of ―Polluter-Pays‖ in Economics and Law, eds E. Eide & R. van den Bergh , (Law and Economics of the Environment, 1996) 53, 73-74.
  • 25. two approaches, liability and prevention may be expressed in identical legislative measure. Furthermore, pollution victims can claim compensation through civil liability 12 remedy or under tort law.36 1.4.5 Economic Perspective of PPP PPP is also a principle of environmental economics, which is adopted for allocation of cost for restoring the environment and clean-up the pollution. The foundation of rule is concerning externalities, which is economic speculation. This principle apportions costs on the polluter, the one who causes pollution and is under responsibility to compensate it. They allocate costs to internalizes, and these costs are economic tools for conducting business. When the pollutions costs completely bear by polluter, then it is called absolute internalization, and internalization become imperfect when the cost entirely shifted to society.37 According to Moffet and Bregha explain; “Under the polluter pays principle, the community effectively “owns” the environment, and forces users to pay for the damage they impose. By contrast, if the community must pay the polluter, the implicit message is that the polluter owns the environment and can use and pollute it with impunity. This message is inconsistent with the principles of sustainable development”38 36 Margaret Rosso Grossman, “Agriculture And The Polluter Pays Principle,” Netherland Comparative Law Association, Vol. 11.3 Electronic Journal of Comparative Law, (2007), http://www.ejcl.org/113/article113- 15.pdf. 37 de Sadeleer N, Environmental Principles, From Political Slogans to Legal Rules (Oxford University Press, 2002), 21, www.bsr.org/CSRResources/LeadingPerspectives/2007/_Winter.pdf. 38 Moffett J and Bregha F, “The Role of Law in the Promotion of Sustainable Development” Journal of Environmental Law and Practice 3 no. 6 (1996): http://www.jstor.org/stable/4414525.
  • 26. When pollution takes place, PPP has dual role of remediation and pollution prevention, if pollution take place. This principle has compulsion of responsibility for control and prevention of pollution. In addition to, polluter is liable for containment, abatement and avoidance. The above were so expensive, because it surpasses the costs of preventive measures. So, the reasonable option is to take preventive measures instead of 13 curative measures.39 1.5 PARAMETER OF THE PRINCIPLE 1.5.1 Corporate Environmental Responsibility of MNC’s In recent years, the supremacy and influence of Multi-national Corporations (MNC‟s) strengthened to an unprecedented level and there is effort required for the regulation of these companies. In twenty first century major foreign investments are made by MNCs and not the states.40 For instance, environmental legislation regarding corporate responsibility is flawless at center and local level in numerous states, while environmental governance in other states are considerably different. Corporate bodies in developing states are enjoying extensive liberty in doing their business and are involved in environmental abuses massively. Strict measures shall be taken for the implementation of corporate environmental responsibility in the regulations of the developing states.41 39 The Hon. Justice J PRESTON Brian, “Sustainable Development Law in the Courts: The Polluter Pays Principle,” The 16th Commonwealth Law Conference (2009), Hong Kong, http://www.lead-journal. org/content/08001.pdf. 40 John H. Dunning and Sarianna M. Lundan, Multinational Enterprises and the Global Economy (Cheltenham, UK: Edward Elger Publishing Limited, 2008), 17, www.cambridge.org. 41 “Transnational corporations and other business enterprises shall carry out their activities in accordance with national laws, regulations, administrative practices and policies relating to the preservation of the environment of the countries in which they operate, as well as in accordance with relevant international agreements, principles, objectives, responsibilities and standards with regard to the environment as well as
  • 27. MNC‟s destruction to environment has brutal and long-lasting effects on life of the people in that particular area. Such devastation requires years to get back to its natural and clean state. For instance, disaster of Union Carbide in Bhopal, India, which is well-known case for developing states.42 There are certain other examples of “Corporate Environmental abuse” which are frequently found and carelessly ignored. Numerous instances43 of companies‟ transgression exist worldwide, but there shall be a proper mechanism to penalize such companies in form of monetary compensation for pollution caused by them. We shall have an idea that these frequent violations by the MNCs are the result of soft laws and it is the main reason for weak accountability of the corporations. 44  First, the immense power of MNC‟s can weaken the power of environmental responsibility, because they have to follow only the soft law agreements. While certain immunities available, but a small diversion from soft law initiative can 14 harshly affect leading corporations. human rights, public health and safety, bioethics and the precautionary principle, and shall generally conduct their activities in a manner contributing to the wider goal of sustainable development”. UN Norms, 2003, Para. b of Commentary to G(14). 42 The disaster of Bhopal is a great lesson of corporate environmental responsibility, which is still remembered. With growing promptness in related accidents are to be played out worldwide. Environmental catastrophes, due to reckless corporate practices are repeating of persistent and direct nature. International companies must require minimizing damage, and must hold responsible the subsidy company avoid civil or criminal liability to evade distortions. Greenpeace international, “Corporate crimes: the need for an international instrument on corporate accountability and liability,” last modified, June 2002, accessed March 13, 2012, http://www.greenpeaceweb.org/shipbreak/. 43 ”Following comparable reasoning, the Supreme Court of India held a company legally responsible for the diversion of a stream and ordered payment of compensation to return damages to the environment, invoking the Polluter Pays Principle. (1 M.C. Mehta V. Kamal Nath and others, Supreme Court of India, (1997)1 Supreme Court Cases 388.” ”This principle has been recognized as part of Customary International law with the parallel use with the precautionary principle within the Indian Supreme Court jurisdiction for the polluters makes responsible. (Vellore Citizens Welfare Forum V. Union of India, Supreme Court of India, Air 1996 Sc 2715) ”. Arpita Saha, “Judicial Activism in Curbing the Problem of Public Nuisance on Environment (July – November 2009),” (LLM diss. National Law University, Jodhpur, 2009) http://ssrn.com/abstract=1156979. 44 Ratte, Stephaine, “Enforcing Corporate Environmental Responsibility: Seeking Relief for Environmental Damage under the alien tort statute,” Brown University, Center of Environmental Studies (2010): www.bsr.org/CSRResources/LeadingPerspectives/2006.
  • 28.  Second, the instrument of soft laws is Corporate Social Responsibility (CSR) which is reliant upon the ratification of corporate enterprises and their 15 agreements.  Third, these soft laws cannot offer compensation to the victims for any violation of law.45 1.5.2 OECD Guidelines Regarding Corporate Liability of Environment The guidelines of OECD regarding corporations are overall clear and guide about financial assistance to the environment, in shape of corporate environmental responsibility.46 They stressed on sound environmental supervision which is an opportunity for business and business reliability. These guidelines scrutinize high-quality environmental standards which can protect a blend of social,47 legal,48 economic49 and environmental50 benefits.51 Environmental damages are costly and can cause loss of foreign investment and adversely affect the trade.52 “The Commentary accompanying the OECD Guidelines emphasizes that they consciously „draw upon, but do not completely mirror, any existing instrument. The text of the Environment Chapter broadly reflects the principles and 45 “Nolan 2009, 434,” accessed June 5, 2012, http://ec.europa.eu/environment/waste/index.htm. 46 PPP is not exclusively stated in the manuscript of the UN rules, though it implicit in following words, “Furthermore, the Commentary relating specifically to the environmental provisions notes that businesses „shall be responsible for the environmental and human health impact of all of their activities, including any products or services they introduce into commerce”. UN Norms, 2003, Para. b of Commentary to G(14). 47 Improved community and Public Relation. 48 Liability Charges and Reduced compliance. 49 Greater access to Capital and Customer Satisfaction, Lower Operating and Insurance Costs. 50 Improved Energy and Resource Conservation. 51 OECD, 2000, Commentary para. 31, accessed March 13, 2012, http://www.oecd.org/ccnm/sustdev. 52 Ratte, Stephaine, “Enforcing Corporate Environmental Responsibility: Seeking Relief for Environmental Damage under the alien tort statute,” Brown University, Center of Environmental Studies (2010): www.bsr.org/CSRResources/LeadingPerspectives/2006, accessed January 25, 2011.
  • 29. 16 objectives contained in the Rio Declaration on Environment and Development, in Agenda 21 (within the Rio Declaration). It also takes into account the (Aarhus) Convention on Access to Information, Public Participation in Decision-making, and Access to Justice in Environmental Matters and reflects standards contained in such instruments as the ISO Standard on Environmental Management Systems”.53 There are numerous ways due to which corporations can alleviate environmental damages which are taking place due to their negligence about the harmful emissions.54 This quotation has mentioned various points which are in consonance to OECD standards. It stated that corporations should, “Maintain contingency plans for preventing, mitigating, and controlling serious environmental damage from their operations; and mechanisms for immediate reporting to the competent authorities”.55 1.5.3 Tradable Discharge Permit’s (TDP’S) TDP‟s was first put forward by Dales, in 1968 and elaborated by Montgomery in 1972. It is an economic tool used for pollution reduction in USA and Europe. It is operated through an authority which identifies the permissible degree of emission and environmental quality standard of the surrounding area. It is mandatory to acquire 53 OECD, 2000, Commentary para. 30. Original emphasis 54 According to liability regime, the development of PPP has been possible at three levels. First and foremost is “implementation of civil liability, this level individualistic formulation which is executed through civil law liability. Secondly, “liability regime specification development” in which operator is responsible for compensation and environmental liability. Thirdly, “partnership regime specification development” in which operator is partner in case of compensation victims. This can be exemplify form Greek submission of agriculture and PPP, in which they impose statutory liability, and let victim to claim damage, and pay damages to farmer for environmental protection. See also, OECD, 2000, Commentary para. 30. Original emphasis. 55 OECD, 2000, Commentary para. 31, accessed March 13, 2012, http://www.oecd.org/ccnm/sustdev.
  • 30. license, which mark a limit of emission. The concerned authority provides required 17 number of licenses for authorized emission and not more than it.56 Grandfathering and auctions are two better methods for the apportioning of TDP‟s. In earlier method, the licenses are awarded on some balance and precedential pollution which is in compliance with trading polluter.57 This technique approves the old method rather than the new. The method of auctioning TDP‟s comprises governmental costs of TDP‟s to polluter. This technique works out for effective assigning of permits. The third method of assigning TDP‟s is based on the business turnout, vicinity and according to the community strength. There permits are subject to relocation of emissions and are to be apportioned in a balanced technique.58 1.5.4 Fee and Taxes- Market Mechanisms The polluter in a number of states is required to presume liability of wastes through taxes or fee at local as well as national level. Taxes may possibly be levied to make certain that PPP regulation will be implemented at any cost through environmental directives. For instance, US in Clean Air Act has managed to allow authorized emissions under permit and any excess to this limit may lead to criminal and civil punishments.59 OECD point out that; 56 Muhammad Munir, The Polluter Pays Principle in International Environmental Policy and Law: Economic and Legal Analysis (Islamabad: Institute of Legal Studies, 1996). 57 Case C-1/03, Paul Van de Walle and Others v Texaco Belgium SA, (Van de Walle) ECR [2004] I-07613 Case C-254/08, Futura Immobiliare srl Hotel Futura, and others v Comune di Casoria. Case C-188/07, Commune de Mesquer v Total France SA and Total International Ltd, (Total) ECR [2008] I-04501”.57 Greenpeace international, “Corporate crimes: the need for an international instrument on corporate accountability and liability,” last modified, June 2002, accessed March 13, 2012, http://www.greenpeaceweb.org/shipbreak/. 58 Ibid. 59 V. P. Nanda, Agriculture and the Polluter Pays Principle (54 Am. J. Comp, 2006), 317-339,
  • 31. 18 “Pollution charges and taxes on polluters are payments in connection with the use of the environment, or damage to the environment and the community, as a result of the pollution emitted. They encourage polluters to protect the environment, although the revenue from these taxes is not necessarily earmarked for environmental protection”.60 For instance, in Germany on petroleum products eco-tax is imposed for the protection of environment, but for agriculture they put reduced tax. In Hungry, environmental load taxes are apportioned according to the level of emission to water, air and land on the basis of amount of emitted substances. These taxes are proposed for internalization, for encouragement of potential polluter and to implement “user pay” approach. Polluter pays as result apply during local regulation instead of nationwide directives.61 1.5.5 Externalities The polluter external activities which affect the environment are the release of harmful gases or emissions. These externalities effects impose social costs rather than private cost, which will be paid entirely by the community and not by the polluter. It is easy for polluter to give money as a compensation for the pollution caused by him rather than taking safety measures and reduces his productions capability and that is external manufacturing cost.62 According to economists, the word pollution means inappropriate http://www.jstor.org/stable/1228596. accessed June 25, 2012. 60 “OECD recommendations,” accessed May 26, 2012, http://www.oecd.org/ccnm/sustdev. 61 U. Magnus, The Polluter Pays Principle in Germany (International Congress of Comparative Law, 2006), 4, XVIIth, www.cambridge.org. 62 Muhammad Munir, The Polluter Pays Principle in International Environmental Policy and Law: Economic and Legal Analysis (Islamabad: Institute of Legal Studies, 1996).
  • 32. allocation of costs. The protection cost for fuel and un-refined stuff are charged and on 19 the other hand water and air are used unpaid.63 The occurrence of externalities is valuable for polluter: lesser cost production or more income, better salary for workers and low-priced stuff for user. It‟s alarming for community in perspective of social damage. Now, the duty of law-makers is to implement the internalization of external costs and let polluter pay for environmental hazards. Therefore, PPP is the probable measure for externality issue and that is the foundation of pollution control and prevention. There should be possible solutions for polluter to put “real cost” and develop technologies. The issue of externalities is used in long-term for future generation‟s environment.64 1.6 PRINCIPLE IN INTERNATIONAL ENVIRONMENT LAW Many environmental agreements have been forwarded the model of an international court for environment, which mainly focuses on states which would fill the loophole in international legal system. The International Court of Justice (ICJ) is competent court to entertain disputes concerning environmental claims but private parties cannot access to the court. There must be an International Environmental Courts (IEC) comprise the capacity to settle disputes between public as well as private parties, the following proposals can be followed.65 63 See H. C. Bugge, “The Polluter Pays Principle: Dilemmas of Justice in National and International Contexts,” quoted in J. Ebbesson and P. Okowa (eds.), Environmental Law and Justice in Context (Cambridge: Cambridge University Press, 2009). 64 Muhammad Munir, The Polluter Pays Principle in International Environmental Policy and Law: Economic and Legal Analysis (Islamabad: Institute of Legal Studies, 1996). 65 Stephen Hockman, “An International Court for the Environment,” Environmental Law Review 11, no. 2 (2009): http://ssrn.com/abstract=1679245, accessed August 19, 2012.
  • 33.  To adjudicate environmental disputes, in which members of international 20 community having responsibility.  The dispute amid public and private parties to be adjudicated with considerable enormity or magnitude.  The President of Court can order for preventive, emergency and injunctive measures when obligatory.  Arbitration and mediation for environmental disputes.  When necessary, conduct investigation in environmental tribulation of international importance.66 Whereas, the fact is MNC‟s caused environmental damages. The aggrieved parties have access to courts but they are unable to bear the cost of legal proceedings. Environmental organizations shall come forward and take such steps which give the victims relief through environmental organization would help out to address those tribulations. But it is in doubts that this sort of courts will be established in near future. Environmental rights are accepted as part of customary international law. The US courts create obstruction in the establishment of separate court, because plaintiffs bring their claims for environmental damages to these courts. So, all the states have to answer this question.67 66 Hockman, “An International Court for the Environment.” 2 67 Ibid.
  • 34. 21 1.7.1 United Nation United Nations Conference on Environment and Development (UNCED) given consensus on Rio Declaration on Environment and Development,68 which states that, “Instrument of international jurisprudence [that] articulates policies and prescriptions directed at the achievement of worldwide sustainable development”69 Principle 16 of Rio Declaration provide that, “National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment ”70 The manifestation of this principle is one of the fundamental principles of international environmental laws which demonstrate the importance of environmental liability around the world. This further elaborated the interest of regional and national authorities to implement it through various instruments without deforming investment or international trade for the sake of public interest. 68 “Rio Declaration on Environment and Development” United Nations Conference on Environment and Development, accessed May 14, 2012, www.elsevier.com/locate/jenvman. 69 John Batt and David C. Short, “The Jurisprudence of the 1992 Rio Declaration on Environment and Development: A Law, Science, and Policy Explication of Certain Aspects of the United Nations Conference on Environment and Development,” 8 j. Nat. Resources: Envtl. L. no. 8 (1993): http://ssrn.com/abstract=1679245, accessed September 5, 2012. 70 “Rio Declaration” at 879.
  • 35. 22 1.7.2 International Agreements and PPP Although several international agreements mentioned that PPP is rarely debated and seldom recognized in international legal documents other than OECD. The principle have the status of “binding” and “non binding” nature.71 The PPP mentioned in binding form as “operational proviso” while in form of non-binding, the principle is mentioned only in the preface. “Rio Declaration on Environment and Development in 1992,” and council of Europe‟s Convention72 on Civil Liability for Damage Resulting from Activities Dangerous to Environment in 1993, both of these international instruments developed and applied this principle.73 1.7.2.1 Rio Declaration The significant Rio Declaration on Environment and Development adopts the PPP overtly in Principle 16, “National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due 71 N. de Sadeleer, “Environmental Principles: From Political Slogans to Legal Rules 21,” (2002): http://ssrn.com/abstract=1987809, accessed March 25, 2012. 72 In the European Union (EU) components states, PPP is included in the gist of European Commission Treaty‟s implementation of community policies and agriculture sector. Therefore, EU states having approaches regarding environmental norms their interpretation and application specifically considering the significance of PPP. To shun transgression regarding treaty proviso, component states have need to fulfill EC law strictly. Furthermore, numerous environmental issues are governed by EC, and they put effective steps for enhancing the legal system in member states, and guide them in proper direction. “EC Treaty arts. 6, 174” accessed June 10, 2012, http://www.defra.gov.uk/corporate/consult/env-liability. 73 “Council of Europe, Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (Lugano, 1993),” accessed April 24, 2012, www.elsevier.com/locate/jenvman.
  • 36. 23 regard to the public interest and without distorting international trade and investment.” 74 Furthermore, Principle 13 of Rio Declaration stated that states should expand and enhance their national laws concerning compensation and liability for the environmental damage and victims of pollution. Some commentators differ with the impact of principle 16 of Rio Declaration.75 They argue that Rio Declaration regarding PPP is effective than OECD, they put forward the reason that directs governments for declaration of internalization of environmental costs through economic instruments and not through subsidization obtain for the use of pollution control apparatus. On the other hand, another commentator views that Rio Declaration is less progressive than OECD and EC because of its dependence on economic necessities for application and “aspirational language”.76 1.7.2.2 Agenda – 21 According to this agenda, Programme of Action for Sustainable Development in numerous provisos recognized PPP impliedly. This Agenda includes a segment on strengthening the responsibility of main organization. Chapter 32, of agenda 21 77“focusing on farmers‟s role, and aim of which covers internalization of environmental costs and price mechanisms”.78 74 Rio Declaration, Prin. 16, 31 ILM at 879. The Rio Declaration may be the “main reference” for definition of the principle in its “broad sense.” 75 The debate of Rio Declaration concerning PPP favors full internalization of environmental damage costs, as well as compensation for preventive measures and pollution control. However, this declaration was not first byword of PPP which mentions internalization for costs of damage, and this is comparatively a new concept. 76 Rio Declaration, Prin. 13, 31 ILM at 878. Principle 7 of the Rio Declaration. 77 Helsinki convention on Protection and Use of Trans-boundary Watercourse and International Lakes (1992), under those contracting states is guided about the application of Principle. Spanish law
  • 37. 24 1.7.2.3 Lugano Convention This convention is planned to make certain the compensation for environmental damages to victims, which cause danger to the environment. The preface of Lugano convention introduces PPP. “Lugano Convention favors, to impose strict liability regarding PPP. This convention defines both environment and damage broadly, which put strict liability for damage caused by hazardous substances and activities. This convention focuses hazardous activities to contribute monetary security in shape of insurance, but there is no expectation of compensation fund. The Lugano Convention is the only accessible scheme for broad coordination regarding environmental liability in Europe, or somewhere else. The only environmental system in which responsibility is not limited in same, that‟s why PPP more strongly than other treaties due to which loss is extended”.79 However, Lugano Convention would favor the applicability of stringent liability framework. Only nine states are signatory to this convention in twelve years and none has adopted it. This convention provides insurance rather than compensation to victims but this paved a way for introduction of liability for environment in EU.80 Consequently, the acknowledged significance of PPP and adopt it, through inclusion in Rio Declaration and Agenda 21. There are supplementary global measures specially the “Cartagena Bio-safety Protocol (2000)” and “Biological Diversity Convention (1992)" put forward a connection to the PPP. The Canada adopted environmental agreements as global environmental measures in application of PPP; they used it as interpretative instrument. E. Raftopoulos, The Polluter Pays Principle and Agriculture in Greece (Greece: Revue Hellenique de Droit International, 2006), 59, www.cambridge.org. 78 “United Nations Conference on Environment and Development, Agenda 21: Programme of Action for Sustainable Development,” accessed May 10, 2012, www.eoearth.org/article/Polluter_pays_principle. 79 “Lugano Convention, supra note 154, 32 ILM 1228. The Convention refers to Principle 13 of the Rio Declaration, which directs States to develop national law to compensate victims of pollution,” accessed April 20, 2012, www.eoearth.org/article/Polluter_pays_principle. 80 International Environmental treaties comprise the mechanism of PPP. Those states which adopted multilateral environmental agreements are bound to know extensively by principle. For instance, Barcelona Convention for the Protection of Marine Environment and Coastal Region Mediterranean, which put responsibility for application of PPP, and for public interest, the polluter should bear costs for pollution
  • 38. Convention has not legal applicability. One jurist submits that certain states are uncertain to contribute in strict liability system, because they bring amendments in their national 25 tort law.81 1.7.2.4 OSPAR Convention At this point, in OSPAR Convention PPP is articulated in 2.2 (b) as, “The contracting parties shall apply, (b) the polluter-pays principle, by virtue of which the cost of pollution prevention, control and reduction measures shall be borne by the polluter”82 The phraseology of OSPAR Convention is stronger than wording of Rio Declaration. This convention enhanced responsibility of signing state for application of PPP. They also provide proper mechanism for PPP application, while Rio Declaration just mentioned “an attempt to promote internalization of external environmental costs and polluter should pay as matter of principle.83 prevention, reduction and control measures. See also,Barcelona Convention, art. 4(3)(b), cited by Raftopoulos. 81 Ibid. 82 OSPAR Convention above n. 70 Art. 2(2), (as quoted by Ole W. Pedersen, “Environmental Principles and Environmental Justice,” Environmental Law Review 12, no. 1 (2010), accessed May 16, (2012), http://ssrn.com/abstract=907456. p-18) 83 “Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992, (OSPAR Convention,” accessed by May 20, 2012, www.elsevier.com/locate/ecolecon.
  • 39. 26 CONCLUSION Initially PPP was an economic principle used as tax, at the development of environmental economics. After that, PPP is incorporated in numerous international documents as legal principle. The PPP is not a codified law and its utilization is altering time to time. The major tendency to put extra responsibility on the polluters to mitigate the financial burden on the authorities, to takes measures for pollution alleviation. PPP is not intended to penalize the polluter, nor is it principle of equity. This principle is an environmental friendly to attain sustainable development. This principle opted sustainable development indication to put in our economic as well as our legal system to internalize the environmental costs. This would be possible if we incorporate PPP in our legislative policy and decision-making process. The purpose of the principle to shun the wasting natural reserves and to finish the cost-free utilization of the environment. The PPP will decrease fabrication in investment and international trade, to protect economic competence. Corporate Environmental Responsibility can be implemented on corporation through this principle. Although it was coded in the OECD guidelines, but still MNC‟s are influential and powerful, that they adopted the soft laws rather than hard law to cost the environmental degradation. International environmental law must put some obligation so that their practices are subject to adoption for national and domestic level.
  • 40. 27 CHAPTER # 2 ANALYSIS OF PAKISTANI ENVIRONMENTAL LAWS IN PPP PERSPECTIVE 2. INTRODUCTION The first environmental regulation of Pakistan was Pakistan Environmental Protection Ordinance, 1983, which was the outcome of 1972 Rio Declaration. Before that environment related issues were to be dealt under public interest litigations. Constitution of Pakistan (hereinafter called Constitution) and Pakistan Penal Code were main statutes for environmental regulations. Several constitutional articles were interpreted for proceedings in the High Courts and Supreme Court of Pakistan for environmental issues. But still there were no specific laws for pollution abatement costs or environmental costs. The implementation of PPP in Pakistani Environmental laws and industrial sector is the need of time. Moreover, it was mentioned in National Environmental Policy, 2005 but it was not fully elaborated nor there were any future expectations to implement it in industrial sector, though the PPP is provided in various environmental laws. However, this principle was adopted and implemented in various European Union (EU) member states, 84as well as, Indian judiciary apply this principle in various industrial pollution cases. To avoid Bhopal disaster like situation, South Asian region must consider this principle not only in their corporations but many Small and Medium Enterprises 84 Margaret Rosso Grossman, “Agriculture And The Polluter Pays Principle,” Netherland Comparative Law Association, Vol. 11.3 Electronic Journal of Comparative Law, (2007), 12, http://www.ejcl.org/113/article113-15.pdf, accessed April 14, 2012.
  • 41. (SME),85 which caused pollution, like tanneries, bricks, cement and numerous other pollution sources. Shortly, Pakistani environmental laws and judiciary must follow this 28 principle as followed by Indian judiciary.86 The Pakistan Environmental Protection Act (PEPA), 1997 is the current implementable environmental statute in Pakistan. The Act provides environmental enhancement, preservation, protection and rehabilitation. In addition to this, it promotes sustainable development, pollution prevention and control measures. This provides various measures for sustainable environment, for establishment of environmental tribunals and Magisterial Courts. PEPA and provincial Environmental Protection Agencies (EPA) have been given powers of Environmental Protection Order (EPO) for grave environmental hazards. But provisions of pollution abatement costs are missing in this Act due to which it was not fully operationalized. The scheme of this 1997 Act was not fully operational. For this, there must be additional rules and regulations to be described under this Act. This Act was not fully enforced because main Rules and Regulations are pending to notification. So, the mechanisms of Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA)87 have been notified with five additional Rules of environmental concerns. Finally, environmental laws in Pakistan are not fully enforced or made it 85 Waheed, Ambreen, “Evaluation of the State of Corporate Social Responsibility in Pakistan and a Strategy for Implementation,” For Securities & Exchange Commission of Pakistan and United Nations Development Program. UNDP, 2005. www.RBIpk.org. Accessed March 29, 2012. 86Saha Arpita, “Judicial Activism in Curbing the Problem of Public Nuisance on Environment (July – November 2009),” (LLM diss. National Law University, Jodhpur, 2009): http://www.legalserviceindia.com, accessed May 18, 2012. 87 “Pakistan National Wetlands Policy,” Ministry of Environment Pakistan Wetland‟s Programme. Last modified Final Draft, December 2009, accessed April 13, 2012, www.pakistanwetlands.org.
  • 42. effective and PPP must be adopted and implemented in Pakistani environmental laws as 29 well as in corporate legal regime. 2.1 REVIEW OF PAKISTANI LAWS CONCERNING ENVIRONMENT Though, pollution has been discussed in numerous Pakistani laws and environment related cases had been filed under public interest litigations of constitutional provision. The famous case of Shehla Zia vs WAPDA88 was the main example for environment. Following are the main Statues concerning to environment related issues. 2.1.1 Relevant Articles of Pakistan’s Constitution concerning Environment In democracies where modification or amendments in constitution or agree to new constitutional provision for better environmental supremacy or encourage constitutional reforms about environmental protection. Regrettably, there is no straight stipulation regarding sustainable development or protection of environment which make possible judicial declarations of environmental concern.89 But actually the 1972 Stockholm Conference” on environment was at same time which did not obtain constitutional draftsmen attention. The closest indication was mentioned in concurrent list in Article 42, with name of “ecology” which indicates that under Article 143 of constitution, provinces can make legislation under federal dominancy. 90 88 PLD 1994 SC 693. 89 Dr. Parvez Hassan, “Capacity Building for Environmental Law in the Asian and Pacific Region: Approaches and Resources,” Pakistan Law Journal Magazine 2, (2002): 252, http://www.environment.gov.pk/nep/policy.pdf, accessed May 15, 2012. 90 Article, 142 of Constitution of Pakistan.
  • 43. Constitution‟s Chapter 1, describes fundamental rights from Article 8 to 28, which are permissible in Supreme Court and High Courts of Pakistan.91 Constitution articles no 9 and 14 endow with “Right to Life” and “Right to dignity”. Constitutional articles 184 (3) in perspective of public interest litigation defined Supreme Court 30 jurisdiction. “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights, conferred by Chapter-1 of Part-II, is involved, have the power to make an order of the nature mentioned in the said Article”92 According to Article 189, the Supreme Court established precedents which are obligatory upon Provincial High Courts. The verdicts of High Courts are obligatory upon lower judiciary in respective provinces.93 In, Supreme Court and High Courts numerous environmental writ petitions have been lodged on plea of Shehla Zia vs WAPDA.94 This precedent has been quoted in various pollution related cases and writs which comprised water, air, noise and wastes pollution. The petition claims that increasing pollution in urban areas which are terribly dangerous to human life and is contravention of fundamental rights prescribed in constitution.95 Following articles of constitution of Pakistan are concerning to environmental issues with respect to public interest litigation. 91 Chapter 1, Constitution of Pakistan, about fundamental rights from Article 8 to 28. 92 Dr. Parvez Hassan, “Environmental Jurisprudence form Pakistan; A lesson for SAARC Countries,” A paper presented at the South Asia Conference on Environmental Justice organized by the Supreme Court of Pakistan, (2012): 5, http://www.environment.gov.pk/nep/policy.pdf, accessed August 28, 2012. 93 Article 201, of Constitution of Pakistan. 94 PLD 1994 SC 693 95 Dr. Parvez Hassan, “Environmental Jurisprudence form Pakistan; A lesson for SAARC Countries,” 7.
  • 44. 31  Part – VII, Article 184 (1, 2, 3) 1. “The Supreme Court shall, to the exclusion of every other court, have original jurisdiction in any dispute between any two or more Governments. 2. In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgment only. 3. Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article. Explanation: In this clause “Government” means the Federal Government and the provincial governments”.96 The following constitutional article 199 (1) (c) having jurisdiction of Provincial High Courts.  Article 3 “Elimination of Exploitation: The state shall ensure all forms of exploitation and the gradual fulfillment of such fundamental principle, for each according to his ability to each according to his work.”97 The above mentioned constitutional articles are used as basis for environmental regulations. The right to spend better life in healthy and pollution-free environment is the fundamental right of every citizen of the state. The Supreme Court and High Court of state are taking environmental issues under the ambit of public interests under Article (184) and (199)98 of the said constitution respectively. 96 Article 184(1, 2, 3), Part-VII of Constitution of Islamic Republic of Pakistan. Philips Electrical Industries v Pakistan, 2000 YLR 2724 Karachi. 97 Article- 3of Constitution of Islamic Republic of Pakistan. Moulvi Iqbal Haider v. CDA, PLD 2006 SC 394. 98 “On the application of any aggrieved person, make an order giving such directions to any person or authority, including any government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the fundamental rights conferred by chapter 1 part-II.” Article 199(1, (c)), Part-VII of Constitution of Islamic Republic of Pakistan. Moulvi Iqbal Haider v. CDA, PLD 2006 SC 394.
  • 45. 32 2.2.2 Environmental Provision of Pakistan Penal Code (PPC) Pakistan Penal Code (PPC), 1860,99 which is common penal law in country which provides punishments on its contravention. Section 277, of PPC provides punishment for water pollution. “Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinary used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both”.100 As section 426 of PPC described that. “Whosoever commits mischief shall be punishable with imprisonment of either description for a term which may extend to three months, or with fine, or with both”.101 PPC, Section-278 “Making atmosphere noxious to health: Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling of carrying on business in the neighborhood or passing along a public way shall be punished with fine which may extend to fifteen hundred rupees”.102 If someone intentionally diverts or trouble waters which causes dangerous effects to flora so such person is causing water pollution. According to above two sections, it is obvious 99 “PPC is a comprehensive code concerning diverse sorts of crimes. Penalties are available according to nature and circumstances of offence. Several of these punishments are severe and deterrent and certain are trifling, which are preserved in this code. It also has certain stipulations concerning environment and having penalties for transgressors in personal capacity or public at large.” Fahim Ahmad Siddique, The Scope of Environmental laws in Pakistan (Karachi: Asia law House, 2000). 100 Qadir, Dr. Shoaib “ Environmental Legislation in Pakistan” 101 The Pakistan Penal Code, 1860.S. 277 & 426. 102 The Pakistan Penal Code, 1860.S. 278.
  • 46. that if someone stinking water so law is there to have check and balance and make the polluter accountable before law and will be punished. Sections 277 and 426 of PPC provide punishment for such offences. The objectives of these sections are to stop reduction in water supply for agriculture and for flora and fauna. Very specific above sec 277 of PPC be appropriate for stained water which make ailing for human consumption and same status for irrigation sector. So whosoever, pollutes water of different sources of 33 irrigation is accountable under this section.103 2.2.3 Criminal Procedure Coder (CrPC) Furthermore, a provision of Criminal Procedure Code (CrPC), 1898 in section-144; “the District Magistrate direct any person to abstain from certain act or take certain order with certain property in possession, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction annoyance or injury or risk of obstruction to any person lawfully employed, or danger to human life, health or safety”104 The above mentioned provision of CrPC elaborated the Magisterial powers for the environmental regulations.105 The Magistrate can cease any public body or authority from doing any activity which can harm the environment, public nuisance or any irritation to 103 Fahim Ahmad Siddique, The Scope of Environmental laws in Pakistan (Karachi: Asia law House, 2000). 104 Code of Criminal Procedure in Pakistan. Section-144 105 “The precautionary principle has mentioned in EPO‟s and directed by federal and provincial EPA in section 16 of PEPA with latent or real unpleasant environmental outcome in breach of this Act. Where there is ambiguity the EPA scrutinizes precautionary and rule of care and issues EPO‟s. When EPA contended concerning the breach of this Act due to release and emanations of air, waste, effluents, noise or removal of wastes which puts unpleasant environmental impacts, then precautions are mandatory. EPA directs liable person to attain precautionary steps within limited time. This precautionary principle is having different mechanisms for implementation. Whoever not observe EPO‟s, must be penalized under section 17 of fine and EPA taken charges from responsible person. The factory machinery, apparatuses can be eliminated and be subjects to closure under precautionary principle.” Jawad Hassan, “Environmental laws of Pakistan,” 165.
  • 47. community. These principles has inclusively discussed in ―Shehla Zia vs WAPDA” and 34 various other public interest litigations in Pakistan.106 2.2.4 Environment and 18th Amendment Pakistan countered the provincial appeal in 2010 to bring certain main amendments in constitution concerning provincial control and capability in various fields. The provinces looking for extra autonomy under the federal system after the approval of 18th amendment in Parliament and their take place decentralization of powers from federal to provinces.107 Before conceding 18th amendment, numerous subject matters were inside under the ambit of concurrent list equally at provincial and federal level. As mentioned in concurrent list the federal legislative authority has dominancy over provincial legislation in case of identical subject-matter. The concurrent list eliminated in 18th amendments which incorporated “Ecology and Environment”. The outcome of this amendment is the federal government has no authority to cope with such significant issue at state level and environment becomes a provincial issue. This indicates incapability of federal government to cope with environment at state level policies and particularly to ratify “Multilateral Environmental Agreements (MEA‟s)” with other states.108 106 PLD 1994 SC 693. 107 Dr. Parvez Hassan and Ahmed Rafay Alam, “The Role of Commissions in Public Interest Environmental Litigation in Pakistan,” All Pakistan Legal Decisions, Journal, 78 (2011): 88-89, http://www.iucn.org/themes/ceesp/publications/art-mono/pak.doc, accessed March 29, 2012. 108 Article 270AA, introduced by the 18th Amendment, provides: “Notwithstanding omission of the Concurrent Legislative List by the Constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any of the matters enumerated in the said List (including Ordinances, Order, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having, extra-territorial operation, immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until altered, repealed or amended by the competent authority”. “On the omission of the Concurrent Legislative List, the process of devolution of the matters mentioned in the said List to the Provinces shall be completed by the thirtieth day of June, two thousand and eleven.”
  • 48. There may be a number of dissensions which come out that parliament approved the 18t amendment in swiftness to block federal responsibility in state environmental development. There needs sincere efforts to re-examine the verdict, because the result of this attempt would manipulate main global plane concerning climate change in which 35 vigorous contribution of Pakistan is mandatory at state level.109 Resting on vivid side the “right to information” likes a fundamental right under the 18th amendment.110 This provides assistance to the efficient execution of liberty to information to regulate and lend a hand to environmental advocates to get suitable details and statistics so vital to the victorious result of their effort.111 2.3 COMPREHENSIVE ANALYSIS OF PEPA, 1997 In section 2 of PEPA, the terms mentioned in Act have been evidently defined in this section. According to section 4, PEPC is authorized to endorse national policies concerning environment within the ambit of NCS which agreed by federal government in various times. At provincial level their “Sustainable Development Fund” to supply fiscal aid to appropriate project.112 The violation of NEQS permitted emission and discharges and new standards which recognized by PEPA have been banned. Sections 11 and 11 (2) authorized federal government to imposes pollution charges upon transgressors through NEQS. A bi-phase screening procedure for different projects has been proposed in shape 109 Dr. Parvez Hassan, “Environmental Jurisprudence form Pakistan; A lesson for SAARC Countries,” A paper presented at the South Asia Conference on Environmental Justice organized by the Supreme Court of Pakistan, (2012): 5, http://www.environment.gov.pk/nep/policy.pdf, accessed June 10, 2012. 110 Article-19A, Constitution of Pakistan. 111 Dr. Parvez Hassan, “Environmental Jurisprudence form Pakistan; A lesson for SAARC Countries,” 21. 112 Jawad, Hassan, “Country Report for Pakistan, 2001,” Asia Pacific Journal of Environmental Law, 319, (2001): 324, http://www.epa.gov/air/criteria.html, accessed December 19, 2011.
  • 49. of Initial Environmental Examination (IEE) and for some unpleasant environmental 36 cases, forwarded EIA.113 There are numerous sections which provide environmental guidelines. According to section 13, bringing of dangerous wastes has been banned and without permit no one can manage the banned and dangerous materials.114 To make certain observance with PEPA, NEQS and provincial EPAs has been authorized to order the automobiles to fix pollution reduction devices. They desired to used pollution control fuels and endure for vehicles maintenance. The provincial EPA and PEPA have authorized to appoint Environmental Protection Officer (EPO) to deal with latent or real worse environmental impacts in transgression of this Act.115 Under the Act, environmental tribunal was established to try severe offences with special authority. Environmental Magistrates tried of ordinary offences concerning littering, removal of wastes, automobiles pollutions and transgression.116 There are certain causes for the futile execution of PEPA which are lacking public alertness concerning its survival particularly which lodging a complaint by the aggrieved community. The main query was the improper working procedures of environmental 113 Sections 2, 4, 9, 11(2) of PEPA, 1997. 114 Section 13 and 14 of PEPA, 1997. 115 “According to sections 5 and 8 of PEPA, the federal and provincial EPA‟s has been recognized. While there are certain powers and functions mentioned under sections 6 and 7 for administering the federal EPA and some powers has transferred to provincial environmental agencies. The query is that environmental agency at federal have the executive supremacies for the execution of PEPA, while the executing authority haven‟t any specific formulation for regulation. New functions have been dispensed to agency as per new National environmental policy. In true sense the federal agency powers and functions according to its formation and sustained resources has been abandoned rather it have extensive list of supremacies to execute its agenda and policies. According to section 16 the agency concerned with environmental protection order (EPO). Officially the agency is not well-resourced, though it passed EPO‟s but not a single case has been lodged against polluter. The process for lodging case against polluter is not translucent. Mujahida Naureen, “Development of Environmental Institutions and Laws in Pakistan,” Pakistan Journal of History and Culture XXX, no.1 (2009): 7, http://www.environment.gov.pk/nep/policy.pdf. 116 Jawad Hassan, “Environmental Laws of Pakistan,” Pakistan Law Journal, (2001): 12, http://www.epa.gov/air/criteria.html, accessed Jaunary 23, 2012.

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