1

OP JINDAL GLOBAL UNIVERSITY

SCHOOL OF LAW

COURSE MANUAL

Spring Semester, 2020

ENVIRONMENT PROTECTION AND LAW

ELECTIVE

Course Instructor

DR. CHARU SHARMA

INFORMATION ON ENVIRONMENT

PROTECTION AND LAW

OFFERED BY JGLS

SPRING Semester 2020

2

The information herein is provided by the Course Coordinators. This syllabus

should be viewed as a general guide and may be revised during the course of the

semester.

Part I

Course title: Environment Protection and Law

Course Code:

Course Duration: One Semester

No. of Credit Units: 4

Level: undergraduate/postgraduate

Hours of Instruction: 4 hours per week

Medium of Instruction: English

Part II

A. Course Description and Course Aims

This course aims to

1. Introduce to students the basic concepts and principles of environment

and tools for its protection, i.e law as applicable in India.

2. Promote an attitude of critical and reflective learning of the legal

concepts of environmental law and relate it to their respective major

disciplines through common law, judicial decisions, regulations and its

recognition in Indian culture, religion and social context.

3. Enable students to recognise environmental problems and analyse

claims which may arise due to the conflict between environment and

development, measures for climate change, biodiversity, sustainable

development and planning policies and law in India

COURSE OBJECTIVES

3

This course has the following objectives so as to enable students

1. To Discover and Learn environmental issues and concepts in India

and within international context;

2. To apply, evaluate and reflect upon the

fundamental definitions, concepts and principles of environmental

protection, climate change, biodiversity and sustainable

development;

environmental legal issues affecting the behaviours of individuals,

corporate bodies and the government;

rules, doctrines and regulations to solve hypothetical problems; and

critically evaluate environmental issues as influenced by laws and

policies in India

3. To develop an attitude of critical and reflective learning of

environmental justice concept and its theoretical underpinnings within

the historical, social economic and political context;

4. Impart skills to students to discover and assess the rules for

environmental protection and right to development before courts/

tribunals;

5. Enable students to conduct individual research and be able to present

it orally and in writing

Overall Skills

Select, Evaluate, Analyse, Summarise and Process relevant data/ resources;

to develop and express coherent, cogent and relevant arguments;

to demonstrate critical and original thinking;

to select, use and cite relevant sources appropriately

to select appropriate content and language to suit context and intended

4

audience

to communicate their ideas clearly, coherently and accurately in own words

and in Plain English

Keyword Syllabus

The following topics are studied in detail:

Definition of environment within local, social, cultural and legal context

national and international understanding and definitions of

environment: Why a study of environment is important?

Why Law is used as one of the controlling tools for environmental

protection and management? Why is it necessary to understand the

conflict between environmental protection vs development; What is

environmental justice? How is it applicable within the environmental

context in India?

Aspects of legal protection and environmental concepts explained

through legal protection: Private law : Common law torts in dealing with

environmental problems such as nuisance, trespass, negligence and

strict liability and application India

Public Law : International law and basic concepts ( climate change,

trans-boundary pollution, sustainable development, environmental

rights, Public Interest litigation and judicial review : basic concepts of

constitutional and administrative law ; its interrelation with

environmental law and principles of sustainable development,

precaution, preservation and polluter pays

Environmental law-making I - National legislation in pollution control;

water pollution, air pollution, waste disposal and noise pollution,

protection of wild animals, plants, country parks, forests and country-

sides; bio diversity and conservation in the region and energy debate

Environmental law –making II and implementation in India ; role of the

institutions : the Court and the National Green Tribunal

.

B. Course Intended Learning Outcomes

Course Intended

Learning

Outcomes

Teaching and Learning

Activities

Assessment

Tasks/Activities

5

Explain, analyse,

critique and

constructively

employ (in general

and in specific

contexts) the

prescribed writings

and ideas

Reading of textbooks and research

articles

A. Students will acquire

knowledge of the

perspectives pertaining to

the topics to be covered in

the syllabus.

B. Preparation outside the class

Lectures

C. Students will be given

guidance on their reading

and their research for the

lectures and tutorials

D. Students will, by responding

to questions and performing

exercises, develop their

analytical and critical

capabilities

Research and Writing

E. Students will research and

participate in class

discussions on selected

topics

End of course

Research paper– 60%

Seminar presentation

Writing and

assessment – 20%

Class participation -

20%

C. Grading of Student Achievement

o Passing Grade:

To pass this course, students must obtain a minimum of 50% in each of the

coursework and the research work elements of the assessment. Coursework for

this purpose means those ways in which students are assessed otherwise than by

the end of semester examination. There is no end semester exam.

The following conversion criteria will be used between numeric and letter grades

for this course:

6

Letter

Grade

Grade

Value

Total

Course

Marks

Grade Definitions and Explanation

O 8.5 80 and

above

Outstanding Sound knowledge of the

subject matter, excellent

organizational capacity,

ability to synthesize ideas,

rules and principles,

critically analyse existing

materials and originality in

thinking and presentation.

A+ 80-84 75 to 79 Excellent Sound knowledge of the

subject matter, thorough

understanding of issues;

ability to synthesize ideas,

rules and principles and

critical and analytical

ability.

A 75-79 70 to 74 Very Good Good understanding of the

subject matter, ability to

identify issues and provide

balanced solutions to

problems and good critical

and analytical skills.

B+ 4 65-69 Good Adequate knowledge of the

subject matter to go to the

next level of study, and

reasonable critical and

analytical skills.

B

C+

C

C-

3

2

1

60-64

55-59

50-54

Fair Limited knowledge of the

subject matter and

irrelevant use of materials,

and poor critical and

analytical skills.

F 0.0 Below 50 Failure Poor comprehension of the

7

subject matter; poor critical

and analytical skills and

marginal use of the relevant

materials. Will require

repeating the course.

o Class Format

There will be four hours of class per week. Students are expected to review course

materials in advance of each class and will be called upon to participate in the

class without prior notice.

Course instructor will monitor and grade student Preparation, active participation

and contribution on a continuous basis throughout the semester.

Attendance in lectures is mandatory. Students who fail to be present for 75%

of the lectures for the semester will be failed.

Assessment

Assessment

Research paper/assignment 40% (Take Home)

Class seminars 40% ( normally articles and or question on a certain topic shall be

given one week prior to the date, group-wise, to be presented in a power point

format with proper reference)

Class participation 20 % (solving problem questions (2- 3 groups of four students

to be allocated one question each every week)

Detailed course outline weekly topics and power points, reading materials,

problem questions per week, seminar topics and research questions or topics shall

be uploaded later.

Given the thematic integrity of the course, students are strongly encouraged to

be present for each and every lecture during the semester.

o Guidelines regarding Assignment and warning against Plagiarism:

Students are encouraged to read, think, assimilate and thereafter attempt

assignment. Wherever possible, it will be useful to present ideas in your own

simple words demonstrating your own understanding of the issues involved and

of the analysis thereof. Original thinking and writing as well as adeptness in the

8

use of various concepts of political science will be rewarded. A careful reading

of various materials prescribed for the course will give the student an idea of the

style and academic rigour adopted by political scientists. Student should always

consult the instructor about the veracity and authenticity of the particular website

and its suitability of researching topics covered in this syllabus. If any student is

relying on the authority of another scholar or any website, please acknowledge

source by way of footnotes and place such material within quotes.

Plagiarism means “To take the words or an idea of someone else and pass it

off as one’s own”. Plagiarism is a serious matter and will be penalized.

Any idea, sentence or paragraph you cull from a web source must be credited

with the original source. If you paraphrase or directly quote from a web source in

the exam, presentation or essays, the source must be explicitly mentioned. You

should not feel free to plagiarise content, be it from scholarly sources (i.e. books

and journal articles) or from the internet. The university has strict rules with

consequences for students involved in plagiarism. This is an issue of academic

integrity on which no compromise will be made, especially as students have

already been trained in the perils of lifting sentences or paragraphs from others

and claiming authorship for them.

Disability Support and Accommodation Requirements

JGU endeavours to make all its courses accessible to students. All students with

a known disability needing academic accommodations are required to register

with the Disability Support Committee dsc@jgu.edu.in. The Committee has so

far identified the following conditions that could possibly hinder student’s overall

well-being. These include: physical and mobility related difficulties; visual

impairment; hearing impairment; medical conditions; specific learning

difficulties e.g. dyslexia; mental health.

The Disability Support Committee maintains strict confidentiality in its

discussions. The students should preferably register with the Committee in the

month of June/January as disability accommodation requires early planning. DSC

will approve and coordinate all the disability related services such as appointment

of academic mentors, specialized interventions and course related requirements

such as accessible classrooms for lectures, tutorials and examinations.

All faculty members are required to refer students with any of the above-

mentioned conditions to the Disability Support Committee for addressing

disability-related accommodation requirements.

9

Safe Space Pledge

This course will discuss a range of issues and events that might result in distress

for some students. Discussions in the course might also provoke strong emotional

responses. To make sure that all students collectively benefit from the course, and

do not feel troubled due to either the contents of the course, or the conduct of the

discussions, it is incumbent upon all within the classroom to pledge to maintain

respect towards our peers. This does not mean that you need to feel restrained

about what you feel and what you want to say. Conversely, this is about creating

a safe space where everyone can speak and learn without inhibition and fear. This

responsibility lies not only on students, but also the instructor.

o Lecture Methodology

Each thematic lecture will involve a discussion of the identified and distributed

reading materials. Students are expected to review the delineated course materials

in advance of each class and pre-selected students will lead the class discussions.

Detailed Syllabus

and Lecture Outline

Week 1 to 15

Defining environment and understanding Indian legal system,

functions of law and policy

Environmental justice and Environmental Human Rights aspects

Common law, private law and public law

o Common Law : Trespass, Nuisance, negligence, R v F, strict

liability

10

Public Law : at the national and international level -environmental

principles and their application

Public Law: Regulatory laws in India : legislative framework,

regulatory measures and judicial interpretation:

Brief overview of the following major laws in respect of environment

protection

o Environmental impact assessment;

o Air pollution and control;

o Water pollution and control;

o Noise pollution and control;

o Waste management; urban issues

o Protection of Forests

Endangered species protection and international/national smuggling

of wildlife species

Energy and its Use

Institutions for protection of the environment

o NGTA and its working

METHOD OF TEACHING AND ASSESSMENT

This subject is taught through a seminar mode (two hours per week over the

course of the semester.( a total of 30 hours)

• Teaching and Learning Activity (TLA) 1: Lectures and in class

discussion will be used to outline the relevant principles of

environment and its related issues: definitions, concepts, past and

concurrent environmental issues. During the course of lectures

discussion will be encouraged between lecturer and students on the

topic at hand.

11

• TLA 2 Students will be given readings and or hypothetical problems

relevant to the lecture which they will be expected to discuss in small

groups and then to present the same.

• TLA 3 Students will also be expected to learn from environmental

themed movies and documentaries and expected to identify the policy

and legal issues as relevant or comparable within the Indian context.

•

• TLA 4: Presentations on pre-allotted topics involving group discussion

of specific hypothetical problems or case studies on the application of

laws to environmental issues in India to enhance oral presentation and

research skills.

WEEK SEVEN WILL BE A READING WEEK

DEADLINE FOR INDIVIDUAL ASSIGNMENT WEEK 12 ( end of the

week)

FINAL PRESENTATIONS ( weeks 13-14/15)

Recommended Books/ Reading

Text(s)

Environmental Law and Policy In India , Armin Rosencranz and Shyam

Divan, OUP, Latest edition( 2010) (1, 2) ( TBA)

Stuart Bell & Donald McGillivray, Environmental Law (7th edition. Oxford

University Press, 2011) ( Chapter 1, 2, 3, 4, 6 , 8 , 10 and 11)

Mark Stallworthy, Understanding Environmental Law, (1st edition,

Thomson, Sweet & Maxwell, London), 2008 (1, 2,, 3 and 4)

D. Freestone & C. Streck, Legal Aspects of Implementing the Kyoto

Protocol Mechanisms (Oxford 2005)

E. Louka, International Environmental Law: Fairness, Effectiveness,

and World Order (Cambridge University Press, 2006) ( 2, 3)

Supplementary Reading

Patricia Birnie, Alan Boyle & Catherine Redgwell (2009), International Law

and the Environment (3rd ed.), Oxford University Press

12

Paul Stookes (2009), A Practical Approach to Environmental Law (2nd ed.),

Oxford University Press

Richard Burnett-Hall & Brian Jones (2009), Burnett-Hill on

Environmental Law (2nd ed.), Sweet & Maxwell

Journals

Yearbook of International Environmental Law

Yearbook of European Environmental Law

Journal of Environmental Law

Harvard Environmental Law Review

International Environmental Law Review

American Journal of International Law

European Journal of International Law

International and Comparative Law Quarterly

Albany Law School Environmental Outlook Journal

Columbia University Journal of Environmental Law

Drake University Journal of Agriculture Law

Duke Environmental Law and Policy Forum

Florida State University Journal of Land Use and Environmental Law

Fordham University Environmental Law Journal

Macquarie Journal of International and Comparative Environmental

Law

Vermont law Journal

Animal Law Review

Legislation (TBA)

Relevant legislation will either be provided via a hyperlink or made available

as pdf. In some instance students may be required to find relevant cases from

the web

ONLINE RESOURCES

13

United Nations Environment Program Documentation

http://www.un.org/Depts/dhl/resguide/specenv.htm

United Nations Environmental Programme (UNEP)

http://www.unep.org/

United Nations Statistics Division – Environmental Statistics

http://unstats.un.org/unsd/environment/default.htm

European Parliament Environment Committee website

http://www.eea.europa.eu/themes/policy/links/Link1094717137

The Environment Directory < http://www.webdirectory.com/>

Government of India , Ministry of Environment and Forest

www.moef.goi

WWF India- Center for Environmental Law www.cel.org

Environmental Law Development Foundation : www.eldf.org

CITATION MANUAL

OSCOLA 2006, “The Oxford Standard for Citation of Legal Authorities,”

Faculty of Law, University of Oxford:

<http://denning.law.ox.ac.uk/published/oscola.shtml>

ONLINE RESOURCES

HYPERLINK

"http://www.opsi.gov.uk/acts/acts1990/ukpga_19900043_en_2"

http://www.opsi.gov.uk/acts/acts1990/ukpga_19900043_en_2#pt1-pb1-

l1g1

HYPERLINK HYPERLINK "http://www.unep/env"

http://www.unep/env

NB

Detailed outline and course material will be provided to the students

Power point presentations of the lecture will be made available on the black

board or through email after every lecture along with

Reading and discussion question for following week.

.

14

15

Course Outline (subject to change if required)

WEEK ONE: Introduction – Environment and Law

Lecture Outline

Course Intended Learning Outcomes

Teaching Plan

Assessment

What is Environment?

What is Law?

Sources of Law; Difference between law and Policy

Public Law & Private Law

Differences between Civil Law & Criminal Law

Overview of Courts

Environmental Law and Environmental Policy Studies

Environmental Institutions

Materials

Readings

Chapter 1 – “What is environmental law? A brief introduction”, in Bell, S. & McGillivray,

D., Environmental Law, (7th ed., 2008) pp3-16

Cases and legislation

Section 1(2) Environment Protection Act, 1986

Section 1(2) of the UK’s Environmental Protection Act 1990 (c. 43)

Exercise week 2 and 3

List out at least five environmental agencies (whether government or non-government)

committed to the cause of the environment

16

Find out the current policy from the Government website (Ministry of Environment and

Forests www.minoef.gov.in ) the latest National Environmental Law Policy and its

significant features

17

WEEK TWO AND THREE Lecture Common Law Principles on Environmental

Protection

Lecture Outline

Introduction

Nuisance

Introduction

Common law of nuisance

Public and Private Nuisance

Elements of Private Nuisance

Reasonableness Test

Intention of the Defendant

Locality Doctrine

Duration and intensity

Hypersensitivity of Plaintiff

Defendant’s Conduct

Defences to Private nuisance

Remedies

Conclusion

Trespass

Introduction

Direct interference

Fault: intentional or negligent

Visibility

Negligence

Rules in ‘Rylands v Fletcher’ – Strict liability

Hong Kong Cases

Summary

Readings

Chapter 18: ‘Environmental Rights and Principles’ in Stookes, P, A Practical Approach to

Environmental Law, (2nd ed. 2009), pp379-425

Chapter 19: ‘Environmental Rights and Principles’ in Stookes, P, A Practical Approach to

Environmental Law, (2nd ed. 2009), pp427-460

Cases and legislation

Bliss v Hall (1838) 4 Bingham New Cases 183

Boomer et al v. Atlantic Cement Co. 257 N.E.2d 870

18

Cambridge Water Company Ltd. v Eastern Counties Leather Plc [1994] Env. L.R. 105

Esso Petroleum Co. Ltd. v Southport Corporation [1956] 2 W.L.R. 81

Gregory v Piper 109 E.R. 220

Harrison v Southwark and Vauxhall Water Company [1891] 2 Ch. 409

Hollywood Silver Fox Farm, Limited v Emmett [1936] 2 K.B. 468

Hu Wei Hsin v Ma Hung Wing [2011] HKEC 736 English Judgment

Hunter v Canary Wharf Ltd [1997] Env. L.R. 488

Jones v Llanrwst Urban District Council [1911] 1 Ch. 393

Leakey v National Trust [1980] Q.B. 485

Leung Tsang Hung v Incorporated Owners of Kwok Wing House [2007] 4 HKLRD 654

English Judgment

Manchester Corporation v Farnworth [1930] A.C. 171

Miller v Jackson [1977] 3 All E.R. 338

Read v J. Lyons & Company, Limited [1947] A.C. 156

Rickards v John Inglis Lothian [1913] A.C. 263

Robinson v Kilvert (1889) L.R. 41 Ch. D. 88

Rushmer v Polsue & Alfieri Ltd [1906] 1 Ch. 234

Rylands v Fletcher (1868) L.R. 3 H.L. 330

Spur Industries Inc. v. Del Webb Development Co. 108 Ariz. 178

Scott-Whitehead v National Coal Board (1987) 53 P. & C.R. 263

Swan Fisheries Ltd v. Holberton 14 December 1987

St. Helen's Smelting Company v William Tipping (1865) XI House of Lords Cases (Clark's)

642

Ratlam v Vardichand ( please check citation)

19

Student Discussion

WEEK FOUR AND FIVE: Principles on Environmental Protection

Lecture Outline

Introduction – Environmental Principles

Precautionary principle

Principle of Prevention

Polluter pays principle

Sustainable development

Environmental Justice

Environmental principles v Environmental Justice

Readings

“Environmental principles and environmental justice”, Ole W. Pedersen, Env. L. Rev. 2010,

12(1), pp26-49

Chapter 1: ‘Sources of Environmental Law: General Principles of Environmental Law (1-058

– 1-076)’ in Burnett-Hall, R. & Jones, B., Burnett-Hall on Environmental Law, (2nd ed.,

2009), pp50-69

Chapter 2: ‘Environmental Rights and Principles’ in Stookes, P, A Practical Approach to

Environmental Law, (2nd ed. 2009), pp21-43

Chapter 3: ‘Values, principles, and environmental law’ in Bell, S. & McGillivray, D.,

Environmental Law, (7th ed., 2008) pp53-71

Cases and legislation

1992 Rio Declaration on the Environment and Development

Contact Energy Ltd v Waikato RC (2000) ECD A04/2000

Gray v Minister for Planning & DG [2006] NSWLEC 720

Minors Oposa v Sec of the Dept of Environment & Natural Resources 33 ILM 174 (1994)

Pfizer Animal Health SA v Council of the EU [Case T-13/99 [2002] E.C.R. II-3305

20

R v Sec of State for Trade & Industry ex p Duddridge [1995] Env LR 151

R v SSETR ex p Standley [1999] C-293/97

Rajendra Parajuli v Shree Distillery Ltd (1996) Nepal 2 UNEP Compendia

Trail Smelter Arbitration 33 AJIL (1939)

21

WEEK SIX: Lecture :International Environmental Law

Lecture Outline

Introduction

Key Development of IEL

Definition of IEL

Role of law in International Environment (I.E.) protection

Law Making and Sources of Law of IEL

IEL Applicable in Hong Kong

Readings

Chapter 1: ‘Environmental Law in Outline’ in Stookes, P, A Practical Approach to

Environmental Law, (2nd ed. 2009), pp10-20

Chapter 1: ‘Sources of Environmental Law: General Principles of Environmental Law (1-001

– 1-057)’ in Burnett-Hall, R. & Jones, B., Burnett-Hall on Environmental Law, (2nd ed.,

2009), pp1-50

Chapter 4: ‘Sources of environmental law’ in Bell, S. & McGillivray, D., Environmental

Law, (7th ed., 2008) pp79-97

Cases and legislation

Argentina v Uruguay (ICJ judgment, April 2010)

Behring Sea Fur Seals Arbitration (1 Int. Env. L. Rep (1999) 43)

WEEK SEVEN

READING WEEK/Assignment Completion

22

NO SEMINAR/LECTURE OR

TUTORIAL

23

WEEK EIGHT AND NINE : Environmental Human Rights

Lecture Outline

Introduction

European Convention of Human Rights

Article 2: Right to life

Article 6: Right to a fair trial

Article 8: Right to respect for Private and family life

Article 10: Freedom of expression

Article 1 of Protocol 1: Protection of Property

UK and Human Rights Act

Readings

Chapter 2: ‘Environmental Rights and Principles’ in Stookes, P, A Practical Approach to

Environmental Law, (2nd ed. 2009), pp43-50

Chapter 1: ‘Sources of Environmental Law: General Principles of Environmental Law (1-077

– Appendix)’ in Burnett-Hall, R. & Jones, B., Burnett-Hall on Environmental Law, (2nd ed.,

2009), pp69-88

Chapter 3: ‘Values, principles, and environmental law’ in Bell, S. & McGillivray, D.,

Environmental Law, (7th ed., 2008) pp71-78

Chapter 4: ‘The European Convention on Human Rights and the human right to a clean

environment’ in Fitzmaurice, M., Contemporary Issues in International Environmental Law,

(2009) pp170-206

Cases and legislation

Aston Cantlow & Ors v Wallbank [2003] UKHL 37

Balmer-Schafroth v Switzerland [1997] ECHR 46

Bladet Tromso and Stensaas v Norway [1999] 21980/93 ECHR

Chassagnou & Ors v France [1999] ECHR 22

Hatton & Ors v UK [2003] 36022/97 ECHR

Lopez Ostra v Spain (1994) 20 EHRR 277

24

Oneryildiz v Turkey [2004] 48939/99 ECHR

Percy v director of Public Prosecutions [2001] EWCA Admin 1125

Powell and Rayner v UK (1986) 12 EHRR 335

R (Kathro) v Rhondda Cynon Taff CBC [2002] PLCR 304

R (Vetterlein) v Hampshire CC [2001] EWHC Admin 560

Sporrong & Lonnroth v Sweden (1982) 5 EHRR 35

Steel & Morris v UK (2005) 68416/01 ECHR

Zander v Sweden (1993) 18 EHRR 175

25

WEEKS TWELVE, THIRTEEN AND FOURTEEN: ENVIRONMENTAL CASES IN THE

SC & SIGNIFICANT LEGISLATION

26

WEEK TEN

Lecture Outline

1) Introduction

2) Strategic EIA and Project EIA

3) Legal Mechanisms Under the EIAO

4) Designated Projects

5) The Statutory EIA Process

6) Public Inspection and Comment

7) Offences and Penalties

8) Technical Memorandum on the EIA Process

9) EIA Appeal Board

10) Enforcement by the EPD

Reading

Basic Principle of Environmental Impact Assessment

EPD’s website on Hong Kong’s Environment – EA & Planning

http://www.epd.gov.hk/epd/english/environmentinhk/eia_planning/eia_maincontent.h

tml

Strategic Environmental Assessment (SEA) Knoweledge Centre

http://www.epd.gov.hk/epd/SEA/eng/index.html

Cases and legislation

Environmental Impact Assessment Ordinance (Cap 499)

Chu Yee Wah v Director of Environmental Protection [2011] HKEC 555 Court of

First Instance

Chu Yee Wah v Director of Environmental Protection [2011] HKEC 1275 Court of

Appeal

Shiu Wing Steel Ltd v Director of Environmental Protection and Airport Authority (No. 2) [2006] 3 HKLRD 487

27

WEEK ELEVEN

Lecture Outline

1) Introduction

2) Legislative Framework

3) APCA – Parts, Sections & Schedules

4) Air Quality Objectives & Air Control Zones

5) Source of Emission Control by Air Pollution Abatement Notice/ Legal Notices

6) License Control over Specified Processes

7) Regulation of Old or Existing Sources

8) Technical Memo./Code of Practice

9) Enforcement (ss.20 – 32)

10) Appeals

11) Miscellaneous

COMPARATIVE READING , E.G. UK AND HK

EPD’s website on Hong Kong’s Environment – Air

http://www.epd.gov.hk/epd/english/environmentinhk/air/air_maincontent.html

Cases and legislation

Air Pollution Control ACT

Asia Dyeing Company Ltd & Others v The Authority CACV000087/1989 Court of

Appeal judgment

Hon Wei Industries Limited v The Authority DCMP000001/1984 District Court

judgment

Teng Fuh Company Ltd v Air Pollution Control Appeal Board CACV 588/2001

Court of Appeal judgment

28

WEEK TWELVE

Lecture Outline

1) Introduction – Water Pollution

2) Water Pollution Control

3) Water Pollution Control ACT /Ordinance (WPCO)

4) Water Control Zones and Water Quality Objectives (WPCO Part II)

5) Legal Framework for Water Pollution Control

6) Prohibited Discharges and Deposits (Part III)

7) Licensing of New Sources (Part V)

8) Appeals (Part VI)

9) Powers of Enforcement (Part VII)

Reading

EPD’s website on Hong Kong’s Environment – Water

http://www.epd.gov.hk/epd/english/environmentinhk/water/water_maincontent.html

Cases and legislation

Water Pollution Control ACT 1972

29

WEEK THIRTEEN AND FOURTEEN

Lecture Outline

Waste Management

1. Introduction (comparative laws of UK and Hk with India )

2. Waste Disposal Plan (compare Part II; s.3 – 8 with HK law)

3. Collection of Waste (compare with HK lawPart III; s.9 – 14)

4. Disposal of Waste (compare with Part IV; s.16 – 19)

5. Licensing Requirements for Waste Collection and Disposal (compare with HkPart V;

s.21 – 23)

6. Import and export of waste (compare with Part IVA; s.20A – 20I)

7. Enforcement (compare with Part VA; s.23A – 23F)

8. Future Development (Clinical Waste)

Noise Control

1. Introduction

2. Legislation for Noise Control compare with UK and HK (NCO; Cap.400)

3. Control of noisy activities; NAN and construction noise permit (compare with HKPart

II, s.4 – 13B)

4. Control of noisy products; Noise Emission Label (Hk law Part III, s.14 – 17A)

5. Noise emission from newly-registered motor vehicles [HK LawPart VI, s.27(3A)]

6. Appeals (Part IV, s.18 – 23)

7. Enforcement (Part V, s.24 – 26)

Reading and comparative view see

EPD’s website on Hong Kong’s Environment – Waste

http://www.epd.gov.hk/epd/english/environmentinhk/waste/waste_maincontent.html

EPD’s website on Hong Kong’s Environment – Noise

http://www.epd.gov.hk/epd/english/environmentinhk/noise/noise_maincontent.html

Cases and legislation

30

Waste Pollution and Control under EPA, relevant cases from the NGT

Compare with HK Waste Disposal Ordinance (Cap 354)

Noise Control under EPA 1986, compare with HK Noise Ordinance (Cap 400)

Step In Ltd v Noise Control Appeal Board & Another [2004] HKEC 662

31

Jindal Global School of Law

Tutorial Questions

Tutorial Assessment Instructions

For the 10% class work assessment, you are required form a group of no more than 4 persons

and to prepare for the tutorial questions in one week of the semester as allocated by your

tutor. If a student is unable to join with a group, the tutor has the right to place the student to

a group whom he/she sees fit.

The group will need to:

1) Prepare a 2 page written answer/presentation answering the week’s question(s); and

2) Be prepared to present and lead discussion on the question(s) during the tutorial.

Once the questions have been allocated to the student groups, no changes to the allocations

will be allowed in the absence of extenuating circumstances. Unless there are such

extenuating circumstances, you will not receive marks for this assessment if you fail to attend

the tutorial in your allocated week. However, this does not apply to the whole group, only on

the individual whom has failed to attend the tutorial.

This assessment is group work, and the group must answer the question(s) allocated for the

group’s particular week. The group will be assessed on the basis of both the written paper and

the oral arguments put forward in the tutorial.

The written paper should be handed in to your tutor by the start of the allocated tutorial

session. Late papers will not be marked.

Please include a word court on the covering page. Papers which are over the word limit by

more than 15% will be penalised. (Citation references in footnotes can be excluded from the

word count.)

Please note that week 1 and 2 tutorial questions are not included for assessment

32

Questions

Weeks 1 and 2

Please provide an insight into the stance taken by the government to implement or promote

environmental protection and sustainable development.

1) What is law? What are the sources of Indian environmental law? What is the

difference between criminal law and civil law?

2) What is the definition of ‘Environment’ under international and local jurisdictions?

Please provide insight as to the similarities and differences between the two.

Week 2& 3

1) Please provide a summary account of the film ‘Erin Brockovich’ and its impact on

thinking with respect to environmental law.

2) How do the courts deal with environmental nuisance?

3) Compare at least four nuisance cases and analyse how courts in the US, UK, HK and

India have dealt with environmental nuisance cases?

4) Does NGT also deal with nuisance cases. Please analyse and comment upon a case

you know of that applies nuisance principles in respect of marine pollution.

5) What is the difference between public and private nuisance? Please provide cases to support your answer.

6)In these following scenarios, which would be seen as public or private nuisance?

(1) Dusting up and throwing ashes in front of neighbour’s door (2) Unleashing toxic material in the street

(3) Playing loud music in the middle of the night which could be heard six floors above

(4) Spitting on the sidewalk (5) Quarrying activities which showered the neighbourhood with stones and splinters, and caused dust and vibrations around the neighbourhood

7) John is an ice sculpture artist. Recently, he found a big warehouse to work on his

ice sculpture. He rented the whole of the 2nd floor from the owner of the warehouse,

Tim. John never identified his use of the area and Tim told John that the 1st floor

would be kept warm for his greenhouse garden.

John sculpted five different ice sculptures for competition in Asia’s best ice sculpture

contest. He placed the ice sculptures in a freezer which is old and unreliable in

keeping constant temperature. The heat released from the greenhouse garden caused

the freezer to malfunction and all his ice sculptures melted. John was very upset that

all his ice sculptures were destroyed and wants to sue Tim. Advise John.

33

What if John had told Tim about his intention of using the 2nd floor for his ice

sculpting. Tim still increased the heat in the greenhouse garden to compensate for

the colder temperatures maintained by John on the second floor. Advise John.

Week 4 &5

In Ole W. Pedersen’s article on ‘Environmental principles and environmental justice’,

Pedersen argues that environmental justice ‘has emerged as a basis for questioning

established norms of environmental law and policy in general and, in some instances, the

environmental principles in particular.’

Please give details and explanations (as to the pros and cons) to his argument between

Environmental justice and: -

1) Precautionary principle and principle of prevention; and

2) Polluter pays principle and sustainable development.

Comment on the following cases:

R v SSETR ex parte Stanley 1999 (UK)

Rajendra parajuli v Shree Distillery Ltd ( Nepal, 1996)

Pfizer Animal Health SA v Council of the EU

Shriram Gas Leak case ( India)

Week 6

Although environmental treaties and conventions create obligations and norms of behaviour

for the states which are parties to them, however a rule of customary law of the states could

be different and thus causes conflict between the states as explored in ‘Trail Smelter Case’ 33

AJIL (1939).

There are two cases which are similar in nature:

1) Argentina v Uruguay [ICJ judgement, April 2010]

2) Behring Sea Fur Seals Arbitration [1 Int. Env. L. Rep (1999) 43]

Please provide a summary account of the two cases by giving detail as to the issue of the

dispute and the judgment (plus any dissenting opinion)

How has the Indian Government dealt with Climate Change adaptation in respect of energy

usages through solar panels?

Is burning coal a necessity and how far should India commit to COP21 and beyond climate

change?

How has the Biodiversity Act 2002 been implemented in India

34

Week 8 &9 (apply EU/UK/Indian law comparative)

The following scenarios occurred in a state which is party to the ECHR and is a Common

Law state.

1) Mr. Thomas and 20 other residents live near a hill in a small town. On top of the hill,

5 miles off from the town is a chemical factory and it has been known for dumping

toxic waste directly in the nearby river which is also the source of the town’s water

supply. The factory has received the state’s permit to dump out more for the reason

that the demand for their product increased. Everyone in the town began to get sick

and Mr. Thomas bought an action against the company, however the state dismissed

their appeal as they believe the company did everything to prevent any pollution.

Mr. Thomas believes his rights have been violated, please Advise Mr. Thomas.

Would your answer be different if the dumping of toxic waste was only a rumour because

people believe there was a leak in the process of how the chemical factory treated the waste?

2) Ms. Potter has been living by the seaside on a small island state for 15 years now, and

recently a ferry station has been built near her house in replacement of the old one

which has been deemed to be unsafe to use. The noise created by the ferry is

disturbing her and she sued the company, however the government denied the case.

It is known that the ferry is the only transportation to get across the small island state to other

territories and it is the only source of income that the people and the state could rely on

economically. Ms. Potter believes the government is wrong to reject her case. Advise Ms.

Potter.

A local society group is showing support with Ms. Potter’s argument and noted that the

government failed to hold any consultation with the public. They are planning to release an

article about the situation; however they were prevented from releasing the information

because it would affect the state economically. Please advise the group.

3) Comment and analyse on the following cases:

Aston Cantlow & Ors v Wallbank (UK), HL

Balmer -Schafroth v Switzerland

Steel & Morris v UK

Percy v Dir of Public Prosecutions (UK)

Week 10 ( EIA)

1) Delhi Enviro-friend Co. LTd (DEF) is proposing to build a giant incinerator with a

capacity of burning 5,000 tons of municipal waste per day. As the incinerator can

reduce the volume of waste significantly, the government has made land available for

the incinerator at Mayur Vihar despite public concern voiced by residents and

environmental protectionists.

35

Adrian is very disturbed by the project not only because he lives in Mayur Vihar, but also

because, after working with Greenpeace as a consultant for 25 years, he believes there could

be an adverse health and environmental impact of an incinerator on this scale.

Advise Adrian what he can do to object to the construction of the incinerator in Mayur Vihar

under the Environmental Impact Assessment Law, please take into consideration ‘rule of

environmental law’ by referring to Mr Justice Chandrachur’s judgment in a recent case in

2018-2019

2) Please explain the Basic Principles of the Environmental Impact Assessment Process

and the ruling in ‘Shiu Wing Steel Limited v Director of Environmental Protection’

from Hong Kong and compare it with a an Indian case on the same issue.

Week 11 (Air Pollution)

1) Mr. Brian Kong wants to start an iron and steel mill with the intent to produce better

quality iron and steel which would be more long-lasting from rusting when contacted

with air. Mr. Kong said that the whole process would be environmental friendly

however he knows that some gas might have to be released into the atmosphere. He

wants to get government’s approval.

Please advise Brian (i) if his mill is listed as one of the categories of specified processed and

(ii) the process in obtaining a licence under the Air Pollution & Control Act 1972 and HK Air

Pollution Control Ordinance (Cap 311)

2) Please highlight the duty of the Environmental Protection Department (EPD) in

achieving the air quality objectives. Also, is there an appeal process under the Air

Pollution law if a license is revoked?

Week 12 (Water Pollution)

1) Tai Yong Ltd specializes in advance medical products. It has been operating in

‘Lamma Island’ for nine months. Various chemicals such as bleach are used in the

making of the medical products. It is found that Tai Yong Ltd has been releasing

these chemicals into a Aqua river draining into the Arabian Ocean, next to its

premises after the weekly production process which is within the Southern Water

Control Zone.

Much of the seawater flowing near Tai Yong Ltd is of a strange colour and in parts, there are

algal blooms. Bob, who lives nearby on the island, has being fishing in the sea-zone nearby.

In recent days, after eating the fish he caught from the sea, he noticed that his body has rashes

which he blamed on the polluted sea water. Bob complained to the Environmental Protection

Department (EPD), which took tests of the sea water and confirmed that it had been polluted.

They also found that Tai Yong Ltd is the source of the polluted water.

Tai Yong Ltd wants to know what criminal liability they might face under the ordinance.

2) (Following the case above) Prior to receiving results that proves Tai Yong Ltd is the

source of the polluted water, how did the EPD obtain evidence that Tai Yong Ltd has

36

contravened the Water Pollution & Control Act, and HK Water Pollution Ordinance

(Cap. 258) ( compare both Indian and HK law)

Bob is happy that the government is now suing Tai Yong Ltd with criminal charges but he is

still not satisfied with the result. Bob is now attempting to sue Tai Yong Ltd and its board of

directors for damages related to his suffering. The CEO of Tai Yong Ltd, Johnson, believes it

is not his fault but the company’s employees fault for pouring waste into the sea. Advise

Johnson.

Week 13 AND 14 (Waste Disposal & Noise)

1) Asia Textile Limited (Asia Textiles) wants to import used silk and hemp products

from Thailand into Calcutta for recycling into silk and hemp clothing accessories.

Asia Textiles anticipates there will be strong demand for recycled natural goods. It

has ordered four shipments of silk textiles and three shipments of used hemp. The first

of the shipments is due in February 2008. The Managing Director of Asia Textiles,

Tiffany, wants to apply for an import permit from the Environmental Protection

Department (EPD).

i. Advise Tiffany whether Asia Textiles will require an import permit under the

Waste Disposal Rules/Act/Ordinance.

ii. What potential penalties might Asia Textiles be liable for under the Waste

Disposal Rules/Ordinance if it imports the contaminated silk and hemp into

India/Hong Kong without a permit? Would Tiffany also be liable

2) Happy Bar Limited (Happy Bar) operates a bar in which live music is played. The bar

is on the ground floor of a building and the upper floors are residences. Following

complaints made by the building’s residents, the Noise Control Authority served a

noise abatement notice (NAN) under s.13(1)(a) of the Noise Control Rules/Ordinance

(Cap. 400) which requires Happy Bar to ensure that noise from the bar is “not

audible” between 11 p.m. and 7 a.m. in the nearest “noise sensitive receiver”, which is

the flat above the bar.

The live music band playing at Happy Bar at night for the entertainment of its patrons is a

very important event in the bar as it attracts 80% of its patrons. In order to comply with the

NAN, Happy Bar tried to lower the volume of the speakers however the noise is still audible.

To prevent such noise, Happy Bar would have to cancel the event and as a result, the bar

would close down. The owner of Happy Bar thus decides to lodge an appeal against the

notice.

Advise Happy Bar with reference to the Hong Kong Noise Control Ordinance (Cap 400)