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Lawyer Training WorkshopPublic Interest Environmental Law

Medawala, IndiaJune 1st-6th, 2004

Workbook of Case Materials

This workshop has been funded in part by Grant No. S-ECAPRE-03-GR-026 (DD)of the United States Bureau of Educational and Cultural Affairs

TABLE OF CONTENTS

Page 3: MOOT COURT RULES

Chapter 1: Hypothetical Case # 1 (Industrial Pollution)

Page 5: Client letter (A Plea for Help)Page 7: Environmental Research Institute ReportPage 9: Investigation on hydrogen sulphide by Dr. V____

Chapter 2: Hypothetical Case # 2 (Mineral Resource Extraction)

Page 13: Client Letter (A Plea for Help)Page 14: Mineral Investment Agreement (selected paragraphs)Page 19: Comments of the National Academy of Sciences on the Proposed Potash ProjectPage 22: Newspaper article “Exploitation of the Potashpura Potash Deposit”

Chapter 3: Hypothetical Case # 3 (Forest Protection)

Page 25: Client letter (A Plea for Help)Page 27: Lease Deed to Emerald Hotel Resorts, Ltd., June 25, 2000.

Chapter 4: Legal Materials – Constitutional Provisions

Page 29: Constitution of Bangladesh (selected provisions)Page 29: Constitution of India (selected provisions)Page 30: Constitution of Nepal (selected provisions)Page 31: Constitution of Pakistan (selected provisions)Page 31: Constitution of Sri Lanka (selected provisions)

Chapter 5: Legal Materials – Statutory Provisions

Page 33: Bangladesh – Environment Conservation Act, 1995 (selected sections)Page 34: Bangladesh – Factories Act, 1965 (selected sections)Page 35: Bangladesh – Environment Conservation Rules, 1997 (selected parts)Page 37: India – Environmental (Protection) Act, 1986 (selected sections)Page 38: India – The Water (Prevention and Control of Pollution) Act, 1974 (selected sections)2: India – Environment Impact Assessment Notification (selected sections)Page 44: India – Environment (Protection) Rules, 1986 (selected sections)Page 49: India – Hazardous Wastes (Management and Handling) Rules, 1989 (selected sections)Page 49: India – Penal Code – Offences Affecting the Public Health, Safety, Convenience, Decency and

Morals (selected sections)Page 49: India – Code of Criminal Procedure – Maintenance of Public Order and Tranquility, 1973Page 52: India – The Mines and Minerals (Development and Regulation) Act, 1957 (selected sections)Page 53: India – The Mineral Conservation and Development Rules, 1988, 2000 (Selected sections)Page 53: India – Forest (Conservation) Act, 1980 with Amendments Made in 1988 (selected sections)Page 54: India – The Indian Wildlife (Protection) Act, 1972, amended 1993 (selected sections)Page 58: India – The Wild Life (Protection) Amendment Act, 2002 (selected sections)Page 59: Nepal – Environment Protection Act, 1997Page 61: Nepal – National Parks and Wildlife Conservation Act, 1973 (selected sections)Page 62: Pakistan - Pakistan Environmental Protection Act (PEPA), 1997 (selected sections)Page 65: Pakistan – National Environmental Quality Standards for Municipal and Liquid Industrial

EffluentsPage 66: Sri Lanka – National Environmental Act, 1980, 1988 (selected sections)Page 70: Sri Lanka – Criminal Procedure Code, (part relating to Public Nuisance)

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Sri Lanka – General Standards for Industrial Waste Water (Effluents) Discharged into Inland Surface Waters (After Treatment)

Page 73: Sri Lanka – The Mines and Minerals Act, 1973 (with 1981 and 1992 amendments)Page 75: Sri Lanka – Fauna and Flora Protection Ordinance (selected Sections)

Chapter 6: Legal Materials – Court Judgments

Page 77: Bangladesh – Farooque v Government of Bangladesh (decided July 1, 1996) (selected parts)Page 79: Bangladesh – Farooque v Government of Bangladesh (decided Juy 25, 1996) (selected parts) Page 81: India – M.C. Mehta v.Union of India, WP 12739/1985 (Decided December 20, 1986) (selected

parts)Page 82: India – M.C. Mehta v Union of India and Others, WP 3727/1985 (decided September 22, 1987)

(selected parts)Page 82: India – Subhash Kumar v State of Bihar, (decided January 9, 1991) (selected parts) Page 82: India – ICELA v. Union of India, WP 664/1993 (decded April 18, 1996) (selected parts)Page 83: India – M.C. Mehta v. Kamal Nath, WP 182/1996 (decided December 13, 1996) (selected parts)Page 84: India – A.P. Pollution Control Board v. Nayudu, (decided January 27, 1999) (selected parts)Page 85: India – M. I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Others (decided July 26, 1999)

(selected parts)Page 86: India – T.N. Godavarman Thirumalpad v Union of India and Others (decided October 30, 2002)Page 88: Nepal -- LEADERS v. Godavari Marble Industries and Others (decided October 31, 1995)

(selected parts)Page 88: Nepal -- Prakash Mani Sharma v. His Majesty Government Cabinet Secretariat and others

(decided June 9, 1997) (selected parts)Page 89: Pakistan -- Zia v. WAPDA, (decided 1994) (selected parts)Page 90: Pakistan -- West Pakistan Salt Miners Labour Union v. the Director, Industries and Mineral

Development (decided July 12, 1994) (selected parts)Page 90: Philippines -- A Bugal-b’laan Tribal Association, Inc v. Ramos (decided January 29, 2004)

(selected parts)Page 90: Sri Lanka – Environmental Foundation Limited vs. Ratnasiri Wickramanayake, (decided

December 17, 1996) (selected parts)Page 91: Sri Lanka – Jayawardena v. Akmeemana Pradeshiya Sabha, (decided September 24, 1997)

(selected parts)Page 92: U.S. – Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892) (selected parts)Page 93: U.S. – Sierra Club v. Morton, 405 U.S. 727 (1972) (selected parts)

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Lawyer Training WorkshopPublic Interest Environmenta Law

Moot Court Rules 1. REGISTRATION PROCEDURE

All the young lawyers participating in the workshop are required to take part in the Moot court exercise. 2. TEAM COMPOSITION

2.1. The participants at the workshop will be divided into three teams. Each team shall consist of five/six members. The organisers will constitute the three teams.

2.2. All members of a team may present oral arguments. The Team must decide how to divide the allocated time. Some members of the team may choose not to present oral arguments. However, at least three members of the team MUST present oral arguments on behalf of the team. All members of the team are required to actively participate in drafting the pleadings and written submissions and in preparing for the oral arguments.

3. MOOT COURT DATES

The Moot Court will be held on the date and time set out in the workshop programme. The notified schedule of the Court will be strictly applied.

4. MOOT COURT PROCEDURE

4.1 The written pleadings, written submissions and oral arguments shall be based on the three case material provided in the workbook prepared for the workshop. Each team will be allocated a case.

4.2. All three team are required to prepare and present to the Moot Court:-

4.2.3. Pleading (a document initiating court proceedings such as a Plaint, Complaint, Petition, Information etc.);

4.2.4. Written Submission outlining the factual and legal arguments relied on; and oral arguments in support of their case.

4.3. All three teams will act as lawyers for the party initiating proceedings in the Moot Court (i.e. Plaintiff/Petitioner/Complainant/Informant etc.). Senior Counsel and Resource Persons attending the workshop will act as lawyers for the party called into court as a party to the proceedings (defendant/Respondent/Accused/etc.) The lawyers for the party called into court will also prepare in sketch form a Pleading and Written Submission replying to those of each team.

4.4. The Moot Court shall be presided over by a bench of two to five Judges. The Judges will be invited from among sitting and retired judges. Senior lawyers and resource persons may also be invited to be a Judge. The organisers will do their best to constitute benches that reflect the different jurisdictions of the region. The bench for each case may be different.

4.5. Each team shall have 45 minutes each, wherein each speaker shall have only 20 minutes each and 5 minutes shall be reserved for rebuttal by each team. One speaker or both speakers dividing the 5 minutes’ time between them may present the rebuttal for either team.

4.6. The bench constituted for each case is not required to (but may, if they wish to) pronounce a judgement declaring an outcome of the moot. The participating judges will however, express their opinions on the strength/weaknesses of the pleadings, written submissions and oral arguments of each team. The judges may also make suggestions that they feel may help participants in improving their advocacy skills.

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5. CODE OF CONDUCT & LANGUAGE OF THE COURT

5.1. Participants are required to conduct themselves within the highest standards of ethics applicable to professional conduct in their respective jurisdictions.

5.2. The Dress Code shall be dark suit or formal dark shalwar or national dress for men and light uni-coloured saree or shalwar or long gown for women. Optionally participants may wear the professional dress prescribed for court appearances in their respective jurisdictions.

5.3. The proceedings of the Moot Court shall be in English. 6. PLEADINGS & WRITTEN SUBMISSIONS

6.1. The Pleading and Written Submission should reach the Registrar by the deadline specified on the workshop programme.

6.2. Each team will be given access to a computer. The Pleading and Written Submission must be printed using Times New Roman font of 11-14 point font size.

6.3. Once the pleading and written submission is submitted the teams will not be allowed to make any amendments to the same.

6.4. The Pleading and Written Submission should be printed only on one side of A4 size paper with 1 inch margin on all sides and numbered on the bottom right side of the page.

6.5. The Pleading should not exceed 4 pages. The Written Submission should not exceed 4 pages.

6.6. The Pleading (maximum 4 pages) should contain:

6.6.1. A Caption setting out the name of the Court, details of the parties, the date of filing, an indication of the nature of the proceedings and an appropriate salutation to the Court.

6.6.2. An indication of the type of pleading (i.e. Plaint/Petition/ etc) 6.6.3. Statement of jurisdiction.

6.6.4. A statement of relevant facts. Where appropriate references to documents relied on may be made

6.6.5. A Statement of laws relied on, only where appropriate.

6.6.6. Prayer or request for relief.

6.7. The Written Submission (maximum 4 pages) should contain:

6.7.1. Statement of issues of fact and law.6.7.2. Summary of arguments relied on. 6.7.3. List of legislation and precedents relied on.

6.8. There shall be no Copyrights in the pleadings and Written Submissions and all authors waive those rights by participation in the Moot.

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HYPOTHETICAL CASE #1A PLEA FOR HELP

June 1, 2004

MRPAdvocate, High Court of ----JT & Associates

Dear Sir or Madam:

I am writing to let you know of a problem affecting our village. We live in the village of C___. I am the chairman of the Anti Pollution Committee in my village. There are about 8000 residents out of 700 households in our village. We first came into occupation of the village as early as in 1930s. The villagers are mainly farmers and small time traders who spend a lot of time within the village.

Sometime in the 1960s, two companies – Bichhri Dyes Inc. and Chemor Pulp Ltd. – came to our village and set up small units to manufacture dyestuffs and pulp from sugar cane wastes (bagasse), respectively.

In the beginning these companies were small and we co-existed. However, ten years ago, the companies expanded greatly and began operating around the clock. Since then, we have been suffering badly!

Our main problems are twofold: 1) the dyestuffs company has polluted our groundwater; and 2) the pulp company has polluted our air. I will describe these two problems in more detail.

We can no longer use our water. The dyestuffs company has dumped solid waste from its factory into six places nearby its premises. It also allowed effluent from its factory to run out over the land. Later, the company started making a particular dye intermediate, H-acid. Wastes from the company’s factory percolated into our groundwater, making it highly acidic and dark coloured. About 80 wells have totally become polluted and every week a few new wells down the aquifer start showing signs of pollution. About 2,000 of us are being forced to drink highly contaminated water. Water samples were taken for analysis by the University of R____. It was found that the runoff was highly acidic (pH 2.3 to 2.5) and contained extremely high levels of total dissolved solids (18,500 – 24,800 mg/1). About 200 cattle have died. Hundreds of fruit bearing trees have withered and crops have seriously affected. A fact-finding team from the Environmental Research Institute came to visit us earlier this year. We are providing under this cover a copy of their report that describes the circumstances we are facing.

We can no longer breathe our air. The pulp company emits some kind of rotten egg smell. The stench is getting worst day after day and the residents suffer from nose blockage, cough , difficulty to sleep and the old people have breathing difficulties. Miss A who lives just 8 feet away from the company constantly feels dizzy when the smell comes and vomits if the smell gets worse. She says that if she boils water, within minutes after the smell comes, the water turns into yellow and when she dries her clothes, her white clothes too turn into yellow. In the row of house that she lives closest to the factory, there were 10 houses. Now only 2 of the houses are occupied, the rest of the residents have moved out unable to bear the stench. We also contacted a local expert and they conducted a survey on the village and found that the company emits a gas called hydrogen sulfide. We attach the report and the survey conducted by the local expert.

A few of the villagers confronted the owners of the factory. However we were dismissed as troublemakers and ill founded. We were very upset that our concerns were not taken seriously. Sometime in 1995, the residents got together and formed the Anti Pollution Committee and we started a petition against the companies and we published in the local dailies. We contacted our local assemblyman to call for a meeting with the companies, but the companies would not agree. We also contacted the Department of Environment to monitor the pollution. The DOE did so, issuing several warnings. The companies would shut their operation for one or two days after the warnings and resume on the third day.

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In March of 2000, we met with the Chief Minister of our state about our problem. The Chief Minister agreed to arrange a meeting between the companies and us. At this meeting, the companies agreed to relocate within two years and move into the land that was offered by the State for free. However it has been more than two years now and the companies are in heavy operation. Our follow up letters to the Chief Minister’s office were not answered. We were very angry that our concerns were taken for a ride. The local activist then helped us to do a big march and protest against the companies. In December of 2003, we had the protest with the gathering over three thousand people came all over the neighboring village as well.

Several of us were arrested during the protest for illegal assembly and the Chie Minister’s office then came out in the press stating the agreement for the companies to move out in two years was from the date of the approval of the building plans at the new site! Thus we do not have an exact date on when the company will move out.

Please help! Everyone has left us high and dry.

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Environmental Research Institute Report“Restoration of Environmental Quality of the Affected Area Surrounding Village C____ Due to past Waste

Disposal Activities”

… Solid wastes generated from H-acid manufacturing process are gypsum sludge produced during the neutralisation of acidic solution with lime after nitration stage (around 6 tonnes/tone of H-acid manufactured) and iron sludge produced during the reduction stage (around 0.5 tonnes/tonne of H-acid manufactured). Gypsum sludge contains mostly calcium sulphate along with sodium salts and organics. Iron sludge constitutes untreated iron powder, besides ferric salts and organics.

It is estimated that, for each tonne of H-acid manufacture, about 20 cubic meters of highly corrosive wastewater was generated as mother liquor, besides the generation of around 2 cubic meters of wash water. The mother liquor is characterised by low pH (around 2.0) and high concentration of total dissolved solids (80-280 g/L). High COD of the waste water (90 g/L) could be attributed to organics formed during various stages of manufacture. These include naphthalene trisulphonic acid, nitro naphthalene sulphonic acid, Koch acid and H-acid, besides several other intermediates.

Bichhri Dyes Inc (the company) has generated 8250 cubic meters of wastewater and 375 tonnes of sludge per year. The company has handled these wastes in the following manner

- From the outset, the company deposited its sludge into six nearby pits.

- A majority of the sludge brought back from disposal sites located outside the factory was transferred inside a covered shed.

- The sludge lying in the plant premises was entombed in an underground pit. It may be mentioned that only 720 tonnes of sludge out of an estimated quantity of 2440 tonnes could be entombed as the capacity of the underground tanks provided by the industry for the purpose was only to that extent.

- The remaining sludge and sludge mixed soil were, however, present in the plant premises as these could not be transferred into underground tanks. It has also been observed that only sludge above the soil was removed from the six sites and transferred to the plant site. Subsurface soil of these sites appears to have been contaminated as the soil has reddish colour akin to that of the sludge.

- The company also operates a sulphuric acid plant located near the factory where H-acid was earlier manufactured. Acidic wastewater (around pH 1.0) from this unit was flowing over the abandoned dumpsites. This leaches the sludge-soil mixture at the six dumpsites and the contaminated water flows by gravity towards east and finds its way into a nallah flowing through the compound and conveys the contaminated water to an irrigation canal.

Field surveys showed that no crops were coming in the fields particularly in low lying areas. On some elevated areas, crops like jowar, maize were growing; however the growth and yield were very poor. Even trees like eucalyptus planted in contaminated fields show leaf burning and stunted growth. Many old trees which were badly affected due to contamination are still growing under stress conditions as a result of soil contamination. The topsoils at the old dump sites outside the plant premises are still contaminated and require decontamination before the land is used for other purposes.

The entire contaminated area comprising of 350 ha of contaminated land and six abandoned dump sites outside the industrial premises has been found to be ecologically fragile due to reckless past disposal activities practiced by the company.

It was also observed that the company has not provided adequate effluent treatment facilities and the wastewaters (pH, 1.5) from the existing plants are being discharged, without treatment, on land within the plant premises. This indiscriminate and willful disposal activity is further aggravating the contamination problem in the area. Acidic effluent leaches the pollutants from the dumped sludge and the contaminated soil and facilitates their penetration

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through the ground and thereby increasing the concentration of sulphates and dissolved solids in groundwater.

The company has shown scant respect for the environment. Not only this, the management continues industrial activity producing obnoxious waste waters and dumping the same without any treatment, contaminating land and ground water without any concern for ecology and public health. It is necessary that the provisions of relevant legislations are imposed on the industry to avoid environmental damage and harm to public welfare.

Compensation should be paid under two heads, viz., (a) for the losses due to damage and (b) towards the cost of restoration of environmental quality. The cost of damage to be disbursed to the affected villagers is estimated at Rs. 342.8 lakhs and remediation of impacted well waters and soil at Rs. 3738.5 lakhs. This cost needs to be borne by the management of the industry.

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Investigation on hydrogen sulphide by Dr. V____

On 15.04.2003 and 29.04.2003, I conducted tests to ascertain the presence of hydrogen sulfide in the village of C___ surrounding Chemor Pulp Ltd. I used a Toxic Gas Monitor model PGM-35 (‘the gas monitor’) to conduct the tests. This gas monitor is designed to provide continuous exposure monitoring of a specific single gas in hazardous environments.

The hand-held instrument (the ToxiRAE Plus Toxic Gas Monitor PGM-35) that I used in April 2004 to measure hydrogen sulfide levels in Chemor is capable of measuring hydrogen sulfide levels above 0.1 ppm. The instruction manual for the gas monitor clearly states that it can measure levels of hydrogen sulfide above a resolution of 0.1 ppm. The relevant pages of the Operation and Maintenance Manual for the ToxiRAE Plus Toxic Gas Monitor PGM-35 that shows the resolution for the gas monitor (page 1-2 in Table 1.1)

FINDINGS OF THE GAS MONITOR

DATE LOCATION TIME RESULTS15.04.2003 Behind House number

346A1605 hours 0.2ppm

15.04.2003 Behind House number 346A

1640 hours 0.3ppm

29.04.2003 Coffin Maker’s premises 1430 hours 0.6ppm29.04.2003 At the river (20 metres

away from the coffin maker’s premises)

1505 hours 0.3ppm

29.04.2003 Behind the factory [Chin Chiew Ooi’s house (No.219B)]

1545 hours 0.2ppm

29.04.2003 Front gate of the factory 1630 0.3ppm13.5.2003 Various locations at

temple1015 hours-1100 hours

0.5-0.6ppm

Various locations behind factory

1115 hours-1300 hours

0.7ppm-0.9ppm

05.12.2003 Next to temple 1755 hours 0.8ppmInside the temple 19oo hours 0.6ppm

06.12.2003 Close to pond near temple

0945 hours 0.8ppm

Outside the temple 1000 hours 0.8ppmAt the rear of temple 1015 hours 0.7ppmFront of factory gate 1210 hours 0.7ppmVarious locations behind factory

Between 1210 hours – 1500 hours

0.4ppm -0.8 ppm (ranges)

05.03.2004 In front of House No B219

1140 hours 0.8ppm

Behind house next to B219 (check the house no!)

1143 hours Between 0.8ppm – 0.9ppm


1144 hours 1.2ppm


1145 hours 1.3ppm-1.4ppm

Behind the factory (to specify)

1220 hours 0.4ppm

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At the rear, to the leftof the water of thefactory; about 50mfrom the water tank.

1225 hours 0.8ppm

Front gate of the factory 1235 hours 0.9ppmFront and side of the factory

1238 hours 0.65ppm

16.03.04 Behind house No. 219B 1100 hours 0.9ppmBehind House No. 346A 1110 hours 0.8ppmIn front of House No. 353

1140 hours 0.5ppm

In front of House No. 349

1215 hours 0.4ppm

In front of House No. 357D

1230 hours 0.3ppm

Front of the factory gate 1240 hours 0.7ppmControl study: On the way to Ipoh (5km away from Ipoh)

1315 hours 0.0ppm

6.04.2004 Behind House No. 219B 1800 hours 0.8ppmFront of the factory 0.6ppmCoffin house 0.7ppm

Preliminary Investigation- Health Survey

1. Preliminary investigations commenced with a health survey, designed primarily to determine the following:(a) Patterns of ill-health faced by the residents(b) Number of people facing similar patterns of ill-health; and(c) Rough socio economic status of the residents

Findings

Using prepared questionnaires, the researchers were briefed each time and I supervised the surveys on each occasion.

2. A total of 60 houses were surveyed. An analysis of the preliminary survey indicated the following:

(a) There were many cases of stuffy nose, sore and inflamed throat, dry cough and sneezing. There was often lacrimation (tearing of eye)

(b) Many of the residents complained of a loss of appetite, insomnia, lethargy and tiredness and general malaise.

From the analysis of the preliminary health survey, there was a probability that people were suffering from upper respiratory tract infections, anxiety depression disorder and life style diseases.

HEALTH SURVEY

3. To obtain more information and to confirm accurately the disease patterns, the survey was extended to another 180 households. A clinical examination was carried on the members of these households.

4. An additional survey was conducted specifically for anxiety and anxiety depression disorder.

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5. Health survey were conducted on the following dates:

FINDINGS

The attached table summarises the finding:

Symptoms numberof house

percentage(%)

Dizziness 87Lethargic 101Eye Irritation 71Nauseous 74Vomiting 44Diarrhea 21Excessive tearing/saliva/perspiration 76Breathing difficulty 133Skin irritation 69Muscle discoordination 33Faint 11Unconsciousness 13Abdominal pain 42Cramps 30Sleeping difficulty 153Difficulty in concentrating 101Headache 82Loss of memory 89Anxiety/Restlessness 115Loss of appetite 1Coughing/sore throat/throat inflamed 49Runny nose/sore nose 4Kidney/waist area painBronchitis 1Nasal Tumor 7

Upper Respiratory Tract Infection

1. The history provided in medical examination was suggestive of some agent being in air. The stuffiness was not due to drugs, alcohol or food. It was also not related to emotional or other frustrations like sex. The symptoms were present whenever there was a surge in the odour from the factory. It affected both sides of the nose and there was no improvement in the condition over the years. The nasal discharge was often watery accompanied by sneezing and irritation of the eyes and the nose.

2. The symptoms abate when are they away from the village and recur upon their return to the village. There is no close contact with animals or birds and the symptoms get worse during the rains.

3. There is characteristic pattern noticed on clinical examination of some of these residents. The nasal turbinae (protrusions within nostril) were boggy often inflamed and wet. The throat had a characteristic hue involving the oro-pharynx (throat and mouth) – there was dull red colour, the shape depicting a butterfly. The tonsils were also red and not showing any infections.

4. Cough, if present was unproductive (no phlegm)

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5. Lungs were generally clear with no rhonchi or crepitations (additional breath sounds). The cervical lymph nodes which were palpable in some cases but were not significantly enlarged.

The findings are suggestive of rhinitis allergic in nature mostly likely caused by exposure to chemicals and in this case mostly likely from the emission of hydrogen sulphide.

In the course of going thru the medical histories of the residents, there were 7 cases of nasopharyngeal carcinoma (NPC), a cancer of the upper throat. While it is accepted that NPC has a higher prevelance among this community in this country, the above figures are definitely high. The cancer registry for this State only shows 30 people suffering from NPC and 7 are from this village.

Conclusion

In one of my visits on 05.03.2004, the readings ranged between 0.8ppm to 0.9 ppm in the late evening, the wind direction was mainly southerly. There was a very strong offensive odour from the direction of the factory. This odour caused my eye to tear and I started sneezing and there was burning sensation in my nose and throat. There was clear discharge from my nose. The irritation was unbearable. I developed a subsequent stuffy nose with an unproductive cough. There was some relief in leaving the village. My condition persisted for more than a week.

The fact that hydrgogen sulfide is an irritant and there is chronic exposure to this agent strongly suggest that this high figure could be due to this toxic gas.

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HYPOTHETICAL CASE #2- A PLEA FOR HELP -

June 1, 2004

XYZAttorney-at-Law Jalabhoomi Courts Complex.

Dear Sir or Madam:

I am writing with a very urgent request for help for our local community. We live in the village of Potashpura, where our families have for many generations been growing bountiful crops and tending livestock, thanks in large part to fact that our area is blessed with a rich deposit of potash. For many generations, our community has used small-scale mining techniques in cooperation with local companies to collect and distribute this valuable fertilizer to villages all around our country. Our presence on this land dates back many thousands of years, as can be seen by the great archaeological sites that exist in our area, including the ancient water and irrigation works of Jalabhoomi. But now, these resources are threatened by a huge proposed mining project, pushed by our government and the largest potash mining company in the world, Global Potash Extraction, Inc. (GPE). GPE is 90% owned by foreign companies.

Unfortunately, we know very little about the project, other than what we have gathered from newspaper articles and comments by esteemed scientific organizations in our country. The company and the government have already signed a Mineral Investment Agreement. Under the agreement, we understand that the Government may even acquire our land and throw us off of it, if we do not cooperate with the company to achieve its objectives. A large processing factory that will emit highly polluting substances is also planned for construction in our area.

The initial project area will be approximately 56 sq. kilometers, but the exact limits of the final area are not even clear! We have read estimates that the project could displace more than 12,000 people from more than 20 neighboring villages.

Furthermore, no studies have been done to evaluate the effects of the project on our environment and our way of life. All that we know is that the mining and processing of the products will be an operation of unprecedented magnitude in our country, and we are greatly concerned that the potential environmental and social impact could be terrible.

The loss and damage suffered by our community and the people of our country if our land and resources are lost will be enormous. And for what purpose? The company plans to exhaust the entire proven reserve of 25 million metric tons in less than 30 years, and we have learned that the vast majority of the potash extracted from the proposed project will be shipped abroad. After that resource is gone, where will our country get its potash? We will surely have to import our requirements. There are additional estimated potash reserves in our area, but no one knows if they really exist. Current mining operations in the area extract only about 40,000 tons per year. It has been estimated that at this rate of extraction, our country will have potash for a very long time, perhaps a thousand years. We have also learned that bids from other companies to mine the potash deposits less intensively than in GPE’s proposal were rejected by the government.

The mineral wealth of our country is being sold for a quick economic gain, of which we and the people of our country will surely see little!

Our protests on this project have generated media attention and the project itself has become a matter of public controversy, but the project proceeds, and we are desperate to do something to stop this project. You are our last hope. Can you please help us?

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Mineral Investment Agreement(Selected paragraphs)

This MINERAL INVESTMENT AGREEMENT (this “Agreement”) is made and entered into on this 15th day of March 2001, by and between the Government, represented herein by the Secretary to the Ministry of Industry and Development acting with the approval and approbation of the Cabinet of Ministers granted by virtue of the powers vested in them by the Constitution, and Global Potash Extraction, Inc., a private company, (the “Company”). Domestic Potash Limited, a domestic company, which is wholly owned by the Government, also joins in the execution of this Agreement and hereby expressed its agreement to its terms and to be bound thereby.

INTRODUCTION

The mineral resources contained in this Nation constitute a part of national wealth.

The Government seeks to advance the economic development of the people of this Nation and to that end desires to encourage and promote the rational exploration and development of the potash mineral resources of the Nation.

The Government, through the operation of mining enterprises, seeks to receive fair value for its resources and to foster processing and value added, regional development, and employment opportunities, and local business. It also seeks transfer of skills, know-how, and technology to nationals and acquisition of basic data regarding the country’s mineral resources.

In the process of developing mineral resources, the Government gives high priority to protection of the environment and avoidance of waste and misuse of its resources.

The Company has access to the skills, information, knowledge, experience, and proven technical and financial capability and other resources necessary to undertake a program of exploration, development, construction, mining, fertilizer plant development, and marketing of the potash resources.

The Company is ready and willing to proceed in these undertakings. And to assume the risks inherent therein, in exchange for the rights and benefits herein provided, all pursuant to the terms and conditions set forth in this Agreement.

The Government and the Company are willing to cooperate in developing potash resources with respect to the Contract Area on the basis of the laws and regulations of this country and this Agreement.

In consideration of the foregoing and the mutual promises and conditions set forth in this Agreement, the parties agree as follows:

ARTICLE II - RIGHTS AND RESPONSIBILITIES OF THE COMPANY

2.1 Basic Statement of Rights.

The Company shall have all of the rights and privileges provided for in this Agreement and shall perform the work and obligation imposed on it by this Agreement, including the investment of capital, and the payment of royalties, taxes, and other fees as described herein. Without limitation on the other rights conferred on the Company by this Agreement, the Company shall have, and the Government hereby grants to the Company, subject to the other terms and conditions specified in this Agreement, the sole and exclusive right: (a) to search for and explore for potash and other minerals in the Exploration Area under Exploration Licenses issued or to be issued to Domestic Potash or to the Company; (b) to conduct pilot or test operations as appropriate at any location within the Contract Area (without limiting the Company’s option of conducting such pilot or test operations entirely or partially at other locations); (c) to develop and mine under Mining Licenses any potash deposit (including potash minerals and Associated Minerals) found in the Exploration Area; (d) to construct the Enterprise facilities; (e) to process, store, and transport by any means all potash minerals and Associated Minerals

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which are extracted from the Mining Area under Mining Licenses; (f) to manufacture Products from such minerals; (g) to market, store, sell, transport, and dispose of Products and Associated Minerals inside and outside of this country; and (h) to perform all other operations and activities which may be necessary or convenient in connection therewith, with due observance of this Agreement. Notwithstanding anything to the contrary recited in this Section 2.1, the processing and marketing of Associated Minerals shall be subject to all Applicable Law.

2.4 Additions to Exploration or Mining Areas; Provisions With Respect to Land Leases and Other Required Surface Use Agreements.

Notwithstanding the existence of this Agreement and the fact that the Company will control a significant area of land for the exploration for and possible development of potash mineral deposits as a result of this Agreement, the Company shall remain eligible to apply for and obtain Exploration and Mining Licenses on lands outside the Exploration Area, through application, assignment, or other contractual arrangements. In the event the Company does obtain Exploration and/or Mining Licenses or rights to an assignment of Exploration and/or Mining Licenses, covering lands within the Buffer Area, such lands shall be added to the Exploration Area and treated in all respects as part of the Exploration Area (and Mining Area, if a Development Plan is approved) and as licenses which are subject to the provisions of this Agreement.

Promptly following the date of this Agreement the Government shall use its best efforts to facilitate the entering into of the following in order to secure for the Company all of the rights for surface use of land which are necessary for the conduct of the Company’s operations contemplated by this Agreement: (a) a preferential lease between the Company and the appropriate Government authority with respect to State Land within the Exploration Area, and (b) a lease between the Company and the Urban Development Authority with respect to the Processing Area.

2.5 Modification or Replacement of the Processing Area .

The parties hereto anticipate at the time of the signing of this Agreement that a significant portion of the activities and operations described in Items (b), (d), (e), (f), and (g) of Section 2.1 of this Agreement will be conducted in the Processing Area. The parties also acknowledge that a final decision regarding the suitability of this particular area for the conduct of such activities and operations cannot be made until the conclusion of the Feasibility Study. Accordingly, in the event it is determined by the Company in its Feasibility Study that these particular lands, or portions of them, are not suitable and the Company requests the assistance of the Government, the Government will use its best efforts, in cooperation with the Company, to locate lands which are suitable to replace the lands which have been identified as unsuitable. If substitute lands are located pursuant to the above described procedure which the Government and the Company mutually agree are suitable and the Company acquires rights with respect thereto, the parties shall, subject to Applicable Law, enter into an amendment to this Agreement designating such lands as part of or a replacement for (in whole or in part) the originally designated Processing Area lands, and the Company shall have the same rights with respect to the substitute lands as were applicable to the originally designated Processing Area lands.

2.8 Protection of the Environment .

(a) The Company shall comply with Applicable Law relating to environmental protection, including but not limited to the Environmental Act as amended from time to time, and the regulations gazetted thereunder. (b) The Company, as the holder of an Industrial Mining License, shall conduct its Mining, Processing, and other operations in the manner required of such license holders, to minimize harm to the Environment in accordance with Article XXV hereof and shall utilize recognized modern mining industry practices to protect natural resources against unnecessary damage, to minimize Pollution and harmful emissions into the Environment and to dispose of Waste materials, all in a manner consistent with good Waste disposal practices. 2.9 Damage to the Environment .

The Company shall be responsible for all damage caused in violation of Applicable Law and resulting from its operations which are harmful to the Environment. The Company shall manage, monitor, and progressively

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control and correct all adverse effects of mining operation with respect to water pollution, air pollution, soil contamination, and all other factors that may tend to degrade and/or endanger the environment in conformity with the Applicable Law. The Company shall also be responsible for preservation and restoration of the natural Environment within which the Company operates in accordance with Applicable Law and shall take no actions which may block or limit the further development of the resources in the area outside the Mining Area and the Processing Area.

ARTICLE VII - FEASIBILITY STUDY PERIOD

7.1 Notification and Issuance of Authorization .

If the Company elects to proceed with a Feasibility Study, and provides written notice of such election to the Secretary as specified in Section 6.5, the Secretary shall provide all reasonable assistance to the Company in order for it to obtain without delay any licenses, permits, or authorizations required for the Company to proceed with and complete the Feasibility Study and to conduct all other activities contemplated in this Article 7.1 as well as any additional Exploration which it may decide to perform through the end of the Feasibility Study Period. If the Company so requests, Domestic Potash undertakes that it shall, through the Company as its duly authorized attorney, submit an application for the renewal of such Exploration Licenses as the Company shall specify, provided that the Company furnishes all information, reports, plans and other particulars required for the purpose of obtaining such renewals.

7.2 Commencement of Feasibility Study .

As soon as the Company provides notification to the Secretary of its intent to conduct the Feasibility Study and obtains any required licenses or authorizations which are required, the Company shall commence such Feasibility Study to determine the feasibility of commercially developing the potash deposit or deposits identified by the Company. During the Feasibility Study Period, the Company shall complete the Feasibility Study and select and delineate in such Feasibility Study the Mining, Processing, and Project Areas which it requires for its operations. The Feasibility Study may be carried out by the Company in consultation with appropriately qualified consultants and advisors selected by the Company and in the case of the environmental section(s), they shall be subject to approval by the Government as provided in Section 7.6 below.

7.6 Environmental Section of Report .

The Feasibility Study Report shall include a report of the results of environmental impact studies relating to the effects of the operation of the Enterprise on the Environment, which shall be prepared in accordance with the requirements set out in Article XXV hereof. The environmental section(s) of the Feasibility Study Report shall be conducted by an internationally recognized independent environmental consulting firm selected by the Company and approved by the Government.

7.7 Objections/Approval .

In considering the Feasibility Study Report, the Development Plan, and the Company’s application for approval to construct and operate the Enterprise facilities, the Secretary shall make known to the Company any objections or suggestions which he/she may have with respect thereto. The Government reserves the right to withhold its approval thereof if and only if the Secretary determines that implementation of the Development Plan together with any modifications thereof which may be reflected in the Company’s application to construct and operate: (a) will not result in efficient development of the mineral resource, (b) is likely to result in disproportionately and unreasonably damaging the surrounding environment, (c) is likely to unreasonably limit the further development potential of the mineral resources within the Mining Area, (d) is likely to have a material adverse affect on the environmental quality in the area which is not offset by the potential benefits of the Project or by mitigating measures incorporated into the Development Plan. The decision shall not be unreasonably delayed and, in light of the significant expenditure of time, effort, and money which will have been undertaken by the Company, approval shall be granted in the absence of significant and overriding justification. If the Secretary has any objections or suggestions, he shall promptly communicate the same in writing to the Company including all relevant details of

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such objections and suggestions and at the same time provide the specific requirements for the Company to secure approval. The Company shall in good faith seek to incorporate such suggestions and/or objections into the Feasibility Study Report and/or Development Plan (whichever is appropriate). In the event the Company fails to do so, the Secretary and the Company shall consult in good faith with a view to reaching a mutually acceptable resolution. If, after a period of three months from the date of notification of any objection or suggestion by the Secretary, there has been no resolution of the matter, then the Company may refer to arbitration under Article XX the issue of whether or not the Secretary had substantial cause for withholding approval of the Feasibility Study Report, Development Plan, and application to construct and operate, and if substantial cause is determined not to have existed, the Secretary shall promptly issue his or her approval of such Report, Plan, and application. In no event shall the Company be obligated to construct and operate any facilities other than those described in the Development Plan which it has submitted (including modifications thereto).

7.9 Confidentiality.

Subject to the provisions of Section 5.5 hereof, all reports, data, and information supplied to the Government under this Article VII shall be treated as confidential; provided, however, that if this Agreement is terminated pursuant to Article XXI hereof, such reports and information shall become the property of the Government and may be used by the Government in such manner as it thinks fit.

ARTICLE XVII - ENABLING PROVISIONS

17.3 Relocation of Local Inhabitants and Minimizing Certain Impacts .

(a) Procedure for Relocation.

The Government and the Company acknowledge that if Mining is conducted within the portion of the Exploration Area located south of the main canal which flows through the Exploration Area, the occupants of such land may be directly affected. To the extent that this area is included within the Mining Area and constitutes part of the area to be mined under the Company’s Development Plan which is approved by the Government in accordance with the procedures set forth in Article VII, and the Company determines that it is necessary to relocate such occupants in order to accommodate Mining such area, then the Company will pay the costs of such relocations and the Government will use its best efforts to facilitate the relocation of any inhabitants of such land as requested by the Company in a manner which does not create an undue financial burden on the Company or delay the Company’s development and operation of the Mining Area. The Government will also use its best efforts to coordinate with local authorities and any other Government authority having jurisdiction over such lands in order to implement such relocations in an orderly and efficient manner, to minimize or eliminate the settlement within this area, and to cause the removal at minimal cost to the Company of squatters having no legal or possessory rights. In connection with the foregoing, the Government shall use all reasonable efforts to minimize or eliminate the settlement within this area of new inhabitants during the term of this Agreement.

As to other parts of the Mining Area where the Company determines that resettlement is necessary, the Government and the Company acknowledge that only small numbers of persons inhabit such lands. As to these other lands where relocation is determined to be necessary by the Company, the same relocation provisions as set forth above will apply and the Government will utilize its best efforts to minimize or eliminate any settlement of persons or families on such other lands during the term of this agreement.

In the event that the Company wishes to relocate persons in occupation or possession of private land and not within the scope of the relocation specifically provided for above in this Section 17.3, such relocation shall be effected on terms to be agreed between the Company and the owners of such private land.

(b) Remedying Adverse Impacts on Irrigation and Water Supply.

The Company shall take all care and caution to minimize any impacts on irrigation or the availability of water in the vicinity of its Mining activities and shall take remedial measures as reasonably necessary.

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25.2 Environmental Study .

The Company shall include in the Feasibility Study an environmental study in relation to all Applicable Law, and shall also identify and analyze as part of the Feasibility Study the potential impact of its operations on land, water, air, biological resources, and social, economic, culture, and public health. The environmental study will also outline measures which the Company intends to use to mitigate adverse environmental impacts of the Enterprise, including without limitation disposal of overburden and tailings and control of rehabilitating the Contract Area and any Project Areas at the termination of this Agreement. The Feasibility Study shall provide an estimate of the cost of such restoration and rehabilitation. The Feasibility Study shall also include procedures and schedules relating to the management, rehabilitation, and restoration of all Contract Areas and Project Areas in relation to all adverse effects on the environment as are identified in the Feasibility Study. The study will also provide an estimate of the cost of such activities.

25.3 Environmental Restoration and the Environmental Restoration Escrow Account .

(a) The Company shall be responsible for restoring the lands on which the Enterpriseactivities are conducted and the environmental clean-up relating to the Enterprise in accordance with Applicable Law, and shall bear all costs associated therewith.

(b) In order to assure that sufficient funding is readily available to meet the full cost of environmental restoration by the time mining and processing operations cease, commencing with the tenth year following the commencement of Commercial Production, the Company shall deposit on or before March 31 of each year into an interest bearing escrow account five percent (5%) of the Company’s net income for the previous year, until such time as an amount has been deposited which is equal to the then currently estimated full cost of environmental restoration of the lands on which the Enterprise facilities are located in the Contract Area and the Project Area and any other lands affected by the operations of the Enterprise. The estimated costs of such restoration work shall be proposed and updated each year by the Company following the commencement of Commercial Production and shall be subject to audit by the Government. Withdrawals from the above described escrow account shall only be made for reclamation and restoration expenditures by the Company and to reduce account balances in excess of amounts required for reclamation which excesses must be mutually agreed upon between the Government and the Company. The Government and the Company shall mutually agree, prior to or simultaneously with the establishment of such account, on the written instructions to be provided to the escrow agent to assure that there are no improper applications of funds. Such written instruction to the escrow agent shall include provisions to the effect that if following termination of this Agreement the Company has failed to comply with its obligations hereunder with respect to reclamation and restoration, the Government shall be authorized to withdraw funds from such account to be utilized solely for such reclamation and restoration. The Government shall have the right to review and approve the requests of the Company for the release of funds from such account for reclamation and restoration which approval shall not be unreasonably withheld or delayed.

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Comments of the National Academy of Sciences(Selected Paragraphs)

The Government’s proposals and views are given below followed by NAS’ comments under each section. They are based on information provided by the Minister of Industry and Development.

1. Size and Quality of deposits, Rate of Exploitation

Size of deposit: proven reserve 25 million metric tons, inferred reserve 35 million metric tons.

Rate of exploitation: 3.6 million metric tons to be mined by the Joint Venture Company for direct export as rock during the initial 12 year period of the project and a further 22 million metric tons to be mined for local manufacture of potash during the balance of the 30 year period of the project. The total mined under the project will be 26 million metric tons.

NAS’ comment: The Committee appointed by the President (composed of five scientists and two economists) recommended that “a more comprehensive geological reserve evaluation be undertaken in the light of recent research findings so that government can make a final decision on the rate of exploitation of such reserves. The decision on the rate of exploitation should be made taking into account the important concerns about the use of resources in a manner that future generations can also benefit.” No such survey has been done yet. The size of the deposit should determine exploitation of it. If, after the 18 month exploratory phase of the project (which is said to include a detailed geological survey), it is found that the inferred reserves are considerably less than originally envisaged, there is no provision in the project to slow down the exploitation rate, and almost all of the national reserves could very well be exhausted at the end of the 30 years. In view of the speculative nature of both size and quality of the deposits, provision should be made under the project agreement for re-negotiating the rates of exploitation, royalties, and other monetary benefits to the Nation after completion of the exploratory phase. Our geologists and other scientists should be closely involved in the exploratory phase. Similar provision has been made under the comprehensive environmental feasibility study phase of the project. (If the environment feasibility study proves a serious adverse impact on the environment, the government has the option of not proceeding with the project.) If the investing company does not agree to this condition, it is probably because they perceive that the results of the exploratory phase are likely to be against their interests.

2. Locally manufactured Fertilizer

Potash has been selected as the best value added fertilizer for production of 600,000 metric tons per annum for maximum utilization of this national resource which has remained under-utilized since its discovery in 1971.

NAS’ Comment: Assuming that the ore reserves are as high as envisaged, potash is a good value added product for the export market. However the high technology required to produce high grade potash will include setting up manufacturing plants, which together with the technology involved can lead to serious environmental hazards including the production of highly toxic waste by-products and release of toxic pollutants to water bodies and the atmosphere.

3. Environmental and hydrological problems

The proposed Project Agreement appears to take appropriate precautions pertaining to these problems under the pre-project exploratory and feasibility study phases of the project (33 months). The Agreement empowers the Government to secure from the project company a bond up to the value of US $500,000 to cover foreseeable environment damage. Even after the project begins, if at any stage the project company fails to remedy severe environmental damage which may occur the Government has the right to suspend operations.

NAS’ Comment: It should be expressly stated in the Agreement that the mining operations and the processing should be carried out in accordance with the environment standards set by the Government of this Nation. The Agreement should also specifically state that the ecological restoration of the areas affected by the mining must be carried out by the prospector at his own cost progressively during the period of mining operations and as directed

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by the Government of this Nation. The Agreement must be explicit that failure to observe these environmental protection measures could result in termination of the project. The Bond for securing environmental protection should be increased to US $1,000,000.

4. Displacement of Settlers

The project company, on the basis of results of the exploratory studies, will make every attempt to avoid displacement of settlers. Those displaced will have to be adequately compensated by the project company. There will be no upper limit on such compensation. All occupiers displaced will be compensated irrespective of their legal title.

NAS’ comment: As in the case of environment protection, under the Agreement Government should secure a bond from the project company for a value of at least US $1,000,000 to meet costs of resettlement and compensation to displaced settlers.

5. Economic Considerations

Investment value: US $ 425 million cash by foreign project company and in-kind investment of 25.1 million metric tons of potash by domestic sources valued at US $ 1122.3 million (at US $43 per metric ton of mined potash)

Direct monetary benefits to the Nation:

- Royalty of 5.5% of International price on all potash mined both for export (3.6 million metric tons) and used locally for potash manufacture (22.5 million metric tons): US $ 37 million over 30 year period. - Dividend on 10% free equity over 30-year period: US $70 million.

Total direct benefits = US $ 107 million

Indirect monetary benefits:

- 5% tax on first 12 years and 15% tax thereafter: US $ 74 million- Defense levy: US $1.3 million- Ports Authority earnings: US $ 137 million.- Gross foreign exchange revenue from all exports of potash: US $ 152 million,- Savings on fertilizer subsidy payments to farmers for urea and high grade potash by use of - Locally produced potash: US $ 7 million.

Total indirect monetary benefits = US $ 372 million

Social and infra-structural development benefits

- 1,000 people employed- Local farmers will get potash at 5% below f o b value- Building and improvement of rail tracks from mine to port, constructing new roads, constructing docking, shipping, and port facilities at the port, improving telecommunication and airport facilities.

NAS’ Comment: The total value of 26.1 million metric tons of potash mined over the 30-year period amounts to US $1122.3 million, but the direct income is a low US $ 107 million while the total direct plus indirect income is US $ 478.3 million over the same period. The discounted value over 30 years would be considerably lower. The investment of US $ 425 million by the Project Company does not come into the Government’s coffers. This seems to be a very poor deal, considering that out of a total investment (cash plus in-kind) of US $ 1547.3 million the Nation’s share is over 72%. The value of the resource of mined potash foregone would be US $ 1122.3 million, which is very much more than the benefits. Moreover, according to the Director General of the BOI, the capital costs of mining and crushing equipment and infrastructure development such as rail track for transport of

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the mined potash incurred by the Project Company is only about US $ 43 million. On a cost-benefit basis therefore the Nation is getting a very raw deal, leaving aside the external costs of the environment damage the project would cause.

RECOMMENDATIONS

1. Give highest priority to the comprehensive exploratory survey of size and quality of rock potash reserves which should ideally be done independently by the Mines and Geology Bureau in collaboration with our other scientists, if necessary with aid from the ADB and/or the UN Revolving Fund for geological exploration. This may also be done in collaboration with the Project Company in the exploratory phase of the project.

2. Final decisions on rate of exploitation, on value-added fertilizers to be locally manufactured and on monetary and other economic benefits to the Nation should be based on the results of the comprehensive geological survey.

3. Call for reports from other countries on project company’s credibility pertaining to environment protection.

4. Increase security bond on environment protection to one million US$ and include similar bond for one million US$ to secure costs of resettlement and compensation for displaced persons.

5. If the Project Company does not accept (2) above, call for fresh global tenders with clear definition of our terms and requirements after survey referred to in recommendation (1) is completed.

6. Consider mining the rock ourselves and selling it direct to the export market and the local fertilizer factory as is done in the granite industry. Seek foreign participation for capital, marketing, and technical expertise as suggested in the Potash Technology Team’s proposal. According to the Director General of BOI, the capital costs of mining and crushing equipment and infrastructure development for transporting the rock ourselves at a level of 350,000 to 1.2 million metric tons per annum would be about US$ 43 million. This is a modest investment considering that the market value of the mined 26.1 million metric tons of rock potash is US$ 1122.3 million.

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Selected paragraphs of Newspaper article “Exploitation of the Potashpura Potash Deposit”

By Professor V. S---------

The Potashpura potash deposit, which had been discovered by the Department of Geological Survey many years back, has, for several years, been mined for providing fertiliser to local communities and the tea, rubber, and coconut plantations. The Government has recently made a proposal to enter into a joint venture project agreement with a foreign multinational company to exploit the reserves on a massive scale, to manufacture high grade potash locally, and to export both the bulk of the raw material and the value added products while also supplying our country’s requirements. The proposal has been publicly opposed by numerous parties on various grounds, and the matter evoked the attention of the Council of the National Academy of Sciences.

The Deposit and Proposed Rate of Exploitation: The proven reserve is 25 million metric tons, and the inferred reserve is 35 million metric tons. It is proposed to mine 3.6 million metric tons during the initial 12-year period of the 30-year project for direct export, and a further 22.6 million metric tons during the next 18 years for local manufacture, the bulk of which will be exported.

Fertilizer to be Manufactured Locally: If the economically exploitable ore reserves are not much higher than 25 million metric tons, it might be more prudent to follow the advice of our scientists and accept the Potash Technology Team’s proposition (estimated to cost 20 million US $, less than 5% of the cost of the proposed project) to produce 150,000 metric tons of lower grade potash per year to meet only local requirements, even if in the short term it may appear to give less monetary benefit. This will ensure the preservation of our reserves for a much longer period, involve simpler technology, leave no environmentally hazardous waste products such as a million metric tons of potash byproducts, and there will be no need for the large factories required under the GPE proposal that produce toxic effluents. Of course, the lower grade potash would lose out on high transport cost per unit nutrient and may have little export demand. Furthermore, under our free market liberal economy, locally produced low grade potash may be more expensive to our farmers than imported high grade potash on a unit nutrient value basis unless the local product is given fiscal protection. The decision on what fertiliser should be produced locally must also await the results of the comprehensive geological survey.

Environmental Considerations: Mining and processing of the products as envisaged will be an operation of unprecedented magnitude in our country, and the potential environmental impact could be equally drastic.

At the mining site there will be severe disturbances to the ecology of the area through, among others, the mining operation itself, which will result in huge excavations, pits and gullies. In rainy seasons these will be filled with water and serve as the breeding centers for mosquitoes, posing serious health hazards. Will ecological restoration be carried out apace and to a satisfactory degree? At the processing site, the effluents and other pollutants that will be discharged would pose severe environmental threats unless adequate counter measures are adopted. Will timely action be taken to ensure that effluents are treated and disposed of without causing environmental damage? We also draw special attention to the fact that Jalabhoomi, which is within the area to be mined, has been recognized as a wonder of the ancient world and a cultural monument to be preserved by UNESCO’s World Heritage Convention.

Although the proposed arrangement with the prospector has provision to the effect that the operations will be carried out with due respect to the laws of the country, and the our environmental law does contain provisions to guard against adverse environmental impacts, we are of the opinion that the agreement is very weak and vague with respect to these requirements. For an operation of this magnitude, additional and specific safeguards should be adopted. This is particularly important as mining prospectors the world over are notorious for creating environmental disasters. Before a decision to offer exploration to any firm, its credentials and track records on environmental protection should be examined. We must also bear in mind that despite legally binding agreements, the USA itself as well as other countries (e.g. Indonesia) have failed to ensure that environmental safeguards are observed. What chance have we got? It is therefore important to be extra vigilant in respect of environmental damage and protection. Reports of performance in other countries should be studied. Through study of such reports, we would be in a better position to insist on the incorporation of stronger and more effective

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measures in the Agreement to ensure environmental safety. A prospector should be disqualified in the event of past failures to adhere strictly to pollution prevention measures.

Economic and Social Considerations: The social benefits of the proposed project would include employment for about 1000 people, subsidized (5% below market value) potash to local farmers, and improved transport and communication facilities. However these may be offset by the negative impact of the displacement of up to 12000 people. It is stated that the project company will as far as possible avoid displacing households, and that those displaced would be compensated. The government should secure a sufficient bond from the project company to meet costs of resettlement and compensation.

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HYPOTHETICAL CASE #3- A PLEA FOR HELP -

June 1, 2004

XYZAttorney-at-Law Mekala Courts Complex

Dear Sir or Madam:

I am writing to urgently request that you help us protect the last remnants of a tribal community, the Hampshire People, who dwell among the forests of the Vermont National Park in the State of Nahant. The Hampshire People are a tribe of several hundred families who live within the park. Their forested habitat is rich with animal life: elephants, tigers, marsh crocodiles, leopards, antelopes, and numerous birds share the land with us. For as long as the rivers have run clean and the forests have supplied food and shelter, the Hampshire People have lived in this area, gathering food from the forests and fish from the river, depending on the gifts of mother earth for their very existence and our identity. Some members of the community have been forced to the outskirts of the park and have begun marginal agriculture and herding activities to survive.

I am a retired anthropologist. My colleagues and I have studied the Hampshire People for over twenty years. We recently formed an association, Professionals United for Forest Communities, dedicated to the long-term welfare of the Hampshire People and like tribal communities.

Twenty years ago, in 1983, we felt both hope and concern when the national government declared by publication in the National Gazette that the forests of Vermont were now the Vermont National Park. We did not know how the State Government of Nahant would respond to the creation of the National Park in its dealings with the Hampshire People. Would the State Government use the declaration to try to force the Hampshire People out of their forests?

Now, we have the answer we feared most!!! Last month, a company with its headquarters in the capital began building a tourist hotel inside the national park very close to some of the primary settlements of the Hampshire People. The company, Emerald Hotel Resorts, Ltd., is cutting down trees and using heavy machinery to clear the land. They have dug large holes in the ground and are starting to put up structures. We learned that some of them are diesel power generators for the hotel, which will create great noise and disturbance to the forest. The workmen have also constructed roads on what were once small forest paths and wildlife trails, to allow vehicle access to the hotel from outside the park. The construction has already caused animals to flee. The Hampshire people have had to journey far from their range to find food, causing problems in their relations with neighboring tribes. Some of the rivers that flow through their land are now filled with earth and refuse from the construction. The Hampshire People do not catch as many fish as before the construction came.

At the behest of tribal leaders, I talked with the leader of the construction crew. I was told that the Emerald Hotel Resorts had received permission from the State Government to build an “eco-tourist” hotel in Vermont National Park!! Moreover, he showed us a piece of paper, a “lease deed,” purportedly giving the company an 18-year lease of 20 hectares of our land amidst the lush jungles and streams rich that the Hampshire People depend on. He said the company is spending $10 million U.S. to build the luxury hotel. It will include a large conference hall, tennis courts, a restaurant, and a bar facility. They expect that they will be able to accommodate more than 500 visitors in one night. This endeavor will spell doom for the Hampshire People.

And where, exactly, is the company building this mega tourist site? At the location where once stood a small number of cottages, long since abandoned, that the State Government had established for visitors in the 1970’s. This is land on which 50 years ago the State Government had initially built a small saw mill for exploiting timber from the forests. When this endeavor proved unprofitable, the State Government tried to salvage its investment by converting some buildings used for housing the employees of the State-run forest company into simple lodging

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for tourists. This is when we first joined forces with the Hampshire People, advocating that the State Government should simply quit the area, a battle we THOUGHT we had won!In recent months, we have help organize the Hampshire People, sending a delegation of their leaders to the capital to protest the construction of the new tourist complex, but their pleas were ignored. They were told that the hotel would be good for them, providing money and jobs for their youth. But to the Hampshire People, the forests are their home and mother.

Security guards now patrol the construction site and no longer allow the Hampshire People to access the area or speak with the workmen. We are afraid for their safety. For the dignity and preservation of the Hampshire People, we must stop this project. You are our last hope. Can you please help us?

Sincerely, --

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Lease Deed to Emerald Hotel Resorts, Ltd

This indenture of lease made on the 25th of June, 2000, between the Government of Nahant represented by the Principal Chief Conservator of Forests of the State of Nahant, hereinafter called the lessor, and Emerald Emerald Hotel Resorts, Ltd incorporated under the Companies Act, hereinafter called the lessee, witnesseth as follows:

(1)(a) Whereas the lessor is the owner in possession of the Wild Lands Project at Village Bostonabad comprising of main complex, deluxe and supper deluxe cottages, together with the structures/civil constructions. Situated thereon including viewing platform facing the lake and all the furniture and fittings and fixtures which will comprise the Reception Centre, Double rooms, dormitories with 76 beds more particularly listed in Schedule 1A and B … and whereas the lessor is also the owner in possession of Wild Lands Resorts at Village Bostonabad comprising of 12 cottages and Managers Bungalows shown in plan forming Schedule 1B … Whereas the lessee … having agreed to take both premises as stated in 1A and 1B above on lease for rent for running a wildlife resort by providing boarding, lodging and restaurant and connected activities and facilities to visitors to utilize it towards running a Wildlife Resort thereon for the promotion of Wildlife (hereinafter referred to as said activities).

Now this indenture witnesseth and it is hereby agreed by and between the parties that:

1. Effectively from the date of execution of this indenture the lessor doth hereby demise to the lessee the premises more fully described in Schedule 1A and B above and appended hereto forming a part of the agreement on an as is where is condition for a period of 18 years on terms and conditions set out hereinafter and upon the lessee paying to the lessor the rent mentioned hereinafter. …

5. The lessee shall be responsible to undertake the necessary advertisements, publicity and such acts necessary for attracting the visitors both Indian and Foreign …

LESSEE COVENANTS

a. The lessee shall strictly comply with the applicable rules and regulations relating to running of wildlife resorts, protection and preservation of forest and wildlife and environment.

b. The lessee will be responsible to keep the said premises in safeguard and sound conditions save normal wear … and do such acts as are necessary for maintaining hygiene and sanitation and shall also at their cost do the necessary routine repairs colours , washing, polishing … which are necessary for the upkeep and running of the said premises as a wildlife resort without any damages to the said premises. …

f. The lessee shall not without previous consent in writing of the lessor make any structural changes which are external to demised premises but this consent shall not be unreasonably be withheld. However, the lessee will be entitled to carry on all alterations within the existing structures without any previous consent of the lessor. …

j. The lessee shall not cut, damage, or fell any standing trees in the premises.

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CONSTITUTIONAL PROVISIONS

Constitution of Bangladesh

PART III - FUNDAMENTAL RIGHTS

Article 31. Right to protection of law.

To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.

Article 32. Protection of right to life and personal liberty.

No person shall be deprived of life or personal liberty save in accordance with law.

Article 44. Enforcement of fundamental rights.

(1) The right to move the [High Court Division] in accordance with [clause (I)] of article 102 for the enforcement of the rights conferred by this Part is guaranteed.

PART VI – THE JUDICIARY

Article 102. Powers of High Court Division to issue certain orders and directions, etc.

(1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any the fundamental rights conferred by Part III of this Constitution.

Constitution of India

PART III - FUNDAMENTAL RIGHTS

Article 21. Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. …

PART IV - DIRECTIVE PRINCIPLES OF STATE POLICY

Article 48A. Protection and improvement of environment and safeguarding of forests and wild life

The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country

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PART IVA - FUNDAMENTAL DUTIES

Article 51A. Fundamental duties

It shall be the duty of every citizen of India …

- (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

PART VI - THE STATES

Article 226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. …

Constitution of Nepal

PART III – FUNDAMENTAL RIGHTS

Article 12. Right to Freedom:

(1) No person shall be deprived of his personal liberty save in accordance with law, and no law shall be made which provides for capital punishment.

Article 23. Right to Constitutional Remedy:

The right to proceed in the manner set forth in Article 88 for the enforcement of the rights conferred by this Part is guaranteed.

PART XI – THE JUDICIARY

Article 88. Jurisdiction of the Supreme Court:

(1) Any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground, and extraordinary power shall rest with the Supreme Court to declare that law as void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with the Constitution.

(2) The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution, for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective, or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern, have the extraordinary power to issue necessary and appropriate orders to enforce such rights or to settle the dispute. For these purposes the Supreme Court may, with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs including habeas corpus, mandamus, certiorari, Prohibition and quo warranto: ...

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Constitution of Pakistan

PART II - FUNDAMENTAL RIGHTS AND PRINCIPLES OF POLICY Article 9. No person shall be deprived of life or liberty save in accordance with law.

Article 184.

(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.

Article 199.

(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-

(c) 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 of Part 11.

Constitution of Sri Lanka

CHAPTER III – FUNDAMENTAL RIGHTS

Article 11.

No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 12.

(1) All persons are equal before the law and are entitled to the equal protection of the law. ...

Article 13(4).

No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law. The arrest, holding in custody, detention, or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment.

Article 14.

(1) Every citizen is entitled to-

(f) the freedom by himself or in association with others to enjoy and promote his own culture and to use his own language;

(g) the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise;

(h) the freedom of movement and of choosing his residence within Sri Lanka; and

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Article 17.

Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which such person is entered under the provisions of this Chapter

CHAPTER VI - DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES

Article 28.

The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations and accordingly it is the duty of every person in Sri Lanka- ...

(f) to protect nature and conserve its riches. Article 29.

The provisions of this Chapter to not confer or impose legal rights or obligations, and are not enforceable in any court or tribunal. No question of inconsistency with such provisions shall be raised in any court or tribunal.

CHAPTER XV – THE JUDICIARY

Article 126. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV.

(2) Where any person alleges that any such fundamental right or language right relating to such person has been infringed or is about to be infringed by executive or administrative action, he may himself or by an attorney-at-law on his behalf, within one month thereof, in accordance with such rules of court as may be in force, apply to the Supreme Court by way of petition in writing addressed to such Court praying for relief or redress in respect of such infringement. Such application may be proceeded with only with leave to proceed first had and obtained from the Supreme Court, which leave may be granted or refused, as the case may be, by not less than two Judges.

(3) Where in the course of hearing in the Court of Appeal into an application for orders in the nature of a writ of habeas corpus, certiorai, prohibition, procedendo, mandamus or quo warrnto, it appears to such Court that there is prima-facie evidence of an infringement or imminent infringement of the provisions of Chapter III or Chapter IV by a party to such application, such Court shall forthwith refer such matter for determination by the Supreme Court.

(4) The Supreme Court shall have power to grant such relief or make such directions as it may deem just and equitable in the circumstance in respect of any petition or reference referred to in paragraphs (2) and (3) of this Article or refer the matter back to the Court of Appeal if in its opinion there is no infringement of a fundamental right or language right.

(5) The Supreme Court shall hear and finally dispose of any petition or reference under this Article within two months of the filing of such petition or the making of such reference.

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STATUTORY PROVISIONS

Bangladesh -- Environment Conservation Act, 1995 (selected sections)

2. Definitions.-

In this Act, unless there is anything contrary in the subject or context-

"conservation of environment" means improvement of the qualitative and quantitative characteristics of different components of environment as well as prevention of degradation of those components; [Ref: Clause (f).]

"Department" means the Department of Environment established under section 3 of this Act; [Ref: Clause (a).]

"Director General" means Director General of the Department; [Ref: Clause (m).]

"ecosystem" means the inter-dependent and balanced complex association of all components of the environment which can support and influence the conservation and growth of all living organisms; [Ref: Clause (g).]

"environment" means the inter-relationship existing between water, air, soil and physical property and their relationship with human beings, other animals, plants and micro-organisms; [Ref: Clause (d).]

"environment pollutant" means any solid, liquid or gaseous substance which causes harmful effect to the environment and also includes heat, sound and radiation; [Ref: Clause (e).]

"hazardous substance" means a substance, the chemical or biochemical properties of which are such that its manufacture, storage, discharge or unregulated transportation can be harmful to the environment; [Ref: Clause (j).]

"occupier", in relation to any factory or premises, means a person who has control over the affairs of the factory or the premises, and in relation to a product, means the person in possession of the product; [Ref: Clause (c).]

"person" means a person or group of persons, and includes any company, association or corporation, whether incorporated or not; [Ref: Clause (h).]

"pollution" means the contamination or alteration of the physical, chemical or biological properties of air, water or soil, including change in their temperature, taste, odor, density, or any other characteristics, or such other activity which, by way of discharging any liquid, gaseous, solid, radioactive or other substances into air, water or soil or any component of the environment, destroys or causes injury or harm to public health or to domestic, commercial, industrial, agricultural, recreational or other useful activity, or which by such discharge destroys or causes injury or harm to air, water, soil, livestock, wild animal, bird, fish, plant or other forms oflife; [Ref: Clause (b).]

"rule" means rule made under this Act; [Ref: Clause (k).]

"use", in relation to any material, means manufacturing, processing, treatment, package, storage, transportation, collection, destruction, conversion, offering for sale, transfer or similar activity relating to such material; [Ref: Clause (i).]

"waste" means any solid, liquid, gaseous, radioactive substance, the discharge, disposal and dumping of which may cause harmful change to the environment; [Ref: Clause (l).]

9. Discharge of excessive environmental pollutant etc.-

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(1) Where, due to an accident or other unforeseen incident, the discharge of any environmental pollutant occurs or is likely to occur in excess of the limit prescribed by the rules, the person responsible and the person in charge of the place of occurrence shall take measures to control or mitigate the environmental pollution.

(2) The persons referred to in sub-section (1) shall immediately inform the Director General of the occurrence or the likelihood of such occurrence as mentioned in that sub-section.

(3) On receipt of information under this section with respect to the accident or other incident, the Director General shall take necessary remedial measures to control or mitigate the environmental pollution, and the said person shall be bound to render assistance and co-operation as required by the Director General.

(4) The expenses incurred with respect to remedial measures to control and mitigate the environmental pollution under this section shall be payable to the Director General and may be realized from the persons referred to in sub-section (1) as public demand.

12. Environmental Clearance Certificate.-

No industrial unit or project shall be established or undertaken without obtaining, in the manner prescribed by rules, an Environmental Clearance Certificate from the Director General.

16. Offences committed by companies.-

3[(1) Where a company violates any provision of this Act or fails to perform its duties in accordance with a notice issued under this Act or the rules or fails to comply with an order or direction, then the owner, director, manager, secretary or any other officer or agent of the company, shall be deemed to have violated such provision or have failed to perform the duties in accordance with the notice or failed to comply with the order or direction, unless he proves that the violation or failure was beyond his knowledge or that he exercised due diligence to prevent such violation or failure.

Explanation.- For the purposes of this section - (a) “company” means any statutory public authority, registered company, partnership firm, and association or organisation, (b) director, in relation to a commercial establishment, also includes any partner or member of the board of directors.]

4[(2) Where a company mentioned in sub-section (1) is a body corporate, such company, apart from any person charged and convicted under that sub-section, may also be charged and convicted under that sub-section in the same proceedings, but the penalty of fine only may be imposed on such company in a criminal proceedings.]

Bangladesh -- Factories Act, 1965 (selected sections)

Section 13. Disposal of wastes and effluents. -

(1) Effective arrangements shall be made in every factory for the disposal of wastes and effluents due to the manufacturing process carried on therein.

(2) The Government may make rules prescribing the arrangements to be made in accordance with sub-section (1) or requiring that the arrangement made in accordance with sub-section (1) shall be approved by such authority as may be prescribed.

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Bangladesh – Environment Conservation Rules, 1997

SCHEDULE-8Standards for Odor

[ See Rule 12 ]

Parameter Unit Standard LimitAcetaldehyde ppm 0 .5 - 5

Ammonia » 1-5Hydrogen Sulfide 0.02 - 0.2

Methyl Disulfide 0.009-0.1

Methyl Sulfide » 0.01 - 0.2

Styrene 0.4 - 2.0

Trimethylamine 0.005 - 0.07

SCHEDULE-10 Standards for Waste from Industrial Units or Projects waste

Unit Places for determination ofstandards

Inland Public Sewerage Irrigated Surface system connected Land Water to treatment at second stage

1 Ammonical Nitrogen mg/1 50 75 75

(as elementary N)2 Ammonia (as free ammonia) „ 5 5 153 Arsenic (as) „ 0.2 0.05 0.24 BOD5at20°C 50 250 1005 Boron 2 2 26 Cadmium (as CD) 0.50 0.05 0.057 Chloride 600 600 600

8 Chromium (as total Cr) 0.5 1.0 1.0

9 COD 200 400 400

10 Chromium (as hexavalent Cr)

0.1 1.0 1.0

11 Copper (as Cu) 0.5 3.0 3.0

12 Dissolved Oxygen (DO) 4.5 - 8 4.5-8 4.5-8

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SI.No.

Parameter

14 Total Dissolved Solids 2,100 2,100 2,100

15 Fluoride (as F) 2 15 10

16 Sulfide (as S) 1 2 2

17 Iran (as Fe) 2 2 2

18 Total Kjeldahl Nitrogen 100 100 100

19 Lead (as Pb) 0.1 1.0 0.1

20 Manganese (as Mn) 5 5 5

21 Mercury (as Hg) 0.01 0.01 0.01

22 Nickel (as Ni) 1.0 2.0 1.0

23 Nitrate (as elementary N) mg/1 10.0 Not yet Fixed 10

24 Oil and Grease 10 20 10

25 Phenolic Compounds (as QH5OH)

1.0 5 1

26 Dissolved Phosphorus (as P) 8 8 15

27 Radioactive substance To be specified by Bangladesh Atomic Commission

: Energy

28 PH 6 - 9 6-9 6-9

29 Selenium (as Se) mg/1 0.05 0.05 0.05

30 Zinc (as Zn) Degree 5 10 10

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India – Environmental (Protection) Act, 1986 (selected sections)

2. Definitions -

In this Act, unless the context otherwise requires,--

(a) "environment" includes water, air and land and the inter- relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property;

(b) "environmental pollutant" means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment;

(c) "environmental pollution" means the presence in the environment of any environmental pollutant;

(d) "handling", in relation to any substance, means the manufacture, processing, treatment, package, storage, transportation, use, collection, destruction, conversion, offering for sale, transfer or the like of such substance;

(e) "hazardous substance" means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plant, micro-organism, property or the environment;

(f) "occupier", in relation to any factory or premises, means a person who has, control over the affairs of the factory or the premises and includes in relation to any substance, the person in possession of the substance;

(g) "prescribed" means prescribed by rules made under this Act.

7. Persons carrying on industry operation, etc., not to allow emission or discharge of environmental pollutants in excess of the standards -

No person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutants in excess of such standards as may be prescribed.

8. Persons handling hazardous substances to comply with procedural safeguards -

No person shall handle or cause to be handled any hazardous substance except in accordance with such procedure and after complying with such safeguards as may be prescribed.

15. Penalty for contravention of the provisions of the Act and the rules, orders and directions -

(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.

(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.

16. Offences by Companies -

(1) Where any offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the

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business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

18. Protection of action taken in good faith

No suit, prosecution or other legal proceeding shall lie against the Government or any officer or other employee of the Government or any authority constituted under this Act or any member, officer or other employee of such authority in respect of anything which is done or intended to be done in good faith in pursuance of this Act or the rules made or orders or directions issued thereunder.

19. Cognizance of offences -

No court shall take cognizance of any offence under this Act except on a complaint made by--

(a) the Central Government or any authority or officer authorised in this behalf by that Government, or

(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.

22. Bar of jurisdiction -

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action taken or order or direction issued by the Central Government or any other authority or officer in pursuance of any power conferred by or in relation to its or his functions under this Act.

India -- The Water (Prevention and Control of Pollution) Act, 1974 (selected sections)

2. Definitions.-

In this Act, unless the context otherwise requires. -

(dd) "outlet" includes any conduit pipe or channel, open or closed, carrying sewage or trade effluent or any other holding arrangement which causes, or is likely to cause, pollution;

(e) "pollution" means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms;

(f) "prescribed" means prescribed by rules made under this Act by the Central Government or, as the case may be, the State Government;

(g) "sewage effluent" means effluent from any sewerage system or sewage disposal works and includes sullage Page 38 of 99

from open drains;

(gg) "sewer" means any conduit pipe or channel, open or closed, carrying sewage or trade effluent;

(j) "stream" includes - (i) river; (ii) water course (whether flowing or for the time being dry); (iii) inland water (whether natural or artificial); (iv) sub-terranean waters; (v) sea or tidal waters to such extent or, as the case may be, to such point as the State Government may, by notification in the Official Gazette, specify in this behalf;

(k) "trade effluent" includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any industry; operation or process or treatment and disposal system other than domestic sewage. ….

24. Prohibition on use of stream or well for disposal of polluting matter. -

(1) Subject to the provisions of this section, -

(a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any stream or well or sewer or on land; or

(b) no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequence.

(2) A person shall not be guilty of an offence under sub-section (1), by reason only of having done or caused to be done any of the following acts, namely :-

(a) constructing, improving or maintaining in or across or on the bank or bed of any stream any building, bridge, weir, dam, sluice, dock, pier, drain or sewer or other permanent works which he has a right to construct, improve or maintain;

(b) depositing any materials on the bank or in the bed of any stream for the purpose of reclaiming land or for supporting, repairing or protecting the bank or bed of such stream provided such materials are not capable of polluting such stream;

(c) putting into any stream any sand or gravel or other natural deposit which has flowed from or been deposited by the current of such stream;

(d) causing or permitting, with the consent of the State Board, the deposit accumulated in a well, pond or reservoir to enter into any stream.

(3) The State Government may, after consultation with, or on the recommendation of, the State Board, exempt, by notification in the Official Gazette, any person from the operation of sub-section (1) subject to such conditions, if any, as may be specified in the notification and any condition so specified may by a like notification be altered, varied or amended.

25. Restrictions on new outlets and new discharges. -

(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, -

(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or (b) bring into use any new or altered outlet for the discharge of sewage; or (c) being to make any new discharge of sewage :

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Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent, within the said period of three months, till the disposal of such application. …

(5) Where, without the consent of the State Board, any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such other or discharge.

(6) Every State Board shall maintain a register containing particulars of the conditions imposed under this section and so much of the register as relates to any outlet, or to any effluent, from any land or premises shall be open to inspection at all reasonable hours by any person interested in or affected by such outlet, land or premises, as the case may be, or by any person authorised by him in this behalf and the conditions so contained in such register shall be conclusive proof that the consent was granted subject to such conditions.

(7) The consent referred to in sub-section (1) shall, unless given or refused earlier be deemed to have been given unconditionally on the expiry of period of four months of the making of an application in this behalf complete in all respects to the State Board.

26. Provisions regarding existing discharge of sewage or trade effluent. -

Where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a stream or well or sewer or on land the provisions of section 25 shall, so far as may apply in relation to such person as they apply in relation to the person referred to in that section subject to the modification that the application for consent to be made under sub-section (2) of that section shall be made on or before such date as may be specified by the State Government by notification in this behalf in the Official Gazette. …

43. Penalty for contravention of provisions of section 24. -

Whoever contravenes the provisions of section 24 shall be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine.

44. Penalty for contravention of section 25 or section 26. -

Whoever contravenes the provisions of section 25 or section 26 shall be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine. …

47. Offences by companies. -

(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offences and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if the proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed Page 40 of 99

by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation : For the purposes of this section -

(a) "company" means any body corporate and includes a firm or other association of individuals; and

(b) "director" in relation to a firm means a partner in the firm.

48. Offences by government departments. -

Where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in this section shall render such Head of the Department liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

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India -- Environment Impact Assessment Notification (selected provisions, including amendments up to 21/11/2001)

[T]he Central Government hereby directs that on and from the date of publication of this notification in the Official Gazette, expansion or modernization of any activity (if pollution load is to exceed the existing one, or new project listed in Schedule I to this notification, shall not be undertaken in any part of India unless it has been accorded environmental clearance by the Central Government in accordance with the procedure hereinafter specified in this notification;

2. Requirements and procedure for seeking environmental clearance of projects:

I. (a) Any person who desires to undertake any new project in any part of India or the expansion or modernization of any existing industry or project listed in the Schedule-I shall submit an application to the Secretary, Ministry of Environment and Forests, New Delhi. The application . . . shall be accompanied by a project report which shall, inter alia, include an Environmental Impact Assessment Report, an Environment Management Plan and details of public hearing . . . prepared in accordance with the guidelines issued by the Central Government in the Ministry of Environment and Forests from time to time. However, Public Hearing is not required in respect of (i) small scale industrial undertakings located in (a) notified/designated industrial areas/industrial estates or (b) areas earmarked for industries under the jurisdiction of industrial development authorities; (ii) widening and strengthening of highways; (iii) mining projects (major minerals) with lease area up to 25 hectares, (iv) units located in Export Processing Zones, Special Economic Zones and (v) modernisation of existing irrigation projects.

(b) Cases rejected due to submission of insufficient or inadequate data and Plans may be reviewed as and when submitted with complete data and Plans. Submission of incomplete data or plans for the second time would itself be a sufficient reason for the Impact assessment Agency to reject the case summarily.

II. In case of the following site specific projects: (a) mining; (b) pit-head thermal power stations;(c) hydro-power, major irrigation projects and/or their combination including flood control; (d) ports and harbours (excluding minor ports); (e) prospecting and exploration of major minerals in areas above 500 hectares; The project authorities will intimate the location of the project site to the Central Government in the Ministry of Environment and Forests while initiating any investigation and surveys. The Central Government in the Ministry of Environment and Forests will convey a decision regarding suitability or otherwise of the proposed site within a maximum period of thirty days. The said site clearance shall be granted for a sanctioned capacity and shall be valid for a period of five years for commencing the construction, operation or mining.

III. (a) The reports submitted with the application shall be evaluated and assessed by the Impact Assessment Agency, and if deemed necessary it may consult a committee of Experts . . . . The Impact Assessment Agency (IAA) would be the Union Ministry of Environment and Forests. The Committee of Experts mentioned above shall be constituted by the Impact Assessment Agency or such other body under the Central Government authorised by the Impact Assessment Agency in this regard.

(b) The said Committee of Experts shall have full right of entry and inspection of the site or, as the case may be, factory premises at any time prior to, during or after the commencement of the operations relating to the project.

(c) The Impact Assessment Agency shall prepare a set of recommendations based on technical assessment of documents and data, furnished by the project authorities, supplemented by data collected during visits to sites or factories if undertaken, and details of public hearing. The assessment shall be completed within a period of ninety days from receipt of the requisite documents and data from the project authorities and completion of public hearing and decision conveyed within thirty days thereafter. The clearance granted shall be valid for a period of five years for commencement of the construction or operation of the project. No construction work, preliminary or otherwise, relating to the setting up of the project may be undertaken till the environmental and site clearance is obtained.

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IV. In order to enable the Impact Assessment Agency to monitor effectively the implementation of the recommendations and conditions subject to which the environmental clearance has been given, the project authorities concerned shall submit a half yearly report to the Impact Assessment Agency. Subject to the public interest, the Impact Assessment Agency shall make compliance reports publicly available. . . .

4. Concealing factual data or submission of false, misleading data/reports, decisions or recommendations would lead to the project being rejected. Approval, if granted earlier on the basis of false data, would also be revoked. Misleading and wrong information will cover the following: · False information; · False data; · Engineered reports; · Concealing of factual data; · False recommendations or decisions.

India -- Environment Impact Assessment Notification (2001)SCHEDULE I

LIST OF PROJECTS REQUIRING ENVIRONMENTAL CLEARANCE FROM THE CENTRAL GOVERNMENT

1. Nuclear Power and related projects such as Heavy Water Plants, nuclear fuel complex, Rare Earths.

2. River Valley projects including hydel power, major Irrigation and their combination including flood control.

3. Ports, Harbours, Airports (except minor ports and harbours).

4. Petroleum Refineries including crude and product pipelines.

5. Chemical Fertilizers (Nitrogenous and Phosphatic other than single superphosphate).

6. Pesticides (Technical).

7. Petrochemical complexes (Both Olefinic and Aromatic) and Petro-chemical intermediates such as DMT, Caprolactam, LAB etc. and production of basic plastics such as LLDPE, HDPE, PP, PVC.

8. Bulk drugs and pharmaceuticals.

9. Exploration for oil and gas and their production, transportation and storage.

10. Synthetic Rubber.

11. Asbestos and Asbestos products.

12. Hydrocyanic acid and its derivatives.

13 (a) Primary metallurgical industries (such as production of Iron and Steel, Aluminium, Copper, Zinc, Lead and Ferro Alloys). (b) Electric arc furnaces (Mini Steel Plants).

14. Chlor alkali industry.

15. Integrated paint complex including manufacture of resins and basic raw materials required in the manufacture of paints.

16. Viscose Staple fibre and filament yarn.

17. Storage batteries integrated with manufacture of oxides of lead and lead antimony alloys.

18. All tourism projects between 200m—500 metres of High Water Line and at locations with an elevation of more than 1000 metres with investment of more than Rs.5 crores.

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19. Thermal Power Plants.

20. Mining projects (major minerals) with leases more than 5 hectares.

21. Highway Projects except projects relating to improvement work including widening and strengthening of roads with marginal land acquisition along the existing alignments provided it does not pass through ecologically sensitive areas such as National Parks, Sanctuaries, Tiger Reserves, Reserve Forests

22. Tarred Roads in the Himalayas and or Forest areas.

23. Distilleries.

24. Raw Skins and Hides

25. Pulp, paper and newsprint.

26. Dyes.

27. Cement.

India – Environment (Protection) Rules, 1986 (selected provisions)

3. Standards for emissions or discharge of environmental pollutants

(1) For the purpose of protecting and improving the quality of the environment and preventing and abating environmental pollution, the standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in 2[Schedule I to IV].

(2) Notwithstanding anything contained in sub-rule (1),the Central Board or a State Board may specify more stringent standards from those provided in 3[Schedule I to IV] in respect of any specific industry, operation or process depending upon the quality of the recipient system and after recording reasons therefore in writing.

4(3) The standards for emission or discharge of environmental pollutants specified under sub-rule (1) or sub-rule (2) shall be complied with by an industry, operation or process within a period of one year of being so specified.

5[(3A) (i) Notwithstanding anything contained in sub-rules (1) and (2), on and from the 1st day of January, 1994, emission or discharge of environmental pollutants from the 6[industries, operations or processes other than those industries, operations or processes for which standards have been specified in Schedule-I] shall not exceed the relevant parameters and standards specified in schedule VI.

Provided that the State Boards may specify more stringent standards for the relevant parameters with respect to specific industry or locations after recording reasons therefore in writing;

(ii) The State Board shall while enforcing the standards specified in Schedule VI follow the guidelines specified in Annexure I and II in that Schedule].

7[(3B)] The combined effect of emission or discharge of environmental pollutants in an area, from industries, operations, process, automobiles and domestic sources, shall not be permitted to exceed the relevant concentration in ambient air as specified against each pollutant in columns (3) to (5) of Schedule VII.]

(4) Notwithstanding anything contained in sub-rule (3)-

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(a) the Central Board or a State Board, depending on the local conditions or nature of discharge of environmental pollutants, may, by order, specify a lesser period than a period specified under sub-rule (3) within which the compliance of standards shall be made by an industry, operation or process

(b) the Central Government in respect of any specific industry, operation or process, by order, may specify any period other than a period specified under sub-rule (3) within which the compliance of standards shall be made by such industry, operation or process.

(5) Notwithstanding anything contained in sub-rule (3) the standards for emission or discharge of environmental pollutants specified under sub-rule (I) or sub-rule (2) in respect of an industry, operation or process before the commencement of the Environment (Protection) Amendment Rules, 1991, shall be complied by such industry, operation or process by the 31st day of December 1991.

8[(6) Notwithstanding anything contained in sub-rule (3), an industry, operation or process which has commenced production on or before 16th May, 1981 and has shown adequate proof of at least commencement of physical work for establishment of facilities to meet the specified standards within a time-bound programme, to the satisfaction of the concerned State Pollution Control Board, shall comply with such standards latest by the 31 st day of December, 1993.

(7) Notwithstanding anything contained in sub-rule (3) or sub-rule (6) an industry, operation or process which has commenced production after the 16th day of May, 1981 but before the 31st day of December 1991 and has shown adequate proof of at least commencement of physical work for establishment of facilities to meet the specified standards within a time-bound programme, to the satisfaction of the concerned State Pollution Control Board, shall comply with such standards latest by the 31st day of December, 1992.]

11. Manner of giving notice -

The manner of giving notice under clause (b) of section 19 shall be as follows, namely:-

(l) The notice shall be in writing in Form IV.

(2) The person giving notice may send notice to-

(a) if the alleged offence has taken place in a Union territory

(A) the Central Board and; ) Ministry of Environment and Forests (represented by the Secretary to Government of India);

(b) if the alleged offence has taken place in a State:

(A) the State Board; and (B) the Government of the State (represented by the Secretary to the State Government in-charge of environment); and (C) the Ministry of Environment and Forests (represented by the Secretary to the Government of India);

(3) The notice shall be sent by registered post acknowledgement due; and

(4) The period Of sixty days mentioned in clause (b) of section 19 of the Environment (Protection) Act, 1986 shall be reckoned from the date it is first received by one of the authorities mentioned above.

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India – Environment (Protection) Rules, 1986SCHEDULE I

EMISSION STANDARDS FOR POLLUTANTS FROM VARIOUS INDUSTRIES

8. Dye and Dye Intermediate Industries

Suspended Solids pH Temperature Mercury (as Hg) Hexavalent (asCr) Chromium Total Chromium (as Cr) Copper (as Cu) Zinc (as Zn) Nickel (as Ni) Cadmium (as Cd) Chloride (as Cl) Sulphate (as SO4) Phenolic Compounds (as C6H5OH) Oil and Grease Bio-assay Test (with 1:8 dilution of effluents)

Concentration not to exceed milligrammes per litre (except for pH, temperature and bio-assay)

100 6 to 8.5 Shall not exceed 5oC above the ambient temperature of the receiving body.

0.01 0.1

2.0 3.0 5.0 3.0 2.0 1000 1000 1.0

1090% survival of Test animals after 96 hours.

The standards for chlorides and sulphates are applicable for discharge into inland and surface water courses. However, when discharged on land for irrigation, the limit for chloride shall not be more than 600 miligrammes per litre and the sodium absorption ratio shall not exceed 26.

45. Dye and dye Intermediate Industry (Waste-waterdischarge)

EFFLUENTS pH Colour Hazen Unit Suspended Solids BOD5 20°C Oil and Grease PhenolicsasC6H5OH

Cadmium as Cd Copper as Cu Manganese as Mn Lead as Pb Mercury as Hg Nickel as Ni Zinc as Zn Chromium as Cr Chromium as Cr6 Bio-assay test

6.0-8.5 400.0 100.0 100.0 10.0 1.00 0.2 2.0 2.0 0.1 0.01 2.0 5.0 0.1 2.0 90 percent survival in 96 hours.

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SCHEDULE VI GENERAL STANDARDS FOR DISCHARGE OF ENVIRONMENT POLLUTANTS PART A:

EFFLUENTS

S.No. ParameterStandards

Inland surface Water Public Sewers Land for irrigation Marine coastal areas

(a) (b) (c) (d)

1. Colour and odour See 6 of Ainnexure-I -- See 6 of Annexure-I See 6 of Annexure-I

2. Suspended solids mg/l, Max. 100 600 200 a) For process waste

water-100

(b) For cooling water effluent 10 per cent above total suspended matter of influent

3. Particular size of suspended solids

Shall pass 850 micron IS Sieve - - (a) Floatable solids,max.

3 mm

(b)Settleable solids,max 850 microns

14. *** * --- *** ---

5. pH value 5.5 to 9.0 5.5 to 9.0 5.5 to 9.0 5.5 to 9.0

6. Temperatureshall not exceed 5°C above the receiving water temperature

-- *** shall not exceed 5°C above the receiving water temperature

7. Oil and grease mg/l Max. 10 20 10 20

8. Total residual chlorin mg/l Max. 1.0 - - 1.0

9. Ammonical nitrogen (as N),mg/l Max. 50 50 - 50

10.Total Kjeldahl nitrogen (as NH3): mg/1,Max.

100 - - 100

11. Free ammonia (as NH3) mg/l, max. 5.0 - - 5.0

12.Biochemical oxygen demand (5 days at 20°C, mg/l max.

30 350 100 100

13. Chemical Oxygen demand, mg/l Max. 250 - - 250

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14. Arsenic (as As), mg/l max. 0.2 0.2 0.2 0.2

15. Mercury (As Hg), mg/l Max. 0.01 0.01 - 0.01

16. Lead (as Pb) mg/l, Max. 0.1 1.0 - 2.0

17. Cadmium (as cd) mg/l,Max. 2.0 1.0 - 2.0

18. Hexavalent chromium (as Cr+6), mg/l, Max. 0.1 2.0 - 1.0

19. Total chromium as Cr) mg/l, Max 2.0 2.0 - 2.0

20. Copper (as Cu) mg/l, Max. 3.0 3.0 - 3.0

21. Zine (as Zn) mg/l, Max. 5.0 15 - 15

22. Selenium (as Sc.) mg/l, Max. 0.05 0.05 - 0.05

23. Nickel (as Ni) mg/l, Max. 3.0 3.0 - 5.0

124. *** * * * * 125. *** * * * * 1.26. *** * * * *

27. Cyanide (as CN), mg/l Max. 0.2 2.0 0.2 0.2

28. *** * * * *

29. Fluoride(as F) mg/l Max. 2.0 15 - 15

30. Dissolved phosphates (as P), mg/l Max. 5.0 - - -

131. *** * * * *

32. Sulphide (as S) mg/l Max. 2.0 - - 5.0

33.Phenoile compounds (as C6H5OH) mg/l max.

1.0 5.0 - 5.0

34. Radioactive materials:

(a) Alpha emitter micro curie/ml 10-7 10-7 10-8 10-7

(b) Beta emitter microcurie/ml 10-6 10-6 10-7 10-6

35. Bio-assay test 90% survival of fish after 96 hours in 100% effluent

90% survival of fish after 96 hours in 100%

90% survival of fish after 96 hours in 100% effluent

90% survival of fish after 96 hours in 100% effluent

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effluent

36. Manganese (as Mn), 2 mg/l 2 mg/l - 2 mg/l

37. Iron (as Fe) 3 mg/l 3 mg/l - 3 mg/l

India -- Hazardous Wastes (Management and Handling) Rules, 1989 (selected sections)

4. Responsibility of the occupier for handling of wastes.

(1) The occupier generating hazardous wastes listed in column (2) of the Schedule in quantities equal to or exceeding the limits given in column (3) of the said Schedule, shall take all practical steps to ensure that such wastes are properly handled and disposed of without any adverse effects which may result from such wastes and the occupier shall also be responsible for proper collection, reception, treatment, storage and disposal of these wastes either himself or through the operator of a facility.

(2) The occupier or any other person acting on his behalf who intends to get his hazardous waste treated by the operator of a facility under sub-rule (1), shall give to the operator of a facility, such information as may be specified by the State Pollution Control Board.

SCHEDULE - CATEGORIES OF HAZARDOUS WASTES

Waste Category 8: Wastes from Dyes and Dye intermediate containing inorganic chemical compounds.Regulatory quantities: 200 kilogrammes per year calculated as inorganic chemicals. Waste Category 9: Wastes from Dyes and Dye intermediate containing organic chemical compounds. Regulatory quantities: 50 kilogrammes per year calculated as organic chemicals. Waste Category 16: Acid/Alkaline/SlurryRegulatory quantities: 200 kilogrammes per year calculated as Acids/Alkalies. Wastes Category 17: Off-specification and discarded products. Regulatory quantities: Irrespective of any quantity.

India – Penal Code – Offences Affecting the Public Health, Safety, Convenience, Decency and Morals (selected sections)

268. Public nuisance

A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

A common nuisance is not excused on the ground that it causes some convenience or advantage.

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 is general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be punished with fine which may extend to five hundred rupees.

India -- Code of Criminal Procedure, 1973Chapter X

Maintenance of Public Order and TranquilityPage 49 of 99

B.- Public nuisances

133. Conditional order for removal of nuisance.- (1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers -

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community , and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or

(c) that the construction of any building, or, the disposal of any substance , as is likely to occasion conflagration or explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of,

such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-

(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or

(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;

or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.

Explanation.- A "public place" includes also property belonging to the State, camping grounds and left unoccupied for sanitary or recreative purposes.

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134. Service or notification of order.- (1)The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of a summons.

(2) If such order cannot be so served, it shall be notified by proclamation, published in such manner as the State Government may, by rules, direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.

135. Person to whom order is addressed to obey or show cause.-The person against whom such order is made shall -

(a) perform, within the time and in the manner specified in the order, the act directed thereby; or

(b) appear in accordance with such order and show cause against the same.

136. Consequences of his failing to do so.- If such person does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in section 188 of the Indian Penal Code, (45 of 1860)and the order shall be made absolute.

137. Procedure where existence of public right is denied.- (1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter.

(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed as laid down in section 138.

(3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.

138. Procedure where he appears to show cause.- (1) If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case.

(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification.

(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.

139. Power of Magistrate to direct local investigation and examination of an expert.- The Magistrate may, for the purposes of an inquiry under section 137 or section 138-

(a) direct a local investigation to be made by such person as he thinks fit; or

(b) summon and examine an expert.

140. Power of Magistrate to furnish written instructions, etc.- (1) Where the Magistrate directs a local investigation by any person under section 139, the Magistrate may -

(a) furnish such person with such written instructions as may seem necessary for his guidance;

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(b) declare by whom the whole or any part of the necessary expenses of the local investigation shall be paid.

(2) The report of such person may be read as evidence in the case.

(3) Where the Magistrate summons and examines an expert under section 139, the Magistrate may direct by whom the costs of such summoning and examination shall be paid.

141. Procedure on order being made absolute and consequences of disobedience.- (1) When an order has been made absolute under section 136 or section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by section 188 of the Indian Penal Code(45 of 1860).

(2) If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate's local jurisdiction and if such other property is without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found.

(3) No suit shall lie in respect of anything done in good faith under this section.

142. Injunction pending inquiry.- (1) If a Magistrate making an order under section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter.

(2) In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury.

(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section.

143. Magistrate may prohibit repetition or continuance of public nuisance.- A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate empowered by the State Government or the District Magistrate in this behalf, may order any person not to repeat or continue a public nuisance, as defined in the Indian Penal Code, (45 of 1860) or any special or local law.

India -- The Mines and Minerals (Development and Regulation) Act, 1957 (selected sections)

4 (1) [No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of reconnaissance permit or of a prospecting licence or, as the case may be, a mining lease, granted under this Act and the rules made thereunder]:

Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the term and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement.

Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, [the Atomic Minerals Directorate for Exploration and Research] of the Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government ( by whatever name called), and the Mineral Exploration Corporation Limited, a Government Company within the meaning of Section 617 of the Companies Act, 1956.

Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease, mining concession or by any other name) in force immediately before the commencement of this Act in the Union Territory of Goa, Daman and Diu.

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[(1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.]

(2) [No reconnaissance permit, prospecting licence or mining lease] shall be granted otherwise then in accordance with the provisions of this Act and the Rules made thereunder.

(3) Any State Government may, after prior consultation with the Central Government and in accordance with the Rules under Section 18, [undertake reconnaissance, prospecting or mining operations with respect to any mineral specified in the First Schedule in any area within that State which is not already held under any reconnaissance permit, prospecting licence or mining lease.]

5. [(1) A State Government shall not grant a [reconnaissance permit, prospecting licence or mining lease] to any person unless such person –

1. is an Indian national, or a Company as defined in sub-section (1) of Section 3 of the Companies Act, 1956; and2. satisfies such conditions as may be prescribed :

Provided that in respect of any mineral specified in the First Schedule, no prospecting licence or mining lease shall be granted except with the previous approvals of the Central Government.

Explanation – For the purposes of this sub-section, a person shall be deemed to be an Indian national, -

1. in the case of a firm or other association of individuals, only if all the members of the firm or members of the association are citizens of India; and2. in the case of an individual, only if he is a citizen of India;]

(2) No mining lease shall be granted by the State Government unless it is satisfied that-

[(a) there is evidence to show that the area for which the lease is applied for has been prospected earlier or the existence of mineral contents therein has been established otherwise than by means of prospecting such area; and

(b) there is a mining plan duly approved by the Central Government, or by the State Government, in respect of such category of mines as may be specified by the Central Government, for the development of mineral deposits in the area concerned.]

India -- The Mineral Conservation and Development Rules, 1988, 2000 (Selected sections)

9. Mining Plan:

(1) No person shall commence mining operations in any area except in accordance with a mining plan approved under clause (b) of sub-section (2) of section 5 of the Act.

(2) The Controller General or the authorised officer [or the officer authorised in this behalf by the State Government, as the case may be,] may require the holder of a mining lease to make such modifications in the mining plan referred to in sub-rule (1) or impose such conditions as he may consider necessary by an order in writing if such modifications or imposition of conditions are considered necessary-

(a) in the light of the experience of operation of mining plan;

(b) in view of the change in the technological development.

India -- Forest (Conservation) Act, 1980 with Amendments Made in 1988 (selected sections)

2. Restriction on the dereservation of forests or use of forest land for non-forest purpose. Page 53 of 99

Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing-

(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;

(ii) that any forest land or any portion thereof may be used for any non-forest purpose;

(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;

(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation. …

Explanation - For the purpose of this section, "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for- (a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants; (b) any purpose other than reafforestation;

but does not include any work relating or ancillary to conservation, development and management of forests and wildlife, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.

India -- The Indian Wildlife (Protection) Act, 1972, amended 1993 (selected sections)

18. Declaration of Sanctuary.– [(l) The State Government may, by notification, declare its intention to constitute any area other than area comprised with any reserve forest or the territorial waters as a sanctuary if it considers that such area is of adequate ecological, faunal, floral, geomorphological, natural. or zoological significance, for the purpose of protecting, propagating or developing wildlife or its environment. 2]

(2) The notification referred to in sub-section (1) shall specify, as nearly as possible, the situation and limits of such area.

Explanation. - For the purposes of the this section, it shall be sufficient to describe the area by roads, rivers, ridges, or other well-known or readily intelligible boundaries

19. Collector to determine rights.– [3When a notification has been issued under Sec.18,] the collector shall inquire into, and determine the existence, nature and extent of the rights of any person in or over the land comprised within the limits of the sanctuary.

20. Bar of accrual of rights.– After the issue of a notification under Sec. 18, no right shall be acquired in, or over the land comprised within the limits of the area specified in such notification, except by succession, testamentary or intestate.

21. Proclamation by Collector. – When a notification has been issued under Sec.18 the Collector shall publish in the regional language in every town and village in or in the neighborhood of the area comprised therein, a progamation:

(a) specifying, as nearly as possible, the situation and the limits of the sanctuary; and

(b) requiring any person, claiming any right mentioned in Sec. 19, to prefer before the collector" within two months from the date of such proclamation, a written claim in the prescribed form specifying the nature and extent of such right, with necessary details and the amount and particulars of the compensation, if any, claimed in respect thereof.

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22. Inquiry by Collector. – The Collector shall, after service of the prescribed notice upon the claimant, expeditiously inquire into

(a) the claim preferred before him under Cl. (b) of Sec.21, and

(b) the existence of any right mentioned in Sec.19 and not claimed under Cl.(b) of Sec.21, so far as the same may be ascertainable from the records of the State Goven-iments and the evidence of any person acquainted with the same.

23. Powers of Collector. – For the purpose of such inquiry, the Collector may exercise the following powers, namely

(a) the power to enter in or upon any land and to survey, demarcate, and make a map of the same or to authorise any other officer to do so;

(b) the same powers as are vested in a civil court for the trial of suits.

24. Acquisition of rights. – (1) In the case of a claim to a right in or over any land referred to in Sec.19, the Collector shall pass an order admitting or rejecting the same in whole or in part.

(2) If such claim is admitted in whole or in part, the Collector may either

(a) exclude such land from the limits of the proposed sanctuary, or

(b) proceed to acquire such land or rights, except where by an agreement between the owner of such land or the holder of rights and the Government the owner or holder of such rights has agreed to surrender his rights to the Government, in or over such land, and payment of such compensation, as is provided in the Land Acquisition Act, 1894 (1 of 1894)

[4(c) allow, in consultation with the Chief Wildlife Warden, the continuance of any right of any person in, or over any land within the limits of the sanctuary.]

25. Acqitisition proceedings. – (1) For the purpose of acquiring such land, or rights in or over such land, (a) the Collector shall be deemed to be a Collector, proceeding under the Land Acquisition Act, 1894 (1 to 1894):

(b) the claimant shall be deemed to be a person interested and appearing before him in pursuance of a notice given under sec.9 of that Act.

(c) the provisions of the sections preceding Sec.9 of that Act shall be deemed to have been complied with;

(d) where the claimant does not accept the award made in his favour in the matter of compensation, he shall be deemed, within the meaning of Sec.18 of that Act, to be a person interested who has not accepted the award, and shall be entitled to proceed to claim relief, against the award under the provision of Part III of that Act;

(e) the Collector, with the consent of the claimant, or the Court, with the consent of both the parties, may award compensation in land or money or partly in land and partly in money, and

(f) in the case of the stoppage of a public way or a common pasture, the Collector may, with the previous sanction of the State Government provide for an alternative public way or common pasture, as far as may be practicable or convenient.

(2) The acquisition under this Act of any land or interest therein shall be deemed to be acquisition for a public purpose.

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26. Delegation of Collector’s powers. – The State Government may, by general or special order, direct that the powers exercisable or the functions to be performed by the Collector under Sec. 19 to 25 (both inclusive) may be exercised and performed by such other officer as may be specified in the order.

[5(26A) Declaration of area as Sanctuary. –(1) When –

(a) a notification has been issued under sec.18 and the period for preferring claim has elapsed, and all claims, if any, made in relation to any land in an area intended to be declared as a sanctuary, have been disposed of by the State Government; or

(b) any area comprised within any reserve forest or any part of the territorial waters, which is considered by the State Government to be of adequate ecological, faunal, geomorphological, natural or zoological significance for the purpose of protecting, propagating or developing wildlife or its environment, is to be included in a sanctuary, the State Government shall issue a notification specifying the limits of the area which shall be comprised within the sanctuary and declare that the said area shall be sanctuary on and from such date as may be specified in the notification.

Provided that where any part of the territorial waters is to be so included, prior concurrence of the Central Government shall be obtained by the State Government.

Provided further that the limits of the area of the territorial waters to be included in the sanctuary shall be determined in consultation with the Chief Naval Hydrographer of the Central Government and after taking adequate measures to protect the occupational interests of the local fishermen.

(2) Notwithstanding anything contained in sub-section (1), the right of innocent passage of any vessel or boat through the territorial water shall not be affected by the notification issued under sub-section (1).

(3) No alteration of the boundaries of a sanctuary shall be made except on a resolution passed by the Legislation of the State.]

27. Restriction on entry in sanctuary. – (1) No person other than,

(a) a public servant on duty;

(b) a person who has been permitted by the Chief Wildlife Warden or the authorised officer to reside within the limits of the sanctuary;

(c) a person who has any right over immovable property within the limits of the sanctuary;

(d) a person passing through the sanctuary along a public highway, and

(e) the dependents of the person referred to in CI. (a), (b) or (c).

shall enter or reside in the sanctuary, except under and in accordance with the conditions of a permit granted under section 28.

(2) Every person shall, so long as he resides in the sanctuary, be bound

(a) to prevent the commission, in the sanctuary, or an offence against this Act;

(b) where there is reason to believe that any such offence against this Act has been committed in such sanctuary, to help in discovering and arresting the offender;

(c) to report the death of any wild animal and to safeguard its remains until the Chief Wildlife Warden or the authorised officer takes charge thereof;

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(d) to extinguish any fire in such sanctuary of which he has knowledge or information and to prevent from spreading by any lawful means in his power , any fire within the vicinity of such sanctuary of which he has knowledge or information; and

(e) to assist any forest officer, Chief Wildlife Warden, Wildlife Warden or police officer demanding his aid for preventing the commission of any offence against this Act or in the investigation of any such offence.

[6(3) No person shall, with intent to cause damage to any boundary-mark of a sanctuary or to cause any wrongful gain as defined in the Indian Penal Code (45 of 1860), alter, destroy, move, or deface such boundary-mark.]

[7(4) No person shall tease or molest any wild animal or litter the grounds or sanctuary.]

28. Grant of permit. – (1) The Chief Wildlife Warden may, on application, grant to any person a permit to enter or reside in a sanctuary for all or any of the following purposes, namely: (a) investigation or study of wildlife and purposes ancillary or incidental thereto; (b) photography;(c) scientific research; (d) tourism; (e) transaction of lawful business with any person residing in the sanctuary.

(2) A permit to enter or reside in a sanctuary shall be issued subject to such conditions and on payment of such fee as may be prescribed.

33. Control of sanctuaries. – The Chief Wildlife Warden shall be the authority who shall control, manage and maintain all sanctuaries and for that purpose, within the limits of any sanctuary, (a) may construct such roads, bridges, buildings, fences or barrier gates, and carry out such other works as he may consider necessary for the purposes of such sanctuary; (b) shall take such steps as will ensure the security of wild animals in the sanctuary and the preservation of the sanctuary and wild animals, therein; (c) may take such measures, in the interests of wildlife, as he may consider necessary for the improvement of any habitat. (d) may regulate, control or prohibit, in keeping with the interests of wildlife, the grazing or movement of [livestock]. …

35. Declaration of National Parks. – (1) Whenever it appears to the State Government that an area, whether within a sanctuary or not, is, by reason of its ecological, faunal, floral, geomorphological, or zoological association or importance, needed to be constituted as a National Park for the purpose of protectin& propagating or developing wildlife therein or its environment, it may, by notification, declare its intention to constitute such area as a National Park.

[11(1) Provided that where any part of the territorial waters is proposed to be included in such National Park, the provisions of Sec.26A shall, as far as may be, apply in relation to the declaration of a National Park as they apply in relation to the declaration of a sanctuary.]

(2) The notification referred to in sub-section (1) shall define the limits of the area which is intended to be declared as a National Park.

(3) Whereas any area is intended to be declared as a National Park, the provisions of Sec. [1219 to 26-A (both inclusive except clause (c) of sub-section (2) of section 24)] shall, as far as may be, apply to the investigation and determination of claims and extinguishment of rights, in relation to any land in such area as they apply to the said matters in relation to any land in a sanctuary.

(4) When the following events have occurred, namely

(a) the period for preferring claims has elapsed, and all claims, if any, made in relation to any land in an area intended to be declared as a National Park, have been disposed of by the State Government, and

(b) all rights in respect of lands proposed to be included in the National Park have become vested in the State Government, the State Government shall publish a notification specifying the limits of the area which shall be

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comprised within the National Park and declare that the said area shall be a National Park on and from such date as may be specified in the notification.

(5) No alteration of the boundaries of a National Park shall be made except on a resolution passed by the Legislature of the State.

(6) No person shall, destroy, exploit, or remove any wildlife from a National Park or destroy or damage the habitat or any wild animal or deprive any wild animal or its habitat within such National Park except under and in accordance with a permit granted by the Chief Wildlife Warden and no such permit shall be granted unless the State Government, being satisfied that such destruction, exploitation, or removal of wildlife from the National Park is necessary for the improvement and better management of wildlife therein, authorises the issue of such permit.

(7) No grazing of any [livestock13] shall be permitted in a National Park and no livestock shall be allowed to enter except where such [livestock] is used as a vehicle by a person authorised to enter such National Park.

(8) The provisions of secs. 27 and 28, secs.30 to 32 (both inclusive), and CIS, (a), (b) and (c) of [Sec.33, 33A14] and sec.34 shall, as far as may be, apply in relation to a National Park as they apply in relation to a sanctuary.

India -- The Wild Life (Protection) Amendment Act, 2002 (selected sections)

Substitution of New Section for Section 29 15. For section 29 of the principal Act, the following section shall be substituted, namely:– Destruction etc., in a Sanctuary Prohibited without a Permit "29. No person shall destroy, exploit or remove any wild life including forest produce from a sanctuary or destroy or damage or divert the habitat of any wild animal by any act whatsoever or divert, stop or enhance the flow of water into or outside the sanctuary, except under and in accordance with a permit granted by the Chief Wild Life Warden, and no such permit shall be granted unless the State Government being satisfied in consultation with the Board that such removal of wild life from the sanctuary or the change in the flow of water into or outside the sanctuary is necessary for the improvement and better management of wild life therein, authorises the issue of such permit: Provided that where the forest produce is removed from a sanctuary the same may be used for meeting the personal bonafide needs of the people living in and around the sanctuary and shall not be used for any commercial purpose. Explanation- For the purposes of this section, grazing or movement of livestock permitted under clause (d) of section 33 shall not be deemed to be an act prohibited under this section.".

Amendment of Section 33 16. In section 33 of the principal Act after clause (a), the following proviso shall be inserted, namely:– "Provided that no construction of commercial tourist lodges, hotels, zoos and safari parks shall be undertaken inside a sanctuary except with the prior approval of the National Board;".

Insertion of New Section 34A 18. After section 34 of the principal Act, the following section shall be inserted, namely-:– Power to Remove Encroachment

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"34A., (1) Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Conservator of Forests may,– (a) evict any person from a sanctuary or National Park, who unauthorisedly occupies Government land in contravention of the provisions of this Act; (b) remove any unauthorised structures, buildings, or constructions erected on any Government land within any sanctuary or National Park and all the things, tools and effects belonging to such person shall be confiscated, by an order of an officer not below the rank of the Deputy Conservator of Forests: Provided that no such order shall be passed unless the affected person is given an opportunity of being heard. (2) The provisions of this section shall apply notwithstanding any other penalty which may be inflicted for violation of any other provision of this Act.".

Amendment of section 35 19. In section 35 of the principal Act,– (i) for sub-sections (5) and (6), the following sub-sections shall be substituted, namely:– "(5) No alteration of the boundaries of a National Park by the State Government-shall be made except on a recommendation of the National Board. (6) No person shall destroy, exploit or remove any Wild Life including forest produce from a National Park or destroy or damage or divert the habitat of any wild animal by any act whatsoever or divert, stop or enhance the flow of water into or outside the National Park, except under and in accordance with a permit granted by the Chief Wild Life Warden, and no such permit shall be granted unless the State Government being satisfied in consultation with the National Board that such removal of wild life from the National Park or the change in the flow of water into or outside the National Park is necessary for the improvement and better management of wild life therein, authorises the issue of such permit: Provided that where the forest produce is removed from a National Park, the same may be used for meeting the personal bona fide needs of the people living in and around the National Park and shall not be used for any commercial purpose."; (ii) after sub-section (8), the following Explanation shall be inserted, namely:– "Explanation.-For the purposes of this section, in case of an area, whether within a sanctuary or not, where the rights have been extinguished and the land has become vested in the State Government under any Act or otherwise, such area may be notified by it, by a notification, as a National Park and the proceedings under sections 19 to 26 (both inclusive) and the provisions of sub-sections (3) and (4) of this section shall not apply.".

Nepal - Environment Protection Act, 1997 (selected sections)

2. Definitions -

Unless the subject or context otherwise requires, in this Act;

(a) "Environment" means the interaction and inter-relationship among the components of natural, cultural and social systems, economic and human activities and their components.

(b) "Pollution" means the activities that significantly degrade, damage the environment or harm on the beneficial or useful purpose of the environment, by changing the environment, directly or indirectly.

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(c) "Protection" means the safety care maintenance, promotion, management and proper utilization of the environment and national heritage.

(d) "Proposal" means a proposal prepared in regard to the carrying out of such development work, physical activity that may bring about change in the existing environmental conditions or any plan, project or programme which changes the land uses

(e) "Proponent" means a person, governmental, semi-governmental or non-governmental agency or institution applying for approval of a proposal and getting approval for the implementation of such a proposal.

(f) "Initial Environmental Examination" means a report on analytical study or evaluation to be prepared to ascertain as to whether, in implementing a proposal, the proposal does have significant adverse impacts on the environment or not, whether such impacts could be avoided or mitigated by any means or not.

(g) "Environmental Impact Assessment" means a report on detailed study and evaluation to be prepared to ascertain as to whether, in implementing a proposal, the proposal does have significant adverse impacts on the environment or not, whether such impacts could be avoided or mitigated by any means or not.

(h) "Wastes" means the liquid, solid, gas, slurry, smoke, dust, radiated element or substance or similar other materials disposed in a manner to degrade the environment.

(i) "Disposal" means the act of emission, storage, or disposal of sound, heat or wastes.

(j) "Biological Diversity" means ecosystem diversity, species diversity and genetic diversity.

(k) "National Heritage" means any such object, site, plant and animal related with the environment available within the Kingdom of Nepal as is likely to be important to the human being from natural, cultural, historical archaeological, scientific, spiritual, aesthetic or social point of view.

(l) "Ministry" means the Ministry of Population and Environment of His Majesty's Government.

(m) "Prescribed" or "As prescribed" means prescribed or as prescribed in the rules framed under this Act.

7. Prevention and Control of Pollution -

(1) Nobody shall create pollution in such a manner as to cause significant adverse impacts on the environment or likely to be hazardous to public life and people's health, or dispose or cause to be disposed sound, heat radioactive rays and wastes from any mechanical devices, industrial enterprises, or other places contrary to the prescribed standards.

(2) If it appears that anyone has carried out any act contrary to sub-section (1) and caused significant adverse impacts on the environment, the concerned agency may prescribed necessary terms in regard thereto or may prohibit the carrying out of such an act.

(3) If it appears that the use of any types of substance, fuel tools or device has caused or is likely to cause significant adverse impacts on the environment, the Ministry may, by a notification in the Nepal Gazette, forbid the use of such substance, fuel, tools or device.

(4) Other provision relating to the prevention and control of pollution shall be as prescribed.

18. Punishment -

(1) In case any person carries out any act without getting a proposal approved under Section 6 or any act contrary to the approved proposal, the prescribed authority may close down such act immediately, and if any person or

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organization has done such act, may according to the degree of offence punish him with a fine up to one hundred thousand rupees.

(2) In case any person commits any other acts under this Act or the Rules or guidelines framed hereunder, the prescribed authority may require to close down such act immediately, and if any person or organization has done such act, punish him, according to the degree of the offence, with a fine up to fifty thousand rupees.

19. Appeal -

A person who is not satisfied with the decision or order made by the prescribed authority may appeal to the concerned Appellate Court within thirty five days from the date of the decision or order.

Nepal – National Parks and Wildlife Conservation Act, 1973 (selected sections)

Preamble: Whereas it is expedient to make provisions of national parks, conservation of wildlife and their habitats, control in the hunting, protection, conservation, development as well as in the proper management and utilization of the places of special importance from the viewpoint of natural beauties and for the maintenance of goods conduct and convenience of the general publc.

Now, therefore, His Majestry King Birendra Bir Bikram Shah Dev has enacted this Act on the advice and consent of the National Panchayat.

3. Declaration of National Parks Protected Area or Reserve by His Majesty’s Govt.

(1). His Majesty’s Government may, if it deems necessary, declare any area of land as a National Park Protected Area or Reserve along with its four boundaries thereof by a notification in the Nepal Gazette.

(2). His Majesty’s Government may alienate or transfer ownership of or alter the boundaries of a National Park Protected Area or Reserve declared under sub-section (1) by a notification in the Nepal Gazette.

5. Prohibited Acts

No person unless in possession of written permission of an authorized authority shall commit any of the following acts within a National Park or Reserve:

(a) Hunt any wildlife or bird;

(b) Build or occupy any house, hut, shelter or other structure of whatever materials;

(c) Occupy, clear, cultivate or plant any part of land, grow or harvest any crops;

(d) Pasture or water and domesticated animal or bird;

(e) Cut, fell, remove, girdle, burn or otherwise damage any tree, plant, bush or any other forest products;

(f) Mine, quarry or remove any minerals, stone, gravel, earth or other such substances;

(g) Damage any forest product wildlife, bird or land;

(h) Use or carry any weapon, ammunition or poison

(i) Introduce any domesticated or other animal or trophy other than by a Government official on duty or by a person traveling having authorized right of way through a National Park or Reserve.

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(j) Obstruct or divert any river, stream or other source of water flowing in the National Park or introduce harmful or explosive substances therein.

6. Operation of Services within a National Park or Reserve

(1) His Majesty’s Government may in the best interests of a National Park or Reserve or protected area either directly by itself or by a contract by abiding the prescribed procedures, with any other person make provision for hotels, lodges, public transport or any other such services or amenities within a National Park.

(2) No person without entering into a contract under Sub-section (1) shall operate any kind of service or amenities within a National Park or reserve or protected area.

Pakistan Environmental Protection Act (PEPA), 1997 (selected sections)

2. Definitions –

In this Act, unless there is anything repugnant in the subject or context:

(i) "adverse environmental effect" means impairment of, or damage to, the environment and includes: (a) impairment of, or damage to, human health and safety or to biodiversity or property; (b) pollution; and (c) any adverse environmental effect as may be specified in the regulation.

(ii) "agricultural waste" means waste from farm and agricultural activities including poultry, cattle farming, animal husbandry, residues from the use of fertilizers, pesticides and other farm chemicals;

(iii) "air pollutant" means any substance that causes pollution of air and includes soot, smoke, dust particles, odor, light, electro-magnetic, radiation, heat, fumes, combustion exhaust, exhaust gases, noxious gases, hazardous substances and radioactive substances;

(iv) "biodiversity" or "biological diversity" means the variability among living organizations from all sources, including inter alia terrestrial, marine and other aquatic ecosystems and ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems;

(v) "council" means the Pakistan Environmental Protection Council established under section 3;

(vi) "discharge" means spilling, leaking, pumping, depositing, seeping, releasing, flowing out, pouring, emitting, emptying or dumping;

(vii) "ecosystem" means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit;

(viii) "effluent" means any material in solid, liquid or gaseous form or combination thereof being discharged from industrial activity or any other source and includes a slurry, suspension or vapour;

(ix) "emission standards" means the permissible standards established by the Federal Agency or a Provincial Agency for emission of air pollutants and noise and for discharge of effluent and waste;

(x) "environment" means- (a) air, water and land; (b) all layers of the atmosphere; (c) all organic and inorganic matter and living organisms; (d) the ecosystem and ecological relationships; (e) buildings, structures, roads, facilities and works; (f) all social and economic conditions affecting community life; and (g) the inter-relationships between any of the factors in sub-clauses (a) to (f)

(xi) "environmental impact assessment" means an environmental study comprising collection of data, prediction of qualitative and quantitative impacts, comparison of alternatives, evaluation of preventive, mitigatory and

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compensatory measures, formulation of environmental management and training plans and monitoring arrangements, and framing of recommendations and such other components as may be prescribed;

(xii) " Environmental Magistrate" means the Magistrate of the First Class appointed under section 24;

(xiii) "Environmental Tribunal" means the Environmental Tribunal constituted under section 20;

(xiv) Exclusive Economic Zone" shall have the same meaning as defined in the Territorial Waters and Maritime Zones Act, 1976 (LXXXII of 1976);

(xv) "factory" means any premises in which industrial activity is being undertaken;

(xvi) "Federal Agency" means the Pakistan Environmental Protection Agency established under section 5, or any Government Agency, local council or local authority exercising the powers and functions of the Federal Agency;

(xvii) "Government Agency" includes- (a) a division, department, attached department, bureau, section, commission, board, office or unit of the Federal Government or a Provincial Government; (b) a development or a local authority, company or corporation established or controlled by the Federal Government or Provincial Government; (c) a Provincial Environmental Protection Agency; and (d) any other body defined and listed in the Rules of Business of the Federal Government or a Provincial Government;

(xviii) "hazardous substance" means- (a) a substance or mixture of substance, other than a pesticide as defined in the Agricultural Pesticide Ordinance, 1971 (II of 1971), which, by reason of its chemical activity is toxic, explosive, flammable, corrosive, radioactive or other characteristics causes, or is likely to cause, directly or in combination with other matters, an adverse environmental effect; and (b) any substance which may be prescribed as a hazardous substance;

(xix) "hazardous waste" means waste which is or which contains a hazardous substance or which may be prescribed as hazardous waste, and includes hospital waste and nuclear waste;

(xx) "historic waters" means such limits of the waters adjacent to the land territory of Pakistan as may be specified by notification under section 7 of the Territorial Waters and Maritime Zones Act, 1976 (LXXXII of 1976);

(xxi) "hospital waste" includes waste medical supplies and materials of all kinds, and waste blood, tissue, organs and other parts of the human and animal bodies, from hospitals, clinics and laboratories;

(xxii) "industrial activity" means any operation or process for manufacturing, making, formulating, synthesizing, altering, repairing, ornamenting, finishing, packing or otherwise treating any article or substance with a view to its use, sale, transport, delivery or disposal, or for mining, for oil and gas exploration and development, or for pumping water or sewage, or for generating, transforming or transmitting power or for any other industrial or commercial purpose;

(xxiii) "industrial waste" means waste resulting from an industrial activity;

(xxiv) "initial environmental examination" means a preliminary environmental review of the reasonably foreseeable qualitative and quantitative impacts on the environment of a proposed project to determine whether it is likely to cause an environmental effect for requiring preparation of an environmental impact assessment;

(xxv) "local authority" means any agency set-up or designated by the Federal Government or a Provincial Government by notification in the official Gazette to be a local authority for the purposes of this Act;

(xxvi) "local council" means a local council constituted or established under a law relating to local government;

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(xxvii) "motor vehicle" means any mechanically propelled vehicle adapted for use upon land whether its power of propulsion is transmitted thereto from an external or internal source, and includes a chassis to which a body has not been attached, and a trailer, but does not include a vehicle running upon fixed rails;

(xxviii) "municipal waste" includes sewage, refuse, garbage, waste from abattoirs, sludge and human excreta and the like;

(xxix) "National Environmental Quality Standards" means standards established by the Federal Agency under clause (e) of sub-section (1) of section 6 and approved by the Council under clause (c) of sub-section (1) of section 4;

(xxx) "noise" means the intensity, duration and character from all sources, and includes vibrations;

(xxxi) "nuclear waste" means waste from any nuclear reactor or nuclear or other nuclear energy system, whether or not such waste is radioactive;

(xxxii) "person" means any natural person or legal entity and includes an individual, firm, association, partnership, society, group, company, corporation, co-operative society, Government Agency, non-governmental organization, community-based organization, village organization, local council or local authority and, in the case of a vessel, the master or other person having for the time being the charge or control of the vessel;

(xxxiii) "pollution" means the contamination of air, land or water by the discharge or emission or effluents or wastes or air pollutants or noise or other matter which either directly or indirectly or in combination with other discharges or substances alters unfavourably the chemical, physical, biological, radiational, thermal or radiological or aesthetic properties of the air, land or water or which may, or is likely to make the air, land or water unclean, noxious or impure or injurious, disagreeable or detrimental to the health, safety, welfare or property of persons or harmful to biodiversity;

(xxxiv) “prescribed” means prescribed by rules made under this Act;

(xxxv) “project” means any activity, plan, scheme, proposal or undertaking involving any change in the environment and includes; (a) construction or use of buildings or other works; (b) construction or use of roads or other transport systems; (c) construction or operation of factories or other installations; (d) mineral prospecting, mining, quarrying, stone-crushing, drilling and the like; (e) any change of land use or water use; and (f) alteration, expansion, repair, decommissioning or abandonment of existing buildings or other works, roads or other transport systems; factories or other installations;

(xxxvi) “proponent” means the person who proposes or intends to undertake a project;

(xxxvii) “Provincial Agency” means a Provincial Environmental Protection Agencyestablished under section 8;

(xxxviii) “regulations” means regulations made under this Act;

(xxxix) “rules” means rules made under this Act;

(xl) “sewage” means liquid or semi-solid wastes and sludge from sanitary conveniences, kitchens, laundries, washing and similar activities and from any sewerage system or sewage disposal works;

(xli) “standards” means qualitative and quantitative standards for discharge of effluents and wastes and for emission of air pollutants and noise either for general applicability or for a particular area, or from a particular production process, or for a particular product, and includes the National Environmental Quality Standards, emission standards and other standards established under this Act and the rules and regulations made thereunder;

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(xlii) “sustainable development” means development that meets the needs of the present generation without compromising the ability of future generations to meet their needs;

(xliii) “territorial waters” shall have the same meaning as defined in the Territorial Waters and Maritime Zones Act, 1976 (LXXXII of 1976);

(xliv) “vessel” includes anything made for the conveyance by water of human beings or of goods; and

(xlv) “waste” means any substance or object which has been, is being or is intended to be,discarded or disposed of, and includes liquid waste, solid waste, waste gases, suspended waste, industrial waste, agricultural waste, nuclear waste, municipal waste, hospital waste, used polyethylene bags and residues from the incineration of all types of waste.

11. Prohibition of Certain Discharges or Emissions –

(1) Subject to the provisions of this Act and the rules and regulations made thereunder no person shall discharge or emit or allow the discharge or emission of any effluent or waste or air pollutant or noise in an amount, concentration or level which is in excess of the National Environmental Quality Standards or, where applicable, the standards established under subclause (i) of clause (g) of sub-section (1) of section 6.

(2) The Federal Government levy a pollution charge on any person who contravenes or fails to comply with the provisions of sub-section (1), to be calculated at such rate, and collected in accordance with such procedure as may be prescribed.

(3) Any person who pays the pollution charge levied under sub-section (2) shall not be charged with an offence with respect to that contravention or failure.

(4) The provisions of sub-section (3) shall not apply to projects which commenced industrial activity on or after the thirtieth day of June, 1994.

16. Environmental Protection Order –

(1) Where the Federal Agency or a Provincial Agency is satisfied that the discharge or emission of any effluent, waste, air pollutant or noise, or the disposal of waste, or the handling of hazardous substances, or any other act or omission is likely to occur, or is occurring or has occurred in violation of the provisions of this Act, rules or regulations or of the conditions of a licence, and is likely to cause, or is causing or has caused an adverse environmental effect, theFederal Agency or, as the case may be, the Provincial Agency may, after giving the person responsible for such discharge, emission, disposal, handling, act or omission an opportunity of being heard, by order direct such person to take such measures that the Federal Agency or Provincial Agency may consider necessary within such period as may be specified in the order.

(2) In particular and without prejudice to the generality of the foregoing power, such measures may include: (a) immediate to stoppage, preventing, lessening or controlling the discharge, emission, disposal, handling, act or omission, or to minimize or remedy the adverse environmental effect; (b) installation, replacement or alteration of any equipment or thing to eliminate or control or abate on a permanent or temporary basis, such discharge, emission, disposal, handling, act or omission; (c) action to remove or otherwise dispose of the effluent, waste, air pollutant, noise, or hazardous substances; and (d) action to restore the environment to the condition existing prior to such discharge, disposal, handling, act or omission, or as close to such condition as may be reasonable in the circumstances, to the satisfaction of the Federal Agency or Provincial Agency.

(3) Where the person, to whom directions under sub-section (1) are given, does not comply therewith, the Federal Agency or Provincial Agency may, in addition to the proceeding initiated against him under this Act or the rules and regulations, itself take or cause to be taken such measures specified in the order as it may deems necessary, and may recover the costs of taking such measures from such person as arrears of land revenue.

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Pakistan – National Environmental Quality StandardsNational Environmental Quality Standards for Municipal and Liquid Industrial Effluents

National Environmental Quality Standards for Municipal and Liquid Industrial Effluents (mg/L, Unless Otherwise Defined)

S.No Parameter Existing Standards

Revised Standards

Into Inland Water

Into Sewage Treatment5

Into Sea°

1. Temperature or Temperature increase*

40°C =<3°C =<3°C =<3°C

2. pH value 6-10 pH 6 - 9 6-9 6 - 93. 5-days Biochemical Oxygen

Demand (BOD^ at 20°^80 mg/l. 80 250 80**

4. Chemical Oxygen Demand (COD)' 150mg/l.

150 400 4005. Total suspended solids 150

mg/l.200 400 200

6. Total dissolved solids 3500 mq/l.

3500 3500 35007. Grease and oil 10mq/l. 10 10 108. Phenolic compounds (as phenol) 0.1

mq/l.0.1 0.3 0.3

9. Chloride (as Cl) 1000 mq/l.

1000 1000 SC10. Fluoride (as F) 20 mq/l. 10 10 1011. Cyanide (as CN) total 2 mq/l. 1.0 1.0 1.012. An-ionic detergents^ (as MBAS) 20 mg/l. 20 20 2013. Sulphate (SO4) 600

mq/l.600 1000 SC

14. Sulphide (S) 1.0 mg/l. 1.0 1.0 1.015. Ammonia (NH3)_ 40 mg/l. 40 40 4016. Pesticides, herbicides, fungicides and

insecticides30.15

mg/l.0.15 0.15 0.15

Sri Lanka - National Environmental Act, 1980, 1988 (Selected sections)

PART IV B - ENVIRONMENTAL QUALITY

23G. Subject to section 23A of this Act with effect from the relevant date, no person shall deposit or emit waste into the inland waters of Sri Lanka, except in accordance with such standards or criteria as may be prescribed under this Act.

23H. (1) No person shall pollute any inland waters of Sri Lanka or cause or permit to cause pollution in the inland waters of Sri Lanka so that the physical, chemical or biological condition of the waters is so changed as to make or reasonably expected to make those waters or any part of those waters unclean, noxious, poisonous, impure, detrimental to health, welfare, safety or harmful to animals, birds, wildlife, fish, plants or other forms of life or detrimental to any beneficial use made of those waters.

(2) Without limitation to the generality of subsection (1) a person shall be deemed to contravene the provisions of that subsection, if—

(a) he places in or any waters or in a place where it may gain access to any waters any matter, whether solid, liquid, gaseous, that is prohibited by or under this Act or by any regulations made thereunder; (b) he places any waste, whether solid, liquid, or gaseous, in a position where it falls, descends, drains, evaporates, is washed, is blown or percolates, is likely to fall, descend, drain evaporate, be washed, be blown, percolate into any waters or

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on the bed of any river, stream or other waterway when dry, or knowingly or through his negligence, whether directly or indirectly, causes or permits on such matter to place in such a position; (c) he places waste on the bed, when dry, of any river, stream or other waterway or knowingly or through his negligence causes or permits any wastes to be placed on such a bed; or (d) he causes the temperature or inland, coastal or off-shore waters of Sri Lanka to be raised or lowered by more than the prescribed limits.

(3) Every person who contravenes the provisions of subsection (1) shall be guilty of an offence, and on conviction shall be—

(a) liable to a fine not less than rupees ten thousand and not exceeding rupees one hundred thousand, and thereafter in the event of the offence being continued to be committed, to a fine of rupees five hundred for each day on which the offence is so continued to be committed; and (b) required to take within such period as may be determined by court, such corrective measures as may be deemed necessary to prevent further damage being caused to the inland, coastal and offshore waters of Sri Lanka and furnish at the end of such period sufficient and acceptable proof of the incorporation of such corrective measures. The court shall also order such person convicted, to bear the expenses that may have been incurred by the authority in the correction of damage already caused as a consequence of the commission of such offence, and where such person fails to bear the expenses so incurred be recovered in like manner as a fine imposed by the court.

(4) Where any person convicted of an offence under subsection (3) continues to commit such offence after a period of six weeks from the date of his conviction, the court may upon an application for closure being made by the Director-General or any officer authorized in that behalf by the Director-General order the closure of such factory or trade, or business being carried at such premises, which caused the pollution of inland, coastal or offshore waters of Sri Lanka, until such time such person takes adequate corrective measures to prevent further damage being caused.

(5) In any case where such person fails to comply with the closure order issued under subsection (4), the Magistrate shall forthwith order the fiscal of the court requiring and authorizing such fiscal before a date specified in such order not being a date earlier than three or later than seven clear days from the date of issue of such order to close such factory or trade or business being carried at such premises. Such order shall be sufficient authority for the said fiscal or any police officer authorized by him in that behalf to enter the premises with such assistants as the fiscal or such police officer shall deem necessary to close such factory or trade or business being carried at such premises.

23J. Subject to section 23A of this Act with effect from the relevant date, no person shall discharge or emit waste into the atmosphere except in accordance with such standards or criteria as may be prescribed under this Act.

23K. (1) No person shall pollute the atmosphere or cause or permit the atmosphere to be polluted so that the physical, chemical or biological condition of the atmosphere is so changed as to make or reasonably be expected to make the atmosphere or any part thereof unclean, noxious, poisonous, impure, detrimental to the health, welfare, safety, or property of human beings, poisonous or harmful to animals, birds, wildlife, plant or all other forms of life or detrimental to any beneficial use of the atmosphere.

(2) Without limitation to the generality of subsection (1) a person shall be deemed to contravene that subsection if—

(a) he places in or in such manner that it may be released into the atmosphere, any matter, whether liquid, solid, or gaseous, that is prohibited by or under this Act or by any regulation made thereunder to be placed in the atmosphere or does not comply with any regulations prescribed therefore under this Act; (b) he causes or permits the discharge of odours which by virtue of their nature, concentration, volume, or extent are obnoxious or unduly offensive to the sense of human beings; (c) he burns, wastes otherwise than at times of in the manner or place prescribed; (d) he uses an internal combustion engine or fuel burning equipment not equipped with any device required by the regulations to be fitted to such engine for the prevention or reduction of pollution; or (e) he uses or burns any fuel which is prohibited by regulations made under this Act.

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(3) Every person who contravenes the provisions of subsection (1) shall be guilty of an offence, and on conviction shall be— (a) liable to a fine not less than rupees ten thousand and not exceeding rupees one hundred thousand and thereafter in the event of the offence being continued to be committed, to a fine of rupees five hundred for each day on which the offence is so continued to be committed; (b) required to take within such period as may be determined by court, such corrective measures may be deemed necessary, to prevent further damage being caused by the pollution of atmosphere, and furnish at the end of such period sufficient and acceptable proof of the incorporation of such corrective measures. The court shall also require such person convicted to bear the expenses incurred by the authority in the correction of damage already caused as a result of the commission of such offence.

(4) Where any person convicted of an offence under subsection (3) continues to commit such offence after a period of six weeks from the date of his conviction, the court may upon an application for closure being made by the Director-General or any officer authorized in that behalf by the Director-General order the closure of such factory, trade or business being carried at such premises which cause the pollution of atmosphere until such time, such person takes adequate corrective measures to prevent further damage being caused.

(5) In any case where such person fails to comply with the closure order issued under subsection (3), the Magistrate shall forthwith order the fiscal of the court requiring and authorizing such fiscal, before a date specified in such order not being a date earlier than three or later than seven clear days from the date of issue of such order to close such factory or trade or business being carried at such premises. Such order shall be sufficient authority for the said fiscal or any police officer authorized by him in that behalf to enter the premises with such assistants as the fiscal or such police officer shall deem necessary to close such factory or trade or business being carried at such premises.

23L. Any person who owns, uses, operates, constructs, sells, installs or offers to sell or install any machinery, vehicle or boat required by or under this Act or any regulation made thereunder to be built, fitted or equipped with any device for preventing or limiting pollution of the atmosphere with out such machinery, vehicle or boat being so built, fitted or equipped shall be guilty of an offence. All devices built, fitted or equipped under this section shall be maintained and operated at the cost of the owner.

23M. Subject to section 23A, of this Act, with effect from the relevant date, no person shall discharge or deposit waste into the soil, except in accordance with such standards or criteria as may be prescribed under this Act.

23N. (1) No person shall pollute or cause or permit to be polluted any soil or the surface of any land so that the physical, chemical or biological condition of the soil or surface is so changed as to make or be reasonably expected to make the soil or the produce of the soil poisonous or impure, harmful or potentially harmful to the health or welfare of human beings, poisonous or harmful to animals, birds, wildlife, plants or call other forms of life or obnoxious or, unduly offensive to the senses of human beings or so as to be detrimental to any beneficial use of the land.

(2) Without limitation to the generality of subsection (1) a person shall be deemed to contravene that subsection if—

(a) he places in or on any soil or in any place where it may gain access to any soil, any matter, whether liquid, solid or gaseous, that is prohibited by or under this act or any regulation made thereunder or does not comply with such regulations as may be prescribed; and

(b) he establishes on any land a refuse dump, garbage tip, soil and rock disposal site, sludge deposit site, waste injection well, or otherwise uses land for the disposal of or repository for solid or liquid wastes so as to be obnoxious or unduly offensive to the sense of human beings or will pollute or adversely affect underground water or be detrimental to any beneficial use of the soil or the surface of the land.

(3) Prior exemptions may, however, be granted for valid reasons such as the application of an approved preparation in a prescribed manner for the control of a given pest, provided that such treatment does not damage the soil seriously.

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(4) Any person who contravenes any of the provisions of this section shall be guilty of an offence and on conviction be liable to a fine not less than rupees ten thousand and not exceeding rupees one hundred thousand an din the case of a continuing offence to a fine of rupees five hundred for every day on which the offence continues after conviction. …

23S. Where the Authority is of opinion that the circumstances are such that any litter deposited in any place, whether public or private, is or is likely to become detrimental to the health, safety or welfare of members of the public, unduly offensive to the senses of human beings or a hazard to the environment, the Authority may by notice in writing direct the person who, is responsible for depositing such litter or any public authority whose function is to dispose of or remove such litter, to remove or dispose of such litter or to take such action in relation to such litter as may be specified in the notice. For the purposes of this section “litter” means unwanted waste material whether a by product which has arisen during a manufacturing process or a product which has passed its useful working life and has been discarded.

23T. The cost of removing or otherwise disposing of or reducing litter pursuant to a notice given under section 23S may be recovered in any court of competent jurisdiction against any person proved to have deposited the litter, as a debt due to the Authority and when recovered shall be paid to the fund of the Authority.

23U. Any person to whom a notice in writing under section 23S is directed and who fails without reasonable cause to comply with the requirements of the notice shall, if proved be guilty of an offence.

23V. (1) No person shall discharge or spill any oil or mixture containing oil into the inland waters of Sri Lanka.

(2) Any person who contravenes the provisions of subsection (1) shall be liable on conviction to a fine not less than rupees ten thousand and not exceeding rupees one hundred thousand or to imprisonment for a term not exceeding two years.

PART IV C, APPROVAL OF PROJECTS

23Y. For the purposes of this Part of this Act, the Minster may by Order published in the Gazette specify the state agencies (hereinafter in this Part referred to as “project approving agencies”) which shall be the project approving agencies.

23Z. The Minister shall by Order published in the Gazette determine the projects and undertakings hereinafter referred to as “prescribed projects”) in respect of which approval would be necessary under the provisions of this Part of this Act.

23AA. (1) Notwithstanding the provisions of any other written law, from and after the coming into operation of this Act, all prescribed projects that are being undertaken in Sri Lanka by any Government department, corporation, statutory board, local authority, company, firm or an individual will be required to obtain approval under this Act for the implementation of such prescribed projects.

(2) The approval referred to in subsection (1) shall have to be obtained from the appropriate project approving agencies concerned or connected with such prescribed project:

Provided however, in respect of certain prescribed projects to be determined by the Minster, the project approving agency will grant its approval only with the concurrence of the Authority.

23BB. (1) It shall be the duty of all projects approving agencies to require from any Government department, corporation, statutory board, local authority, company, firm or individual who submit any prescribed project for its approval to submit within a specified time an initial environmental examination report or an environmental impact assessment report as required by the project approving agency relating to such project and containing such information and particulars as may be prescribed by the Minister for the purpose.

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(2) A project approving agency shall on receipt of an initial examination report or an environmental impact assessment report, as the case may be, submitted to such project approving agency in compliance with the requirement imposed under subsection (1), by notice published in the Gazette and in one newspaper each in Sinhala, Tamil and English languages, notify the place and times at which such report shall be available for inspection by the public, and invite the public to make its comments, if any, thereon.

(3) Any member of the public may within thirty days of the date on which a notice under subsection (2) is published make his or its comments, if any, thereon to the project approving agency which published such notice, and such project approving agency may, where it considers appropriate in the public interest afford an opportunity to any such person of being heard in support of his comments, and shall have regard to such comments and any other materials if any, elicited an any such hearing, in determining whether to grant its approval for the implementation of such prescribed project.

(4) Where approval is granted for the implementation of any prescribed project, such approval shall be published in the Gazette and in one newspaper each in Sinhala, Tamil and English languages.

23CC. The project approving agencies shall determine the procedure it shall adopt in approving any prescribed projects submitted to it for approval. Such procedure shall be based on the guidelines prescribed by the Minister for such purpose.

23DD. (1) Where a project approving agency refuses to grant approval for any prescribed project submitted for its approval, the person or body of persons aggrieved shall have a right to appeal against such decision to the Secretary to the Ministry, of the Minister.

(2) The decision of the Secretary to the Ministry on such appeal of the Minister shall be final.

23EE. Where any alterations are being made to any prescribed project for which approval had been granted or where any prescribed project already approved is being abandoned, the Government department, corporation, statutory board, local authority, company, firm or individual who obtained such approval, shall inform the appropriate project approving agency of such alterations, or the abandonment of the case may be, and where necessary obtain fresh approval in respect of any alternations that are intended to be made to such prescribed project for which approval had already been granted:

Provided however, where such prescribed project that is being abandoned or altered is a project approved with the concurrence of the Authority, the Authority should also be informed of it and any fresh approval that need to be obtained should be given only with the concurrence of the Authority.

23FF. It shall be the duty of all projects approving agencies to forward to the Authority a report on each prescribed project for which approval is granted by such agency.

Sri Lanka -- Criminal Procedure Code (Selected sections)

CHAPTER IX - PUBLIC NUISANCE

A.—ORDERS FOR REMOVAL OR ABATEMENT IN CASES OF NUISANCE

98. (1) Whenever a Magistrate considers on receiving a report or other information and on taking such evidence (if any) as he thinks fit—

(a) that any unlawful obstruction or nuisance should be removed from any way, harbour, lake, river, or channel which is or may be lawfully used by the public or from any public place; or

(b) that any trade or occupation or the keeping of any goods or merchandise should by reason of its being injurious to the health or physical comfort of the community be suppressed or removed or prohibited; or

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(c) that the construction of any building or the disposal of any substance should as being likely to occasion conflagration or explosion be prevented or stopped; or

(d) that any building or tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by and that in consequence its removal, repair, or support is necessary; or

(e) that any tank, well, or excavation adjacent to any such way or public place should be fenced in such a manner as to prevent danger from arising to the public,

such Magistrate may make a conditional order requiring that the person causing such obstruction or nuisance or carrying on such trade or occupation or keeping any such goods or merchandise or owning, possessing, or controlling such building, substance, tree, tank, well, or excavation shall within a time to be fixed by such order—

(i) remove such obstruction or nuisance; or (ii) suppress or remove such trade or occupation; or (iii) remove such goods or merchandise; or (iv) prevent or stop the construction of such building; or (v) remove, repair, or support it; or (vi) alter the disposal of such substance; or (vii) remove such tree; or (viii) fence such tank, well or excavation as the case may be.

(2) Any person against whom a conditional order has been made under subsection (1) may appear before the Magistrate making that order or any other Magistrate of that court before the expiration of the time fixed by that order and move to have the order set aside or modified in manner hereinafter provided.

(3) Any order duly made under this section shall not be called in question in any civil court.

(4) For the purpose of this section a “public place” includes also property belonging to the State or a corporation or vested in any public officer or department of State for public purposes and ground left unoccupied for- sanitary or recreative purposes.

99. (1) The order and any other order or notice made or given under this Chapter shall if practicable be served on the person against whom it is made or to whom it is to be given in manner herein provided for service of a summons.

(2) If such order cannot be so served a copy thereof shall be posted up at such place or places as the court may consider fittest for conveying the information to such person.

100. (1) The person against whom such order is made shall within the time specified therein—

(a) perform the act directed thereby ; or

(b) act under subsection (2) of section 98.

(2) If such person does not perform such act or appear and move to have the order set aside or modified as required by subsection (1) he shall be liable to the penalty prescribed in that behalf in section 185 of the Penal Code and the order shall be made absolute;

Provided that if such person be a corporate body every director thereof shall be liable to the penalty hereinbefore prescribed unless such director proves that such default was on occasioned by any act of his or by any omission on his part.

101. (1) If such person appears and moves to have the order set aside or modified the Magistrate shall take evidence in the matter.

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(2) If the Magistrate is satisfied that the order is not reasonable and proper it shall either rescind the same or modify it in accordance with the requirements of the case, and in the latter case the order as modified shall be made absolute,

(3) If the Magistrate is not so satisfied the order shall be made absolute.

102. When an order has been made absolute under section 100 or section 101 the Magistrate shall give notice of the same to the person against whom the order was made and shall further require him to perform the act directed by the order within a time specified in the notice and inform him that in case of disobedience he will be liable to the penalties provided by subsection (2) of section 100.

103. (1) If such act is not performed within the time specified in the notice issued under section 102 the Magistrate may cause it to be performed and may recover the costs of performing it wither by the sale of any building, goods, or other property removed by his order of by the distress and sale of any other moveable property of such person within or without the local limits of the jurisdiction of his court. If such other property is without such limits the order shall authorize its attachment and sale when endorsed by a Magistrate within the local limits of whose jurisdiction the property to be attached is found.

(2) A suit shall not lie in respect of anything done in good faith under this section.

104. (1) Of the Magistrate making an order under section 98 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public he may issue such an injunction to the person against whom the order was made as-is required to obviate or prevent such danger or injury.

(2) In default of such person forthwith obeying such injunction the Magistrate may use or cause to be used such means as he thinks fit to obviate such danger or prevent such injury.

(3) A suit shall not lie in respect of anything done in good faith by a Magistrate under this section.

105. A magistrate may order any person not to repeat or continue a public nuisance as defined in the Penal Code or any special or local law.

B.— TEMPORARY ORDERS IN URGENT CASES OF NUISANCE

106. (1) In cases where in the opinion of a Magistrate immediate prevention or speedy remedy is desirable the Magistrate may by a written order stating the material facts of the case and served in manner provided by section 99 direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if the Magistrate considers that such direction is likely to prevent or tends to prevent obstruction, annoyance, or injury, or risk of obstruction, annoyance, or injury to any persons lawfully employed, or danger to human life, health or safety, or a riot or an affray.

(2) An order under subsection (1) may in cases of emergency or in cases where the circumstance do not admit of the serving in due time of a notice upon the persons against whom the order is directed be made ex pane.

(3) An order under subsection (1) may be directed to a particular person or to the public generally when frequenting or visiting a particular place, and in the latter case a copy of the order shall be posted up as provided by subsection by subsection (2) of section 99.

(4) Any Magistrate may rescind or alter any order made under subsection (1) by himself or by his predecessor in office.

(5) An order under this section shall not remain in force for more than fourteen days from the making thereof unless, in cases of danger to human life, health, or safety, or a likelihood of a riot or an affray, the Minisier by notification in the Gazette otherwise directs.

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Sri Lanka - General Standards for Industrial Waste Water (Effluents) Discharged Into Inland Surface Waters (After Treatment)

pH -- 6.0-8.5Suspended Solid (mg/l) --50Temperature (C) -- 40BOD (5 days at 20 0 C )(mg/l) -- 30COD (mg/l) -- 250Phenolic compounds (as C6H5OH) (mg/l) --1.0Cyanides (mg/l) -- 0.2Sulphides (mg/l) -- 2.0Fluorides (mg/l) -- 2.0Total residual Chlorine (mg/l) -- 1.0Ammonical Nitrogen (as N) (mg/l) – 50Arsenic (as As) (mg/l) -- 0.2Cadmium (as Cd) (mg/l) -- 0.1Chromium (as Cr) (mg/l) -- 0.1Copper (as Cu) (mg/l) -- 3.0Lead (as Pd) (mg/l) -- 0.1

Sri Lanka – Mines and Minerals Act, 1992 (selected sections)

26(1). Subject as hereinafter provided, and the rights granted by a license issued under this Act, the ownership of minerals is hereby vested in the Republic, notwithstanding any right of ownership or otherwise which any person may have to the soil on, in or, under which minerals are found or situated.

(2) Any person who discovers any mineral shall forthwith inform the Director thereof.

28(1). No person shall explore for, mine, transport, process, trade in or export any minerals except under the authority of, or otherwise than in accordance with, a license issued in that behalf under the provisions of this Act and the regulations made thereunder: …

30(1). The Bureau shall not issue a license to any person to explore for, or mine any minerals upon

(a) any burial ground or cemetery within the meaning of the Cemeteries and Burial Grounds Ordinance (Chapter 321), without the approval of the Minister and the Minister in charge of the subject of Local Government;

(b) any land within such distance of a railway track, aerodrome, road, thoroughfare, power line or other public work or building as may be prescribed, without the approval of the Minister and the Minister in charge of the relevant subject;

(c) any land situated within such distance of a lake, stream or a tank or bund within the meaning of the Crown Lands Ordinance (Chapter 454), as may be prescribed, without the approval of the Minister and the Minister in charge of the subject of Lands;

(d) any wild life reservation, nature reserve, forest or park within the meaning of the Crown Lands Ordinance (Chapter 454), as may be prescribed, without the approval of the Minister and the Minister in charge of the subject of Lands;

(e) any land situated within such distance of a catchment area within the meaning of the Crown Lands Ordinance (Chapter 454), as may be prescribed, without the approval of the Minister and the Minister in charge of the subject of Lands;

(f) the foreshore or sea-bed within the meaning of the Crown Lands Ordinance (Chapter 454), as may be prescribed, without the approval of the Minister and the Minister in charge of the subject of Coast Conservation;

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(g) any land vested in any naval, military, or air force authority, without the approval of the Minister in charge of the subject of Defence;

(h) any land vested in and Provincial Council or a local authority without the approval of the Minister in charge of the subject of Provincial Councils;

(2) In addition to any other condition that may be prescribed under this Act, the Minister or the Ministers referred to in subsection (1), as the case may be, may, in granting approval for a license under subsection (1), lay down such further conditions, as may be determined by such Minister or Ministers. Where approval is granted subject to any further conditions, the Bureau shall cause such conditions to be specified in the license.

31. The Bureau shall not issue a license to any person to explore for, or mine any mineral upon –

(a) any land situated within such distance of any ancient monument situated on State land or any protected monument, as is prescribed under section 24 of the Antiquities Ordinance (Chapter 188); and

(b) any land declared by the Archeological Commissioner to be an archeological reserve under section 33 of the said ordinance;

35(1). On receipt of any application for a license under this Act the bureau may subject to the provisions of section 33, either issue a license to the applicant or for reasons to be recorded by it, refuse to issue such applicant a license.

(2) Subject to the other provisions of this Act; every license issued under this section shall –

(a) be in such form and be subject to such terms and conditions as are set out in subsection (4);

(b) specify the limits of the area in respect of which the license is authorized to explore for or mine, transport, process, trade in or export minerals;

(c) specify the minerals in respect of which exploration, mining transportation, processing, trading in or exporting is authorized;

(d) not be transferable, or given as secutiry; and

(e) specify the duration of such license;

Provided however that, an industrial mining license may be transferred or given as security as provided for in the investment agreement in pursuance of which such license was issued or otherwise upon the approval of the Bureau and subject to such conditions as may be prescribed.

(3) Any license issued under this section shall, unless it is cancelled earlier, be valid for such a period as shall be specified therein.

(4) Every license issued under this Act shall in addition to the conditions referred to in subsection (2) of section 35 have attached thereto, inter alia, the following conditions: -

(a) that the exploration, mining, processing, trading in and export of minerals authorized by the license shall not be conducted in a fraudulent, reckless, grossly negligent or willfully improper manner;

(b) that the licensee shall notify the Bureau of the discovery of minerals discovered by him in the exercise of his rights under the license;

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(c) that the licensee shall in the exercise of his right under the license, comply with all written laws relating to the protection of the environment, health and safety standards and the protection of natural resources;

(d) that the licensee shall on the completion of the exploration or mining authorized by the license rehabilitate the land to which such license related to such condition as may be specified;

(e) that the licensee shall not suspend, curtail or cease the activities authorized by the license for a period exceeding six months except with the prior permission of the Bureau.

(f) that the licensee shall comply with the provisions of this Act and any regulation made thereunder;

(g) that the licensee shall maintain such books, records other documents and materials as are required by the Bureau, to maintained by him and shall either enter the required particulars therein;

(h) that the licensee shall pay to the Bureau the fees in respect of such license and any other payments he is required to pay by virtue of or under such license, within such period as may be required by virtue of or under such license, within such period as may be required by this Act or any regulation made thereunder;

(i) that the licensee shall afford any authorized officer of the Bureau, access to any premises in which any activity authorized by the license is carried on and to make available to such office all books, records and other documents maintained by the licensee as required by the license; and to comply with any lawful direction or order given by such officer; …

Sri Lanka – Fauna and Flora Protection Ordinance (Selected Sections)

2. (1) The Minister may by Order published in the Gazette declare that any specified area of State land shall for the purposes of this Ordinance be a National Reserve and may by that Order or by any Order subsequently published in the Gazette declare that the whole or any specified part of any such National Reserve shall be—

(a) a Strict Natural Reserve; or

(b) a National Park; or

(c) a Nature Reserve; or

(d) a Jungle Corridor; or

(e) a Refuge; or

(f) a Marine Reserve; or

(g) a Buffer Zone.

(2) The Minister may by Order published in the Gazette declare that any specified area of land within Sri Lanka (other than land declared to be a National Reserve) shall be a Sanctuary for the purposes of this Ordinance.

(3) An area declared to be a Sanctuary may include both State land and land other than State land.

(4) The Minister may by Order published in the Gazette declare that from a specified date—

(a) the limits of any Strict Natural Reserve, National Park, Nature Reserve, Jungle Corridor Refuge, Marine Reserve or Buffer Zone, shall be altered or varied; (b) any National Reserve or part thereof shall cease to be a National Reserve;

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(d) that a National Reserve of one class shall be a National Reserve of another class.

(5) (a) The Minister may, by Order, declare that the limits of any National Reserve or Sanctuary shall be altered or varied. (

b) Any Order made by the Minister under this subsection shall have no effect unless it has been approved by Parliament and notification of such approval is published in the Gazette.

2A. The Director shall administer, control and manage the facilities or services which are to be provided within any National Reserve.

3. (1) Save as hereinafter provided—

(a) no person shall be entitled to enter any Strict Natural Reserve or Nature Reserve, or in any way to disturb the fauna and flora therein;

(b) no person shall be entitled to enter any National Park except for the purpose of observing the fauna and flora therein;

(c) no animal shall be hunted, killed or taken, and no plant shall be damaged, collected or destroyed in a Strict Natural Reserve, destroyed, in a Strict Natural Reserve;

(d) no person shall hunt, shoot, kill or take any wild animal, or take or destroy any egg of any bird or reptile or any nest of any bird, in any Sanctuary.

6. (1) No person shall in a Strict Natural Reserve, National Park, Nature Reserve, Jungle Corridor, Refuge, Marine Reserve or Buffer Zone —

(a) hunt, shoot, kill, wound or take any wild animal or have in his possession or under his control any wild animal, whether dead or alive, or any part of such animal; or

(b) take or destroy any egg of any bird or reptile, or any nest of any bird; or

(c) fire any gun or do any other act which disturbs or is likely to disturb any wild animal or do any act which interferes or is likely to interfere with the breeding place of any such animal; or

(d) fell, girdle, lop, tap, burn or in any way damage or destroy any plant, or take, collect, or remove any plant therefrom; or

(e) clear or break up any land for cultivation, mining or for any other purpose; or

(f) kindle or carry any fire; or

(g) possess or use any trap or any explosive or gun or other weapon or poisonous substance capable or injuring or destroying any animal or plant; or

(h) make any fresh clearing; or

(i) except under the authority of a permit issued in that behalf by the prescribed officer, erect any building, whether permanent or temporary, or occupy any building so erected; or

(j) construct or use any road or path so constructed by him; or

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(k) construct or manage any tourist hotel or provide any services or facilities similar to the services or facilities provided by a tourist hotel.

(4) Any person who acts in contravention of the provisions of this section shall be guilty of an offence and shall on conviction be liable to imprisonment of either description for a term not less than one year and not exceeding five years.

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SUPREME COURT JUDGMENTS

Bangladesh -- Dr. Mohiuddin Farooque vs Government of Bangladesh WP 92 of 1996

48 DLR, 434 HCDecided 1 July 1996

…. The Petitioner submitted that as Secretary-General of the Bangladesh Environmental Lawyers Association (BELA) he filed the Writ Petition in the public interest as consumption of imported food items containing a radiation level above the acceptable limit and injurious to public health is a threat to the life of the people of the country including himself who are potential consumers of such goods. Under Article 18(1) of the Constitution the State is bound to take measures to raise the level of nutrition and the improvement of public health, and under Article 21(2) persons in the service of the Republic have a duty to strive to serve the people. But the activities of the Government officers and officers of the Atomic Energy Commission in dealing with the consignment in question injurious to public health has threatened the life of the people. He therefore contended that under Articles 31 and 32 of the Constitution the right to life is a fundamental right, and the actions of those officers in not compelling the importer, Respondent No.6, to send back the imported milk powder in question injurious to public health has violated the aforesaid fundamental right to life, and as such the Respondents should be directed to take measures for sending back the said milk powder to the exporter. …

Let us see what is the meaning of the right to life under Articles 31 and 32 of the Constitution of Bangladesh, and whether such right has been threatened as alleged by him, and whether he is entitled to the relief sought for, or to any other relief. …

Under Article 31 of the Constitution, no action detrimental to life, liberty, body, reputation or property of any person can be taken except in accordance with law and a person including a citizen is entitled to protection of law and entitled to be treated in accordance with law for the preservation of life, liberty, etc. Under Article 32, no person shall be deprived of his life or personal liberty save in accordance with law. Under both the above Articles, life cannot be endangered except in accordance with law. So the right to life is a fundamental right subject to the law of the land. Since the right to life has not been interpreted in our domain, we are to see what is the meaning of the right to life. In the absence of any such interpretation from our domain, we may see what meaning was given by the superior courts of other countries to the right to life.

The Fifth Amendment to the Constitution of the United States of America declares: “No person shall be deprived of his life, liberty or property without due process of law”. The Fourteenth Amendment also imposes a similar limitation on the states. In the case of Munn vs Illinois (1877) 94 U.S. 113, in his dissenting judgment Field J. interpreted “life” under the aforesaid provisions of the U.S. Constitution as follows: “Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.”

Article 21 of the Constitution of India provides: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The Indian Supreme Court interpreted the right to life under the aforesaid Article 21 of the Indian Constitution, similar to our Article 32, in several cases.

In the case of Francis Coralie vs Union Territory of Delhi, reported in A.I.R. 1981 S.C. 746, the right to life under Article 21 of the Indian Constitution has been interpreted in the following words: “But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to life with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

In the case of Bandua Mukti Morcha vs Union of India, reported in A.I.R. 1984 S.C. 803, the Supreme Court of Page 78 of 99

India, while interpreting Article 21 of the Indian Constitution, further extended the meaning of right to life as made in the earlier case in the following words: “It must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.”

In the case of Olga Tellis vs Bombay Municipal Corporation, reported in A.I.R. 1986 S.C. 180, the Supreme Court of India, while interpreting Article 21 of the Indian Constitution, further extended the meaning of the right to life in the following words: “The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of a death sentence except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood, because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That which alone makes life livable must be deemed to be an integral component of the right to life.”

In the case of Vincent vs Union of India, reported in A.I.R. 1987 S.C. 990, the learned Judge delivering the judgment in that case quoted with approval the interpretation of the right to life made by the Indian Supreme Court in the Bandua Mukti Morcha case and held: “A healthy body is the very foundation for all human activities .......... In a welfare state, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health ......... maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society which the Constitution makers envisaged.”

In the case of Vikrm Deo Singh vs State of Bihar, reported in A.I.R. 1988 S.C. 1982 it was further held that: “We live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that every person is entitled to quality of life consistent with his human personality. The right to life with human dignity is the fundamental right of every Indian citizen.”

In the case of Subash Kumar vs State of Bihar, reported in A.I.R. 1991 S.C. 420, it was further held: “The right to live is a fundamental right under Article 21 of the Constitution and it includes the right to the enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”

From the above decisions it appears that the right to life is not only limited to the protection of life and limbs but extends to the protection of health and strength of workers, their means of livelihood, enjoyment of pollution free water and air, bare necessities of life, facilities for education, development of children, maternity benefit, free movement, maintenance and improvement of public health by creating and sustaining conditions congenial to good health and ensuring quality of life consistent with human dignity.

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Bangladesh -- Dr. Mohiuddin Farooque vs Government of BangladeshWP 998 of 1994, CA 24 of 1995

49 DLR 1, 434 HCDecided 25 July 1996

A.T.M. AFZAL, CJ.-

… A group of environmental lawyers possessed of pertinent, bonafide and well-recognized attributes and purposes in the area of environment and having a provable, sincere, dedicated and established status is asking for a judicial review of certain activities under a flood action plan undertaken with foreign assistance on the ground, inter alia, of alleged environmental degradation and ecological imbalance and violation of several laws in certain areas of the district of Tangail. The question is: does it have sufficient interest in the matter for a standing under article 102?

It is very interesting that Justice Douglas of the U.S. Supreme Court in his minority opinion went so far as to say in Sierra Club vs. Morton, 401 U.S. 907 (1971) (No.70-34) that contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. The learned Judge further said: Ecology reflects the land ethic; and Aldo Leopold wrote in A Sand County Almanac 204 (1949), "The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively, the land." That as I see it, is the issue of "standing" in the present case and controversy.

The Rio Declaration on Environment and Development containing 27 principles include, among other, it may be noted for the present purpose:

Principle 3: The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.

Principle 10: Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceeding, including redress and remedy, shall be provided.

Principle 10 above seems to be the theoretical foundation for all that have been vindicated in the writ petition and also provides a ground for standing. In this context of engaging concern for the conservation of environment, irrespective of the locality where it is threatened, I am of the view that a national organization like the appellant, which claims to have studied and made research on the disputed project, can and should be attributed a threshold standing as having sufficient interest in the matter, and thereby regarded as a person aggrieved to maintain the writ petition subject to the objection or objections as may be raised by the respondents if a Rule is issued ultimately. …

MUSTAFA KAMAL, J.:

… We now proceed to say how we interpret Article 102 as a whole. We do not give much importance to the dictionary meaning on punctuation of the words "any person aggrieved". Article 102 of our Constitution is not an isolated island standing above or beyond the sea-level of the other provisions of the Constitution. It is a part of the over- all scheme. …

With the power of the people looming large behind the constitution horizon it is difficult to conceive of Article 102 as a vehicle or mechanism for realising exclusively individual rights upon individual complaints. The Supreme Court being a vehicle, a medium or mechanism devised by the Constitution for the exercise of the

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judicial power on behalf of the people, the people will always remain the focal point of concern of the Supreme court while disposing of justice or propounding any, judicial theory or interpreting any provision of the Constitution. Viewed in this context interpreting the words "any person aggrieved" meaning only and exclusively individuals and excluding the consideration of people as a collective and consolidated personality will be a stand taken against the constitution. …

With the power of the people looming large behind the constitution horizon it is difficult to conceive of Article 102 as a vehicle or mechanism for realising exclusively individual rights upon individual complaints. The Supreme Court being a vehicle, a medium or mechanism devised by the Constitution for the exercise of the judicial power on behalf of the people, the people will always remain the focal point of concern of the Supreme court while disposing of justice or propounding any, judicial theory or interpreting any provision of the Constitution. Viewed in this context interpreting the words "any person aggrieved" meaning only and exclusively individuals and excluding the consideration of people as a collective and consolidated personality will be a stand taken against the constitution. …

LATIFUR RAHMAN,J.:-

[T]here is a category of cases where the State or a public authority may act in violation of a constitutional or statutory obligation, or fail to carry out such obligation resulting in injury to public interest or public injury as distinguished from private injury. Who then in such cases can complain of against such act or omission of the State or public authority? Can any member of the public sue for legal redress? Or is such right or standing limited only to a certain class of persons? Or is there no one who can complain? Must the public injury go unredressed?

Thus I hold that a person approaching the court for redress of a public wrong or public injury has sufficient interest (not a personal interest) in the proceedings and is acting benefit and not for his personal gain or private profits, without any political motivation or other oblique consideration has locus standi to move the High Court under Article 102 of the Constitution of Bangladesh.

BIMALENDU BIKASH ROY CHOUDHURY. J

… Although we do not have any provision like article 48-A of the Indian Constitution for protection and improvement of environment, articles 31 and 32 of our Constitution protects right to life as a fundamental right. It encompasses within its ambit, the protection and preservation of the environment, ecological balance free from pollution of air and water, and sanitation without which life can hardly be enjoyed. Any act or omission contrary thereto will be violative of the said right to life.

In the face of the statements in the writ petition BELA is concerned with the protection of the people of this country from the ill-effects of environmental hazards and ecological imbalance. It has a genuine interest in seeing that the law is enforced and the people likely to be affected by the proposed project are saved. Ths interest is sufficient enough to bring the appellant within the meaning of the expression "person aggrieved". The appellant should be given locus standi to maintain the writ petition on their behalf.

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India – M.C. Mehta v. Union of IndiaWP 12739 of 1985

AIR 1987 SC 1086, (1986) 2 S.C.C. 175Decided 20 December 1986

… [I]n S.P. Gupta v. Union of India, 1981 Supp. SCC 87, (AIR 19832 SC 149) … this Court held that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reasons of violation of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened, and any such person or determinate class of persons is by reason of poverty or disability or socially or economically disadvantaged position unable to approach the Court for relief, any member of the public or social action group can maintain an application for an appropriate direction, order or writ in the High Court under Art. 226 and in case of breach of any fundamental right of such person or class of person, in this Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. This Court also held in S.P. Gupta's case (supra) as also in the People's Union for Democratic Rights v. Union of India, (1983 1 SC 1473) and in Bandhua Mukyi Morcha's case (supra) that procedure being merely a hand- maiden of justice it should not stand in the way of access to justice to the weaker sections of Indian humanity and therefore where the poor and the disadvantaged are concerned who are barely eking out a miserable existence with their sweat and toil and who are victims of an exploited society without any access to justice, this Court will not insist on a regular writ petition and even a letter addressed by a public spirited individual or a social action group acting pro bono publico would suffice to ignite the jurisdiction of this Court. We wholly endorse this statement of the law in regard to the broadening of locus standii and what has come to be known as epistolary jurisdiction. ….

We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. This principle is also sustainable on the ground that the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher.

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India -- M.C. Mehta v Union of India and OthersWP 3727 of 1985 (Kanpur Tanneries case)

AIR 1988 SC 1037Decided 22 September 1987

The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effect on the public at large which is likely to ensue by the discharging of the trade effluents from the tannery to the river Ganga would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure. Moreover, the tanneries involved in these cases are not taken by surprise. For several years they are being asked to take necessary steps to prevent the flow of untreated wastewater from their factories into the river. Some of them have already complied with the demand. It should be remembered that the effluent discharged from a tannery is ten times noxious when compared with the domestic sewage water which flows into the river from any urban area on its banks. We feel that the tanneries at Jajmau, Kanpur cannot be allowed to continue to carry on the industrial activity unless they take steps to establish primary treatment plants. In cases of this nature this Court act affecting or likely to affect the public is being committed and the statutory authorities who are charged with the duty to prevent it are not taking adequate steps to rectify the grievance. For every breach of a right there should be a remedy. It is unfortunate that a number of tanneries at Jajmau even though they are aware of these proceedings have not cared even to enter appearance in this Court to express their willingness to take appropriate steps to establish the pre treatment plants. So far as they are concerned an order directing them to stop working their tanneries should be passed.

India -- Subhash Kumar v State of BiharWP 381 of 1988

AIR 1991 SC 420, 424Decided 9 January 1991

… Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex Court. It provides for an extraordinary procedure to safeguard the Fundamental rights of a citizen. Right to life is a fundamental right under Art. 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art. 32 of the Constitution for removing the pollution of water or air which may be determined to the quality of life. A petition under Art. 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists. …

India - ICELA v. Union of India,WP 664/1993

AIR 1997 SC 3519; (1996) 5 SCC 281Decided 18 April 1996

The main Notification was issued so as to ensure that the development activities are consistent with the environmental guidelines for beaches and coastal areas and to impose restrictions on the setting up of industries which have detrimental effect on the coastal environment. …

If the mere enactment of the laws relating to the protection of environment was to ensure a clean and pollution-free environment, then India would, perhaps, be the least polluted country in the world. But, this is not so. There are stated to be over 200 Central and State Statutes which have at least some concern with environment protection, either directly or indirectly. The plethora of such enactments has, unfortunately, not resulted in preventing environmental degradation which, on the contrary, has increased over the years. Enactment of a law, relating to protection of environment, usually provides for what activity can or cannot be done by people. If the people were to voluntarily respect such a law, and abide by it, then it would result in law being able to achieve the

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object for which it was enacted. Where, however, there is a conflict between the provision of law and personal interest, then it often happens that self-discipline and respect for law disappears.

Enactment of a law, but tolerating its infringement, is worse than not enacting a law at all. The continued infringement of law, over a period of time, is made possible by adoption of such means which are best known to the violators of law. Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society. Law should not only be meant for the law-abiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality of life that Parliament enacted the anti-pollution laws, namely, the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and notification issued thereunder contain provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibit certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal gain, will be encouraged which will in turn lead to a lawless society. Violation of antipollution laws not only adversely affects the existing quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations.

India – M.C. Mehta v. Kamal NathWP 182 of 1996

(1997) 1 S.C.C. 388Decided 13 December 1996

…. The notion that the public has a right to expect certain lands and natural areas to retain their natural characteristic is finding its way into the law of the land. … … The ancient Roman Empire developed a legal theory known as the "Doctrine of the Public Trust". It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about "the environment" bear a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullious) or by every one in common (res communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public. ….

The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. …

Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex

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society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislate and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources.

Coming to the facts of the present case, large area of the bank of River Beas, which is part of protected forest has been given on a lease purely for commercial purposes to the Motels. We have no hesitation in holding that the Himachal Pradesh Government committed patent breach of public trust by leasing the ecologically fragile land to the Motel management. ….

India-- A.P. Pollution Control Board v. NayuduCA 368-371 of 1999(1999) 2 S.C.C. 718

Decided 27 January 1999

The 'uncertainity' of scientific proof and its changing frontiers from time to time has led to great changes in environment concepts during the period between the Stockholm Conference of 1972 and the Rio Conference of 1992. In Vellore Citizens' Welfare Forum v. Union of India and others, 1995(5) SCC 647, a three Judges Bench of this Court referred to these changes, to the 'precautionary principle' and the new concept of 'burden of proof' in environmental matters. Kuldip Singh, J. after referring to the principles evolved in various international Conferences and to the concept of 'Sustainable Development', stated that the Precautionary Principle, the Polluter-Pays Principle and the special concept of Onus of Proof have now emerged and govern the law in our country too, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes, such as the water Act, 1974 and other statutes, including the Environment (Protection) Act, 1986, these concepts are already implied. The learned Judge declared that these principles have now become part of our law. The relevant observations in the Vellore Case in this behalf read as follows: "In view of the above-mentioned constitutional and statutory provisions we have no hesitation in holding that the Precautionary Principle and the Polluter Pays Principle are part of the environmental law of the country."

The Court observed that even otherwise the above-said principles are accepted as part of the Customary International Law and hence there should be no difficulty in accepting them as part of our domestic law. …

The learned Judges also observed that the new concept which places the Burden of Proof on the Developer or Industrialist who is proposing to alter the status quo, has also become part of four environmental law. The Vellore judgment has referred to these principles briefly but, in our view, it is necessary to explain their meaning in more detail, so that Courts and tribunals or environmental authorities can properly apply the said principles in the matters which come before them. …

A basic shift in the approach to environmental protection occurred initially between 1972 and 1982. Earlier the Concept was based on the 'assimilative capacity' rule as revealed from Principle 6 of the Stockholm Declaration of the U.N. Conference on Human Environment, 1972. The said principle assumed that science could provide policy-makers with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be available when environmental harm was predicted and there would be sufficient time to act in order to avoid such harm. But in the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the 'Precautionary Principle', and this was reiterated in the Rio Conference of 1992 in its Principle 15 which reads as follows :

"Principle 15 : In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage; lack of full scientific

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certainity shall not be used as a reason for proposing cost-effective measures to prevent environmental degradation." …

The principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential. The precautionary principle was recommended by the UNEP Governing Council (1989). The Bomako Convention also lowered the threshold at which scientific evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. … We shall next elaborate the new concept of burden of proof referred to in the Vellore case at p. 658 (1996(5) SCC 647). In that case, Kuldip Singh, J. stated as follows: "The 'onus of proof' is on the actor or the developer/industralist to show that his action is environmentally benign."

It is to be noticed that while the inadequacies of science have led to the 'precautionary principle', the said 'precautionary principle' in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, - is placed on those who want to change the status quo …. This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less-pollutted state should not carry the burden of proof and the p arty who wants to alter it, must bear this burden.

The precautionary principle suggested that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.

It is also explained that if the environmental risks being run by regulatory in action are in some way "uncertain but non-negligible", then regulatory action is justified. This will lead to the question as to what is the 'non-negligible risk'. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a 'reasonable ecological or medical concern'. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainity, then the presumption. Such a presumption has been applied in Ashburton Acclimatisation Society v. Federated Farmers of New Zealand, 1988(1) NZLR 78. The required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable persons' test. (See Precautionary Principle in Australia by Charmian Barton) (Vol. 22) (1998) Harv. Env. L.Rev. 509 at 549). …

India -- M. I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and OthersCA 9323-25/1994

AIR 1999 SC 2468Decided 26 July 1999

This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judges are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legal principles. As will be seen in moulding the

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relief in the present case and allowing one of the blocks meant for parking to stand we have been guided by the obligatory duties of the Mahapalika to construct and maintain parking lots.

In the present case we find that the builder got an interim order from this Court and on the strength of that order got sanction of the plan from the Mahapalika and no objection from LDA. It has no doubt invested considerable amount on the construction which is 80% complete and by any standard is a first class construction. Why should the builder take such a risk when the interim order was specific that the builder will make construction at its own risk and will not claim any equity if the decision in the appeal goes against it ? When the interim order was made by this Court the Mahapalika and the State Government were favouring the builder. As a matter of fact the Mahapalika itself filed appeals against the impugned judgment of the High Court. Perhaps that gave hope to the builder to go ahead with the construction and to take the risk of getting the construction demolished and restoring the park to its original condition at its own cost. The builder did not foresee the change in stand not only of the Mahapalika but also of the State Government. It also, as it would appear, overrated its capacity to manage with the State Government to change the land use of the park. The builder is not an innocent player in this murky deal when it was able to get the resolutions of the Mahapalika in its favour and the impugned agreement executed. Now, construction of shops will bring in more congestion and with that the area will get more polluted. Any commercial activity now in this unauthorised construction will put additional burden on the locality. The primary concern of the Court is to eliminate the negative impact the underground shopping complex will have on the environmental conditions in the area and the congestion that will aggravate on account of increased traffic and people visiting the complex. There is no alternative to this except to dismantle the whole structure and restore the park to its original condition leaving a portion constructed for parking. We are aware that it may not be possible to restore the park fully to its original condition as many trees have been chopped off and it will take years for the trees now to be planted to grow. But a beginning has to be made.

In the matter of K.M. Chinappa Applicantin

T.N. Godavarman Thirumalpad, Petitionerv.

Union of India and Others, RespondentsInterlocutory Application No. 670 of 2001

In Writ Petition(C) No. 202/1995.Decided October 30, 2002

By destroying nature, environment, man is committing matricide, having in a way killed Mother Earth. Technological excellence, growth of industries, economical gains have led to depletion of natural resources irreversibly. Indifference to the grave consequences, lack of concern and foresight have contributed in large measures to the alarming position. In the case at hand, the alleged victim is the flora and fauna in and around Kudremukh National Park, a part of the Western Ghats. The forests in the area are among 18 internationally recognized ‘hotspots’ for biodiversity conservation in the world.

The said I.A. 670 of 2001 is an offshoot of I.A. 548 filed by learned Amicus Curiae questioning the correctness of orders issued by the States of Karnataka and Uttar Pradesh respectively which according to him were in violation of the provisions contained in the Wildlife (Protection) Act, 1972 (in short, the ‘Act’). By order dated 14.2.2000, operation of any order permitting removal of certain trees from National Parks, Game Sanctuaries and Forests was injuncted. Subsequently, the word ‘forests’ was deleted.

In the present I.A. learned Amicus Curiae has pointed out that notwithstanding orders passed by this Court on 12.12.96 and 14.12.2000 mining activities were being conducted by Kudremukh Iron Ore Co. Ltd. (hereinafter referred to as ‘company’) which were in clear violation of orders passed by this Court. The main reliefs sought are:

(a) to direct the MoEF to withdraw the illegal “temporary working permission” issued by it and stop mining activities;

(b) direct KIOCL to stop polluting the Bhadra river due to open cast mining;Page 87 of 99

(c) take action against KIOCL for illegal encroachment in the forests and for destruction of forests in the Kudremukh National Park; and

(d) to stop KIOCL from laying new slurry pipe line in the forests of the National Park. ...

While contending that there was no violation of any law relating to forests and environment certain legal issues were raised by the Company which need to be dealt with first. With reference to Rule 24(B) of the Mineral Concession Rules, 1960 (in short, the ‘Concession Rules’) framed under the Mines and Minerals (Regulation and Development) Act, 1957 (in short, the ‘Mines Act’), it was submitted notwithstanding anything provided under the Act, Conservation Act or the Environment Act, on an application being made the lease was to be renewed for twenty years and therefore, the recommendations made at a point of time for such period were in order. Further, the draft Notification under Section 35(1) of the Act was issued on 2.9.1987 and the final Notification was published on 16th June, 2001 under Section 35(4) of the Act, whereby the land under mining was specifically excluded. In any event, 900 hectares of land was outside the land covered by the Notification. The Notification dated 29.5.1982 issued under Section 349 of the Karnataka Municipalities Act, 1964 (in short, ‘Municipalities Act’) was also relevant. All these, according to Shri. Venugopal, took the land in question outside the purview of the operations of the Act, Conservation Act and the Environment Act.

With reference to the order dated 14.112000 passed in W.P. 337/2000, it was submitted that the same was relatable to a stage under Section 35(5) of the Act. Since there was an existing legal right to get a renewal, which had already accrued, there was no question of any embargo on the renewal of the mining lease. In this background, it was submitted that the State and the Central Governments at earlier points of time had acceded to the request of the company for renewing the lease for 20 years. Reference in this context was made to a letter dated 6.7.1999 issued by the state government. It was pointed out that the company had subsisting contracts with foreign buyers, and if the lease is not renewed or the mining activities are required to be abandoned, there shall be large financial implications on account of impossibility to perform the contracts. It was submitted that for the purpose of renewal, no consent is necessary as an existing right is only to be extended further. ...

Learned Amicus Curiae has pointed out that stands of the company are per se not acceptable. The Committee has granted to the company much more than what it deserves. With reference to the report of Shri. Valmik, it is pointed out that the situation is so grave that “hands off situation” has come to play. It is pointed out that the role of the Karnataka State Government and the Central Government in the Ministry of Environment and Forests is far from satisfactory. Even without any Environment Impact Assessment report, stand was taken for granting 20 years renewal period. There is no consistency in the stand of the State and the Central Governments because at one point of time they agreed to renewal period of 20 years and subsequently turned around to five years period, and then again took inconsistent stands. All these go to show that there is no proper application of mind and without realizing the serious consequences involved, recommendations are being made. In W.P. 337/2000 by order dated 14.11.2000, it was, inter-alia, directed as follows:

“…Pending further orders, no de-reservation of forests/sanctuaries/national parks shall be effected”.

Action of the State Government in excluding land while issuing Notification under Section 35(4) of the Act is in clear violation of this Courts’ order.

Banshi Ram’s case on which emphasis was laid by the company is not good law in view of the subsequent decisions of this Court in Ambica Quarry Works vs. State of Gujarat and Ors. (1987(1) SCC 213). Reference may also be made to the decisions in Tarun Bharat Sangh, Alwar vs. Union of India and Ors. (1992 Supp. (2) SCC 448) Tarun Bharat Sangh, Alwar vs. Union of India and Ors. (1993 Supp. (3) SCC 115) and two reported orders in T.N. Godavarman Thirumulkpad vs. Union of India and Ors. (1997 (2) SCC 267) and T.N. Godavarman Thirumulkpad vs. Union of India and Ors. (1997 (3) SCC 312). The stand of the company that Notification dated 29.5.1982 excluded the land in question from being forest land is clearly untenable in view of Section 2(ii) of the Forest (Conservation) Act, 1980 (in short, the ‘Conservation Act’). ...

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The main thrust of the Company’s plea relating to the environmental issues which was highlighted by Shri. Venugopal during hearing of the application was that the Company has taken all possible steps to preserve and conserve nature in its pristine glory. It is eco-friendly as would be evident from the various activities undertaken by it and vast sums of money spent for preservation of nature and environment in addition to efforts to prevent pollution. It has received several awards for its admirable achievements in the field of environmental protection. It was submitted that sustainable development is permissible and is universally accepted phenomenon. At the time the company was incorporated, environment impact assessment was conducted and detailed guidelines were formulated to see that there was least degradation of the environment. The approach was clearly environmental friendly. The approach in such matters is to see as to what prevailed when the project was commenced. There has been a substantial change in the approach and if the contemporaneous factual backdrop is considered, it will be seen that the company’s anxiety was to protect nature and environment. Further, the various reports submitted by expert bodies give a lie to the impressions created before the Committee that there was continued destruction of nature of the flora and fauna by the mining activities undertaken by the company. The reality is otherwise. With reference to a Notification dated 29.5.1982 issued under Section 349 of the Municipalities Act, it is submitted that the concerned area cannot be treated as forest land. A reference was also made to a decision in State of Bihar vs. Banshi Ram Modi and Ors. (1985(3) SCC 643) to contend that the Act has no application. ...

Coming to plea that in case of a renewal there is no requirement of compliance of Section 2 of the Conservation Act, the stand is clearly untenable in view of decisions in Ambica Quarry’s case (supra) and Rural Litigation and Entitlement Kendera vs. State of U.P. (AIR 1988 SC 2187) where at page 2201 it was observed that ‘whether it is a case of first grant or renewal following exercise of option by the lessee, the compliance of Section 2 of the Conservation Act is necessary as a condition precedent.’ It may be noted here that the area in question was declared to be a reserved area in 1960 and in 1987, the Notification under Section 35(I) was issued.

It is of significance that in the present case the Forest Advisory Committee under the Conservation Act on 11.7.2001 examined the renewal proposal in respect of the company’s mining lease. It recommended that the mining may be allowed for a period of four years i.e. upto the year 2005 by which time the weathered secondary ore available in the already broken up area would be exhausted. ...

Nepal -- LEADERS v. Godavari Marble Industries Private Ltd. and othersNKP 2052 (1995) Golden Jubilee Special Issue, p 169

Decided 31 October 1995

[T]here is no doubt that the petitioner has a concern for environment. As environmental conservation is a matter of public concern and interest, it does fall under public interest. Therefore, the petitioner undoubtedly has a meaningful relationship with the issue. As the present constitution under its Article 88 (2)6 has established public interest as a fundamental right, whether the petition has locus standing is no more an issue.

Right to life includes right to clean and healthy environment. In order to conserve the environment, it is essential to enact a special legislation and implement it effectively. No human activity can be properly managed or regulated if the legislation is lacking. Legislation is also indispensable to define environmental offense and crime and make provision for punishment. The court cannot penalize, or pass an order for the closure of an industry in the absence of relevant legislation. As the existing legislation are scattered, inadequate and ineffective, a legislation which covers every component of environment needs to be enacted.

... Development is for the benefit and prosperity of human beings. Therefore, human life is an end, development being the means to live happily. Human beings cannot lead a decent and healthy life in a polluted environment. This fact should be kept in mind while adopting measures to prevent environmental degradation.

Nepal -- Prakash Mani Sharma v. His Majesty Government Cabinet Secretariat and othersWrit Petition 2991/1995

Decided June 9, 1997

… In regard to the second question raised by the petitioner, directive principles and policies were already considered in Yogi Narahari vs HMG Ministry of Education Culture and Social Welfare (NLR 2053, JN 5127).

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The precedent propounded in that case that despite the unenforceability of a directive principle, the court could intervene if government decisions are contrary to directive principles. Directive principles are highly valued as these are incorporated under the constitution itself. To declare the directive principle unenforceable in the Constitution doesn’t necessarily mean that these principles and policies are worthless and meaningless. Art 24(2) or the Constitution of the Kingdom of Nepal itself clarifies the explicit concept concerning directive principles. Art 24(2) states that the principles and policies contained in this Part shall be fundamental to the activities and governance of the state and shall be implemented in stages through laws within the limits of resources and the means available in the country; because of this, these principles should be deemed as an open order from the Constitution to the legislature and the executive branch. Directive principles comprise the goal and objectives that the leadership of the country has to adopt in order to shape the framework of the country in the future. That is why the state has a moral obligation to follow the directive principles in course of its functioning. To run government as per the objectives and policies enshrined under the constitution is an indispensable fact. No one is entitled to do any thing against said principles and policies under the constitution. If any action is done against directive principles, the court does not keep silent. Like our Constitution, the Constitution of India also provides directive principles. In Sachidananda Pandye vs State of West Bangal (AIR 1987 SC 1109), the Supreme Court of India has held that whenever an environmental issue is brought before the court, the court is bound to bear in mind Art 48A (Directive Principles) of the Constitution. When the court is called upon to give effect to directive principles and fundamental duties, the court may not shrug it’s shoulders and say that priorities are a matter of policy and so it such matters are relegated to policy making authorities … in appropriate cases the court may go further but how much further must depend on the circumstances of the case. The court may always give necessary directions. ..,

Pakistan -- Zia v. WAPDAP L D 1994 Supreme Court 693

Decided 1994

Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with the law. The word “life” is very significant as it covers all facts of human existence. The word “life” has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. For the purposes of present controversy suffice it to say that a person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person in the neighbourhood or at a far off place, he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the legal rights conferred by law be it municipal law or the common law. Such a danger as depicted, the possibility of which cannot be excluded, is bound to affect a large number of people who may suffer from it unknowingly because of lack of awareness, information and education and also because such sufferance is silent and fatal and most of the people who would be residing near, under or at a dangerous distance of the grid station or such installation do not know that they are facing any risk or are likely to suffer by such risk. Therefore, Article 184 can be invoked because a large number of citizens throughout the country cannot make such representation and may not like to make it due to ignorance, poverty and disability. Only some conscientious citizens aware of their rights and the possibility of danger come forward and this has happened so in the present case. ..

Dr. Pervez [sic] Hasan, learned counsel has referred to various judgments of the Indian Supreme Court in which the term “life” has been explained with reference to public interest litigation. In Kharak Singh v. State of UP (AIR 1963 SC 1295) for interpreting the word “life” used in Article 21 of the Indian Constitution reliance was placed on the judgment of Field, J. in Munn v. Illinois [sic] (1876) 94 US 113 at page 142 where it was observed that “life” means not merely the right to the continuance of a person’s animal existence but a right to the possession of each of his organs--his arms and legs etc. In Francis Corali v. Union Territory or Delhi (AIR 1981 SC 746) Bhagvati, J. observed that right to life includes “right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading and writing in diverse from [sic].” Thus, apart from the wide meaning given by US Courts, the Indian Supreme Court seems to give a wider meaning which includes the quality of life, adequate nutrition, clothing and shelter and cannot be restricted merely to physical existence. The word “life” in the Constitution has not been

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used in a limited manner. A wide meaning should be given to enable a man not only to sustain life but to enjoy it. Under our Constitution, Article 14 provides that the dignity of man and subject to law the privacy of home shall be inviolable. The fundamental right to preserve and protect the dignity of man under Article 14 is unparalleled and could be found only in few Constitutions of the world. The Constitution guarantees dignity of man and also right to “life” under Article 9 and if both are read together, question will arise whether a person can be said to have dignity of man if his right to life is below bare necessity like without proper food, clothing, shelter, education, health care, clean atmosphere and unpolluted environment. Such questions will arise for consideration which can be dilated upon in more detail in a proper proceeding involving such specific questions.

Pakistan – W. Pakistan Salt Miners Labour Union (CBA) Khwra, Khelum v.The Director, Industries and Mineral Development

1994 SC MR 2061Decided 12 July 1994

… It is well settled that in human rights cases/public interest litigation under Article 184(3), the procedural trappings and restrictions, precondition of being an aggrieved person and other similar technical objections cannot bar the jurisdiction of the Court. This Court has vast power under Article 184(3) to investigate into questions of fact as well, independently, by recording evidence or appointing commissions or any other reasonable and legal manner to ascertain the correct position. Article 184(3) provides that this Court has power to make Order of the nature mentioned in Article 199. The fact that the Order or direction should be in the nature mentioned in Article 199 enlarges the scope of granting relief and the relief so granted by this Court can be moulded according to the facts and circumstances of each case. …

Philippines -- A Bugal-b’laan Tribal Association, Inc v. RamosDecided January 29, 2004

… The 1935 Constitution adopted the Regalian doctrine, declaring all natural resources of the Philippines, including mineral lands and minerals, to be property belonging to the State. As adopted in a republican system, the medieval concept of jura regalia is stripped of royal overtones and ownership of the land is vested in the State. Section 1, Article XIII, on Conservation and Utilization of Natural Resources, of the 1935 Constitution provided: SECTION 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or concession at the time of the inauguration of the Government established under this Constitution. …

Sri Lanka - Environmental Foundation Limited vs. Ratnasiri Wickramanayake,C.A. App. No. 137/96

Decide 17 December 1996

… Counsel for the 1st and 2nd Respondents have taken a preliminary objection that the Petitioner has no locus standi to make the present application. He submits that “the law as to locus standi to apply for certiorari may be stated as follows: the writ can be applied for by an aggrieved party, who has a grievance, or by a member of the public. If the applicant is a member of the public, he must have sufficient interest to make the application” Premadasa v. Wijewardena, (1991) 1 S.L.R. 333 at 343. Locus standi in relation to mandamus is more stringent. The petitioner must have a personal interest in the subject matter of the application: Simon Singho v. Government Agent, W.P., 47 N.L.R.545.

Counsel for the Petitioner, on the other hand, submits that the Petitioner has its objective the protection of nature and the conservation of its riches (Vide P1, P2, P3). It is genuinely concerned with the implementation and enforcement of the law relating to nature, its conservation and the environment in general, and is performing a duty case on it by Article 28(f) of the Constitution of Sri Lanka, to protect nature and conserve its riches. It is to

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be noted, however, that Article 29 of the Constitution provides that the provision of Chapter VI do not confer or impose legal rights or obligation and are not enforceable in any court or tribunal.

However, there are decisions both here and abroad which have expanded the principle of locus standi to include an applicant who can show a genuine interest in the matter complained of, and that he comes before court as a public-spirited person, concerned to see that the law is obeying the interest of all: See Wijesiri v. Siriwardena, (1982) 1 S.L.R. 171. Unless any citizen has standing there is no means of keeping public authorities within the law unless the Attorney General will act - which frequently he will not. That private persons should be able to obtain some remedy therefore “a matter of high constitutional principle”: Lord Denning, MR - R v. Paddington Valuation Officer (1966) 1 Q.B. 380. Nevertheless, the Court would not listen to a mere busybody who was interfering in things which did not concern him, but will listen to anyone whose interest are affected by what has been done: See R. v. Paddington (supra). In any event, if the application is made by what for convenience one may call a stranger, the remedy is purely discretionary: See Parker J in R. v. Thames Magistrates Court (1957) 55 L.G.R. 129. Court retains a discretion to refuse to act at the instance of a mere stranger, if it considers that no goof would be done to the public: See Re Forster (1863) 4 B.&.S. 187. As a party genuinely interested in the matter complained of, the Petitioner has the locus standi to make this application. …

Sri Lanka -- Jayawardena v. Akmeemana Pradeshiya SabhaS.C. Application No. 594/96/FR

Decided 24 September 1997

In terms of Section 23 A of the National Environmental Act No.47 of 1f980 as amended by Act No.56 of 1988,”no person shall discharge, deposit or emit waste into the environment which will cause pollution except (a) under the authority of a license issued by the Authority; and (b)in accordance with such standards and other criteria as may be prescribed under this Act.” … Section 23B states, inter alia, that every such license “shall be subject to such terms, conditions and standards as may be prescribed”

Section 23D states: “Where a license has been issued to any person….and such person acts in violation of any of the terms, standards and conditions of the license….the Authority may by order….cancel such license”. Any person who is aggrieved by such an order may appeal against such cancellation to the Secretary to the Ministry. (Section 23 E). Regulation 10 states that: “The Authority may, before issuing an order….canceling a license issued under Section 23D of the Act, give the holder of the license an opportunity to show cause why such order should not be issued. Provided that where, since the issue of the license, the receiving environment has been altered or changed due to natural factors or otherwise, or where continued discharge, deposition or emission of waste into the environment under the license for a period to be specified in the order, or cancel such license.” … Article 14(1)(g) of the Constitution declares and recognizes the right of every citizen to the freedom to engage, by himself or in association with others, in any lawful occupation, profession, trade, business or enterprise. The emission of dust and noise from the metal crushing operation was lawful only if such operation was licensed. A license was issued to the Petitioner but it was subject to specified conditions.

In my view, a person who does not comply with; the conditions of a license acts as if he had no license, for the license would not have been issued except on the basis that the conditions were complied with. In the circumstances, the Petitioner’s occupation, business or enterprise was unlawful in terms of Section 23A read with Section 23B of the National Environmental Act and he cannot complain that he had any right to carry on such an activity. I therefore declare that Article 14(1)(g) was not violated.

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United Stated - Illinois Central Railroad Co. v. Illinois146 U.S. 387 (1892)

That the State holds the title to the lands under the navigable waters of Lake Michigan, within its limits, in the same manner that the State holds title to soils under tide water, by the common law, and that title necessarily carries with it control over the waters above them whenever the lands are subjected to use. But it is a title different in character from that which the State holds in lands intended for sale. It is different from the title which the United States hold in the public lands which are open to preemption and sale. It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties. The interest of the people in the navigation of the waters and in commerce over them may be improved in many instances by the erection of wharves, docks and piers therein, for which purpose the State may grant parcels of the submerged lands; and, so long as their disposition is made for such purpose, no valid objections can be made to the grants. It is grants of parcels of lands under navigable waters, that may afford foundation for wharves, piers, docks and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the State. But that is a very different doctrine from the one which would sanction the abdication of the general control of the State over lands under the navigable waters of an entire harbor or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of the public. The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between a grant of such parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled. ... A grant of all the lands under the navigable waters of a State has never been adjudged to be within the legislative power; and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace. In the administration of government the use of such powers may for a limited period be delegated to a municipality or other body, but there always remains with the State the right to revoke those powers and exercise them in a more direct manner, and one more conformable to its wishes. So with trusts connected with public property, or property of a special character, like lands under navigable waters, they cannot be placed entirely beyond the direction and control of the State. ...

The ownership of the navigable waters of the harbor and of the lands under them is a subject of public concern to the whole people of the State. The trust with which they are held, therefore, is governmental and cannot be alienated, except in those instances mentioned of parcels used in the improvement of the interest thus held, or when parcels can be disposed of without detriment to the public interest in the lands and waters remaining.

The soil under navigable waters being held by the people of the State in trust for the common use and as a portion of their inherent sovereignty, any act of legislation concerning their use affects the public welfare. It is, therefore, appropriately within the exercise of the police power of the State.

The legislature could not give away nor sell the discretion of its successors in respect to matters, the government of which, from the very nature of things, must vary with varying circumstances. The legislation which may be needed one day for the harbor may be different from the legislation that may be required at another day. Every legislature must, at the time of its existence, exercise the power of the State in the execution of the trust devolved upon it. ... There can be no irrepealable contract in a conveyance of property by a grantor in disregard of a public trust, under which he was bound to hold and manage it.

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United States - Sierra Club v. Morton405 U.S. 727 (1972)

Decided April 19, 1972

MR. JUSTICE STEWART delivered the opinion of the Court.

Some courts have indicated a willingness to take this latter step by conferring standing upon organizations that have demonstrated "an organizational interest in the problem" of environmental or consumer protection. It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. But a mere "interest in a problem," no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or "aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization, however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.

MR. JUSTICE DOUGLAS, dissenting.

The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. This suit would therefore be more properly labeled as Mineral King v. Morton.

Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole - a creature of ecclesiastical law - is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.

So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes - fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water - whether it be a fisherman, a canoeist, a zoologist, or a logger - must be able to speak for the values which the river represents and which are threatened with destruction.....

The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard.

Perhaps they will not win. Perhaps the bulldozers of "progress" will plow under all the aesthetic wonders of this beautiful land. That is not the present question. The sole question is, who has standing to be heard?

Those who hike the Appalachian Trail into Sunfish Pond, New Jersey, and camp or sleep there, or run the Allagash in Maine, or climb the Guadalupes in West Texas, or who canoe and portage the Quetico Superior in Minnesota, certainly should have standing to defend those natural wonders before courts or agencies, though they live 3,000 miles away. Those who merely are caught up in environmental news or propaganda and flock to defend

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these waters or areas may be treated differently. That is why these environmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life which it represents will stand before the court - the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community.

Ecology reflects the land ethic; and Aldo Leopold wrote in A Sand Country Almanac (1949), "The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land."

That, as I see it, is the issue of "standing" in the present case and controversy.

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part ii · web viewin the row of house that she lives closest to the factory, there were 10...

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